In continuing its country-by-country approach to determining
which non-EU countries should have access to the AIFMD passport,
ESMA has published the outcome of its reviews of twelve non-EU
countries that are home to Managers or Funds active in the EU
market. Canada, Japan, Jersey, Guernsey, and Switzerland got the
green light with ESMA seeing no obstacles to giving them the
The USA also got the green light, with ESMA suggesting three
possible passporting options for (1) US funds dedicated to
professional investors in the EU with no public offering, (2) US
non-mutual funds, or (3) US funds dedicated to professional
investors as defined in the AIFMD. Australia also got the green
light but subject to the Australian Authorities making the
necessary changes to give 'class order relief' from certain
regulatory requirements to all EU Managers. Hong Kong and Singapore
also received a green light, but ESMA indicated some reservations
due to the fact that market access for UCITS in these countries is
only limited to UCITS from certain EU countries only.
Bermuda and the Cayman Islands got a red light and must go back
to the drawing board to finalise their own AIFMD-like regimes.
These regimes are currently under construction and ESMA considers
that it is too early to make any valid assessment. The Isle of Man
does not have an AIFMD-like national regime for investor protection
and got a red light as a result.
So what does this mean for Managers and Funds in countries that
got the green light? To begin with, ESMA's recommendations do
not automatically trigger an AIFMD passport. Instead the
recommendations pave the way for the European Parliament, Council,
and Commission to make their own country assessments and then
formalise the issuance of the much-publicised EU passport to each
country. According to the legal texts the Commission should
formalise this within a period of three months specifying the date
when the EU passport will be extended. It is still unclear whether
the EU will want to wait until ESMA has issued a larger number of
positive recommendations on non-EU countries before effectively
triggering the Passport. At any rate, ESMA is continuing to examine
a list of other countries and to work on a Memorandum of
Understanding with the authorities in cases where none exist.
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