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the AIFM PART 2 Authorisation
AIFMs
the authorisation 12. Withdrawal
the authorisation PART 3 Operating conditions for AIFMs CHAPTER 1 General requirements 13. General principles 14. Remuneration 15. Conflicts
interest
Aifm Functions
AIF DIVISION 1 AIFMS MANAGING LEVERAGED AIFS 26. Use
information by competent authorities, supervisory cooperation and limits to leverage DIVISION 2 OBLIGATIONS FOR AIFMS MANAGING AIFS WHICH ACQUIRE CONTROL
NON-LISTED COMPANIES AND ISSUERS
the acquisition
major holdings and control
non-listed companies 29. Disclosure in case
acquisition
control 30. Specific provisions regarding the annual report
AIFs exercising control
non-listed companies
units or shares
EU AIFs managed by Irish AIFMs in the State 33. Other Cases
Marketing
Units or Shares
EU AIFs
non-EU AIFs in the European Union or in the State by, respectively, Irish AIFMs and Other Member State AIFMs 37. Conditions for the marketing in the State without a passport
non-EU AIFs managed by an Irish AIFM or an AIFM from another Member State 38. Authorisation
non-EU AIFMs intending to manage Irish AIFs or market AIFs managed by them in the European Union in accordance with Regulation 40 or 41 39. Peer review
authorisation and supervision
non-EU AIFMs 40. Conditions for marketing, with a passport, in the European Union or in the State
EU AIFs managed by, respectively, a non-EU AIFM whose Member State
reference is the State and by such an AIFM whose Member State
reference is another Member State 41. Conditions for marketing, with a passport, in the European Union or in the State
non-EU AIFs managed by, respectively, a non-EU AIFM whose Member State
reference is the State and by such an AIFM whose Member State
reference is another Member State 42. Conditions for managing AIFs established in other Member States and Irish AIFs by, respectively, a non-EU AIFM whose Member State
reference is the State and such an AIFM whose Member State
reference is another Member State 43. Conditions for the marketing in the State without a passport
AIFs managed by a non-EU AIFM CHAPTER 9 Marketing To Retail Investors 44. Marketing
AIFs by AIFMs to retail investors PART 4 Competent Authorities DESIGNATION, POWERS AND REDRESS PROCEDURES 45. Designation
competent authorities 46. Responsibility
the Bank
the Bank to request Information
High Court to compel compliance with direction
personal data 56. Disclosure
information to third countries 57. Exchange
information relating to the potential systemic consequences
AIFM activity
Bank to provide certain information to ESMA 63. Amendments
Central Bank Act 1942 64. Amendments
Unit Trusts Act 1990 65. Amendments
Companies Act 1990 66. Amendments
Investment Funds, Companies and Miscellaneous Provisions Act 2005 67. Amendments
Investment Limited Partnerships Act 1994 SCHEDULE 1 SCHEDULE 2 REMUNERATION POLICY SCHEDULE 3 DOCUMENTATION AND INFORMATION TO BE PROVIDED IN CASE
INTENDED MARKETING IN THE STATE BY IRISH AIFMs OR BY AIFMs WHOSE MEMBER STATE
REFERENCE IS THE STATE SCHEDULE 4 DOCUMENTATION AND INFORMATION TO BE PROVIDED IN THE CASE
INTENDED MARKETING IN OTHER MEMBER STATES BY IRISH AIFMs OR BY AIFMs WHOSE MEMBER STATE
REFERENCE IS THE STATE S.I. No. 257
2013 EUROPEAN UNION (ALTERNATIVE INVESTMENT FUND MANAGERS) REGULATIONS 2013 Notice
the making
this Statutory Instrument was published in “Iris Oifigiúil”
30th July, 2013. I, MICHAEL NOONAN, Minister for Finance, in exercise
the powers conferred on me by section 3
the European Communities Act 1972 (No. 27
1972), and for the purpose
giving effect to Directive 2011/61/EU
the European Parliament and
the Council
8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EU and 2009/65/EC and Regulations (EC) No. 1060/2009 and (EU) No. 1095/20101 , hereby make the following regulations: PART 1 Preliminary Citation.
the managers
alternative investment funds who manage or market alternative investment funds in the State (or do both
the foregoing in the State) and provisions for securing the transparency
those activities
them; and (b) otherwise giving effect to the Directive. Scope. 3.
whether such AIF is an EU AIF or a non-EU AIF; (b) a non-EU AIFM whose Member State
reference is the State; (
paragraph
contract, under trust law, under statute, or has any other legal form; (c) the legal structure
the AIFM.
that Directive or the investment managers appointed pursuant to Article 19
that Directive, in so far as they do not manage alternative investment funds; (
the AIFM or other subsidiaries
those parent undertakings, provided that none
those investors is itself an AIF.
this Regulation, and no other provision
these Regulations, with the exception
Regulations 48 and 49, shall apply to an AIFM falling within either
the following subparagraphs: (a) an AIFM which either directly or indirectly, through a company with which the AIFM is linked by common management or control, or by a substantive direct or indirect holding, manages portfolios
alternative investment funds whose assets under management (including any assets acquired through use
leverage) do not exceed, in total, €100 million; or (b) an AIFM which either directly or indirectly, through a company with which the AIFM is linked by common management or control, or by a substantive direct or indirect holding, manage portfolios
alternative investment funds whose assets under management do not exceed, in total, €500 million and those portfolios consist
alternative investment funds that— (
5 years following the date
initial investment in each AIF.
registration, identify itself and the alternative investment funds that it manages to the Bank, (c) at the time
registration, provide the Bank with information on the investment strategies
the alternative investment funds that it manages, (d) provide the Bank, at regular intervals, with information on the main instruments in which it is trading and on the principal exposures and most important concentrations
the alternative investment funds that it manages in order to enable the Bank to monitor systemic risk effectively, and (e) notify the Bank, in the event that it no longer meets the conditions referred to in paragraph
that fact.
such occurring in accordance with the relevant procedures specified in these Regulations.
the rights granted under these Regulations unless it chooses to opt in under these Regulations. Where an AIFM so opts in, these Regulations shall become applicable in their entirety to it. Interpretation. 5.
