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Date Ref. Title Section Type Download Info Summary Related Documents Translated versions
13/10/2011 2011/342 Opinion- Practical arrangements for the late transposition of the UCITS IV Directive Opinion PDF
41.33 KB
16/11/2011 2011/379 Final report- ESMA's technical advice to the European Commission on possible implementing measures of the Alternative Investment Fund Managers Directive Technical Advice PDF
3.51 MB
20/11/2012 2012/721 Opinion on Article 50(2)(a) of the UCITS Directive Opinion PDF
81.31 KB
01/08/2013 2013/1072 Practical arrangements for the late transposition of the AIFMD Opinion PDF
93.1 KB
The European Securities and Markets Authority (ESMA) has published an Opinion on arrangements for the late imposition of the AIFMD. The scope of the opinion is confined to the provision of collective portfolio management services. Arrangements before implementation of the Directive in all Member States Notification of marketing of EU AIFs when the host MS of the AIFM has not transposed the Directive (Articles 31 and 32 of the Directive) ESMA believes that, if the Directive has been transposed in the home MS of the AIFM, the competent authority of the host MS of the AIFM (Article 32) or home MS 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 MS. This applies irrespective of whether the marketing is done using the freedom to provide services or by means of a branch. Management passport (Article 33 of the Directive) ESMA believes that AIFMs established in a MS 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 MS 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.
01/10/2013 2013/1340 Collection of information for the effective monitoring of systemic risk under Article 24(5), first sub-paragraph, of the AIFMD Opinion PDF
70.75 KB
27/03/2014 2014/312 Technical advice to the European Commission on the information that competent authorities should provide to ESMA pursuant to Article 67(3) of the AIFMD Technical Advice PDF
330.79 KB
Reasons for publication ESMA is issuing this technical advice in response to the mandate received from the European Commission on 20 December 2013 for advice on the possible content of the delegated act required by Article 67(5) of the AIFMD, concerning the information that EU competent authorities have to provide quarterly to ESMA pursuant to Article 67(3) of the Directive. This information is needed in order to allow ESMA to produce the opinion and the advice required in Article 67(1) of the AIFMD, in relation to the possible extension of the AIFMD passport to non-EU AIFs and non-EU AIFMs. Contents Section II describes the background of the proposal. Section III specifies the timing for the provision of the information to ESMA and lists the information that the competent authorities should provide quarterly to ESMA. The list of information is divided into three parts: the first refers to the information about the functioning of the passport for EU AIFMs; the second deals with the functioning of the national private placement regime for non-EU AIFs and non-EU AIFMs; and the third refers to the issues arising from the functioning of both systems. Finally, Section IV reproduces the mandate for advice issued by the European Commission. Next steps ESMA will cooperate closely with the European Commission in order to facilitate an expeditious adoption of the delegated act required by Article 67(5) of the AIFMD.
28/11/2014 2014/1417 ESMA's technical advice to the European Commission on delegated acts required by the UCITS V Directive Technical Advice PDF
469.49 KB
16/02/2015 2015/227 Final Report- ESMA’s technical advice to the European Commission on the delegated acts of the Regulations on European Social Entrepreneurship Funds and European Venture Capital Funds Technical Advice PDF
609.09 KB
22/05/2015 2015/880 ESMA Opinion to the EU institutions on the impact of EMIR on UCITS Opinion PDF
208.55 KB
30/07/2015 2015/1236 ESMA's advice to the European Parliament, the Council and the Commission on the application of the AIFMD passport to non-EU AIFMs and AIFs Technical Advice PDF
1.36 MB
Executive summary Reasons for publication In accordance with Articles 36 and 42 of the Directive 2011/61/EU on Alternative Investment Fund Managers (AIFMD), non-EU alternative investment fund managers (AIFMs) and non-EU alternative investment funds (AIFs) managed by EU AIFMs are subject to the national private placement regime (NPPR) of each of the Member States where the AIFs are marketed or managed. However, the AIFMD makes provision for the passport, which is currently reserved to EU AIFMs and AIFs, to be potentially extended in future. Article 67(1) of the AIFMD establishes that, by 22 July 2015, ESMA shall issue to the European Parliament, the Council and the Commission advice on the application of the passport to non-EU AIFMs and AIFs in accordance with the rules set out in Article 35 and 37 to 41 of the AIFMD. This document sets out ESMA’s advice on the application of the passport to six non-EU countries: Guernsey, Hong Kong, Jersey, Switzerland, Singapore and the United States. Contents Section 1 of the advice sets out the background to ESMA’s work, while the detailed assessment of each of the aforementioned non-EU countries is contained in section 2. Annexes 1 to 7 contain a summary of the feedback to the call for evidence that ESMA launched in November 2014. Annex 8 gives a detailed breakdown by non-EU country of the number of non-EU AIFs and non-EU AIFMs active in Member States in accordance with Articles 36 and 42 of the AIFMD. Next Steps ESMA will continue to work on its assessment of other non-EU countries not covered in this advice with a view to delivering further submissions to the European Parliament, the Council and the Commission in the coming months. For those non-EU jurisdictions with which there are currently no supervisory cooperation arrangements in place for the purposes of the AIFMD, ESMA will continue its efforts to agree a MoU with the authorities concerned.
