In the course of the AIFMD’s (Directive 2011/61/EC) transposition into national law, Article 33 AIFMD has been interpreted differently. Some competent authorities were of the opinion that the provision of services and non-core services pursuant to Article 6 para. 4 AIFMD could not be part of the EU-Manager Passport. Other competent authorities, as for example the English FCA, took the position, that Article 33 AIFMD very well allows the so called passporting of MiFID services and non-core services.
These different interpretations of Article 33 AIFMD were taken into account. In the context of negotiations on EU-level regarding the draft of MiFID II consent was reached to clarify and amend Article 33 AIFMD. It will be explicitly stated in Article 33 AIFMD that an EU-AIFM is allowed to provide services and non-core services according to Article 6 para. 4 AIFMD in another member state by using the passport procedure.
Even though the provision is still at draft stage on EU-level, national competent authorities already reacted on the clarification. For example, the Central Bank of Ireland explained in its FAQ’s re AIFMD (ID 1019), that the passporting of services and non-core services pursuant to Article 6 para. 4 AIFMD is permitted from now on.
Also in Germany the transposition of the planned amendment is to be expected soon. A respective adjustment of Sect. 53 and 54 KAGB (German Investment Act) is already part of a Federal Ministry of Finance’s draft regarding an act to adjust financial market’s laws (dated 4 March 2014).