L.S. 370.21 Regolamenti dwar l-Att dwar Servizzi ta’ Investiment (Mark

INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) [ S.L.370.21 1 SUBSIDIARY LEGISLATION 370.21 INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) REGULATIONS 22nd July, 2013 * LEGAL NOTICE 113 of 2013, as amended by Legal Notice 218 of 2016, 360 of 2021 and 129 of 2022. PRELIMINARY 1.

(1)The title of these regulations is the Investment Services Act (Marketing of Alternative Investment Funds) Regulations. Citation and scope. Amended by: L.N. 360 of 2021.

(2)These regulations provide the requirements applicable to the cross-border marketing of Alternative Investment Funds in Malta or in any other Member State or EEA State.

(3)These regulations transpose and implement, in part, the provisions of Article 4

(1)(a), (b), (h), (j)(

i)and (ii), (k), (l), (m), (p), (q), (r)(
i)and (ii), (w), (x), (y), (aa), (
ag)and (aj), Article 30a, Article 31

(1)to

(4)and

(6), Article 32

(1)to

(7)and

(9), Article 32a, Article 43, Article 43a, Article 61

(2), Article 69a,, Annex III and Annex IV of the AIFM Directive, and they shall be interpreted and applied accordingly. 2.

(1)requires: In these regulations, unless the context otherwise "the Act" means the Investment Services Act; Interpretation. Amended by: L.N. 360 of

Cap.
"Alternative Investment Fund" or "AIF" means a collective investment scheme, including subfunds thereof, which raises capital from a number of investors, with a view to investing it in accordance with a defined investment policy for the benefit of those investors, and which does not qualify as a UCITS Scheme in terms of the UCITS Directive; "Alternative Investment Fund Manager" or "AIFM" means a legal person whose regular business is managing one or more AIFs; "the AIFM Directive" means Directive 2011/61/EU of the European Parliam ent and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 as amended from time to time, and includes any implementing measures that may be issued thereunder; "competent authority" means the Malta Financial Services Authority established by the Malta Financial Services Authority Act, which body shall also carry out the duties as competent *see regulation 1

(2)of these regulations as originally promulgated. Cap. 330. 2 [ S.L.370.21 INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) authority for all purposes of the AIFM Directive; "durable medium" means any instrument, which enables a client to store information addressed personally to that client in a way accessible for future reference, for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored; "ESMA" means the European Securities and Markets Authority established by Regulation (EU) No. 1095/2010 of the European Parliament and of the Council of the 24 November 2010; "established" means: (

a)in relation to an AIF, the place where the AIF is authorised or registered or if the AIF is not authorised or registered, the place where the AIF has its registered office; (
b)in relation to an AIFM, the place where the AIFM has its registered office; "European AIF" means: (
a)an AIF which is authorised or registered in a Member State or EEA State, including Malta, under the applicable national law; (
b)an AIF which is not authorised or registered in a Member State or EEA State but has its registered office and, or head office in a Member State or EEA State including Malta; "European AIFM" means an AIFM which has its registered office in a Member State or EEA State other than Malta; "European AIFM home Member State or EEA State" means the Member State or EEA State other than Malta, in which the European AIFM has its registered office; "European AIFM host Member State or EEA State" means: (
a)a Member State or EEA State, other than the home Member State or EEA State, in which a European AIFM manages European AIFs; or (
b)a Member State or EEA State, other than the home Member State or EEA State, in which a European AIFM markets units or shares of a European AIF; "European regulatory authority" means the body or bodies designated by a Member State or an EEA State other than Malta in accordance with Article 44 of the AIFMD to carry out the duties provided for in the AIFM Directive; "feeder AIF" means an AIF which: (
a)invests at least 85% of its assets in units or shares of another AIF hereinafter referred to as the master AIF; (
b)invests at least 85% of its assets in more than one master AIFs where those master AIFs have identical investment strategies; or INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) [ S.L.370.21 (
c)has otherwise an exposure of at least 85% of its assets to such a master AIF; "home Member State of the AIF" means: (
a)the Member State or EEA State in which the AIF is authorised or registered under applicable national law, or in case of multiple authorisations or registrations, the Member State or EEA State 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 or EEA State, the Member State or EEA State in which the AIF has its registered office and, or head office; "Maltese AIFM" means an AIFM which is licensed in terms of the Act and which has its registered office in Malta; "Maltese AIFM host Member State or EEA State" means: (
a)a Member State or EEA State, other than Malta, in which a Maltese AIFM manages European AIFs; or (
b)a Member State or EEA State, other than Malta, in which a Maltese AIFM markets units or shares of a European AIF; "master AIF" means an AIF which a feeder AIF invests in or has an exposure in accordance with the definition of "feeder AIF"; "managing AIFs" means performing at least investment management functions referred to in point 1(
a)or (
b)of Annex I of the AIFM Directive for one or more AIFs; "marketing" means a direct or indirect offering or placement at the initiative of the AIFM or on behalf of the AIFM of units or shares of an AIF that it manages to or with investors domiciled or with a registered office in the European Union; "pre-marketing" means provision of information or communication, direct or indirect, on investment strategies or investment ideas by the AIFM or on its behalf, to potential professional investors domiciled or with a registered office in the Member State or EEA State in order to test their interest in an AIF or a compartment which is not yet established, or which is established, but not yet notified for marketing in accordance with regulations 3, 4 and 5, in that Member State or EEA State where the potential investors are domiciled or have their registered office, and which in each case does not amount to an offer or placement to the potential investor to invest in the units or shares of that AIF or compartment; "professional investor" shall have the meaning assigned to "professional client" in the Investment Services Rules or an investor who has opted to be treated as a professional client in terms of said Rules; "retail investor" means an investor who is not a professional investor; "third country" means a country which is not a Member State or 3 4 [ S.L.370.21 INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) an EEA State; "third country AIF" means an AIF which is not a European AIF; Cap. 330. "Tribunal" means the Financial Services Tribunal established in terms of the Malta Financial Services Authority Act; "the UCITS Directive" means Council Directive 85/611/EEC of 20 December 1985 on the co-ordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), as amended from time to time, and includes any implementing measures that may be issued thereunder.

