Under the AIFMD as it currently stands, a marketing passport is only available to EEA AIFMs marketing EEA AIFs (strictly speaking the AIFMD only refers to EU AIFMs etc. although the FCA, in both the Handbook and on its website, prefers to use ‘EEA’). As such non-EEA AIFMs, and EEA AIFMs marketing non-EEA AIFs, have to rely on the national private placement regime (NPPR) which allows Member States to impose their own conditions. There is also a management passport available under Article 33 that allows an EEA AIFM to manage EEA AIFs established in another Member State, but there is no equivalent currently available for non-EEA AIFMs.
By 22 July 2015 ESMA has to provide the European Commission with an opinion on both the functioning of the EU passport and to issue advice on whether the passporting regime should be extended to non-EEA AIFMs and to EEA AIFMs marketing non-EEA AIFs. The Articles covering these activities already exist in the AIFMD but by virtue of Article 67 they are not ‘switched on’ until ESMA has provided its advice to the EC. Should the input from ESMA be positive the EC has three months in which to adopt a delegated act specifying the date when these Articles become applicable in all Member States
With this in mind ESMA has published a ‘Call for Evidence’ paper (2014/1340) inviting comments from stakeholders on the matters raised within by 8 January 2015.
