Home / CY AIFM Law of 2013 / PART VII – SPECIFIC RULES IN RELATION TO THIRD COUNTRIES / Section 52 - Additional conditions for authorisation of a non-EU AIFM by the Commission.

Additional conditions for authorisation of a non-EU AIFM by the Commission.

52.-(1) Without prejudice to subsection (4) of this section, the Commission shall grant authorisation to a non-EU AIFM referred to in subsection (1) of section 49 of this Law, only if the following additional conditions are met:

(a) the non-EU AIFM indicates the Republic as Member State of reference in accordance with the criteria set out in section 50 of this Law, this proposal is supported by the disclosure of the marketing strategy and the procedure set out in subsection (1) of section 49 and subsections (1) to (3) of section 51 of this Law has been followed by the relevant competent authorities;

(b) the AIFM has appointed a legal representative established in the Republic;

(c) the legal representative shall, together with the non-EU AIFM, be the contact person of the non-EU AIFM for the investors of the relevant AIFs, for ESMA and for the competent authorities as regards the activities for which the AIFM is authorised in the Union and shall at least be sufficiently equipped to perform the compliance function pursuant to this Law;

(d) appropriate cooperation arrangements are in place between the Commission, the competent authorities of the home Member State of the EU AIFs concerned and the supervisory authorities of the third country where the non-EU AIFM is established in order to ensure, at least, an efficient exchange of information that allows the competent authorities to carry out their duties in accordance with this Law;

(e) the third country where the non-EU AIFM is established is not listed as a Non-Cooperative Country and Territory by FATF;

(f) the third country, where the non-EU AIFM is established has signed an agreement with the Republic, which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements;

(g) the effective exercise by the competent authorities of their supervisory functions under this Law or the Directive 2011/61/EU, is neither prevented by the laws, regulations or administrative provisions of a third country governing the non-EU AIFM, nor by limitations in the supervisory and investigatory powers of that third country’s supervisory authorities.

(2) For the authorisation referred to in subsection (1) of this section from the Commission, the provisions of Part II shall apply mutatis mutandis subject to the following criteria:

(a) the information referred to in subsection (1) of section 7 shall be supplemented by -

• a justification by the non-EU AIFM of its assessment regarding the Member State of reference in accordance with the criteria set out in section 50 with information on the marketing strategy; and

• a list of the provisions of this Law for which compliance by the non-EU AIFM is impossible as compliance by the AIFM with those provisions is, in accordance with subsection (2) of section 49, incompatible with compliance with a mandatory provision in the law to which the non-EU AIFM and/or the non-EU AIF marketed in the Union is subject;

• written evidence based on the regulatory technical standards developed by ESMA that the relevant third country law provides for a rule equivalent to the provisions for which compliance is impossible, which has the same regulatory purpose and offers the same level of protection to the investors of the relevant AIFs and that the non-EU AIFM complies with that equivalent rule; such written evidence being supported by a legal opinion on the existence of the relevant incompatible mandatory provision in the law of the third country and including a description of the regulatory purpose and the nature of the investor protection pursued by it; and

• the name of the legal representative of the non-EU AIFM and the place where it is established;

(b) the information referred to in subsection (2) of section 7 may be limited to the EU AIFs the non-EU AIFM intends to manage and to those AIFs managed by the AIFM that it intends to market in the Union with a passport;

(c) paragraph (a) of subsection (2) of section 8 shall be without prejudice to subsection (2) of section 49;

(d) paragraph (e) of subsection (2) of section 8 shall not apply;

(e) paragraph (b) of subsection (6) of section 8 shall be read as including a reference to the information referred in paragraph (a) of this subsection.

(3) The Commission, being the competent authority of the Republic, may act in accordance with the second and/or third subparagraph of paragraph 7 and/or the second subparagraph of paragraph 8 of Article 37 of Directive 2011/61/EU.