Pursuant to Article 67 of the Directive 2011/61/EU on Alternative Investment Fund Managers (“AIFMD”), the European Securities and Markets Authority (“ESMA”) has until 22nd July 2015 to issue to the European Parliament, the Council and the Commission:
- an opinion on the functioning of the passport for EU Alternative Investment Fund Managers (“AIFMs”) pursuant to Article 32 and 33 of the AIFMD and on the functioning of the national private placement regimes set out in Article 36 and 42 of the AIFMD; and
- an advice on the application of the passport to non-EU AIFMs and Alternative Investment Funds (“AIFs”) in accordance with the rules set out in Article 35 and Articles 37 to 41 of the AIFMD.
In order to form its response, on 7 November 2014 ESMA issued a ‘call for evidence’ concerning:
- the functioning of the EU passport under the AIFMD; and
- the functioning of (i) the marketing of non-EU AIFs by EU AIFMs in the EU; and (ii) the management and/or marketing of AIFs by non-EU AIFMs in the EU.
In order to issue positive advice, ESMA should be convinced that “no significant obstacles regarding investor protection, market disruption, competition and the monitoring of systematic risk” impede the application of the passport to the marketing of non-EU AIFs by EU AIFMs in the Member States and the management and/or marketing of AIFs by non-EU AIFMs in the Member States.
Should ESMA’s response be positive, the European Commission will then be required to set a date by which the extension of the EU passport to non-EU AIFs and non-EU AIFMs will become applicable in all Member States.
Currently only AIFMs with registered offices in EU Member States can be authorised as an AIFM and only EU authorised AIFMs can market EU AIFs to professional investors in any Member State in the European Economic Area under the EU “passport”. The marketing of non-EU AIFs by EU-AIFMs and the marketing of AIFs by non-EU AIFMs is currently subject to national private placement regimes, which may include additional rules imposed by any Member State where the AIF is marketed.
The deadline for responses is 8 January 2015.
The Call for Evidence can be found here.