S.L. 370.21 Art. 4Marketing of units or shares of European AIFs by a Maltese AIFM in an EU or EEA Member State other than Malta.

(1) A Maltese AIFM may market to professional investors in a Member State or EEA State other than Malta, units or shares of a European AIF which it manages and such European AIF, prior to commencement of its marketing in a Member State or EEA State other than Malta, shall meet the conditions prescribed in this regulation:

Provided that the European AIF shall be:

(a) authorised or registered in a Member State or EEA State other than Malta, and in such case shall be exempt from the provisions of article 4 of the Act;

(b) authorised in Malta;

(c) where not authorised or registered in a Member State or EEA State, the European AIF has its registered office and, or head office in a Member State or EEA State including Malta and in such case it shall be exempt from the provisions of article 4 of the Act.

(2) Without prejudice to Article 43(1) of the AIFM Directive, European AIFs managed and marketed by the Maltese AIFM shall be marketed only to professional investors.

(3) Where the European AIF is a feeder AIF, the right to market referred to in sub-regulation (1) is subject to the condition that the master AIF is also a European AIF which is managed by an AIFM.

(4) The Maltese AIFM shall submit to the competent authority a notification in respect of each European AIF which it intends to market. Such notification shall comprise the documentation and information prescribed hereunder:

(a) a notification letter, including a programme of operations identifying the European AIFs which the Maltese AIFM intends to market and the information on where the European AIFs are established;

(b) the European AIF’s prospectus or equivalent rules or instruments of incorporation;

(c) identification of the depositary of the European AIF;

(d) a description of, or any information on, the European AIF available to investors;

(e) information on where the master AIF is established if the European AIF is a feeder AIF in terms of sub-regulation (3);

(f) any additional information concerning the disclosure obligations prescribed in the Investment Services Rules for each European AIF which the Maltese AIFM intends to market;

(g) an indication of the Member State or EEA State in which the Maltese AIFM intends to market the units or shares of the European AIF to professional investors;

(h) information about arrangements made for the marketing of European AIFs and, where relevant, information on the arrangements established to prevent units or shares of the European AIFs from being marketed to retail investors, including in the case where the Maltese AIFM relies on activities of independent entities to provide investment services in respect of the AIF;

(i) the details necessary, including the address, for the invoicing or for the communication of any applicable regulatory fees or charges by the competent authorities of the host Member State: Provided that the notification letter to the competent authority by the Maltese AIFM as referred to above shall be provided in a language customary in the sphere of international finance.

(5) The competent authority shall, no later than twenty working days after the date of receipt of a complete notification file pursuant to sub-regulation (4), transmit the complete notification file to the European regulatory authority of the Member State or EEA State where the Maltese AIFM intends marketing the European AIF.

(6) The competent authority shall also enclose a statement to the effect that the Maltese AIFM concerned is authorised to manage European AIFs with a particular investment strategy: Provided that the statement referred to above shall be provided in a language customary in the sphere of international finance.

(7) The competent authority shall transmit the complete notification file only if the Maltese AIFM’s management of the European AIF complies with and will continue to comply with the provisions of the AIFM Directive and if the Maltese AIFM otherwise complies with the provisions of the AIFM Directive.

(8) Upon transmission of the notification file, the competent authority shall, without delay, notify the Maltese AIFM thereof. The Maltese AIFM may start marketing the European AIF in the Maltese AIFM’s host Member State or EEA State as from the date of such notification.

(9) In so far as they are different, the competent authority shall also inform the European regulatory authority of the home Member State or EEA State of the European AIF that the Maltese AIFM may start marketing the units or shares of the European AIF in the host Member State or EEA State of the Maltese AIFM.

(10) Arrangements referred to in sub-regulation (4)(h) shall be subject to the laws of the Maltese AIFM host Member State or EEA State where the European AIF is to be marketed and to the supervision of the European regulatory authority therein.

