Beyond simply developing AIFMD-compliant marketing strategies that target EU-domiciled investors, US AIFMs should be vigilant regarding how additional, non-marketing obligations under the AIFMD may develop over time. ESMA continues to collect information regarding how the Directive has been transposed into Member States' laws, and in relation to Member States' experience in interpreting and enforcing their respective NPPRs. In addition, ESMA is required to continue to report on the use of the AIFMD's marketing passport, and, in 2018, to provide the EU Parliament, Council and Commission with an opinion on, among other topics, the use of the passport by non-EU AIFMs. Depending on the content of that opinion, the EU could conclude that Member State NPPRs should be phased out entirely. If those private placement regimes were abolished, possibly through the adoption of a pan-EU regulation, the ability of a US AIFM to rely on having to satisfy only minimal registration requirements in a particular Member State, or on an exemption from registration entirely, might be eliminated. With this outcome, a US AIFM would have little choice but to register in a Member State, and comply with all AIF- and AIFM-related obligations under that jurisdiction's laws, to support any marketing of an AIF's securities to an EU investor. Until that time, however, and unless and until the benefits of the marketing passport are extended to include US AIFMs, these investment advisers will be required to comply with the NPPR for each of the Member States in which the US AIFM seeks to raise new or additional investor capital.
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