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ID 1202. Cooperation between Member States' competent authorities Back

Relevant provisions
Article 45 of Directive 2011/61/EU

Question
Article 45 AIFMD provides for a division of responsibilities and for rules of cooperation between the competent authorities of the host Member State and the home Member State of an AIFM. According to Article 4 (1)(r) AIFMD, the host Member State of an AIFM is a Member State in which the AIFM distributes or manages shares or units of an AIF. Consequently, the question arises whether Article 45 AIFMD also applies if such distribution in another Member State is made on the basis of facultative national rules based on Article 36, 42 and 43 AIFMD. And if so, to which extent Article 45 AIFMD applies in such cases.

Answer
Article 45 specifies the responsibilities of competent authorities and their interaction. Article 45(1) foresees the general competence for the prudential supervision of the AIFM for the home country authorities of that AIFM, safe where the AIFMD recognises the responsibility for supervision for the host Member State. This exception includes not only the explicit competence of the host authority for supervision of compliance with Articles 12 and 14 foreseen in Article 45(2), but also other instances. For example the AIFMD recognises the competences of a competent authority of an EU AIF, as defined in Article 4(1)(h), to supervise the compliance with the applicable rules for which that competent authority is responsible Article 45(3).
To allow a host Member State to exercise its supervisory duties without however impinging on the competences of the home Member State and without introducing obstacles to the cross-border marketing or management of AIFs, Articles 45(3)-(8) introduce provisions for the cooperation between Member States.
Hence, the provisions laid down in Article 45 are intended to apply also for supervising compliance with the stricter national rules adopted by Member States on the basis of Articles 36, 42 and 43.

Date
Submitted on 25/03/2013