(2)Words and expressions used in these regulations which are also used in the Act but which are not defined herein shall have the same meaning as in the Act.

(3)In the event that any of these regulations conflict with the provisions of the AIFM Directive, the latter shall prevail. MARKETING OF UNITS OR SHARES OF EUROPEAN AIFs BY MALTESE AIFMs TO PROFESSIONAL INVESTORS IN MALTA Marketing of units or shares of European AIFs by a Maltese AIFM in Malta. Amended by: L.N. 218 of 2016. L.N. 360 of 2021. 3.

(1)A Maltese AIFM may market to professional investors in Malta, units or shares of a European AIF which it manages and such European AIF, prior to commencement of its marketing in Malta, shall meeting the conditions prescribed in this regulation: Provided that the European AIF shall be: (

a)authorised or registered in a Member State or EEA State other than Malta, and in such case shall be exempt from the provisions of article 4 of the Act; (
b)authorised in Malta; (
c)where not authorised or registered in a Member State or EEA State, the European AIF has its registered office and, or head office in a Member State or EEA State including Malta and in such case it shall be exempt from the provisions of article 4 of the Act.

(2)Without prejudice to regulation 6, European AIFs managed and marketed by a Maltese AIFM shall be marketed only to professional investors.

(3)Where the European AIF is a feeder AIF, the right to market referred to in sub-regulation

(1)is subject to the condition that the master AIF is also a European AIF which is managed by an AIFM authorised by a Member State or an EEA State.

(4)The Maltese AIFM shall submit to the competent authority a notification in respect of each European AIF which it intends to market. Such notification shall comprise the documentation and information prescribed hereunder: (

a)a notification letter, including a programme of operations identifying the European AIFs which the Maltese AIFM intends to market and the information on where the AIFs are established; INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) [ S.L.370.21 (
b)the European AIF’s prospectus or equivalent rules or instruments of incorporation; (
c)identification of the custodian of the European AIF; (
d)a description of, or any information on, the European AIF available to investors; (
e)information on where the master AIF is established if the AIF is a feeder AIF in terms of sub-regulation

(3); (

f)any additional information concerning the disclosure obligations prescribed in Investment Services Rules, for each European AIF which the Maltese AIFM intends to market; (
g)where relevant, information on the arrangements established to prevent units or shares of the European AIF from being marketed to retail investors, including in the case where the Maltese AIFM relies on activities of independent entities to provide investment services in respect of the European AIF.

(5)Within twenty working days following receipt of a complete notification file pursuant to sub-regulation

(4), the competent authority shall inform the Maltese AIFM whether it may start marketing the European AIF identified in the notification referred to in sub-regulation

(4).

