S.L. 370.24 Art. 11Third country AIFM licensed in Malta marketing European AIF in Malta.

(1) A third country AIFM duly licensed in Malta may market to professional investors, in Malta, units or shares of a

European AIF which it manages as soon as the conditions prescribed in this regulation are met:

Provided that, without prejudice to regulation 30, AIFs managed and marketed by a third country AIFM shall be marketed in Malta only to professional investors: Provided further, where a duly licensed third country AIFM intends to market units or shares of a European AIF, registered in a Member State or EEA State other than Malta, to professional investors, such European AIF shall be exempt from the provisions of Article 4 of the Act.

(2) Where the third country AIFM duly authorised in Malta intends to market units or shares of the European AIF in Malta, after having deemed Malta as its Member State of reference, the third country AIFM shall submit a notification to the competent authority in respect of each European AIF that it intends to market. The notification shall comprise the documentation and information prescribed hereunder:

(a) a notification letter, including a programme of operations identifying the European AIFs which the 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;

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

(g) where relevant, information on the arrangements established to prevent units or shares of the European AIF from being marketed to retail investors, including in the case where the AIFM relies on activities of independent entities to provide investment services in respect of the European AIF.

(3) The competent authority shall, within twenty working days from receipt of a complete notification pursuant to sub-regulation (2), inform the third country AIFM whether it may start marketing the European AIF identified in the notification referred to in sub-regulation (2) in Malta.

(4) The competent authority may prevent the marketing of the European AIF in Malta only if the third country AIFM’s management of the European AIF does not or will not comply with the provisions of the AIFM Directive or if the third country AIFM otherwise does not or will not comply with the provisions of the AIFM Directive.

(5) In the case of a positive decision by the competent authority, the third country AIFM may start marketing the European AIF in Malta as from the date of the notification by the competent authority to that effect.

(6) The competent authority shall also inform ESMA and the European regulatory authorities of the European AIFs that the third country AIFM may start marketing the units or shares of the European AIF in Malta.

(7) In the event of a material change to any of the particulars communicated in accordance with sub-regulation (2), the third country 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.

(8) Where, pursuant to a planned change, the third country AIFM’s management of the European AIF would no longer comply with the provisions of the AIFM Directive, or the third country AIFM would otherwise no longer comply with the provisions of the AIFM Directive, the competent authority shall inform the third country AIFM without undue delay, that it shall not implement the change.

(9) Where the third country AIFM proceeds with the implementation of the planned change, notwithstanding the notification received pursuant to sub-regulations (7) and (8), or if an unplanned change has taken place pursuant to which the third country AIFM’s management of the European AIF no longer complies with the provisions of the AIFM Directive or the third country 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.

(10) If the changes are acceptable because they do not affect the compliance of the third country AIFM’s management of the European AIF with the provisions of the AIFM Directive, or the compliance by the third country AIFM with the provisions of the AIFM Directive, the competent authority shall, without delay, inform ESMA in so far as the changes concern the termination of the marketing of certain European AIFs or additional European AIFs being marketed and, if applicable, the European regulatory authorities of the host Member State or EEA State of the third country AIFM of such changes.