investors, with a view to investing it in accordance with a defined investment policy for the benefit
those investors, and (b) does not require authorisation under Directive 2009/65/EC
the European Parliament and
the Council
13 July 2009 on the coordination
laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS): “alternative investment fund manager” or “AIFM” means a legal person whose regular business is managing one or more than one AIF; “Bank” means the Central Bank
Ireland; “branch”, in relation to an AIFM, means a place
business which is a part
the AIFM, which has no legal personality and which provides the services for which the AIFM has been authorised; where all the places
business
an AIFM, whose registered
fice is in another Member State or in a third country, are established in the State, they shall be regarded as a single branch; “carried interest” means a share in the profits
the AIF accrued to the AIFM as compensation for the management
the AIF and excluding any share in the profits
the AIF accrued to the AIFM as a return on any investment by the AIFM into theAIF; “close links” means a situation in which two or more natural or legal persons are linked by: (a) participation, namely ownership, directly or by way
control,
20 per cent or more
the voting rights or capital
an undertaking, (b) control, namely the relationship between a parent undertaking and a subsidiary, as referred to in Regulation 4
the European Communities (Companies: Group Accounts) Regulations 1992 ( S.I. No. 201
1992 ), or a similar relationship between a natural or legal person and an undertaking; for the purposes
this subparagraph a subsidiary undertaking
a subsidiary undertaking shall also be considered to be a subsidiary
the parent undertaking
those subsidiaries. and a situation in which 2 or more natural or legal persons are permanently linked to the same person by a control relationship shall also be regarded as constituting a “close link” between such persons for the purpose
these Regulations; “competent authority” means the Bank or, in the case
another Member State, the body or bodies designated by that state to act as a competent authority for the purposes
the Directive; “competent authorities” in relation to a depositary means: (a) if the depositary is a credit institution authorised under Directive 2006/48/EC, the competent authorities as defined in point
institution referred to in Regulation 22
the Member State in which that entity has its registered
fice and which are empowered by law or regulation to supervise such entity or the
ficial body competent to register or supervise such entity pursuant to the rules
professional conduct applicable thereto; (e) if the depositary is appointed as depositary for a non-EU AIF in accordance with Regulation 22
subparagraphs (a) to (d)
this definition, the relevant national authorities
the third country where the depositary has its registered
fice; “competent authorities
the EU AIF” means the national authorities
a Member State which are empowered by law or regulation to supervise alternative investment funds; “contravene”, in relation to a provision, includes fail to comply with the provision; “control” means the relationship between a parent undertaking and a subsidiary, in all the cases being the relationship referred to in Regulation 4
the European Communities (Companies: Group Accounts) Regulations 1992 ( S.I. No. 201
1992 ); “employees’ representatives” means employees’ representatives as defined in point (e)
Article2
Directive 2002/14/EC; “ESMA” means the European Securities and Markets Authority established by Regulation (EU) No. 1095/2010
the European Parliament and
the Council
24 November 2010; “established”, in relation to a place, means: (a) in the case
an AIFM, the AIFM having its registered
fice in the place; (b) in the case
an AIF, the AIF being authorised or registered in the place, or, if the AIF is not authorised or registered, the AIF having its registered
fice in the place; (c) in the case
a depositary, the depositary having its registered
fice or branch in the place; (d) in the case
a legal representative that is a legal person, the legal representative having its registered
fice or branch in the place; (e) in the case
a legal representative who is a natural person, the legal representative being domiciled in the place; “EU alternative investment fund” or “EU AIF” means: (
fice or head
fice, or both, in a Member State; “EU alternative investment fund manager or “EU AIFM” means an AIFM which has its registered
fice in a Member State; “external AIFM” shall be read in accordance with Regulation 6
its assets in units or shares
another AIF (the “master alternative investment fund”), (b) invests at least 85 per cent
its assets in more than one master alternative investment fund where those master alternative investment funds have identical investment strategies; or (c) has otherwise an exposure
at least 85 per cent
its assets to such a master alternative investment fund; “financial instrument” means an instrument specified in Part 3
Schedule 1 to the European Communities (Markets in Financial Instruments) Regulations 2007 ( S.I. No. 60
2007 ); “holding company” means a company with shareholdings in one or more other companies, the commercial purpose
which is to carry out a business strategy or strategies through its subsidiaries, associated companies or participations in order to contribute to their long-term value and which is either a company: (
generating returns for its investors by means
divestment
its subsidiaries or associated companies, evidenced in its annual report or other
ficial documents; “home Member State
the AIF” means: (a) the Member State in which the AIF is authorised or registered under applicable law, or in case
multiple authorisations or registrations, the MemberState in which the AIF has been authorised or registered for the first time, or (b) if the AIF is neither authorised nor registered in a Member State, the MemberState in which the AIF has its registered
fice or head
fice or both; “home Member State
the AIFM” means the Member State in which the AIFM has its registered
fice; in the case
a non-EU AIFM, references in these Regulations to “home Member State
the AIFM” shall be read as references to the “Member State
reference”, as provided for in Chapter 8
; “host Member State
the AIFM” means any
the following: (
an EU AIF; (c) a Member State, other than the home Member State, in which an EU AIFM markets units or shares
a non-EU AIF; (d) a Member State, other than the Member State
reference, in which a non-EU AIFM manages EU alternative investment funds; (e) a Member State, other than the Member State
reference, in which a non-EU AIFM markets units or shares
an EU AIF; or (f) a Member State, other than the Member State
reference, in which a non-EU AIFM markets units or shares
a non-EU AIF; “initial capital” means funds as referred to in points (a) and (b)
the first paragraph
Directive 2006/48/EC; “issuer” means an issuer within the meaning
point (d)
Directive 2004/109/EC where that issuer has its registered
fice in the Union, and where its shares are admitted to trading on a regulated market within the meaning
Regulation 3
the European Communities (Markets in Financial Instruments) Regulations 2007 ( S.I. No. 60
2007 ); “legal representative” means a natural person domiciled in the European Union or a legal person with its registered
fice in the European Union, and who or which, expressly designated by a non-EU AIFM, acts on behalf
such non-EU AIFM vis--vis the authorities, clients, bodies and counterparties to the non-EU AIFM in the European Union with regard to the non-EU AIFM’s obligations under these Regulations; “leverage” means any method by which the AIFM increases the exposure
an AIF it manages whether through borrowing
cash or securities, or leverage embedded in derivative positions or by any other means; “managing one or more than one alternative investment fund” means performing at least investment management functions referred to in paragraph1(a) or (b)
Schedule 1 for one or more than one such fund; “marketing” means a direct or indirect
fering or placement at the initiative
the AIFM or on behalf
the AIFM
units or shares
an AIF it manages to or with investors domiciled or with a registered
fice in the European Union; “master alternative investment fund” or “master AIF” means an AIF in which another AIF invests or has an exposure in accordance with the definition
“feeder alternative investment fund” in this paragraph; “Member State
reference” means the Member State determined in accordance with Article 37
the Directive; “non-EU alternative investment fund” or “non-EU AIF” means an AIF which is not an EU AIF; “non-EU alternative investment fund manager” or “non-EU AIFM” means an AIFM which is not an EU AIFM; “non-listed company” means a company which has its registered
fice in the European Union and the shares
which are not admitted to trading on a regulated market within the meaning
Regulation 3
the European Communities (Markets in Financial Instruments) Regulations 2007 ( S.I. No. 60
2007 ); “own funds” means own funds as referred to in Articles 56 to 67
Directive 2006/48/EC; “parent undertaking” means an undertaking that has one or more subsidiary undertakings; “prime broker” means a credit institution, a regulated investment firm or another entity subject to prudential regulation and ongoing supervision,
fering services to professional investors primarily to finance or execute transactions in financial instruments as counterparty and which may also provide other services such as clearing and settlement
trades, custodial services, securities lending, customised technology and operational support facilities; “professional investor” means an investor who is considered to be a professional client or may, on request, be treated as a professional client within the meaning
Annex II to Directive 2004/39/EC “qualifying holding” means a direct or indirect holding in an AIFM which represents 10 per cent or more
the capital or
the voting rights, in accordance with Articles 9 and 10
Directive 2004/109/EC, taking into account the conditions regarding aggregation
the holding laid down in Article 12
the AIFM in which that holding subsists; “retail investor” means an investor who is not a professional investor; “subsidiary” means a subsidiary undertaking as defined in Regulation 4
the European Communities (Companies: Group Accounts) Regulations 1992 ( S.I. No. 201
1992 ); “supervisory authorities”, in relation to a non-EU AIF, means the national authorities
a third country which are empowered by law or regulation to supervise the AIF; “supervisory authorities”, in relation to a non-EU AIFM, means the national authorities
a third country which are empowered by law or regulation to supervise the AIFM; “securitisation special purpose entities” means entities whose sole purpose is to carry on a securitisation or securitisations within the meaning
Regulation (EC) No. 24/2009
the European Bank
19 December 2008 concerning statistics on the assets and liabilities
financial vehicle corporations engaged in securitisation transactions3 and other activities which are appropriate to accomplish that purpose; “UCITS” means an undertaking for collective investment in transferable securities authorised in accordance with Directive 2009/65/EC
the European Parliament and
the Council
13 July 2009 on the coordination
laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS).
the definition
“own funds” in paragraph
the European Communities (Capital Adequacy
Investments Firms) Regulations 2006 shall apply with the necessary modifications.
the AIFM. 6.
these Regulations shall have a single AIFM, which AIFM shall be responsible for ensuring that these Regulations are complied with.
