S.L. 370.24 Art. 5Conditions for the marketing in Malta by Maltese AIFMs of third country AIFs.

(1) Where a Maltese AIFM intends to market units or shares of a third country AIF in Malta, the Maltese AIFM shall submit a notification to the competent authority in respect of each third country AIF that it intends to market:

Provided that, without prejudice to regulation 30, third country AIFs managed and marketed by a Maltese AIFM shall be marketed only to professional investors:

Provided further that where a Maltese AIFM intends to market units or shares of a third country AIF in Malta to professional investors, such third country AIF shall be exempt from the provisions of Article 4 of the Act.

(2) The notification referred to in sub-regulation (1) shall comprise the following documentation:

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

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

(c) identification of the depositary of the third country AIF;

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

(e) information on where the master AIF is established if the third country AIF is a feeder AIF;

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

(g) where relevant, information on the arrangements established to prevent units or shares of the third country AIF 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 third country AIF.

(3) The competent authority shall, no later than twenty working days after the receipt of a complete notification filed pursuant to sub-regulation (2), inform the Maltese AIFM whether it may start marketing the third country AIF identified in the said notification in Malta: Provided that in the case of a positive decision, the Maltese AIFM may start marketing the third country AIF in Malta as of the date of the notification by the competent authority to that effect.

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

(5) The competent authority shall also inform ESMA that the Maltese AIFM may start marketing the units or shares of the third country AIF in Malta.

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

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

(8) Where the Maltese AIFM proceeds with the implementation of the planned change, notwithstanding the notification received pursuant to sub-regulations (6) and (7), or if an unplanned change has taken place pursuant to which the Maltese AIFM’s management of the third country 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 third country AIF.

(9) If the changes are acceptable because they do not affect the compliance of the Maltese AIFM’s management of the third country 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, without delay, inform ESMA in so far as the changes concern the termination of the marketing of certain AIFs or additional AIFs marketed.