A new question on the supervisory responsibilities of competent authorities in host Member States has been added to the ESMA Q&A on the application of the AIFM Directive . The question relates to the case where an AIFM provides its investment services through a branch established in the host Member State.
ESMA clarifies that supervisory powers are shared between the relevant competent authorities as follows:
- the competent authority of the host Member State is responsible for the supervision of the branch's compliance with conduct rules referred to in Article 45(2) of the AIFM Directive ; and
- the competent authority of the home Member State is responsible for the supervision of the other requirements provided under the relevant applicable framework.
According to ESMA, the same principle should apply in case of performance of MiFID services (Article 6.4 AIFM Directive), i.e. the host Member State is responsible for ensuring that the services provided by the branch in its territory comply with the MiFID II requirements under Articles 24 ("General principles and information to clients") and 25 ("Assessment of suitability and appropriateness and reporting to clients") of MiFID II (Art. 35(8) of MiFID II).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.