The EU Parliament ECON Committee has voted to accept Rapporteur Gauzes' version of the AIFMD text and the Ecofin Ministers have unanimously agreed the Spanish Presidency's version of the AIFMD text. Significant issues remain outstanding. The approved ECON report and the text discussed at ECOFIN (now known as the Council's General Approach) will serve as the basis for negotiations at 'trilogue' meetings between the three institutions ( EU Council, EU Commission, EU Parliament) who will try to agree a compromise text. Once a compromise text is agreed, it will require final sign-off by the EU Council and will be put forward to a vote in Plenary, currently scheduled for 6 July.
The Spanish Presidency have mentioned the following as areas where negotiations have been difficult
- scope of the Directive and possible exemptions
- capital requirements for the AIFM
- specific rules in relation to third countries*
- delegation requirements
- depositary requirements
- the possibility for the depositary to discharge its liability in the event of the delegation of tasks,
- the role and liability of valuators,
- the rules on remuneration
*This topic is particularly problematic and has given rise to accusations of protectionism. The EU Commission have proposed a system based on equivalence so if the EU Commission considered the legal system of a non EU country equivalent to the AIFMD system, then the AIFM of that country and their funds could have access to the EU. Effectively, under the EU Parliament text, for a non EU AIFM to access EU markets, it would have to voluntarily subject itself to the AIFMD requirements, in which case its home regulator would have to act as agent of ESMA (the new European Securities and Markets Authority) in supervising that AIFM. A non EU AIF could be marketed in the EU if its home country had sufficiently high standards in respect of the prevention of money laundering and terrorist financing , gave reciprocal access for marketing EU funds in its territory , had agreements in place with the Member States where the AIF would be marketed regarding exchange of taxation information and its home country recognised and enforced judgements given in the EU on AIFMD related issues.