the AIF and which, through that appointment, is responsible for managing the AIF (“external AIFM”); or (b) where the legal form
the AIF permits an internal management and where the AIF’s governing body chooses not to appoint an external AIFM, the AIF itself, which shall then be authorised as the AIFM.
these Regulations for which an AIF or another entity on its behalf is responsible, it shall immediately notify the Bank, and, if applicable, the competent authorities
the EU AIF concerned,
that fact. The Bank shall require the AIFM to take the necessary steps to remedy the situation.
reference is the State) managing an EU AIF, the Bank shall require that the AIFM resign as AIFM
the AIF concerned and the AIFM shall comply with that requirement. In such a case the AIF shall no longer be marketed in the European Union. If the case is one that relates to a non-EU AIFM (being an AIFM whose Member State
reference is the State) managing a non-EU AIF, the AIF shall no longer be marketed in the European Union.
the cases mentioned in paragraph
the matter to the competent authorities
the host Member States
the AIFM. PART 2 Authorisation
AIFMs Conditions for taking up AIFM activities. 7.
that AIF in accordance with Schedule 1.
portfolios
investments, including those owned by pension funds and institutions for occupational retirement provision in accordance with Article 19
Directive 2003/41/EC, in accordance with mandates given by investors on a discretionary, client-by-client basis; (
collective investment undertakings; (iii) reception and transmission
orders in relation to financial instruments.
Schedule 1; or (d) the services referred to in paragraph1(a)
Schedule 1 without also providing the services referred to in paragraph1(b)
that Schedule or vice versa.
the European Communities (Markets in Financial Instruments) Regulations 2007 ( S.I. No. 60
2007 ) shall apply to the provision
the services referred to in paragraph
alternative investment funds. However, an investment firm shall, directly or indirectly,
fer units or shares
alternative investment funds to, or place such units or shares with, investors in the State, only to the extent the units or shares can be marketed in accordance with these Regulations. Application for authorisation. 8.
the AIFM; (b) information on the identities
the AIFM’s shareholders or members, whether direct or indirect, natural or legal persons, that have qualifying holdings and on the amounts
those holdings; (c) a programme
activity setting out the organisational structure
the AIFM, including information on how the AIFM intends to comply with its obligations under these Regulations; (
functions as referred to in Regulation 21.
underlying funds if the AIF is a fund
funds, and the AIFM’s policy as regards the use
leverage, and the risk profiles and other characteristics
each AIF it manages or intends to manage, including information about the Member States or third countries in which each AIF is established or is expected to be established; (b) information on where the master AIF is established if the AIF is a feeder AIF; (c) the rules or instruments
incorporation
each AIF the AIFM intends to manage; (d) information on the arrangements made for the appointment
the depositary in accordance with Regulation 22 for each AIF the AIFM intends to manage; (e) any additional information referred to in Regulation 24
2011 ) and applies for authorisation as an AIFM under these Regulations, the Bank shall not require the UCITS management company to provide information or documents which the UCITS management company already provided when applying for authorisation under the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2011, provided that such information or documents remain up-to-date.
authorisations granted or withdrawn in accordance with this Part. Conditions for granting authorisation. 9.
these Regulations; (ii) the AIFM has sufficient initial capital and own funds in accordance with Regulation 10; (iii) the persons who effectively conduct the business
the AIFM are
sufficiently good repute and are sufficiently experienced also in relation to the investment strategies pursued by each AIF managed by the AIFM, the names
those persons and
every person succeeding them in
fice being communicated forthwith to the Bank and the conduct
the business
the AIFM being decided by at least two persons meeting suchconditions; (iv) the shareholders or members
the AIFM who have qualifying holdings are suitable taking into account the need to ensure the sound and prudent management
the AIFM; and (v) the head
fice and the registered
fice
the AIFM are located in the State. (
other Member States before it grants an authorisation to any
the following: (a) a subsidiary
another AIFM,
a UCITS management company,
an investment firm,
a credit institution or
an insurance undertaking authorised in another Member State; (b) a subsidiary
the parent undertaking
another AIFM,
a UCITS management company,
an investment firm,
a credit institution or
an insurance undertaking authorised in another Member State; and (c) a company controlled by the same natural or legal persons as those that control another AIFM, a UCITS management company, an investment firm, a credit institution or an insurance undertaking authorised in another Member State.
the Bank’s supervisory functions would be prevented by any
the following: (
a third country governing natural or legal persons with which the AIFM has close links; (c) difficulties involved in the enforcement
those laws, regulations and administrative provisions.
each AIF the AIFM is allowed to manage.
an authorisation within 3 months after the date
submission to it by the applicant
a complete application, whether or not the authorisation has been granted.
the specific circumstances
the case and after having notified the AIFM accordingly.
paragraph
at least €300,000.
alternative investment funds, the AIFM shall have an initial capital
at least €125,000.
the portfolios
the alternative investment funds managed by the AIFM exceeds €250,000,000, the AIFM shall provide an additional amount
own funds. That additional amount
own funds shall be equal to 0.02 per cent
the amount by which the value
the portfolios
the AIFM exceeds €250,000,000 but the required total
the initial capital and the additional amount shall not, however, exceed €10,000,000.
paragraph
theAIFM.
paragraph
the AIFM shall never be less than the amount required under Article 21
Directive 2006/49/EC.
the additional amount
own funds referred to in that paragraph on condition that it benefits from a guarantee
the same amount given by— (a) a credit institution or an insurance undertaking which has its registered
fice in a Member State, or (b) a credit institution or an insurance undertaking in a third country in which the institution or undertaking is subject to prudential rules considered by the Bank as equivalent to those laid down in European Union law.
paragraphs
the authorisation. 11.
any proposed changes that would materially affect the basis on which the authorisation had been granted to it, or on which the Bank has attached any conditions to the authorisation; for the purpose
this paragraph changes that are material include material changes to the information provided in accordance with Regulation 8.
the changes proposed; or (b) decide that the changes proposed should not be proceeded with, and, in either case, shall make its decision, and inform the AIFM
it, within 1 month after the receipt
the notification; where the decision is that under subparagraph (a), the Bank shall alter the conditions accordingly.
the specific circumstances
the case and after having notified the AIFM accordingly.
the authorisation. 12. The Bank may withdraw the authorisation granted to an AIFM where the AIFM— (a) does not make use
the authorisation within 12 months after the date
its grant, expressly renounces the authorisation or has ceased the activity to which these Regulations apply for the preceding 6 months, unless the Bank has provided for the authorisation to lapse in such cases; (b) obtained the authorisation by making false statements or by any other irregular means; (c) no longer complies with one or more
the conditions attached to the authorisation; (d) no longer complies with Directive 2006/49/EC if its authorisation also covers the discretionary portfolio management service referred to in Regulation 7
these Regulations and the contravention or contraventions is or are, in the opinion
the Bank,
a serious or systematic nature. PART 3 Operating conditions for AIFMs Chapter 1 General requirements General principles. 13.
each AIF or the investors
each AIF it manages and the integrity
the market; (c) have and employ effectively the resources and procedures that are necessary for the proper performance
its business activities; (d) take all reasonable steps to avoid conflicts
interest and, when they cannot be
interest in order to prevent them from adversely affecting the interests
each AIF and its investors and to ensure that each AIF it manages is fairly treated; (e) comply with all regulatory requirements applicable to the conduct
its business activities so as to promote the best interests
each AIF or the investors
each AIF it manages and the integrity
the market; (f) treat all AIF investors fairly. No investor in an AIF shall obtain preferential treatment, unless such preferential treatment is disclosed in the relevant AIF’s rules or instruments
incorporation.
discretionary portfolio management referred to in Regulation 7
a client’s portfolio in units or shares
any AIF it manages, unless it receives prior general approval from the client; (b) with regard to the services referred to in Regulation 7
the European Parliament and
the Council
3March 1997 on investor-compensation schemes. Remuneration. 14.
staff referred to in paragraph
incorporation
each AIF it manages.
