Given that some member states have not met the 22nd July 2013 deadline to transpose the AIFMD into national legislation, ESMA is proposing practical arrangements to curb potential negative impact on the industry and investors. The opinion is limited to the provision of collective portfolio management services where an AIFM in a member state which has transposed the Directive may be unable to manage an EU AIF established in another member state which has failed to transpose the Directive, and also applies to situations where non-transposition hampers communication between competent authorities in different member states.
If the Directive has not been transposed in the host member state of the AIFM, the competent authority of the host member state of the AIFM, or the AIFM’s home member state, may not refuse a valid notification merely on the ground of lack of transposition. Moreover, an AIFM established in a member state which has transposed the Directive should be able to manage an EU AIF in a member state which has not transposed the Directive by means of the management passport, and shall not be impeded from so doing due to any restrictive provisions not in line with the AIFMD which are still in force in such jurisdiction.