30/07/2015 2015/1235 ESMA's opinion to the European Parliament, Council and Commission and responses to the call for evidence on the functioning of the AIFMD EU passport and of the National Private Placement Regimes Opinion PDF
886.86 KB
AIFMD and the request to ESMA for an Opinion In accordance with Articles 36 and 42 of the AIFMD, non-EU AIFMs and non-EU AIFs managed by EU AIFMs are subject to the NPPR of each of the Member States where the AIFs are marketed or managed. However, the AIFMD makes provision for the passport, which is currently reserved to EU AIFMs and AIFs, to be potentially extended in future. Article 67(1) of the AIFMD establishes that, by 22 July 2015, ESMA shall issue to the European Parliament, the Council and the Commission the following: An opinion on the functioning of the passport for EU AIFMs pursuant to Articles 32 and 33 of the AIFMD and on the functioning of the national private placement regimes set out in Articles 36 and 42 of the AIFMD. Advice on the application of the passport to non-EU AIFMs and AIFs in accordance with the rules set out in Article 35 and Articles 37 to 41 of the AIFMD. Within three months of receipt of positive advice and an opinion from ESMA, and taking into account the criteria of Article 67(2) and the objectives of the AIFMD, the Commission should adopt a delegated act specifying the date when the rules set out in Article 35 and 37 to 41 of the AIFMD become applicable in all Member States. As a consequence, the EU passport would be extended to non-EU AIFs and non-EU AIFMs. In order to produce this opinion and advice, ESMA must look into the elements listed in Article 67(2) and (4) of the AIFMD , notably on the basis of the information provided by the national competent authorities (NCAs) about the EU and non-EU AIFMs under their supervision. Indeed, Article 67(3) of the AIFMD requires NCAs to provide information to ESMA quarterly as from 22 July 2013. ESMA has received input from NCAs for the periods covering 22 July 2013 to 31 March 2014, 1 April to 30 June 2014, 1 July to 30 September 2014, 1 October to 31 December 2014, and 1 January to 31 March 2015. In order to supplement the input provided by NCAs via the quarterly surveys, ESMA launched a call for evidence in November 2014 aimed at gathering information from EU and non-EU stakeholders on the functioning of the EU passport, the NPPRs and the potential extension of the AIFMD passport to non-EU countries. ESMA received 67 responses (including 15 confidential responses), from 13 non-EU Authorities, 21 EU and non-EU trade associations of asset managers, 17 EU and non-EU asset managers, and 16 other trade associations and private firms (e.g. providers of services for funds, law firms etc). Summary of the opinion In relation to the timing of the assessment of the functioning of the EU passport, ESMA considers that the delay in the implementation of the AIFMD together with the delay in the transposition in some Member States make a definitive assessment difficult. ESMA would see merit in the preparation of another opinion on the functioning of the passport after a longer period of implementation in all Member States. However, even at this early stage, ESMA has identified several issues in relation to the use of the EU passport. These issues include: i) divergent approaches with respect to marketing rules, including heterogeneity of fees charged by the NCAs where the AIFs are marketed and the definition of what constitutes a “professional investor”; ii) varying interpretations of what activities constitute “marketing” and “material changes” under the AIFMD passport in the different Member States. With that in mind, ESMA sees merit in greater convergence in the definition of these terms. Nevertheless, ESMA is of the view that there is insufficient evidence to indicate that the AIFMD EU passport has raised major issues in terms of the functioning and implementation of the AIFMD framework. In relation to the timing of the assessment of the functioning of the NPPRs, ESMA considers that the delay in the implementation of the AIFMD together with the delay in transposition in some Member states make a definitive assessment difficult. ESMA would see merit in the preparation of another opinion on the functioning of the NPPR Regime after a longer period of implementation has passed in all Member States (although this is linked to the decision to be taken by the European Parliament, the Council and the Commission on whether to extend the passport to one or more non-EU countries in the meantime). ESMA is of the view that there is insufficient evidence to indicate that the NPPRs have raised major issues in terms of the functioning and implementation of the AIFMD framework.
12/04/2016 2016/596 Opinion on loan origination Opinion PDF
118.55 KB
12/09/2016 2016/1140 Final advice on AIFMD passport Technical Advice PDF
621.95 KB

This version of the advice includes the following clarifications with respect to the assessment of the Isle of Man:

  • the Isle of Man underwent an assessment by the International Monetary Fund (IMF) in 2003 and 2009 as part of the Financial Sector Assessment Program (FSAP); and
  • the self-assessment carried out by the Isle of Man Financial Services Authority in 2013 was an assisted self-assessment.
30/01/2017 ESMA34-43-296 Opinion on UCITS Share Classes Opinion PDF
332.69 KB
13/07/2017 ESMA35-45-344 Opinion to support supervisory convergence in the area of investment management in the context of the United Kingdom withdrawing from the European Union , , Opinion PDF
246.6 KB
20/07/2017 ESMA34-45-277 Opinion on asset segregation and custody services Opinion PDF
604.81 KB