the AIFM, including senior management, risk-takers, control functions, and any employees receiving total remuneration that takes them into the same remuneration bracket as senior management and risk takers, whose professional activities have a material impact on the risk profiles
the AIFM or
any AIF it manages.
interest. 15.
interest that arise in the course
managing alternative investment funds between: (
the AIFM; (
the AIFM.
interest in order to prevent them from adversely affecting the interests
each AIF and its investors.
interest. An AIFM shall assess whether its operating conditions may involve any other material conflicts
interest and disclose them to the investors
each AIF.
interest are not sufficient to ensure, with reasonable confidence, that risks
damage to investors’ interests will be prevented, the AIFM shall clearly disclose the general nature or sources
conflicts
interest to the investors before undertaking business on their behalf, and develop appropriate policies and procedures.
an AIF uses the services
a prime broker, the terms shall be set out in a written contract. In particular any possibility
transfer and reuse
AIF assets shall be provided for in that contract and shall comply with the AIF rules or instruments
incorporation. The contract shall provide that the depositary be informed
the contract.
prime brokers with whom a contract is to be concluded. Risk management. 16.
risk management from the operating units, including from the functions
portfolio management.
the functions
risk management in accordance with the paragraph
proportionality.
a review under paragraph
interest allow for the independent performance
risk management activities and that the risk management process satisfies the requirements
this Regulation and is consistently effective.
the AIF, according to the investment strategy, the objectives and risk profile
the AIF; (b) ensure that the risks associated with each investment position
the AIF and their overall effect on the AIF’s portfolio can be properly identified, measured, managed and monitored on an ongoing basis, including through the use
appropriate stress testing procedures; (c) ensure that the risk profile
the AIF shall correspond to the size, portfolio structure and investment strategies and objectives
the AIF as laid down in the AIF rules or instruments
incorporation, prospectus and
fering documents. Supplemental provision in relation to Regulation 16. 17. An AIFM shall set a maximum level
leverage which it may employ on behalf
each AIF it manages as well as the extent
the right to reuse collateral or guarantee that could be granted under the leveraging arrangement, taking into account, inter alia: (a) the type
the AIF; (b) the investment strategy
the AIF; (c) the sources
leverage
the AIF; (
the activity
the AIFM on the markets concerned. Liquidity management. 18.
the AIF and to ensure that the liquidity profile
the investments
the AIF complies with its underlying obligations.
each AIF and monitor the liquidity risk
each AIF accordingly.
each AIF.
each AIF managed by the AIFM, shall require that the AIFM has sound administrative and accounting procedures, control and safeguard arrangements for electronic data processing and adequate internal control mechanisms including, in particular, rules for personal transactions by its employees or for the holding or management
investments in order to invest on its own account and ensuring, at least, that each transaction involving each AIF may be reconstructed according to its origin, the parties to it, its nature, and the time and place at which it was effected and that the assets
each AIF managed by the AIFM are invested in accordance with the AIF rules or instruments
incorporation and the legal provisions in force. Valuation. 20.
the assets
the AIF can be performed in accordance with this Regulation and the AIF rules or instruments
incorporation.
incorporation shall set out the rules applicable to the valuation
assets and the calculation
the net asset value per unit or share
the AIF.
each AIF is calculated and disclosed to the investors in accordance with this Regulation and the AIF rules or instruments
incorporation.
the open-ended type, such valuations and calculations shall also be carried out at a frequency which is both appropriate to the assets held by the AIF and its issuance and redemption frequency.
the closed-ended type, such valuations and calculations shall also be carried out in case
an increase or decrease
the capital by the relevant AIF.
the valuations and calculations as set out in the relevant AIF rules or instruments
incorporation.
interest are mitigated and that undue influence upon the employees isprevented.
that AIF, unless it has functionally and hierarchically separated the performance
its depositary functions from its tasks as external valuer and the potential conflicts
interest are properly identified, managed, monitored and disclosed to the investors
the AIF.
professional conduct; (b) the external valuer can provide sufficient professional guarantees to be able to perform effectively the relevant valuation function in accordance with paragraphs
the external valuer complies with Regulation 21
the external valuer to the Bank which may require that another external valuer be appointed instead, where the conditions specified in paragraph
AIF assets, the calculation
the net asset value and the publication
that net asset value. The AIFM’s liability towards the AIF and its investors shall not be affected by the fact that the AIFM has appointed an external valuer.
any contractual arrangements providing otherwise, the external valuer shall be liable to the AIFM for any losses suffered by the AIFM as a result
the external valuer’s negligence or intentional failure to perform its tasks. Chapter 3 Delegation
AIFM Functions Delegation. 21.
carrying out functions on its behalf shall notify the Bank before the delegation arrangements become effective. The following conditions shall be met in relation to such delegation: (
sufficient resources to perform the respective tasks and the persons who effectively conduct the business
the delegate shall be
sufficiently good repute and sufficiently experienced; (c) where the delegation concerns portfolio management or risk management, it shall be conferred only on undertakings which are authorised or registered for the purpose
asset management and subject to supervision or, where that condition cannot be met, only subject to prior approval by the Bank; (d) where the delegation concerns portfolio management or risk management and is conferred on a third-country undertaking, in addition to the requirements in paragraph (c), co-operation between the Bank and the supervisory authority
the undertaking shall be ensured; (e) the delegation shall not prevent the effectiveness
supervision
the AIFM, and, in particular, shall not prevent the AIFM from acting, or the AIF from being managed, in the best interests
its investors; (f) the AIFM shall be able to demonstrate that the delegate is qualified and capable
undertaking the functions in question, that it was selected with all due care and that the AIFM is in a position to monitor effectively at any time the delegated activity, to give at any time further instructions to the delegate and to withdraw the delegation with immediate effect when this is in the interest
investors. The AIFM shall review the services provided by each delegate on an ongoing basis.
portfolio management or risk management shall be conferred on: (a) the depositary or a delegate
the depositary; or (b) any other entity whose interests may conflict with those
the AIFM or the investors
the AIF, unless such entity has functionally and hierarchically separated the performance
its portfolio management or risk management tasks from its other potentially conflicting tasks, and the potential conflicts
interest are properly identified, managed, monitored and disclosed to the investors
the AIF.
the AIF and to the extent that it becomes a letterbox entity.
the functions delegated to it provided that the following conditions are met: (
portfolio management or risk management shall be conferredon: (a) the depositary or a delegate
the depositary; or (b) any other entity whose interests may conflict with those
the AIFM or the investors
the AIF, unless such entity has functionally and hierarchically separated the performance
its portfolio management or risk management tasks from its other potentially conflicting tasks, and the potential conflicts
interest are properly identified, managed, monitored and disclosed to the investors
the AIF. The relevant delegate shall review the services provided by each sub-delegate on an ongoing basis.
the functions delegated to it, the conditions set out in paragraph
the depositary shall be evidenced by written contract. The contract shall, inter alia, govern the communication and exchange
information deemed necessary to allow the depositary to perform its functions for the AIF for which it has been appointed as depositary, as set out in these Regulations and in other relevant laws, regulations or administrative provisions.
