Home / CY AIFM Law of 2013 / PART VII – SPECIFIC RULES IN RELATION TO THIRD COUNTRIES / Section 44 - Conditions for the marketing in the Republic, with a passport, of non-EU AIFs managed by an AIFM of the Republic.
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Conditions for the marketing in the Republic, with a passport, of non-EU AIFs managed by an AIFM of the Republic.
44.-(1) An AIFM of the Republic, authorised in accordance with this Law, may market to professional investors in the Republic, units of non-EU AIFs it manages and of EU feeder AIFs that do not fulfil the requirements referred to in the second sentence of subsection (1) of section 38, as soon as the conditions laid down in this section are met.
(2) An AIFM of the Republic shall comply with all the requirements established in this law, with the exception of Part VI. In addition the following conditions shall be met:
(a) appropriate cooperation arrangements must be in place between the Commission and the supervisory authorities of the third country where the non-EU AIF is established in order to ensure at least an efficient exchange of information, taking into account subsections (2) to (4) of section 77 of this Law, that allows the Commission to carry out its duties in accordance with this Law;
(b) the third country where the non-EU AIF is established is not listed as a Non- Cooperative Country and Territory by FATF;
(c) the third country where the non-EU AIF is established has signed an agreement with the Republic and with each other Member State in which the units of the non-EU AIF are intended to be marketed, which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures that an effective exchange of information in tax matters, including any multilateral tax agreements.
(3) For the purposes of this section and of section 45 of this Law, the Commission, being the competent authority of the Republic, may act in accordance with second subparagraph of paragraph 2 of Article 35 of Directive 2011/61/ΕU.
(4) If the AIFM of the Republic, referred to in subsection (1) of this section, intends to market units of the non-EU AIFs it manages to professional investors in the Republic, the AIFM shall submit a notification to the Commission in respect of each non-EU AIF that it intends to market, which shall comprise the documentation and information set out in subsection (2) of section 38.
(5) No later than 20 working days after receipt of a complete notification pursuant to subsection (4), the Commission shall inform the AIFM of the Republic whether it may start marketing the AIF identified in the notification in its territory. The AIFM of the Republic may start marketing the AIF as of the date of this notification. The Commission shall prevent the marketing of the AIF only if the AIFM’s management of the AIF does not or will not comply with this Law or the AIFM otherwise does not comply with this Law. In case of a positive decision, the Commission shall also inform ESMA that the AIFM of the Republic may start marketing the units of the AIF in the Republic.
(6) If the AIFM of the Republic, referred to in subsection (1), intends to market units of the non-EU AIFs it manages, to professional investors in a Member State other than the Republic, the AIFM of the Republic shall submit a notification, which shall comprise the documentation and information referred to in subsection (2) of section 39, to the Commission in respect of each non-EU AIF that it intends to market.
(7) The Commission shall, no later than twenty working days after the date of receipt of the complete notification file referred to in subsection (6), transmit that complete notification file, including a statement to the effect that the AIFM concerned is authorised to manage AIFs with a particular investment strategy, to the competent authorities of the Member State where the AIF is intended to be marketed. Such transmission will occur only if the AIFM’s management of the AIF complies and will continue to comply with this Law and that the AIFM otherwise complies with this Law.
(8) Upon transmission of the notification file in accordance with subsection (7), the Commission shall without delay, notify the AIFM about the transmission. The Commission shall also notify ESMA that the AIFM may start marketing the units of the AIF in the host Member State of the AIFM.
(9) Arrangements regarding the marketing of non-EU AIFs managed by an AIFM of the Republic in another Member State 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 to the AIF information about arrangements made for the marketing of AIFs, shall be subject to the law and supervision of the host Member States of the AIFM.
(10) The notification letter of the AIFM referred to in subsection (6) and the statement referred to in subsection (7) are provided in a language customary in the sphere of international finance and the electronic transmission of documents referred to in subsection (7) is also accepted by the Commission.
(11) In the event of a material change to any of the particulars communicated to the Commission in accordance with subsection (4) and/or (6) of this section, 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 pursuant to a planned change, the AIFM’s management of the AIF would no longer comply with this Law, or the AIFM would no longer comply with this Law, the Commission shall inform the AIFM, without undue delay, that it is not to implement the change. If a planned change is implemented notwithstanding the provisions of this section referred to above, 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. If the changes do not affect the compliance of the AIFM’s management of the AIF with this Law, or the compliance by the AIFM with this Law otherwise, the Commission shall accept the changes and shall, without delay, inform the competent authorities of the host Member State of the AIFM and, in so far as the changes concern the termination of the marketing of certain AIFs, ESMA.
(12) Subject to the provisions of subsections (1) and (2) of section 67, the AIFM referred to in subsection (1) of this section may market the units of the AIFs it manages only to professional investors.
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