Home / CY AIFM Law of 2013 / PART VI – RIGHTS OF AIFMs TO MANAGE AND MARKET EU AIFs IN THE UNION / Section 39 - Marketing of units of EU AIFs in a Member State other than the Republic by an AIFM of the Republic
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Marketing of units of EU AIFs in a Member State other than the Republic by an AIFM of the Republic
39.-(1) An AIFM of the Republic, authorised by the Commission in accordance with this Law, may market units of an EU AIF that it manages in a Member State other than the Republic as soon as the conditions laid down in this section are met. Where an EU AIF is a feeder AIF the right to market referred to in the previous sentence, is subject to the condition that the master AIF is also an EU AIF and is managed by an authorised EU AIFM authorised in accordance with Directive 2011/61/EU.
(2) An AIFM of the Republic, that intends to market units of an EU AIF in accordance with subsection (1) of this section, shall submit to the Commission, a notification in respect of the particular EU AIF, along with the following documents or information:
(a) a notification letter, including a programme of operations identifying the AIF the AIFM intends to market and information on where the AIF is established;
(b) the AIF rules or instruments of incorporation;
(c) identification of the depositary of the AIF;
(d) a description of, or any information on the AIF available to investors;
(e) information on where the master AIF is established if the AIF is a feeder AIF;
(f) any additional information referred to in section 30(1) for each AIF the AIFM intends to market;
(g) the Member State in which the AIFM of the Republic intends to market the units of the AIF to professional investors;
(h) information about arrangements made for the marketing of the AIF and, where relevant, information on the arrangements established to prevent units of the AIF from being marketed to retail investors, including in the case where the AIFM relies on activities of independent entities to provide investment services in respect of the AIF.
(3) Subject to subsections (1) and (2) of section 67, an AIFM of the Republic may market the units of the AIF it manages only to professional investors.
(4) Within twenty days from the date of receipt of the complete notification file referred to in subsection (2), the Commission shall transmit the complete notification file to the competent authorities of the Member State where it is intended that the AIF be marketed, including a statement from the Commission to the effect that the AIFM concerned is authorised to manage AIFs with the particular investment strategy. Such transmission shall occur only if the AIFM’s management of the AIF complies with and will continue to comply with this Law and if the AIFM otherwise complies with this Law.
(5) Upon transmission of the notification file in accordance with subsection (4), the Commission shall, without delay, notify the AIFM of the Republic about the transmission. The AIFM of the Republic may start marketing the AIF in the host Member State as of the date of that notification. Where the AIF is established in a Member State other than the Republic, the Commission shall also notify the competent authorities of that Member State that the AIFM may start marketing the units of the AIF in the host Member State of the AIFM.
(6) The arrangements referred to in paragraph (h) of subsection (2), shall be subject to the law and supervision of the host Member State of the AIFM.
(7) The notification letter referred to in subsection (2) and the statement referred to in subsection (4) are provided in a language customary in the sphere of international finance. Furthermore, electronic transmission and filing of the documents referred to in subsection (2) and the statement referred to in subsection (4) are accepted.
(8) In the event of a material change to any of the particulars communicated in accordance with subsection (2), the AIFM of the Republic shall give written notice of that change to the Commission at least one month before implementing a planned change, or immediately after an unplanned change has occurred. If the change is acceptable because it does not affect the compliance of the AIFM’s management of the AIF with the provisions of this Law, or the AIFM’s compliance with the provisions of this Law otherwise, the Commission shall allow the change and, shall, without delay, notify the competent authorities of the AIFM’s host Member State of that change.
(9) If, pursuant to a planned change, the AIFM’s management of the AIF would no longer comply with this Law, or the AIFM would otherwise no longer comply with this Law, the Commissions shall inform the AIFM without undue delay that it is not to implement the change.
(10) If a planned change is implemented notwithstanding subsections (8) and/or (9) of this section, or if an unplanned change has taken place pursuant to which the AIFM’s management of the AIF would no longer comply with this Law or the AIFM otherwise would no longer comply with this Law, the Commission shall take all due measures in accordance with section 71, including, if necessary, the express prohibition of marketing of the AIF.
(11) The Commission may, by directive, determine any of the following:
(a) the form and content of a model for the notification letter referred to in subsection (2);
(b) the form and content of a model for the statement referred to in subsection (4);
(c) the form of the transmission referred to in subsection (4);
(d) the form of the written notice referred to in subsections (8) and (9).
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