Home / CY AIFM Law of 2013 / PART VII – SPECIFIC RULES IN RELATION TO THIRD COUNTRIES / Section 50 - Determining the Republic as Member State of reference of a non-EU AIFM.

Determining the Republic as Member State of reference of a non-EU AIFM.

50.-(1) The Republic, as Member State of reference of a non-EU AIFM shall be determined as follows:

(a) if the non-EU AIFM intends to manage only one EU AIF, or several EU AIFs established in the Republic and does not intend to market any AIF in accordance with sections 59 to 61 or sections 62 and 63, the Republic, as the home Member State of that or those AIFs, is deemed to be the Member State of reference and the Commission will be competent for the authorisation procedure and for the supervision of the AIFM;

(b) if the non-EU AIFM intends to manage several EU AIFs established in different Member States and does not intend to market any AIF in the Union, in accordance with sections 59 to 61 or with sections 62 and 63, the Member State of reference may be the Republic-

• if most of the AIFs are established in the Republic, or

• if the largest amount of assets is being managed in the Republic;

(c) if the non-EU AIFM intends to market only one EU AIF in only one Member State, the Member State of reference of the AIFM may be the Republic -

• either as the home Member State of the AIF, so long as the AIF is authorised or registered in the Republic, or as the Member State in which the AIFM intends to market the units of the AIF, or

• as the Member State in which the AIFM intends to market the units of the AIF, if the AIF is not authorised or registered in the Republic;

(d) if the non-EU AIFM intends to market only one non-EU AIF in the Republic only, the Member State of reference is the Republic;

(e) if the non-EU AIFM intends to market only one EU AIF, but in different Member States, the Republic may be determined as Member State of reference -

• either as the home Member State of the AIF, so long as the AIF is authorised or registered in the Republic, or as one of the Member States where the AIFM intends to develop effective marketing; or

• as one of the Member States where the AIFM intends to develop effective marketing, if the AIF is not authorised in the Republic;

(f) if the non-EU AIFM intends to market only one non-EU AIF, but in different Member States, including the Republic, the Member State of reference of the AIFM shall be either the Republic or one of the other Member States;

(g) if the non-EU AIFM intends to market several EU AIFs in the Union, the Member State of reference shall be the Republic -

• in so far as those AIFs are all registered or authorised in the Republic or as the Member State where the AIFM intends to develop effective marketing for most of those AIFs; or

• as the Member State where the AIFM intends to develop effective marketing for most of those AIFs, in so far as those AIFs are not all authorised or registered in the Republic;

(h) if the non-EU AIFM intends to market several EU and non-EU AIFs, or several non-EU AIFs in the Union, and the AIFM intends to develop effective marketing for most of those AIFs in the Republic, then the Member State of reference of the AIFM shall be the Republic.

(2) In accordance with the criteria set out in paragraph (b), in point (i) of paragraph (c), in paragraph (e), in paragraph (f) and in point (i) of paragraph (g) of subsection (1) of this section, the Republic shall be one of the possible Member States of reference of a non-EU AIFM. In such a case, the non-EU AIFM which intends to manage EU AIFs without marketing them and/or market AIFs managed by it, in accordance, either, with sections 59 to 61, or in accordance with sections 62 and 63, shall submit a request to the Commission and to the competent authorities of all of the Member States that are possible Member States of reference in accordance with the applicable criteria of subsection (1) of this section, to determine its Member State of reference from among them. The Commission shall jointly decide with the other competent authorities the Member State of reference for the non-EU AIFM, within one month of receipt of such request. In case the Republic will be the Member State of reference, the Commission shall, without undue delay, inform the non-EU AIFM of that appointment. If the Commission fails to inform the non-EU AIFM of the decision made by the relevant competent authorities within seven days of the decision, or if the relevant competent authorities have not made a decision within the one month period, the non-EU AIFM may itself choose its Member State of reference based on the criteria set out in this subsection.

(3) The non-EU AIFM, for which the Republic is the Member State of reference, shall be able to prove its intention to develop effective marketing in the Republic or in another Member State, by disclosure of its marketing strategy to the Commission.

(4) The Commission, being the competent authority of the Republic, shall comply with paragraphs 5 and 6 of Article 38 of Directive 2011/61/EU.