The FCA’s statement last year on the passporting of “MiFID services” authorised under Article 6(4) of AIFMD highlighted a division of opinion on the interaction between AIFMD and MiFID. The FCA expressed its view that firms should be able to exercise their single market rights by being able to passport those MiFID services. However, this view was not supported by the European Commission at that time.
Following an agreement between the European Parliament and the Council on the proposed revision of the Markets in Financial Instruments Directive (MiFID II), Article 33 of AIFMD is now to be amended to make it explicit that the right to passport an AIFM’s services in other Member States extends to any services under Article 6(4).
In light of this change, the FCA have issued a statement confirming that it is the FCA’s understanding that the European Commission’s revised view is that a notification for a full-scope UK AIFM to provide MiFID services in another Member State should be accepted by the Host State regulator.
The Central Bank of Ireland (“CBI”) has also reacted swiftly to this amendment and updated its AIFMD Q&A, confirming that the CBI will, with immediate effect:
- accept AIFM passport notifications from other national competent authorities where the notification includes services set out in Article 6(4) or AIFMD; and
- process notifications from Irish authorised AIFMs who advise the CBI of their intention to provide the Article 6(4) services, for which they have received an authorisation.
Despite the u-turn in opinion, firms must continue to be aware of the risk that host state authorities may refuse such notifications and that some Member States may have already implemented the European Commission’s original opinion into their national law.