PwC's Managing upstream risk: Regulatory reform review - An asian perspective August 2013 | Page 27

4. Asset Management
Update
ESMA on 1 August 2013 released an opinion statement on the practical arrangements for the late transposition of the AIFMD, which deadline was initially set on 22 July 2013. However, some member states have not fully transposed the requirements of the Directive. The authority’s opinion statement is summarised in the points as follows: • Late transposition can create difficult situations where some competent authorities may not have the legislative framework in place to allow a proper implementation of the rights and obligations of the Directive; • ESMA intends to address the situation from an operational level to minimise the impact on industry and investors from lack of transposition; • ESMA has identified the following issues which could be addressed via practical arrangements between competent authorities: o An AIFM in a member state where the Directive has been transposed may not be able to manage an EU AIF established in another member state that has not transposed the Directive; and o AIFMs and competent authorities in MS that have transposed the Directive may have difficulties notifying the marketing of EU AIFs (including AIFs established in a member state other than the home member state of the AIFM) to relevant competent authorities if the host MS has not transposed the Directive; • In the process of transposition MS are obliged to create a legal framework in which the rights and obligations arising from a directive can be recognised with sufficient clarity and certainty to enable citizens to invoke them;

• ESMA believes that, if the Directive has 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 Directive on the ground that the Directive has not yet been transposed in the host member state; and • ESMA believes that AIFMs established in a member state that has transposed the Directive 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 Directive has not been transposed.

Asset Management | Regulatory Reform Review

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