Due the fact that some Member States may not have met the deadline for the implementation of the AIFMD, ESMA has published an opinion regarding the practical arrangements for the late transposition of the AIFMD.
ESMA notes first that not all situations arising from non-transposition can be accommodated by way of practical arrangements that are legally sound. Then the ESMA identifies two issues which could be addressed via practical arrangements: 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 AIFMs and competent authorities in Member States 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 Member State has not transposed the Directive.
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. This applies irrespective of whether the marketing is done using the freedom to provide services or by means of a branch.
Also, 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, irrespective of the provisions currently in place in such jurisdiction since the relevant provisions of the Directive are of a self-executing nature, and provided the AIFM is authorised to manage that type of AIF in accordance with Article 33(1) of the AIFMD. Any local restrictions on AIFMs that are not in accordance with the AIFMD will need to be disapplied.