INTRODUCTION

On 19 January 2016 the European Securities and Markets Authority (“ESMA”) published a letter dated 17 December 2015 which it received from the European Commission. The Commission refers in the letter to ESMA’s advice of 30 July 2015 on the application of the AIFMD passport to non-EU AIFMs and AIFs, and ESMA’s opinion on the functioning of the passport for EU AIFMs and the national private placement regimes (“NPPRs”).

APPROVAL OF ESMA’S APPROACH TO REVIEW AND TIMELINE

In its letter, the Commission agrees with the country-by-country approach adopted by ESMA. The Commission notes that it will take a decision on the extension of the passport to the assessed countries when a “sufficient number of countries have been appropriately assessed”.

The Commission goes on to invite ESMA to complete by 30 June 2016:

  • the assessment of the 3 countries – the USA, Hong Kong and Singapore – which were in the initial group of 6 countries reviewed but for which to date no definitive advice has been provided. Readers will recall that positive advice was issued in July 2015 for Jersey, Guernsey and Switzerland, although no legislation has been enacted so far to implement this advice; and
  • the assessment of another 6 countries selected for the second group: Japan, Canada, Isle of Man, Cayman Islands, Bermuda and Australia.

The Commission also agrees with ESMA’s suggestion that it produce another opinion on the functioning of the EU passport and NPPRs once AIFMD has been fully transposed in all EU Member States. It considers that an updated opinion will be helpful for the planned review by the Commission of the AIFMD that should start in 2017.

NEXT STEPS

If ESMA advises that the passport should be extended to specific countries, the Commission is required under AIFMD to adopt a legislative proposal to implement this within 3 months of receipt of the advice. The European Parliament and Council would then have 3 months (which may be extended to 6 months) to either approve or reject the Commission’s legislative proposal. 

With so many variables in play, it is difficult to predict which countries will obtain the passport and the timing of the legislation to implement this.