(11) In the event of a material change to any of the particulars communicated in accordance with sub-regulation (4), the Maltese AIFM shall give written notice thereof to the competent authority at least one month prior to the implementation of such planned change, or immediately after an unplanned change has occurred.

(12) Where, pursuant to a planned change, the Maltese AIFM’s management of the European AIF would no longer comply with the provisions of the AIFM Directive or the Maltese AIFM would otherwise no longer comply with the provisions of the AIFM Directive, the competent authority shall inform the Maltese AIFM within fifteen (15) working days of receipt of all the information referred to in sub-regulation (11) that it shall not implement the change. In that case, the competent authority shall notify the European Regulatory Authority of the host Member State of the Maltese AIFM accordingly.

(13) Where the Maltese AIFM proceeds with the implementation of the planned change, notwithstanding the notification received pursuant to sub-regulations (12), or if an unplanned change has taken place pursuant to which the Maltese AIFM’s management of the European AIF no longer complies with the provisions of the AIFM Directive or the Maltese AIFM otherwise no longer complies with the provisions of the AIFM Directive, the competent authority shall take all due measures in accordance with the provisions of the Act and any regulations issued thereunder including, if necessary, the express prohibition of marketing of the European AIF. The competent authority shall also notify the European Regulatory Authority of the host Member State of the Maltese AIFM accordingly without undue delay.

(14) If the changes do not affect the compliance of the Maltese AIFM’s management of the European AIF with the provisions of the AIFM Directive, or the compliance by the Maltese AIFM with the provisions of the AIFM Directive, the competent authority shall within one month inform the European regulatory authority of the host Member State of the Maltese AIFM of those changes.

(15) The Maltese AIFM may de-notify arrangements made for marketing of units or shares of some or all of the European AIFs under its management in a Member State or EEA State, in respect of which it has made a notification pursuant to this regulation, where all the following conditions are fulfilled:

(a) except in the case of closed-ended AIFs and funds regulated by Regulation (EU) 2015/760 of the European Parliament and of the Council of 29 April 2015 on European long-term investment funds a blanket offer is made to repurchase or redeem, free of any charges or deductions, all such European AIF units or shares held by investors in that Member State or EEA State, is publicly available for at least thirty (30) working days, and is addressed, directly or through financial intermediaries, individually to all investors in that Member State or EEA State, whose identity is known;

(b) the intention to terminate arrangements made for marketing units or shares of some or all of its European AIFs in that Member State or EEA State is made public by means of a publicly available medium, including by electronic means, which is customary for marketing European AIFs and suitable for a typical European AIF investor;

(c) any contractual arrangements with financial intermediaries or delegates are modified or terminated with effect from the date of de-notification in order to prevent any new or further, direct or indirect, offering or placement of the units or shares identified in the notification referred to in sub-regulation (16). As of the date referred to in paragraph (c) of this sub-regulation, the Maltese AIFM shall cease any new or further, direct or indirect, offering or placement of units or shares of the European AIF it manages in the Member State or EEA State, in respect of which it has submitted a notification in accordance with sub-regulation (16).

(16) The Maltese AIFM shall submit a notification to the competent authority containing the information referred to in paragraphs (a), (b) and (c) of sub-regulation (15).

(17) The competent authority shall verify whether the notification submitted by the Maltese AIFM in accordance with sub-regulation (16) is complete and no later than fifteen (15) working days from the receipt of a complete notification, transmit that notification to the European regulatory authority of the Member State or EEA State, identified in the notification referred to in sub-regulation (16), and to ESMA. Upon transmission of the notification, the competent authority shall promptly notify the Maltese AIFM of that transmission. For a period of thirty-six (36) months from the date referred to in paragraph (c) of sub-regulation (15), the Maltese AIFM shall not engage in pre-marketing of units or shares of the European AIFs referred to in the notification, or in respect of similar investment strategies or investment ideas, in the Member State or EEA State identified in the notification referred to in sub-regulation (16).

