S.L. 370.24 Art. 22Marketing of units or shares of AIFs by a third country AIFM in Malta.

(1) Without prejudice to regulation 30, a third country

AIFM may market, only to professional investors within the territory of Malta, units or shares of a third country AIF or a

European AIF which is registered in another Member State or EEA

State other than Malta and which it manages. The third country AIF

and the third country AIFM shall be exempt from the provisions of articles 3 and 4 of the Act respectively:

Provided that at least the following conditions shall be satisfied:

(a) the third country AIFM complies with Articles 22, 23 and 24 of the AIFM Directive in respect of each AIF marketed by it pursuant to this regulation and with Articles 26 to 30 of the AIFM Directive where an AIF marketed by it pursuant to this regulation is one of the following:

(i) one or more AIFs managed by third country AIFMs, where such AIFs either individually or jointly on the basis of an agreement aimed at acquiring control, acquire control of a non-listed company in accordance with Article 26(5) of the AIFM Directive;

(ii) AIFs managed by third country AIFMs jointly, where such third country AIFMs cooperate with one or more other AIFMs on the basis of an agreement pursuant to which the AIFs managed by those AIFMs jointly acquire control of a non-listed company in accordance with Article 26(5) of the AIFM Directive: Provided that the term ‘competent authorities’ and ‘AIF investors’ referred to in articles 22, 23, 24, 26 to 30 shall be deemed to refer to the competent authority and to the investors in Malta;

(b) appropriate cooperation arrangements for the purpose of systemic risk oversight and in line with international standards are in place between the competent authority, in so far as applicable, the European regulatory authorities of the European AIFs concerned and the supervisory authorities of the third country where the third country AIFM and, in so far as applicable, the supervisory authorities of the third country where the third country AIF is established in order to ensure an efficient exchange of information that allows the competent authority to carry out its duties in accordance with the provisions of the AIFM Directive;

(c) the country where the third country AIFM or the third country AIF is established is not identified as a high-risk third country in accordance with Article 9(2) of Directive

(EU) 2015/849;

(d) the country where the third country AIFM or the third country AIF is established has signed an agreement with Malta or with the competent authority and with each other Member State or EEA State in which the units or shares of the third country AIF are intended to be marketed which fully complies with the standards stipulated 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, and such third country is not mentioned in Annex I to the Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes.

(2) Where a European regulatory authority of a European AIF does not enter into the required cooperation arrangements as prescribed in sub-regulation (1)(b) within a reasonable period of time, the competent authority may refer the matter to ESMA which may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010.

(3) The competent authority may, for the purposes of this regulation, impose stricter rules on the third country AIFM in respect of the marketing of units or shares of AIFs to investors in Malta. POWERS AND DUTIES OF THE COMPETENT AUTHORITY