23 March 2018
The AIFM Directive has now been agreed by the Parliament of the European Union (EU), in substantially the form of the text which we discussed in our update of 20 October 2010. It awaits only the relative formalities of adoption by the Council and publication in the EU’s Official Journal, in order to become law: formalities which are expected to be completed early this year
The EU legislative process has already now moved to the next phase – ‘Level 2’ – during which the implementing and subordinate measures under the Directive will be produced. For this purpose, the recently-created European Securities and Markets Authority (‘ESMA’, the successor to the CESR) is now in the process of consulting with stakeholders generally, in order to gather evidence so that it can assist the European Commission in framing the relevant measures. These measures will deal with the nitty-gritty of how the Directive will actually work in practice and how its provisions will be incorporated into the fine print of the law and regulations of Member States. Issues to be dealt with cover the full gamut of areas subject to the Directive, including fund manager authorisation procedures, depositories, transparency and leverage, supervisory procedures and cooperation arrangements with ‘third countries’ (ie non-EU countries: this aspect will be of particular interest to non-EU fund jurisdictions such as the Cayman Islands, BVI, Jersey, Guernsey and the Isle of Man).
On the basis of ESMA’s consultations, advice will be delivered to the European Commission by 16 September 2011, to enable the Commission to deliver the full package of implementing legislation at least one year before the Directive is due for implementation in member states (ie 1 January 2013).
We will keep you posted, as matters now develop during this rather more ‘granular’ phase of the AIFM story.