(6)In the case where the AIF identified in the notification referred to in sub-regulation

(4)has been set up in a Member State or EEA State other than Malta, the competent authority shall proceed to inform the European Regulatory Authority of the home Member State or EEA State of the European AIF that the Maltese AIFM may start marketing the units or shares of the said AIF in Malta.

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

(8)The competent authority shall prevent the marketing in Malta of a European AIF only if the Maltese AIFM’s management o f t h e Eu r o p e a n A I F d o e s n o t o r w i l l n o t co m p l y w i t h t h e provisions of the AIFM Directive, or the Maltese AIFM does not or will not comply with the provisions of the AIFM Directive.

(9)In the event of a material change to any of the particulars communicated in accordance with sub-regulation

(4), the Maltese AIFM shall give written notice thereof to the competent authority at least one month prior to the implementation of such change in the case of changes planned by the Maltese AIFM, or immediately after an unplanned change has occurred.

(10)Where, pursuant to a planned change, the AIFM’s management of the European AIF would no longer comply with the provisions of the AIFM Directive or the Maltese AIFM would otherwise no longer comply with the provisions of the AIFM Directive, the competent authority shall within fifteen

(15)working days of receipt of all the information referred to in the sub-regulation 5 6 INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) [ S.L.370.21

(9)inform the Maltese AIFM that it shall not implement the change. In such case, the competent authority shall notify the European Regulatory Authority of the home Member State or EEA State of the AIF accordingly.

(11)Where the Maltese AIFM proceeds with the implementation of the planned change, notwithstanding the notification received pursuant to sub-regulation

(10), or if an unplanned change has taken place pursuant to which the management of the European AIF by the Maltese AIFM 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 European AIF.

(12)The Maltese AIFM may de-notify arrangements made for marketing of units or shares of some or all of the European AIFs under its management, in respect of which it has made a notification pursuant to this regulation, where all the following conditions are fulfilled: (a) except in the case of closed-ended AIFs and funds regulated by the Regulation on European long-term investment funds, a blanket offer is made to repurchase or redeem, free of any charges or deductions, all such European AIF units or shares held by investors in Malta, is publicly available for at least thirty

(30)working days, and is addressed, directly or through financial intermediaries, individually to all investors in Malta, whose identity is known; (

b)the intention to terminate arrangements made for marketing units or shares of some or all of its European AIFs in Malta is made public by means of a publicly available medium, including by electronic means, which is customary for marketing European AIFs and suitable for a typical European AIF investor; and (
c)any contractual arrangements with financial intermediaries or delegates are modified or terminated with effect from the date of de-notification in order to prevent any new or further, direct or indirect, offering or placement of the units or shares identified in the notification referred to in sub-regulation

(13). As of the date referred to in paragraph (c), the Maltese AIFM shall cease any new or further, direct or indirect, offering or placement of units or shares of the European AIF it manages in Malta, in respect of which it has submitted a notification in accordance with sub-regulation

(13).

(13)The Maltese AIFM shall submit a notification to the competent authority containing the information referred to in paragraphs (a), (b) and (c) of sub-regulation

(12).

(14)The competent authority shall verify whether the INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) [ S.L.370.21 notification submitted by the Maltese AIFM in accordance with sub-regulation

(13)is complete and shall, no later than fifteen

(15)working days from the receipt of a complete notification, transmit that notification to ESMA. Upon transmission of the notification, the competent authority shall without undue delay, notify the Maltese AIFM of that transmission. For a period of thirty six

(36)months from the date referred to in paragraph (c) of sub-regulation

(12), the Maltese AIFM shall not engage in pre-marketing of units or shares of the European AIFs referred to in the notification, or in respect of similar investment strategies or investment ideas, in the Member State identified in the notification referred to in subregulation

(13).

(15)The Maltese AIFM may engage in pre-marketing to professional investors of units or shares of a European AIF in Malta, except where the information presented to potential professional investors: (

a)is sufficient to allow investors to commit to acquiring units or shares of a particular AIF; (
b)amounts to subscription forms or similar documents whether in a draft or a final form; or (
c)amounts to constitutional documents, a prospectus or offering documents of a not-yet-established AIF in a final form.

(16)Where a draft prospectus or offering documents are provided, they shall not contain information sufficient to allow investors to take an investment decision and shall clearly state that: (

a)they do not constitute an offer or an invitation to subscribe to units or shares of an AIF; and (
b)the information presented therein should not be relied upon because it is incomplete and may be subject to change.