fice in the State or another Member State and authorised in accordance with Directive 2006/48/EC; (ii) an investment firm having its registered
fice in the State or another Member State subject to capital adequacy requirements in accordance with Article 20
Directive 2006/49/EC including capital requirements for operational risks and authorised in accordance with Directive 2006/39/EC and which also provides the ancillary service
safe-keeping and administration
financial instruments for the account
clients in accordance with point
Section B
Annex I to Directive 2004/39/EC; such investment firms shall in any case have own funds not less than the amount
initial capital referred to in Article 9
Directive 2006/49/EC; or (iii) a company incorporated in the State which is authorised as an investment business firm under the Investment Intermediaries Act 1995 and— (I) is wholly owned by a credit institution, provided the liabilities
the company are guaranteed by the credit institution and the credit institution has a paid up share capital which is not less than the limits specified in Regulation 6
the European Communities (Licensing and Supervision
Credit Institutions) Regulations 1992 or such other sum as the Bank may, from time to time, prescribe under that Regulation; or (II) is wholly owned by an institution in a third country which has a paid up share capital which is not less than the limits specified in Regulation 6
the EC (Licensing and Supervision
Credit Institution) Regulations 1992 or such other sum as the Bank may, from time to time, prescribe under that Regulation. (iv) in the case
an AIF established in another Member State, an entity which that Member State has determined to be a depositary in accordance with Article 21
the Directive; (v) for a non-EU AIF only, and without prejudice to paragraph
the same nature as the entities referred to in clauses (i) and (ii), provided that the conditions in paragraph
5 years from the date
the initial investments and which, in accordance with its core investment policy, generally does not invest in assets that must be held in custody in accordance with paragraph
its professional or business activities in respect
which such entity is subject to mandatory professional registration recognised by law or to legal or regulatory provisions or rules
professional conduct and which can provide sufficient financial and professional guarantees to enable it to perform effectively the relevant depositary functions and meet the commitments inherent in those functions.
interest between the depositary and the AIFM and the AIF (or between the depositary and either
the latter) or between the depositary and the AIF and its investors (or between the depositary and either
the latter): (
its depositary functions from its tasks as prime broker and the potential conflicts
interest are properly identified, managed, monitored and disclosed to the investors
the AIF; (
the following locations: (
the AIF; (c) for a non-EU AIF, in the third country where the AIF is established or in the home Member State
the AIFM managing the AIF or in the Member State
reference
the AIFM managing the AIF.
a depositary established in a third country shall, at all times, be subject to the followingconditions: (a)(i) where a non-EU AIF is managed by either an Irish AIFM or a non-EU AIFM whose Member State
reference is the State, the competent authorities
the Member States in which the units or shares
the non-EU AIF are intended to be marketed and the Bank have signed cooperation and exchange
information arrangements with the competent authorities
the depositary; or (ii) where a non-EU AIF is managed by an AIFM which does not fall within the scope
clause (i) and the units or shares
a non-EU AIF are intended to be marketed in the State, the Bank and the competent authorities
the home Member State
the AIFM have signed cooperation and exchange
information arrangements with the competent authorities
the depositary; (
reference is the State, the competent authorities
the Member States in which the units or shares
the non-EU AIF are intended to be marketed and the Bank have signed an agreement with the third country where the depositary is established which complies with the standards laid down in Article 26
the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange
information in tax matters including any multilateral tax agreements; or (ii) where the units or shares
a non-EU AIF are intended to be marketed in the State, the Bank and the competent authorities
the home Member State
the AIFM, have signed an agreement with the third country where the depositary is established which fully complies with the standards laid down in Article 26
the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange
information in tax matters including any multilateral tax agreements; (e) the depositary shall by contract be liable to the AIF or to the investors
the AIF, consistently with paragraphs
another Member State and the Bank disagree with the assessment made on the application
subparagraph (a), (c) or (e), the Bank and the other competent authority may refer the matter to the ESMA to act in accordance with the powers conferred on it under Article 19
Regulation (EU) No. 1095/2010.
investors upon the subscription
units or shares
an AIF have been received and that all cash
the AIF has been booked in cash accounts opened in the name
the AIF or in the name
the AIFM acting on behalf
the AIF or in the name
the depositary acting on behalf
the AIF at an entity referred to in points (a), (b) and (c)
Directive 2006/73/EC, or another entity
the same nature, in the relevant market where cash accounts are required provided that such entity is subject to effective prudential regulation and supervision which have the same effect as European Union law and are effectively enforced and in accordance with the principles set out in Article 16
Directive 2006/73/EC. (b) Where the cash accounts are opened in the name
the depositary acting on behalf
the AIF, no cash
the entity referred to in subparagraph (a) and none
the depositary’s own cash shall be booked on such accounts.
the AIF or the AIFM acting on behalf
the AIF shall be entrusted to the depositary for safe-keeping, as follows: (
Directive2006/73/EC, opened in the name
the AIF or the AIFM acting on behalf
the AIF, so that they can be clearly identified as belonging to the AIF in accordance with the applicable law at all times; (b) for other assets: (i) the depositary shall verify the ownership
the AIF or the AIFM acting on behalf
the AIF
such assets and shall maintain a record
those assets for which it is satisfied that the AIF or the AIFM acting on behalf
the AIF holds the ownership
such assets, (ii) the assessment whether the AIF or the AIFM acting on behalf
the AIF holds the ownership shall be based on information or documents provided by the AIF or the AIFM and, where available, on external evidence, (iii) the depositary shall keep its record up-to-date.
units or shares
the AIF are carried out in accordance with the applicable national law and the AIF rules or instruments
incorporation; (b) ensure that the value
the units or shares
the AIF is calculated in accordance with the applicable national law, the AIF rules or instruments
incorporation and the procedures specified in Regulation 20; (c) carry out the instructions
the AIFM, unless they conflict with the applicable national law or the AIF rules or instruments
incorporation; (
incorporation.
their respective roles, the AIFM and the depositary shall each act honestly, fairly, professionally, independently and in the interest
the AIF and the investors
theAIF. (b) A depositary shall not carry out activities with regard to the AIF or the AIFM on behalf
the AIF that may create conflicts
interest between the AIF, the investors in the AIF, the AIFM and itself, unless the depositary has functionally and hierarchically separated the performance
its depositary tasks from its other potentially conflicting tasks, and the potential conflicts
interest are properly identified, managed, monitored and disclosed to the investors
the AIF. (c) The assets referred to in paragraph
the AIF or the AIFM acting on behalf
the AIF.
avoiding the requirements
these Regulations; (ii) the depositary can demonstrate to the Bank, if the Bank so requires, that there is an objective reason for the delegation; (iii) the depositary has exercised all due skill, care and diligence in the selection and the appointment
any third party to whom it wishes to delegate parts
its tasks, and keeps exercising all due skill, care and diligence in the periodic review and ongoing monitoring
any third party to whom it has delegated parts
its tasks and
the arrangements
the third party in respect
the matters delegated to it; and (iv) it ensures that the third party meets the following conditions at all times during the performance
the tasks delegated to it: (I) the third party has the structures and the expertise that are adequate and proportionate to the nature and complexity
the assets
the AIF or the AIFM acting on behalf
the AIF which have been entrusted to it; (II) for custody tasks referred to in paragraph
the depositary’s clients from its own assets and from the assets
the depositary in such a way that they can at any time be clearly identified as belonging to clients
a particular depositary; (IV) the third party does not make use
the assets without the prior consent
the AIF or the AIFM acting on behalf
the AIF and prior notification to the depositary; and (V) the third party complies with the general obligations and prohibitions set out in paragraphs
subparagraph (b)(iv), where the law
a third country requires that certain financial instruments be held in custody by a local entity and no local entities satisfy the requirements specified in that subclause, the depositary may delegate its functions to such a local entity only to the extent required by the law
the third country and only for as long as there are no local entities that satisfy those requirements, subject to the following being satisfied: (i) the investors
the relevant AIF shall be duly informed that such delegation is required due to legal constraints in the law
the third country and
the circumstances justifying the delegation, prior to their investment; and (ii) the AIF, or the AIFM on behalf
the AIF, shall instruct the depositary to delegate the custody
such financial instruments to such local entity. (d) The third party may, in turn, sub-delegate those functions, subject to the same requirements. In such a case, paragraph
this paragraph, the provision
services as specified by Directive 98/26/EC by securities settlement systems as designated for the purposes
that Directive or the provision
similar services by third-country securities settlement systems shall not be considered a delegation
its custody functions.
