Financial Markets Lawyers

On 19 April 2012, the Dutch Government submitted to Parliament the legislative Act a proposal for the implementation of Directive 2011/61/EU on Alternative Investment Fund Managers (the “AIFMD”) in the Dutch Act on Financial Supervision (the “AFS”). After having been adopted by the Second Chamber, the bill was submitted to the Senate on 2 October 2012, and adopted by the Senate on 11 June 2013.

The Senate’s approval has taken significantly more time than was expected. This is due to the fact that the Second Chamber amended the bill. Pursuant to this amendment, managers of AIFs in which only pension funds may invest would not fall within the scope of the new legislation. Minister of Finance De Jager sent a letter to the Dutch Parliament, in which he explicitly advised against adoption of the amendment. Also, the Authority for the Financial Markets (“AFM”) and the Central Bank opposed the amendment.
The Ministry of Finance thereupon consulted the European Commission on the amendment. The European Commission considered that under article 2(3)(b) of the AIFMD only the following categories are exempted from the Directive:

(i) Institutions for Occupational Retirement provisions, (“IORPs”);

(ii) authorized entities responsible for managing IORPs and acting on their behalf, provided they are listed in article 2(1) of the MiFID and provided they do not manage one or more AIFs; and

(iii) investment managers appointed pursuant article 19(1) of the MiFID, provided they do not manage one or more AIFs.

The bill was thereupon amended again, whereby the exemption was deleted.
Our FMLA Client Memo concerning the implementation of the AIFMD can be downloaded below.

AIFMD_NewsUpdate

ESMA approved co-operation agreements between securities regulators from the 27 EU Member States, Croatia and the European Economic Area (Iceland, Liechtenstein and Norway) and 34 third-country regulators, for example Cayman Islands. It must be mentioned that the agreements are bilateral and therefore must be signed between each EU securities regulator and the non-EU authorities. The actual supervision of AIFMs lies with the national securities regulators, therefore each authority decides with which non-EU authorities it will sign a MoU (Memoranda of Understanding).

The key elements of the cooperation arrangements are:

-EU and non-EU authorities will be able to supervise fund managers that operate on a cross-border basis both within the EU and outside;

-The co-operation between authorities includes the exchange of information, cross-border on-site visits and assistance in the enforcement of the respective laws;

-EU securities regulators will be able to share relevant information received from non-EU authorities with other EU authorities, ESMA and the European Systemic Risk Board, provided appropriate safeguards apply;

-The existence of co-operation arrangements between the EU and non-EU authorities is a precondition of the AIFMD for allowing managers based outside the EU to access EU markets or perform fund management by delegation from EU managers; and

-The co-operation arrangements are applicable from 22 July 2013 and enable cross-border management and marketing to professional investors of alternative investment funds.

 

2013-629_esma_promotes_global_supervisory_co-operation_on_alternative_funds_30_may_2013_0

 

Source:

http://www.esma.europa.eu/system/files/2013-629_esma_promotes_global_supervisory_co-operation_on_alternative_funds_30_may_2013_0.pdf