(17)The Maltese AIFM is not required to submit any prior notification to the competent authority, of the content or of the addressees o f pre -m ark eti ng, or to f ulfil any co ndi ti ons or requirements other than those set out in this regulation, before it engages in pre-marketing activity in Malta.

(18)The Maltese AIFM shall ensure that investors do not acquire units or shares in a European AIF through pre-marketing and that investors contacted as part of pre-marketing shall only acquire units or shares in that European AIF through marketing permitted under regulation 3

(1).

(19)Any subscription by professional investors, within eighteen

(18)months of the Maltese AIFM having begun pre-marketing, to units or shares of a European AIF referred to in the information provided in the context of pre-marketing, or of a European AIF established as a result of the pre-marketing, shall be considered to be the result of marketing and shall be subject to the applicable notification procedures referred to in regulation 3

(4).

(20)Within two

(2)weeks of it having begun pre-marketing, the 7 8 [ S.L.370.21 INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) Maltese AIFM shall send to the competent authority an informal letter, in paper form or by electronic means, which letter shall specify: (

a)a brief description of the pre-marketing including information on the investment strategies presented; and (
b)where relevant, a list of the AIFs and compartments of AIFs which are or were the subject of pre-marketing.

(21)The Maltese AIFM shall ensure that pre-marketing is adequately documented.

(22)A third party shall only engage in pre-marketing on behalf of the Maltese AIFM where it is authorised as an investment firm in accordance with MIFID, as a credit institution in accordance with the CRD, as a UCITS management company in accordance with the UCITS Directive, as an AIFM in accordance with the AIFM Directive or acts as a tied agent in accordance with MIFID. Such a third party shall be subject to the conditions set out in this regulation in respect of the Maltese AIFM. MARKETING OF UNITS OR SHARES OF EUROPEAN AIFs BY MALTESE AIFMs TO PROFESSIONAL INVESTORS IN A MEMBER STATE OR EEA STATE OTHER THAN MALTA Marketing of units or shares of European AIFs by a Maltese AIFM in an EU or EEA Member State other than Malta. Amended by: L.N. 218 of 2016; L.N. 360 of 2021; L.N. 129 of 2022. 4.

(1)A Maltese AIFM may market to professional investors in a Member State or EEA State other than Malta, units or shares of a European AIF which it manages and such European AIF, prior to commencement of its marketing in a Member State or EEA State other than Malta, shall meet the conditions prescribed in this regulation: Provided that the European AIF shall be: (

a)authorised or registered in a Member State or EEA State other than Malta, and in such case shall be exempt from the provisions of article 4 of the Act; (
b)authorised in Malta; (
c)where not authorised or registered in a Member State or EEA State, the European AIF has its registered office and, or head office in a Member State or EEA State including Malta and in such case it shall be exempt from the provisions of article 4 of the Act.

(2)Without prejudice to Article 43

(1)of the AIFM Directive, European AIFs managed and marketed by the Maltese AIFM shall be marketed only to professional investors.

(3)Where the European AIF is a feeder AIF, the right to market referred to in sub-regulation

(1)is subject to the condition that the master AIF is also a European AIF which is managed by an AIFM.

a)a notification letter, including a programme of operations identifying the European AIFs which the Maltese AIFM intends to market and the information on where the European AIFs are established; (
b)the European AIF’s prospectus or equivalent rules or instruments of incorporation; (
c)identification of the custodian of the European AIF; (
d)a description of, or any information on, the European AIF available to investors; (
e)information on where the master AIF is established if the European AIF is a feeder AIF in terms of subregulation

(3); (

f)any additional information concerning the disclosure obligations prescribed in the Investment Services Rules for each European AIF which the Maltese AIFM intends to market; (
g)an indication of the Member State or EEA State in which the Maltese AIFM intends to market the units or shares of the European AIF to professional investors; (
h)information about arrangements made for the marketing of European AIFs and, where relevant, information on the arrangements established to prevent units or shares of the European AIFs 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 AIF; (
i)the details necessary, including the address, for the invoicing or for the communication of any applicable regulatory fees or charges by the competent authorities of the host Member State: Provided that the notification letter to the competent authority by the Maltese AIFM as referred to above shall be provided in a language customary in the sphere of international finance.

(5)The competent authority shall, no later than twenty working days after the date of receipt of a complete notification file pursuant to sub-regulation

(4), transmit the complete notification file to the European regulatory authority of the Member State or E E A St a t e w h e r e th e Ma lt e s e A I F M in t e nd s m a r k e t i ng t h e European AIF.

