Home / CY AIFM Law of 2013 / PART VII – SPECIFIC RULES IN RELATION TO THIRD COUNTRIES / Section 62 - Conditions for the marketing in the Republic or in another Member State, with a passport, of non-EU AIFs managed by a non-EU AIFM, when the Member State of reference of the AIFM is the Republic.
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Conditions for the marketing in the Republic or in another Member State, with a passport, of non-EU AIFs managed by a non-EU AIFM, when the Member State of reference of the AIFM is the Republic.
62.-(1) A non-EU AIFM, duly authorised by the Commission in accordance with subsection (1) of section 49, may market the units of a non-EU AIF it manages to professional investors in the Republic, with a passport, as soon as the conditions laid down in this section are met.
(2) In addition to the conditions of this Law that apply to EU AIFMs, a non-EU AIFM referred to in subsection (1) shall also meet the following conditions:
(a) appropriate cooperation arrangements are in place between the Commission, as the competent authority of the Member State of reference of the AIFM and the competent authority 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 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, as Member State of reference of that AIFM, 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 an effective exchange of information in tax matters including any multilateral tax agreements.
(3) The AIFM referred to in subsection (1) of this section shall submit to the Commission, as the competent authority of its Member State of reference, a notification regarding the non-EU AIF, the units of which intends to market in the Republic. The notification shall include the documents and information referred to in subsection (2) of section 38.
(4) No later than twenty working days after the receipt of a complete notification pursuant to subsection (3), the Commission, as the competent authority of the Republic, which is the Member State of reference of the AIFM referred to in subsection (1), shall inform the AIFM whether it may start marketing the AIF in the Republic. The Commission may 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 or will not comply with this Law. In the case of a positive decision, the AIFM may start marketing the AIF in the Republic, from the date of the notification by the Commission to that effect. The Commission shall also inform ESMA that the AIFM may start marketing the units of the AIF in the Republic.
(5) If the AIFM, referred to in subsection (1), intends to market the units of a non-EU AIF also in a Member State other than the Republic, which is its Member State of reference, the AIFM shall submit a notification to the Commission in respect of that AIF. The notification shall include the documents and information referred to in subsection (2) of section 39.
(6) No later than twenty working days after the receipt of a complete notification pursuant to subsection (6), the Commission, as the competent authority of the Republic, which is the Member State of reference of the AIFM referred to in subsection (1), shall transmit the notification file to the competent authorities of the of the Member State where the units of the AIF are intended to be marketed. Such transmission shall occur only if the AIFM’s management of the AIFcomplies and will continue to comply with this Law and that in general the AIFM complies with this Law. The Commission shall enclose a statement to the effect that the AIFM concerned is authorised to manage AIFs with a particular investment strategy.
(7) The notification letter referred to in subsection (5) and the statement referred to in subsection (6) are provided in a language customary in the sphere of international finance. The Commission may file or transmit electronically the documents referred to in subsection (6).
(8) Upon transmission of the notification file in accordance with subsection (7), the Commission shall, without undue delay, notify the AIFM referred to in subsection (1) of the transmission. The Commission shall also inform ESMA and the competent authorities of the relevant AIF that the AIFM may start marketing the units of the AIF in the relevant host Member State of the AIFM.
(9) Arrangements referred to in paragraph (h) of subsection (2) of section 39 are subject to the law of the Republic and to the supervision of the Commission.
(10) In the event of a material change to any of the particulars communicated in accordance with subsections (3) or (5) of this section, the AIFM referred to in subsection (1) of this section shall give written notice of that change to the Commission, as the competent authority of the Republic, which is its Member State of reference, 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 otherwise 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 mentioned above, or if an unplanned change has taken place pursuant to which the AIFM’s management of the AIF no longer complies with this Law or the AIFM otherwise no longer complies 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 in the Republic or in the other Member States. If the changes are acceptable because they 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, without delay, inform ESMA in so far as the changes concern the termination of the marketing of the relevant AIF or any additional AIFs being marketed and the competent authorities of the host Member States of the AIFM of those changes.
(11) 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 AIFs it manages only to professional investors.
(12) The Commission may, by directive, develop any of the following:
(a) guidelines to determine the conditions of application of the measures adopted by the European Commission in accordance with paragraph 11 of Article 40 of Directive 2011/61/EU;
(b) draft regulatory technical standards to determine the minimum content of the cooperation arrangements referred to in paragraph (a) of subsection (2) of this section, in order to be able to exercise its supervisory and investigatory powers under this Law;
(c) draft regulatory technical standards to specify the procedures for coordination and exchange of information between the Commission, as the competent authority of the Republic, which is the Member State of reference of the AIFM and the competent authorities of the host Member State of the AIFM;
(d) draft regularly technical standards to determine -
the form and content of a model for the notification letter referred to in subsections (3) and (5) of this section;
the form and content of a model for the transmission and the statement referred to in subsection (6) of this section;
the form of the written notice referred to in subsection (10) of this section.
(13) The Commission, being the competent authority of the Republic, may act in accordance with the second subparagraph of paragraph 2 and/or in accordance with paragraph 15 of Article 40 of Directive 2011/61/EU.
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