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ID 1203. Cooperation between Member States' competent authorities Back

Relevant provisions
Article 32(7) of Directive 2011/61/EU
Article 39(9) of Directive 2011/61/EU
Article 40(10) of Directive 2011/61/EU
Article 35(10) of Directive 2011/61/EU

Question
According to Article 32 (7), 35 (10), 39 (9) und 40 (10) AIFMD, the competent authorities of the home Member State of an AIFM should inform, without delay, the competent authorities of the host Member State of the AIFM of the changes described therein. It seems not entirely clear who is meant by “host Member State”. Pursuant to letter r in Article 4 (1) AIFMD, host Member States are all Member States other than the home Member State where an AIFM manages or dis-tributes AIFs. Consequently, not only the Member States where the AIF is distributed but also the Member States where the AIF is domiciled would have to be informed. However, Article 31 (4) AIFMD and the second subparagraph of Article 32 (4) AIFMD contradict such reading. Article 31 (4) AIFMD does not provide for any information duty vis-à-vis the Member States where the AIF is domiciled. And pursuant to Article 32 (4) AIFMD, the competent authorities of the AIF shall be informed that the AIFM may start marketing the units or shares of the AIF in the host Member State of the AIFM.

Answer
It should be assessed on a case-by-case basis how the rules of Article 4(1)(r) apply i.e. in each of the above mentioned articles an assessment should be done on the basis of the subject matter of these articles in order to identify which is the host Member State.

Date
Submitted on 25/03/2013