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.