Select a legislative/policy area

ID 1205. Responsibility of Member States' competent authorities Back

Relevant provisions
Article 33 of Directive 2011/61/EU
Article 41 of Directive 2011/61/EU

Question
Articles 33(6) provide for a written notice by the AIFM to the competent authorities of its home Member State in the event of a change to any of the information communicated in accordance with Article 33(2), and, where relevant, Article 33(3). If the changes are acceptable because they do not affect the compliance of the AIFM’s management of the AIF with the AIFMD, or the compliance by the AIFM with the AIFMD otherwise, the competent authorities of the home Member State of the AIFM shall, without undue delay, inform the competent authorities of the host Member States of the AIFM of those changes. As Article 33(6) only refers to changes to any information communicated in accordance with Article 33 paragraph 2 or 3, there is actually no obligation to inform the competent authorities of the host Member States of the AIFM of any change in the scope of the authorisation granted to the AIFMD. As under the UCITS regime any change in the scope of the authorisation has to be communicated to the competent authorities of the host member State, and in order to achieve a level playing field, such an obligation should be discussed with respect to the transposition of Article 33 AIFMD. The same applies to Article 41(6) AIFMD.

Answer
The second subparagraph of Article 33(4) requires the home Member State competent authorities to submit to the competent authorities of the host Member State a statement to the effect that the AIFM concerned is authorised by them.
We interpret this as meaning that a change to the authorisation in the sense of article 10 of the Directive would require a new statement by the home country competent authorities. This would also be the consequence, under article 50.4, if the information is required for the purposes of carrying out the duties of the host MS' competent authority.

Date
Submitted on 25/03/2013