the AIF, for the loss by the depositary or a third party to whom the custody
financial instruments held in custody in accordance with paragraph
such a loss
a financial instrument held in custody, the depositary shall return a financial instrument
identical type or the corresponding amount to the AIF or the AIFM acting on behalf
the AIF without undue delay. The depositary shall not be liable if it can prove that the loss has arisen as a result
an external event beyond its reasonable control, the consequences
which would have been unavoidable despite all reasonable efforts to the contrary. (c) The depositary shall also be liable to the AIF, or to the investors
the AIF, for all other losses suffered by them as a result
the depositary’s negligent or intentional failure to properly fulfil its obligations pursuant to these Regulations.
a loss
financial instruments held in custody by a third party pursuant to paragraph
liability if it can provethat: (i) all requirements for the delegation
its custody tasks set out in subparagraph (b)
paragraph
the depositary to that third party and makes it possible for the AIF or the AIFM acting on behalf
the AIF to make a claim against the third party in respect
the loss
financial instruments or for the depositary to make such a claim on their behalf; and (iii) a written contract between the depositary and the AIF or the AIFM acting on behalf
the AIF, expressly allows a discharge
the depositary’s liability and establishes the objective reason to contract such a discharge.
a third country requires that certain financial instruments are held in custody by a local entity and there are no local entities that satisfy the requirements specified in subclause (II)
paragraph
liability provided that the following conditions are met: (a) the rules or instruments
incorporation
the AIF concerned expressly allow for such a discharge under the conditions set out in this paragraph; (b) the investors
the relevant AIF have been duly informed
that discharge and
the circumstances justifying the discharge prior to their investment; (c) the AIF or the AIFM on behalf
the AIF instructed the depositary to delegate the custody
such financial instruments to a local entity; (d) there is a written contract between the depositary and the AIF or the AIFM acting on behalf
the AIF, which expressly allows such a discharge; and (e) there is a written contract between the depositary and the third party that expressly transfers the liability
the depositary to that local entity and makes it possible for the AIF or the AIFM acting on behalf
the AIF to make a claim against that local entity in respect
the loss
financial instruments or for the depositary to make such a claim on their behalf.
the AIF may be invoked directly or indirectly through the AIFM, depending on the legal nature
the relationship between the depositary, the AIFM and the investors.
an Irish AIF, the depositary shall make available to the Bank, on request, all information which it has obtained while performing its duties and that may be necessary for the Bank or the competent authorities
the AIFM. If the Bank and the competent authorities
the AIFM are different, the Bank shall share the information received without delay with the competent authorities
the AIFM. (b) In the case
a non-EU AIF which has appointed a depositary established in the State, the depositary shall make available to the Bank, on request, all information which it has obtained while performing its duties and that may be necessary for the competent authorities
the AIF or the Bank. The Bank shall share the information received without delay with the competent authorities
the AIF and the competent authorities
the AIFM, if not the Bank. Chapter 5 Transparency Requirements Annual report. 23.
the financial year. The annual report shall be provided to investors on request. The annual report shall be made available to the Bank, and, where applicable, the competent authority
the home Member State
the AIF. (b) Where the AIF is required to make public an annual financial report in accordance with Directive 2004/109/EC only such additional information referred to in paragraph
the annual financial report. In the latter case the annual financial report shall be made public no later than 4 months following the end
the financial year.
assets and liabilities; (
the financial year; (
remuneration for the financial year, split into fixed and variable remuneration, paid by the AIFM to its staff, and number
beneficiaries, and, where relevant, carried interest paid by the AIF; (f) the aggregate amount
remuneration broken down by senior management and members
staff
the AIFM whose actions have a material impact on the risk profile
the AIF.
the home Member State
the AIF or in accordance with the accounting standards
the third country where the AIF is established and with the accounting rules laid down in the AIF rules or instruments
incorporation.
the EuropeanParliament and
the Council
17 May 2006 on statutory audits
annual accounts and consolidated accounts4 . The auditor’s report, including any qualifications, shall be reproduced in full in the annual report.
derogation from paragraph
that AIF to an audit that meets international auditing standards in force in the country where the AIF has its registered
fice. Disclosure to investors. 24.
incorporation, the following information before they invest in the AIF, as well as any material changes thereof: (a) a description
the investment strategy and objectives
the AIF, information on where any master AIF is established and where the underlying funds are established if the AIF is a fund
funds, a description
the types
assets in which the AIF may invest, the techniques it may employ and all associated risks, any applicable investment restrictions, the circumstances in which the AIF may use leverage, the types and sources
leverage permitted and the associated risks, any restrictions on the use
leverage and any collateral and asset reuse arrangements, and the maximum level
leverage which the AIFM is entitled to employ on behalf
the AIF; (b) a description
the procedures by which the AIF may change its investment strategy or investment policy, or both; (c) a description
the main legal implications
the contractual relationship entered into for the purpose
investment, including information on jurisdiction, on the applicable law and on the existence or not
any legal instruments providing for the recognition and enforcement
judgments in the territory where the AIF isestablished; (d) the identity
the AIFM, the AIF’s depositary, auditor and any other service providers and a description
their duties and the investors’ rights; (e) a description
how the AIFM is complying with the requirements
Regulation 10
any delegated management function as referred to in Schedule 1 by the AIFM and
any safe-keeping function delegated by the depositary, the identification
the delegate and any conflicts
interest that may arise from suchdelegations; (g) a description
the AIF’s valuation procedure and
the pricing methodology for valuing assets, including the methods used in valuing hard-to-value assets in accordance with Regulation 20; (h) a description
the AIF’s liquidity risk management, including the redemption rights both in normal and in exceptional circumstances, and the existing redemption arrangements with investors; (i) a description
all fees, charges and expenses and
the maximum amounts thereof which are directly or indirectly borne by investors; (j) a description
how the AIFM ensures a fair treatment
investors and, whenever an investor obtains preferential treatment or the right to obtain preferential treatment, a description
that preferential treatment, the type
investors who obtain such preferential treatment and, where relevant, their legal or economic links with the AIF or AIFM; (
units or shares; (m) the latest net asset value
the AIF or the latest market price
the unit or share
the AIF, in accordance with Regulation 20; (n) where available, the historical performance
the AIF; (o) the identity
the prime broker and a description
any material arrangements
the AIF with its prime brokers and the way the conflicts
interest in relation thereto are managed and the provision in the contract with the depositary on the possibility
transfer and reuse
AIF assets, and information about any transfer
liability to the prime broker that may exist; (p) a description
how and when the information required under paragraphs
any arrangement made by the depositary to contractually discharge itself
liability in accordance with Regulation 22
any changes with respect to depositary liability without delay.
the AIF’s assets which are subject to special arrangements arising from their illiquid nature; (b) any new arrangements for managing the liquidity
the AIF; (c) the current risk profile
the AIF and the risk management systems employed by the AIFM to manage those risks.
leverage which the AIFM may employ on behalf
the AIF as well as any right
the reuse
collateral or any guarantee granted under the leveraging arrangement; (b) the total amount
leverage employed by that AIF. Reporting obligations to competent authorities. 25.
each AIF it manages. (b) It shall provide information on the main instruments in which it is trading, on markets
which it is a member or where it actively trades, and on the principal exposures and most important concentrations
each AIF it manages.
the AIF’s assets which are subject to special arrangements arising from their illiquid nature; (b) any new arrangements for managing the liquidity
the AIF; (c) the current risk profile
the AIF and the risk management systems employed by the AIFM to manage the market risk, liquidity risk, counterparty risk and other risks including operational risk; (d) information on the main categories
assets in which the AIF invested; and (e) the results
the stress tests performed in accordance with Regulations 16
each EU AIF managed by the AIFM and
each AIF marketed by it in the European Union, for each financial year, in accordance with Regulation 23
each quarter a detailed list
every AIF which the AIFM manages.
leverage employed by each AIF it manages, a breakdown between leverage arising from borrowing
cash or securities and leverage embedded in financial derivatives and the extent to which the AIF’s assets have been reused under leveraging arrangements.
the five largest sources
borrowed cash or securities for each AIF managed by the AIFM, and the amounts
leverage received from each
those sources for each AIF. (b) In relation to a non-EU AIFM, the reporting obligations referred to in this paragraph shall only apply to each EU AIF managed by it and each non-EU AIF marketed by it in the European Union.
this Regulation, where— (a) in the opinion
the Bank it is necessary to do so for the effective monitoring
systemic risk, or (b) where requested to do so by ESMA to ensure the stability and integrity
the financial system, or to promote long term growth, and the AIFM shall comply with such a requirement.
