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The Australian Securities and Investments Commission (ASIC) has entered into 29 supervisory cooperation agreements with European Union (EU) securities regulators.

The arrangements will allow Australian fund managers to manage and market alternative investment funds (AIFs) such as hedge funds, real estate funds and private equity funds, to professional investors in the EU under the rules of the Alternative Investment Fund Mangers Directive (AIFMD).

BACKGROUND

On 22 May 2013, the European Securities and Markets Authority (ESMA) approved cooperation arrangements that had been negotiated between ASIC and ESMA (on behalf of EU regulators).

ASIC and ESMA consider that the arrangements will facilitate:

  • the exchange of information;
  • cross-border on-site visits;
  • mutual assistance in supervision of managers of AIFs, their delegates and depositories that operate cross-border; and
  • mutual assistance in enforcement of the respective supervisory laws.

While ESMA negotiated the arrangements centrally on behalf of all 27 EU Member State securities regulators as well as authorities from Croatia, Iceland, Liechtenstein and Norway, the bilateral agreements are signed between each EU securities regulator and the non-EU authorities. As the actual supervision of the AIFMs is by the relevant national securities regulator in each state, each authority, including ASIC, chooses the authority with which it will sign a bilateral agreement.

SUMMARY OF COOPERATION ARRANGEMENTS

On 12 July 2013, ASIC signed bilateral memorandums of understanding (MOUs) which were entered into with the following EU authorities:

  • Autoriteit Financiële Markten ( The Netherlands)
  • Autorité des marchés financiers ( France)
  • Bundesanstalt für Finanzdienstleistungsaufsicht ( Germany)
  • Central Bank of Ireland ( Ireland)
  • Finanzmarktaufsicht (Austria)
  • Comissão do Mercado de Valores Mobiliários ( Portugal)
  • Comisión Nacional del Mercado de Valores ( Spain)
  • Romanian National Securities Commission ( Romania)
  • Commissione Nazionale per le Società e la Borsa ( Italy)
  • Commission de Surveillance du Secteur Financier ( Luxembourg)
  • Cyprus Securities and Exchange Commission ( Cyprus)
  • Czech National Bank ( Czech Republic)
  • Finansinspektionen ( Sweden)
  • Finanssivalvonta ( Finland)
  • Finanstilsynet ( Denmark)
  • Finanau un kapitala tirgus komisija ( Latvia)
  • Estonian Financial Supervision Authority ( Estonia)
  • Polish Financial Supervision Authority ( Poland)
  • Financial Conduct Authority ( United Kingdom)
  • Financial Supervision Commission ( Bulgaria)
  • Financial Services and Markets Authority ( Belgium)
  • Hellenic Capital Market Commission ( Greece)
  • Bank of Lithuania ( Lithuania)
  • Malta Financial Services Authority ( Malta)
  • Národná banka Slovenska ( Slovak Republic)
  • Pénzügyi Szervezetek Állami Felügyelete ( Hungary)
  • Fjármálaeftirlitið ( Iceland)
  • Finanstilsynet ( Norway)
  • Finanzmarktaufsicht ( Liechtenstein)

The key elements of the above MoUs are:

  • ASIC and the EU authority will be able to supervise fund managers that operate on a cross-border basis both within the EU and outside the EU including for example when:
    • EU managers of AIFs manage non-EU collective investment undertakings;
    • Australian managers of AIFs market EU and/or non-EU collective investment undertakings in an EU member state; and
    • EU managers of AIFs market or manage collective investment undertakings in Australia;
  • the cooperation between ASIC and the EU authority includes the exchange of information, cross-border on-site visits and assistance in the enforcement of the respective laws;
  • ASIC will be able to request in writing information from the EU authority such as information relevant for monitoring the activities of an individual manager of an AIF, information related to the financial and operational condition of the fund such as reports of capital reserves and prudential measures;
  • EU securities regulators will be able request information from ASIC and share relevant information received from ASIC with other EU authorities, ESMA and the European Systemic Risk Board, provided appropriate safeguards apply such as confidentiality; and
  • the existence of co-operation arrangements between the EU authorities and ASIC is a precondition of the AIFMD for allowing managers of AIFs based outside the EU to access EU markets or perform fund management by delegation from EU managers.

TIMING OF ARRANGEMENTS

The MoUs take effect from 22 July 2013.

NEXT STEPS

The MoUs provide a real opportunity for Australian fund managers to consider marketing their AIF products in a range of European jurisdictions without the typical regulatory barriers to entry in those jurisdictions. Similarly, EU fund managers will be able to promote their AIF products in Australia. We are available to provide you with further information in relation to this development.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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