S.L. 370.24 Art. 13Third country AIFM licensed in Malta to market third country AIFs in Malta.

(1) A third country AIFM duly licensed in Malta may market in Malta units or shares of a third country AIF it manages, to professional investors in Malta as soon as the conditions prescribed in this regulation are met:

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

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

(2) In addition to the requirements prescribed in the AIFM Directive in relation to European AIFMs, the following conditions shall also be met for third country AIFMs:

(a) appropriate cooperation arrangements are in place between the competent authority as the Member State of reference and the supervisory authority of the country where the third country AIF is established in order to ensure at least an efficient exchange of information, which allows the competent authority to carry out its duties in accordance with the provisions of the AIFM Directive;

(b) the country where 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;

(c) the country where the third country AIF is established has signed an agreement 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 prescribed 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 country is not mentioned in Annex I to the Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes;

(3) Where a European regulatory authority of another Member State or EEA State disagrees with the assessment made on the application of sub-regulation (2)(a) and (b) by the competent authority, the European regulatory authority concerned 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.

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

(a) a notification letter, including a programme of operations identifying the third country AIFs which the third country 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 in Investment Services Rules for each third country AIF which the third country 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 third country AIFM relies on activities of independent entities to provide investment services in respect of the third country AIF.

(5) The competent authority shall, within twenty working days from receipt of a complete notification pursuant to sub-regulation (4), inform the third country AIFM whether it may start marketing the third country AIF identified in the notification referred to in sub-regulation (4) in Malta.

(6) The competent authority may prevent the marketing of the third country AIF in Malta only if the third country AIFM’s management of the third country 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.

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

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

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

(10) Where, pursuant to a planned change, the third country AIFM’s management of the third country 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.

(11) Where the third country AIFM proceeds with the implementation of the planned change, notwithstanding the notification received pursuant to sub-regulations (9) and (10), or if an unplanned change has taken place pursuant to the which the third country AIFM’s management of the third country 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 made thereunder, including, if necessary, the express prohibition of marketing the third country AIF.

(12) If the changes are acceptable because they do not affect the compliance of the third country AIFM’s management of the third country 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 third country AIFs or additional third country AIFs being marketed and, if applicable, the European regulatory authorities of the host Member State of the third country AIFM of such changes.