AIF DIVISION 1 AIFMS Managing Leveraged AIFS Use
information by competent authorities, supervisory cooperation and limits to leverage. 26.
identifying the extent to which the use
leverage contributes to the build-up
systemic risk in the financial system, risks
disorderly markets or risks to the long-term growth
theeconomy.
every AIFM that it supervises and the information provided to it under Regulation 8 is made available to competent authorities
other relevant Member States, ESMA and the ESRB by means
the procedures set out in Regulation 49 on supervisory cooperation. The Bank shall, without delay, also provide information by means
those procedures, and bilaterally to the competent authorities
other Member States directly concerned, if an AIFM under its responsibility, or an AIF managed by that AIFM, could potentially constitute an important source
counterparty risk to a credit institution or other systemically relevant institutions in other MemberStates.
leverage by an AIFM with respect to each AIF it manages could entail, and, where deemed necessary in order to ensure the stability and integrity
the financial system, the Bank, after having notified ESMA, the ESRB and the competent authorities
the relevant AIF, shall impose limits to the level
leverage that an AIFM is entitled to employ or other restrictions on the management
the AIF with respect to each AIF under its management to limit the extent to which the use
leverage contributes to the build-up
systemic risk in the financial system or risks
disorderly markets. (c) The Bank shall duly inform ESMA, the ESRB and the competent authorities
the AIF,
actions taken in the foregoing respect, by means
the procedures set out in Regulation 49.
paragraph
the proposed measure, the reasons for the measure and when the measure is intended to take effect. (c) In exceptional circumstances, the Bank may decide that the proposed measure takes effect within the period referred to subparagraph (a).
the Directive it shall inform ESMA, stating its reasons. DIVISION 2 Obligations for AIFMS Managing AIFS which Acquire Control
Non-Listed Companies and Issuers Scope. 27.
an agreement aimed at acquiring control, acquires control
a non-listed company in accordance with paragraph
an agreement pursuant to which the alternative investment funds managed by those fund managers jointly, acquire control
a non-listed company in accordance with paragraph
the Annex to Commission Recommendation 2003/361/EC
6 May 2003 concerning the definition
micro, small and medium-sized enterprises5 ; or (b) a special purpose vehicle with the purpose
purchasing, holding or administrating real
those Regulations, paragraphs
this Regulation shall apply with the necessary modifications.
this Division, in relation to a non-listed company, “control” means more than 50 per cent
the voting rights
the company. (b) When calculating the percentage
voting rights held by the relevant AIF, in addition to the voting rights held directly by the relevant AIF, the voting rights
the following shall be taken into account, subject to control as referred to in subparagraph (
the AIF or on behalf
an undertaking controlled by the AIF. (c) The percentage
voting rights shall be calculated on the basis
all the shares to which voting rights are attached even if the exercise thereof is suspended. (d) Notwithstanding the definition
“control” in Regulation 5
Regulations 29
Directive 2004/25/EC.
Directive 2002/14/EC.
holdings in issuers and non-listed companies in the State. Notification
the acquisition
major holdings and control
non-listed companies. 28.
or holds shares
a non-listed company, the AIFM managing such an AIF shall notify the Bank
the proportion
voting rights
the non-listed company held by the AIF any time when that proportion reaches, exceeds or falls below one or more
the following percentages, namely 10 per cent, 20 per cent, 30 per cent, 50 per cent and 75 per cent, each
which is referred to in this Regulation as a threshold.
Regulation 27, the AIFM managing such an AIF shall notify the following
the acquisition
control by the AIF: (
which the identities and addresses are available to the AIFM or can be made available by the non-listed company or through a register to which the AIFM has or can obtain access; and (c) the Bank.
voting rights; (b) the conditions subject to which control was acquired, including information about the identity
the different shareholders involved, any natural person or legal entity entitled to exercise voting rights on their behalf and, if applicable, the chain
undertakings through which voting rights are effectively held; (c) the date on which control was acquired.
directors
the company to inform the employees’ representatives or, where there are none, the employees themselves, without undue delay
the acquisition
control by the AIF managed by the AIFM and
the information referred to in paragraph
directors in accordance with this Regulation.
acquisition
control. 29.
a non-listed company or an issuer pursuant to paragraph
Regulation 27, the AIFM managing such AIF shall make the information referred to in paragraph
this Regulation available to: (
the company
which the identities and addresses are available to the AIFM or can be made available by the company or through a register to which the AIFM has or can obtain access; and; (c) the Bank.
the alternative investment fund managers which either individually or in agreement with other such fund managers manage the alternative investment funds that have acquired control; (b) the policy for preventing and managing conflicts
interest, in particular between the AIFM, the AIF and the company, including information about the specific safeguards established to ensure that any agreement between the AIFM and the company or between the AIF and the company (or between the AIFM and both those others) is concluded at arm’s length; and (c) the policy for external and internal communication relating to the company in particular as regards employees.
directors
the company to inform the employees’ representatives or, where there are none, the employees themselves, without undue delay
the information referred to in paragraph
directors in accordance with this Regulation.
a non-listed company pursuant to paragraph
Regulation 27, the AIFM managing such AIF shall ensure that the AIF, or the AIFM acting on behalf
the AIF, disclose its intentions with regard to the future business
the non-listed company and the likely repercussions on employment, including any material change in the conditions
employment, to: (
the non-listed company
which the identities and addresses are available to the AIFM or can be made available by the non-listed company or through a register to which the AIFM has or can obtain access.
directors
the non-listed company makes available the information set out in paragraph
the non-listed company.
a non-listed company pursuant to paragraph
Regulation 27, the AIFM managing such an AIF shall provide the Bank and the AIF’s investors with information on the financing
the acquisition. Specific provisions regarding the annual report
AIFs exercising control
non-listed companies. 30.
a non-listed company pursuant to paragraph
Regulation 27, the AIFM managing such an AIF shall either: (a) request and use its best efforts to ensure that the annual report
the non-listed company drawn up in accordance with paragraph
directors
the company to the employees’ representatives or, where there are none, to the employees themselves within the period such annual report has to be drawn up in accordance with the national applicable law; or (b) for each such AIF include in the annual report provided for in Regulation 23 the information referred to in paragraph
the company or the AIF, in accordance with paragraph
the development
the company’s business representing the situation at the end
the period covered by the annual report. The report shall also give an indication
: (a) any important events that have occurred since the end
the financial year; (
own shares prescribed by Article 22
Council Directive 77/91/EEC6 .
directors
the non-listed company makes available the information referred to in paragraph
the company concerned or, where there are none, to the employees themselves within the period referred to in Regulation 23
the AIF, in so far as already available, within the period referred to in Regulation 23
the non-listed company is drawn up in accordance with the national applicable law. Asset stripping. 31.
a non-listed company or an issuer pursuant to paragraph
Regulation 27, the AIFM managing such an AIF shall for a period
24 months following the acquisition
control
the company by the AIF: (a) not facilitate, support or instruct any distribution, capital reduction or share redemption or acquisition (or redemption and acquisition)
own shares by the company as described in paragraph
the AIF at the meetings
the governing bodies
the company, not vote in favour
a distribution, capital reduction or share redemption (or redemption and acquisition)
own shares by the company as described in paragraph
own shares by the company as described in paragraph
the last financial year the net assets as set out in the company’s annual accounts are, or following such a distribution would become, lower than the amount
the subscribed capital plus those reserves which may be not distributed under the law or the statutes, and, for the purposes
this subparagraph, where the uncalled part
the subscribed capital is not included in the assets shown in the balance sheet, this amount shall be deducted from the amount
subscribed capital; (b) any distribution to shareholders the amount
which would exceed the amount
the profits at the end
the last financial year plus any profits brought forward and sums drawn from reserves available for this purpose, less any losses brought forward and sums placed to reserve in accordance with the law or the statutes; (c) to the extent that acquisitions
own shares are permitted, the acquisitions by the company, including shares previously acquired by the company and held by it, and shares acquired by a person acting in his own name but on the company’s behalf, that would have the effect
reducing the net assets below the amount mentioned in subparagraph (a).
