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European Commission publishes regulations on AIFM Directive opt-in and member state of reference

May 2013 - Finance. Legal Developments by Chevalier & Sciales .

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The European Commission published two implementing regulations forming part of the detailed framework of the Alternative Investment Fund Managers Directive in the EU Official Journal on May 15. The regulations are automatically binding on member states without any need for transposition into national legislation. They will enter into force on June 5 and apply from July 22, the deadline for adoption of the directive into the national law of member states and the date on which it takes effect.

Commission Implementing Regulation (EU) No 447/2013 sets out the procedure for alternative fund managers that are not required to comply in full with the AIFMD but that nevertheless choose to opt for authorisation from their home regulator. The same process applies as with managers that are required to seek authorisation under the directive.

The regulation also clarifies that a manager granted AIFMD authorisation whose assets under management subsequently fall below the thresholds set out in the directive remains authorised and subject to full application of the legislation unless and until the authorisation is revoked. This will not be triggered automatically by a fall in assets below the threshold, but only at the manager’s request.

Commission Implementing Regulation (EU) No 448/2013 establishes a procedure for determining the member state of reference that will conduct regulatory oversight of a non-EU manager seeking to manage or market fund products within the union.

The regulation says that where there is more than one possible choice of jurisdiction for the non-EU manager’s member state of reference, the manager must submit a request to all of the regulators in question to decide which of them should take responsibility.

The manager must supply relevant information and documents including details of any EU-domiciled funds run by the non-EU manager, their assets under management and the domicile of those assets, and where and how they intend to market funds within EU member states.

The regulators approached are jointly responsible for reaching a decision, within a month at the latest, but the European Securities and Markets Authority should ensure that all possible member states of reference are involved, and ESMA should assist them in reaching a decision.

If the regulators in question fail to reach a decision within the stipulated period, the manager can decide itself in which member state of reference it should be regulated according to the criteria set out in the directive.


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