Home / CY AIFM Law of 2013 / PART VII – SPECIFIC RULES IN RELATION TO THIRD COUNTRIES / Section 55 - Change in the business strategy of a non-EU AIFM which affects the determination of the Member State of reference.
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Change in the business strategy of a non-EU AIFM which affects the determination of the Member State of reference.
55.-(1) The authorisation granted by the Commission in accordance with subsection (1) of section 49 shall not be affected by the further business development of the non-EU AIFM in the Union. However, where the AIFM changes its marketing strategy within two years of its initial authorisation, and that change would have affected the determination of the Republic as Member State of reference, if the modified strategy had been the initial marketing strategy, the AIFM shall notify the Commission of the change, before implementing it and indicate its Member State of reference in accordance with the criteria set out in paragraph 4 of Article 37 of Directive 2011/61/EU and based on the new strategy. The non-EU AIFM, at the same time, shall provide information on its legal representative, including its name and the place where it is established. The legal representative shall be established in the new Member State of reference.
(2) The Commission shall assess whether the determination of the non-EU AIFM in accordance with subsection (1) is correct and shall notify ESMA thereof. In its notification to ESMA the Commission shall include the non-EU AIFM’s justification of its assessment regarding the Member State of reference and information on the AIFM’s new marketing strategy. ESMA shall issue advice on the assessment made by the Commission.
(3) After receipt of ESMA’s advice in accordance with the third subparagraph of paragraph 11 of Article 37 of Directive 2011/61/EU, the Commission shall inform the non-EU AIFM, its original legal representative and ESMA of its decision.
(4)(a) Where the Commission agrees with the assessment made by the non-EU AIFM, it shall also inform the competent authorities of the new Member State of reference of the change and without undue delay, shall transfer a copy of the authorisation and the supervision file relating to the AIFM to the competent authorities of the new Member State of reference. From the date of transmission of the authorisation and supervision file, the Commission shall cease to be the competent authority for the supervision of the AIFM.
(b) The Commission shall be the competent authority for the supervision of a non-EU AIFM for which the Republic is the new Member State of reference from the date of the transmission of the authorisation and supervision file by the competent authority of its original Member State of reference in accordance with the fifth subparagraph of paragraph 11 of Article 37 of Directive 2011/61/EU.
(5) Where the Commission’s final assessment is contrary to ESMA’s advice referred to in subsection (3) -
(a) the Commission shall inform ESMA thereof, stating the reasons for insisting to its assessment;
(b) where the non-EU AIFM markets units of AIFs managed by it in Member States other than the Republic, which was its original Member State of reference, the Commission shall inform the competent authorities of those other Member States and the competent authorities of the home Member State of the AIF thereof, stating the reasons for insisting to its assessment.
(6) Where it appears from the actual course of the business development of the non-EU AIFM in the Union within two years after its authorisation from the Commission in accordance with subsection (1) of section 49, that the marketing strategy as presented by the AIFM at the time of its authorisation was not followed, that the AIFM made false statements in relation thereto, or the AIFM has failed to comply with the provisions of subsections (1) to (5) of this section when changing its marketing strategy, the Commission shall request the AIFM to indicate the Member State of reference based on its actual marketing strategy. In such a case the provisions of subsections (1) to (5) shall apply mutatis mutandis. If the AIFM does not comply with the Commission’s request, the Commission shall withdraw its authorisation.
(7) Where the non-EU AIFM changes its marketing strategy after the period referred to in the second sentence of subsection (1) and intends to change its Member State of reference on the basis of its new marketing strategy, it shall submit a request to change its Member State of reference to the Commission. In such a case the procedure referred to in subsections (1) to (5) shall apply mutatis mutandis.
(8) The Commission, being the competent authority of the Republic, may act in accordance with the third subparagraph of paragraph 12 of Article 37 of Directive 2011/61/EU.
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