ESMA issued an opinion proposing practical arrangements for the provision of collective portfolio management services where one member state has not transposed the AIFMD. These look at
- EU AIFMs needing to market and manage EU AIFs, and
- marketing passport and the management passport of the AIFMD
The practical arrangements deal with Articles 31, 32 and 33 of the AIFMD (Rights of EU AIFMs to market and manage EU AIFs in the EU) where a member state has not transposed the AIFMD.
In essence (and without prejudice to any action taken by the EU Commission), ESMA suggests that:
- if the AIFMD has been transposed in the home member state of the AIFM, the regulator of the host member state of the AIFM (Article 32) or home member state of the AIFM (Article 31) may not refuse a valid notification under the AIFMD on the grounds that the AIFMD has not yet been transposed in the host member state. This applies whether the marketing is done using the freedom to provide services or by means of a branch.
- AIFMs established in a member state that has transposed the AIFMD should be able to manage an EU AIF by way of the management passport, (whether via freedom to provide services or a branch), in a member state where the AIFMD has not been transposed, provided the AIFM is authorised to manage that type of AIF in accordance with Article 33(1) of the AIFMD. Any local restrictions on AIFMs that are not in accordance with the AIFMD will need to be disapplied.