(6)The competent authority shall also enclose a statement to the effect that the Maltese AIFM concerned is authorised to manage European AIFs with a particular investment strategy: Provided that the statement referred to above shall be provided in a language customary in the sphere of international finance.

(7)The competent authority shall transmit the complete notification file only if the Maltese AIFM’s management of the 9 10 [ S.L.370.21 INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) European AIF complies with and will continue to comply with the provisions of the AIFM Directive and if the Maltese AIFM otherwise complies with the provisions of the AIFM Directive.

(8)Upon transmission of the notification file, the competent authority shall, without delay, notify the Maltese AIFM thereof. The Maltese AIFM may start marketing the European AIF in the Maltese AIFM’s host Member State or EEA State as from the date of such notification.

(9)In so far as they are different, the competent authority shall also inform the European regulatory authority of the home Member State or EEA State of the European AIF that the Maltese AIFM may start marketing the units or shares of the European AIF in the host Member State or EEA State of the Maltese AIFM.

(10)Arrangements referred to in sub-regulation

(4)(h) shall be subject to the laws of the Maltese AIFM host Member State or EEA State where the European AIF is to be marketed and to the supervision of the European regulatory authority therein.

(11)In the event of a material change to any of the particulars communicated in accordance with sub-regulation

(4), 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.

(12)Where, pursuant to a planned change, the Maltese AIFM’s management of the European AIF would no longer comply with the provisions of the AIFM Directive or the Maltese AIFM would otherwise no longer comply with the provisions of the AIFM Directive, the competent authority shall inform the Maltese AIFM within fifteen

(15)working days of receipt of all the information referred to in sub-regulation

(11)that it shall not implement the change. In that case, the competent authority shall notify the European Regulatory Authority of the host Member State of the Maltese AIFM accordingly.

(13)Where the Maltese AIFM proceeds with the implementation of the planned change, notwithstanding the notification received pursuant to sub-regulations

(12), or if an unplanned change has taken place pursuant to which the Maltese AIFM’s management of the European 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 European AIF. The competent authority shall also notify the European Regulatory Authority of the host Member State of the Maltese AIFM accordingly without undue delay.

(14)If the changes do not affect the compliance of the Maltese AIFM’s management of the European 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 within one month inform the European regulatory authority of the host Member State of the Maltese AIFM of those changes. INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) [ S.L.370.21

(15)The Maltese AIFM may de-notify arrangements made for marketing of units or shares of some or all of the European AIFs under its management in a Member State or EEA State, in respect of which it has made a notification pursuant to this regulation, where all the following conditions are fulfilled: (a) except in the case of closed-ended AIFs and funds regulated by Regulation (EU) 2015/760 of the European Parliament and of the Council of 29 April 2015 on European long-term investment funds a blanket offer is made to repurchase or redeem, free of any charges or deductions, all such European AIF units or shares held by investors in that Member State or EEA State, is publicly available for at least thirty

(30)working days, and is addressed, directly or through financial intermediaries, individually to all investors in that Member State or EEA State, whose identity is known; (

b)the intention to terminate arrangements made for marketing units or shares of some or all of its European AIFs in that Member State or EEA State is made public by means of a publicly available medium, including by electronic means, which is customary for marketing European AIFs and suitable for a typical European AIF investor; (
c)any contractual arrangements with financial intermediaries or delegates are modified or terminated with effect from the date of de-notification in order to prevent any new or further, direct or indirect, offering or placement of the units or shares identified in the notification referred to in sub-regulation

(16). As of the date referred to in paragraph (c) of this subregulation, the Maltese AIFM shall cease any new or further, direct or indirect, offering or placement of units or shares of the European AIF it manages in the Member State or EEA State, in respect of which it has submitted a notification in accordance with subregulation

(16).

(16)The Maltese AIFM shall submit a notification to the competent authority containing the information referred to in paragraphs (a), (b) and (c) of sub-regulation

(15).

(17)The competent authority shall verify whether the notification submitted by the Maltese AIFM in accordance with sub-regulation

(16)is complete and no later than fifteen

(15)working days from the receipt of a complete notification, transmit that notification to the European regulatory authority of the Member State or EEA State, identified in the notification referred to in sub-regulation

(16), and to ESMA. Upon transmission of the notification, the competent authority shall promptly notify the Maltese AIFM of that transmission. For a period of thirty-six

(36)months from the date referred to in paragraph (c) of sub-regulation

(15), the Maltese AIFM shall not engage in pre-marketing of units or shares of the European AIFs referred to in the notification, or in 11 12 [ S.L.370.21 INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) respect of similar investment strategies or investment ideas, in the Member State or EEA State identified in the notification referred to in sub-regulation

(16).