(18) The Maltese AIFM shall provide investors who remain invested in the European AIF as well as the competent authority with the information required under Articles 22 and 23 of the AIFM Directive. Such information can be provided, among others, using means of any electronic or other distance communication.

(19) The competent authority shall transmit to the European regulatory authority of the Member State or EEA State identified in the notification referred to in sub-regulation (16), information on any changes to the documentation and information referred to in paragraphs (b) to (f) of sub-regulation (4).

(19A) Without prejudice to other supervisory powers referred to in Article 45(3) of the AIFM Directive, as from the date of transmission under sub-regulation (19), the European regulatory authority of the Member State or EEA State identified in the notification referred to in sub-regulation (16), shall not require the Maltese AIFM concerned to demonstrate compliance with national laws, regulations and administrative provisions governing marketing requirements as referred to in Article 5 of Regulation (EU) 2019/1156 of the European Parliament and of the Council of 20 June 2019 on facilitating cross-border distribution of collective investment undertakings and amending Regulations (EU) No 345/2013, (EU) No 346/2013 and

(EU) No 1286/2014.

(20) The Maltese AIFM may engage in pre-marketing to professional investors of units or shares of a European AIF in a Member State or EEA State other than Malta, except where the information presented to potential professional investors:

(a) is sufficient to allow investors to commit to acquiring units or shares of a particular European AIF;

(b) amounts to subscription forms or similar documents whether in a draft or a final form; or

(c) amounts to constitutional documents, a prospectus or offering documents of a not-yet-established AIF in a final form.

(21) Where a draft prospectus or offering documents are provided, they shall not contain information sufficient to allow investors to take an investment decision and shall clearly state that:

(a) they do not constitute an offer or an invitation to subscribe to units or shares of a European AIF; and

(b) the information presented therein should not be relied upon because it is incomplete and may be subject to change.

(22) The Maltese AIFM does not require to submit any prior notification to the competent authority before it engages in pre-marketing activity in Malta, provided however that it fulfils the requirements set out in this regulation.

(23) The Maltese AIFM shall ensure that investors do not acquire units or shares in a European AIF through pre-marketing and that investors contacted as part of pre-marketing shall only acquire units or shares in that European AIF through marketing permitted under sub-regulation 4(1).

(24) Any subscription by professional investors, within eighteen

(18) months of the Maltese AIFM having begun pre-marketing, to units or shares of a European AIF referred to in the information provided in the context of pre-marketing, or of a European AIF established as a result of the pre-marketing, shall be considered to be the result of marketing and shall be subject to the applicable notification procedures referred to in sub-regulation 4(4).

(25) Within two (2) weeks of it having begun pre-marketing, the Maltese AIFM shall send to the competent authority an informal letter, in paper form or by electronic means, which letter shall specify:

(a) the Member States in which and the periods during which the pre-marketing is taking or has taken place;

(b) a brief description of the pre-marketing including information on the investment strategies presented; and

(c) where relevant, a list of the AIFs and compartments of AIFs which are or were the subject of pre-marketing.

(26) The competent authority shall promptly inform the European regulatory authority of the Member State or EEA State, in which the Maltese AIFM is or was engaged in pre-marketing.

(27) The European regulatory authority of the Member State or EEA State, in which pre-marketing is taking or has taken place may request the competent authority to provide further information on the pre-marketing that is taking or has taken place on its territory.

(28) The Maltese AIFM shall ensure that pre-marketing is adequately documented.

(29) A third party shall only engage in pre-marketing on behalf of the Maltese AIFM where it is authorised as an investment firm in accordance with MIFID Directive, as a credit institution in accordance with CRD, as a UCITS management company in accordance with UCITS Directive, as an AIFM in accordance with AIFM Directive, or acts as a tied agent in accordance with MIFID Directive. Such a third party shall be subject to the conditions set out in this regulation in respect of the Maltese AIFM. MARKETING OF UNITS OR SHARES OF EUROPEAN AIFs BY EUROPEAN AIFMs TO PROFESSIONAL INVESTORS IN MALTA