ESMA has issued an opinion on practical arrangements in the
event of late transposition of the AIFMD by member states.
Notification of marketing of EU AIFs when the host member state
of the AIFM has not transposed the AIFMD
If the AIFMD has not been transposed in the home member state of
the AIFM, the competent authority 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 ground that
the AIFMD has not yet been transposed in the host member state.
This applies irrespective of whether the marketing is done using
the freedom to provide services or by means of a branch.
AIFMs established in the member state that has transposed the
AIFMD should be able to manage an EU AIF via the management
passport, both using the freedom to provide services or by means of
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. The arrangements suggested by ESMA are
without prejudice to any initiatives taken by the European
Commission in the case of late transposition of the AIFMD by a
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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
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