(18)The Maltese AIFM shall provide investors who remain invested in the European AIF as well as the competent authority with the information required under Articles 22 and 23 of the AIFM Directive. Such information can be provided, among others, using means of any electronic or other distance communication.

(19)The competent authority shall transmit to the European regulatory authority of the Member State or EEA State identified in the notification referred to in sub-regulation

(16), information on any changes to the documentation and information referred to in paragraphs (b) to (f) of sub-regulation

(4). (19A) Without prejudice to other supervisory powers referred to in Article 45

(3)of the AIFM Directive, as from the date of transmission under sub-regulation

(19), the European regulatory authority of the Member State or EEA State identified in the notification referred to in sub-regulation

(16), shall not require the Maltese AIFM concerned to demonstrate compliance with national laws, regulations and administrative provisions governing marketing requirements as referred to in Article 5 of Regulation (EU) 2019/1156 of the European Parliament and of the Council of 20 June 2019 on facilitating crossborder distribution of collective investment undertakings and amending Regulations (EU) No 345/2013, (EU) No 346/2013 and (EU) No 1286/2014.

(20)The Maltese AIFM may engage in pre-marketing to professional investors of units or shares of a European AIF in a Member State or EEA State other than Malta, except where the information presented to potential professional investors: (

a)is sufficient to allow investors to commit to acquiring units or shares of a particular European AIF; (
b)amounts to subscription forms or similar documents whether in a draft or a final form; or (
c)amounts to constitutional documents, a prospectus or offering documents of a not-yet-established AIF in a final form.

(21)Where a draft prospectus or offering documents are provided, they shall not contain information sufficient to allow investors to take an investment decision and shall clearly state that: (

a)they do not constitute an offer or an invitation to subscribe to units or shares of a European AIF; and (
b)the information presented therein should not be relied upon because it is incomplete and may be subject to change.

(22)The Maltese AIFM does not require to submit any prior notification to the competent authority before it engages in premarketing activity in Malta, provided however that it fulfils the requirements set out in this regulation.

(23)The Maltese AIFM shall ensure that investors do not INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) [ S.L.370.21 13 acquire units or shares in a European AIF through pre-marketing and that investors contacted as part of pre-marketing shall only acquire units or shares in that European AIF through marketing permitted under sub-regulation 4

(1).

(24)Any subscription by professional investors, within eighteen

(4).

(25)Within two

(2)weeks of it having begun pre-marketing, the Maltese AIFM shall send to the competent authority an informal letter, in paper form or by electronic means, which letter shall specify: (

a)the Member States in which and the periods during which the pre-marketing is taking or has taken place; (
b)a brief description of the pre-marketing including information on the investment strategies presented; and (
c)where relevant, a list of the AIFs and compartments of AIFs which are or were the subject of pre-marketing.

(26)The competent authority shall promptly inform the European regulatory authority of the Member State or EEA State, in which the Maltese AIFM is or was engaged in pre-marketing.

(27)The European regulatory authority of the Member State or EEA State, in which pre-marketing is taking or has taken place may request the competent authority to provide further information on the pre-marketing that is taking or has taken place on its territory.

(28)The Maltese AIFM shall ensure that pre-marketing is adequately documented.

(29)A third party shall only engage in pre-marketing on behalf of the Maltese AIFM where it is authorised as an investment firm in accordance with MIFID Directive, as a credit institution in accordance with CRD, as a UCITS management company in accordance with UCITS Directive, as an AIFM in accordance with AIFM Directive, or acts as a tied agent in accordance with MIFID Directive. Such a third party shall be subject to the conditions set out in this regulation in respect of the Maltese AIFM. MARKETING OF UNITS OR SHARES OF EUROPEAN AIFs BY EUROPEAN AIFMs TO PROFESSIONAL INVESTORS IN MALTA 5.

(1)A European AIFM may market to professional investors in Malta, units or shares of a European AIF that it manages and such European AIF, prior to commencement of its marketing in Malta, shall meet the conditions prescribed in this regulation: Provided that the European AIF shall be: Marketing of units or shares of European AIFs by a European AIFM in Malta. Amended by: L.N. 218 of 2016; L.N. 360 of 2021; L.N. 129 of 2022. 14 INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) [ S.L.370.21 (

a)authorised or registered in a Member State or EEA State other than Malta, and in such case shall be exempt from the provisions of article 4 of the Act; (
b)authorised in Malta; (
c)where not authorised or registered in a Member State or EEA State, the European AIF has its registered office and, or head office in a Member State or EEA State including Malta and in such case it shall be exempt from the provisions of article 4 of the Act.