paragraph
that paragraph includes, in particular, the payment
dividends and
interest relating to shares; (b) the provisions on capital reductions shall not apply on a reduction in the subscribed capital, the purpose
which is to
fset losses incurred or to include sums
money in a non-distributable reserve provided that, following that operation, the amount
such reserve is not more than 10 per cent
the reduced subscribed capital; and (c) the restriction set out in subparagraph (c)
that paragraph shall be subject to points (b) to (h)
Directive 77/91/EEC. Chapter 7 Marketing and managing EU AIFs Marketing
units or shares
EU AIFs managed by Irish AIFMs in the State. 32.
any EU AIF that it manages to professional investors in the State as soon as the conditions specified in this Regulation are met. (
each EU AIF that it intends to market in the State. That notification shall comprise the documentation and information set out in Schedule 3.
a complete notification file pursuant to paragraph
the EU AIF only if the Irish AIFM’s management
the EU AIF does not or will not comply with these Regulations or the Irish AIFM otherwise does not or will not comply with these Regulations. In the case
a decision to permit such marketing, the Irish AIFM may start marketing the EU AIF in the State from the date
the notification by the Bank to that effect. (b) Where the EU AIF is regulated by the competent authorities
another Member State, the Bank shall also inform those competent authorities that the Irish AIFM may start marketing units or shares
the EU AIF in the State.
a material change to any
the particulars provided in accordance with paragraph
that change to the Bank— (i) in the case
any change planned by the AIFM — at least 1 month before implementing the change, or (ii) in the case
where an unplanned change has occurred — immediately after its occurrence. (b) If, pursuant to a planned change, the Irish AIFM’s management
the EU AIF would no longer comply with these Regulations or the Irish AIFM would otherwise no longer comply with these Regulations, the Bank shall inform the Irish AIFM without undue delay that it is not to implement the change. (c) If, notwithstanding the requirements
subparagraphs (a) and (b), a planned change is implemented or if an unplanned change has taken place pursuant to which the Irish AIFM’s management
the EU AIF no longer complies with these Regulations or the Irish AIFM otherwise no longer complies with these Regulations, the Bank shall take all due measures in accordance with Regulation 49, including, if necessary, the express prohibition
marketing
the EU AIF in the State.
Marketing
Units or Shares
EU AIFs. 33.
an EU AIF that it manages to professional investors in another Member State as soon as the conditions specified in this Regulation are met.
an EU AIF that it manages to professional investors in the State as soon as the conditions specified in Article 32
the Directive are met.
each EU AIF that it intends to market in another Member State. That notification shall comprise the documentation and information set out in Schedule 4.
receipt
the complete notification file referred to in paragraph
the Member States where it is intended that the EU AIF be marketed. Such transmission shall occur only if the Irish AIFM’s management
the EU AIF complies with and will continue to comply with these Regulations and if the Irish AIFM otherwise complies with these Regulations.. (
the notification file, the Bank shall, without delay, notify the Irish AIFM about the transmission. The Irish AIFM may start marketing the EU AIF in the host Member State
the Irish AIFM as
the date
that notification. (d) Where the EU AIF is regulated by the competent authorities
another Member State, the Bank shall also inform those competent authorities that the Irish AIFM may start marketing units or shares
the EU AIF in that other Member State.
the home Member State
an EU AIFM in compliance with the obligations set out in paragraph 3
the Directive, the Bank shall accept that notification if transmitted or filed by electronic means or otherwise in writing.
a material change to any
the particulars provided in accordance with paragraph
that change to the Bank— (i) in the case
any change planned by the AIFM — at least 1 month before implementing the change, or (ii) in the case
where an unplanned change has occurred — immediately after its occurrence. (b) If, pursuant to a planned change, the Irish AIFM’s management
the EU AIF would no longer comply with these Regulations or the Irish AIFM would otherwise no longer comply with these Regulations, the Bank shall inform the Irish AIFM without undue delay that it is not to implement the change. (c) If, notwithstanding the requirements
subparagraphs (a) and (b), a planned change is implemented or if an unplanned change has taken place pursuant to which the Irish AIFM’s management
the EU AIF would no longer comply with these Regulations or the Irish AIFM otherwise would no longer comply with these Regulations, the Bank shall take all due measures in accordance with Regulation 49, including, if necessary, the express prohibition
marketing
the EU AIF in other Member States. (d) If the changes are acceptable because they do not affect the compliance
the Irish AIFM’s management
the EU AIF with these Regulations, or compliance by the Irish AIFM with these Regulations otherwise, the Bank shall, without delay, inform the competent authorities
the host Member State
the Irish AIFM
thosechanges.
AIF.
AIF.
operations stating in particular the services which it intends to perform and identifying the EU AIF it intends to manage.
the branch; (b) the address in the home Member State
the EU AIF from which documents may beobtained; (c) the names and contact details
the persons responsible for the management
thebranch.
the host Member State
the Irish AIFM. Such transmission shall occur only if the Irish AIFM’s management
the EU AIF complies, and will continue to comply, with these Regulations and the Irish AIFM otherwise complies with these Regulations. (
the transmission notification the Irish AIFM may start to provide its services in its host Member State.
a change to any
the information provided in accordance with paragraph
that change to the Bank— (i) in the case
any change planned by the AIFM — at least 1 month before implementing the change, or (ii) in the case
where an unplanned change has occurred — immediately after its occurrence. (b) If, pursuant to a planned change, the Irish AIFM’s management
the EU AIF would no longer comply with these Regulations or the Irish AIFM would otherwise no longer comply with these Regulations, the Bank shall inform the Irish AIFM without undue delay that it is not to implement the change. (c) If, notwithstanding the requirements
subparagraphs (a) and (b), a planned change is implemented, or if an unplanned change has taken place pursuant to which the Irish AIFM’s management
the EU AIF would no longer comply with these Regulations or the Irish AIFM otherwise would no longer comply with these Regulations, the Bank shall take all due measures in accordance with Regulation 49. (d) If the changes are acceptable because they do not affect the compliance
the Irish AIFM’s management
the EU AIF with these Regulations, or the compliance by the Irish AIFM with these Regulations otherwise, the Bank shall, without undue delay, inform the competent authorities
the host Member States
the Irish AIFM
those changes. Chapter 8 Specific Rules In Relation to Third Countries Conditions for Irish AIFMs which manage non-EU AIFs which are not marketed in Member States. 35. An authorised Irish AIFM may manage a non-EU AIF which is not marketed in the European Union provided that: (a) the Irish AIFM complies with all the requirements provided for in these Regulations, other than Regulations 22 and 23, in respect
that non-EU AIF; and (b) appropriate cooperation arrangements are in place between the Bank and the supervisory authorities
the third country where the non-EU AIF is established in order to ensure at least an efficient exchange
information that enables the Bank to carry out its duties in accordance with these Regulations. Conditions for marketing, with a passport,
non-EU AIFs in the European Union or in the State by, respectively, Irish AIFMs and Other Member State AIFMs. 36.
a non-EU AIF it manages and
an EU feeder AIF that does not fulfil the requirements referred to in Regulation 32
an non-EU AIF it manages and
an EU feeder AIF that does not fulfil the requirements referred to in the second subparagraph
the Directive as soon as the conditions specified in Article 35
the Directive are met.
AI explanation based on the official legal text. Indicative, not a substitute for legal advice.