(2)Without prejudice to regulation 6, European AIFs managed and marketed by a European AIFM shall be marketed only to professional investors.

(3)Where the European AIF is a feeder AIF, the right to market referred to in sub-regulation

(1)is subject to the condition that the m ast er AI F is also a E ur op ean AI F wh ich i s m an aged b y a European AIFM or by a Maltese AIFM.

(4)The European AIFM shall submit to the European regulatory authority in its home Member State or EEA State a notification in respect of each European AIF which it intends to market. Such notification shall comprise the documentation and information prescribed hereunder: (

a)a notification letter, including a programme of operations identifying the European AIFs which the European AIFM intends to market and the information on where the AIFs are established; (
b)the European AIF’s prospectus or equivalent rules or instruments of incorporation; (
c)identification of the custodian of the European AIF; (
d)a description of, or any information on, the European AIF available to investors; (
e)information on where the master AIF is established if the AIF is a feeder AIF in terms of sub-regulation

(3); (f) any additional information referred to in Article 23

(1)of the AIFM Directive for each European AIF which the European AIFM intends to market; (

g)the indication that the European AIFM intends marketing the units or shares of the European AIF to professional investors in Malta; (
h)information about arrangements made for the marketing of European AIFs and, where relevant, information on the arrangements established to prevent units or shares of the European AIFs from being marketed to retail investors, including in the case where the European AIFM relies on activities of independent entities to provide investment services in respect of the AIF; (
i)the details necessary, including the address, for the invoicing or for the communication of any applicable INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) [ S.L.370.21 regulatory fees or charges by the competent authorities of the host Member State: Provided that the notification letter to the European regulatory authority by the European AIFM as referred to above shall be provided in a language customary in the sphere of international finance.

(5)The competent authority shall, no later than twenty working days after the date of receipt of a complete notification file pursuant to sub-regulation

(4), receive from the European regulatory authority of the AIFM’s home Member State or EEA State the complete notification file.

(6)The notification file transmitted to the competent authority shall also include a statement to the effect that the European AIFM concerned is authorised to manage European AIFs with a particular investment strategy: Provided that the statement referred to above shall be provided in a language customary in the sphere of international finance.

(7)The competent authority shall only receive the complete notification file if the European AIFM’s management of the European AIF complies with and will continue to comply with the provisions of the AIFM Directive and if the European AIFM otherwise complies with the provisions of the AIFM Directive.

(8)Upon transmission of the notification file to the competent authority, the European AIFM may start marketing the European AIF in Malta as from the date that it is notified by the European regulatory authority of such transmission.

(9)Arrangements referred to in sub-regulation

(4)(h) shall be subj ect t o the laws of Malta and t o the supervisions of t he competent authority.

(10)The European AIFM may de-notify arrangements made for marketing of units or shares of some or all of the European AIFs under its management in Malta, in respect of which it has made a notification pursuant to sub-regulation

(4), where all the following conditions are fulfilled: (a) except in the case of closed-ended AIFs and funds regulated by Regulation (EU) 2015/760 of the European Parliament and of the Council of 29 April 2015 on European long-term investment funds, a blanket offer is made to repurchase or redeem, free of any charges or deductions, all such European AIF units or shares held by investors in Malta, is publicly available for at least thirty

(30)working days, and is addressed, directly or through financial intermediaries, individually to all investors in Malta, whose identity is known; (

b)the intention to terminate arrangements made for marketing units or shares of some or all of its European AIFs in Malta is made public by means of a publicly available medium, including by electronic 15 16 [ S.L.370.21 INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) means, which is customary for marketing European AIFs and suitable for a typical European AIF investor; and (
c)any contractual arrangements with financial intermediaries or delegates are modified or terminated with effect from the date of de-notification in order to prevent any new or further, direct or indirect, offering or placement of the units or shares identified in the notification referred to in sub-regulation

(11). As of the date referred to in point (c) of this sub-regulation, the European AIFM shall cease any new or further, direct or indirect, offering or placement of units or shares of the European AIF it manages in Malta, in respect of which it has submitted a notification in accordance with sub-regulation

(11).

(11)The European AIFM shall submit a notification to the European regulatory authority of its home Member State or EEA State containing the information referred to in points (a), (b) and (c) of sub-regulation

(10).

(12)The European regulatory authority of the AIFM’s home Member State or EEA State shall verify whether the notification s u b m i t t e d b y t h e E u r o p e a n A I F M i n a c c o r d a n c e w i t h su b regulation

(11)is complete and no later than 15 working days from the receipt of a complete notification, transmit that notification to the competent authority and to ESMA. Upon transmission of the notification, the European regulatory authority of the home Member State or EEA State shall promptly notify the European AIFM of that transmission. For a period of 36 months from the date referred to in point (c) of the sub-regulation

(10), the European AIFM shall not engage in pre-marketing of units or shares of the European AIFs referred to in the notification, or in respect of similar investment strategies or investment ideas, in Malta.

(13)The European AIFM shall provide investors who remain invested in the European AIF as well as the competent authorities o f t h e A I F M ’s h o s t M e m b e r S t a t e o r E E A S t a t e w i t h t h e information required under Articles 22 and 23 of the AIFM Directive. Such information can be provided, among others, using means of any electronic or other distance communication.

(14)The European regulatory authority of the European AIFM’s home Member State or EEA State shall transmit to the competent authorities of the Member State or EEA State, identified in the notification referred to in sub-regulation

(11), information on any changes to the documentation and information referred to in points (b) to (f) of sub-regulation

(4). (14A) Where the competent authority is identified in the notification referred to in sub-regulation

(11), it shall have the same rights and obligations as the competent authorities of the host Member State of the AIFM as set out in Article 45 of the AIFM Directive. INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) [ S.L.370.21 (14B) Without prejudice to other supervisory powers referred to in Article 45

(3)of the AIFM Directive, as transposed into national law, as from the date of transmission under sub-regulation

(14), the competent authority shall not require the European AIFM concerned to demonstrate compliance with national laws, regulations and administrative provisions governing marketing requirements as referred to in Article 5 of Regulation (EU) 2019/1156 of the European Parliament and of the Council of 20 June 2019 on facilitating cross-border distribution of collective investment undertakings and amending Regulations (EU) No 345/2013, (EU) No 346/2013 and (EU) No 1286/2014.

(15)The European AIFM may engage in pre-marketing in Malta, except where the information presented to potential professional investors: (

a)is sufficient to allow investors to commit to acquiring units or shares of a particular AIF; (
b)amounts to subscription forms or similar documents whether in a draft or a final form; or (
c)amounts to constitutional documents, a prospectus or offering documents of a not-yet-established AIF in a final form.

(16)Where a draft prospectus or offering documents are provided, they shall not contain information sufficient to allow investors to take an investment decision and shall clearly state that: (

a)they do not constitute an offer or an invitation to subscribe to units or shares of an AIF; and (
b)the information presented therein should not be relied upon because it is incomplete and may be subject to change.

(17)The European AIFM does not require to submit any prior notification to the competent authority before it engages in premarketing activity in Malta, provided however that it fulfils the requirements set out in this regulation.

(18)The European AIFM shall ensure that investors do not acquire units or shares in an AIF through pre-marketing and that investors contacted as part of pre-marketing may only acquire units or shares in that AIF through marketing permitted under subregulation 5

(1).

(19)Any subscription by professional investors, within eighteen

(18)months of the European AIFM having begun premarketing, to units or shares of an AIF referred to in the information provided in the context of pre-marketing, or of an AIF established as a result of the pre-marketing, shall be considered to be the result of marketing and shall be subject to the applicable notification procedures referred to in sub-regulation 5

(4).

(20)Within two

(2)weeks of it having begun pre-marketing, the European AIFM shall send to the European regulatory authority of the European AIFM’s home Member State or EEA State an informal letter, in paper form or by electronic means, which letter shall 17 18 INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) [ S.L.370.21 specify: (

a)the Member States in which and the periods during which the pre-marketing is taking or has taken place; (
b)a brief description of the pre-marketing including information on the investment strategies presented; and (
c)where relevant, a list of the AIFs and compartments of AIFs which are or were the subject of pre-marketing.

(21)The competent authority may request the European regulatory authority of the European AIFM’s home Member State or EEA State to provide further information on the pre-marketing that is taking or has taken place on its territory.

(22)The European AIFM shall ensure that pre-marketing is adequately documented.

(23)A third party shall only engage in pre-marketing on behalf of a European AIFM where it is authorised as an investment firm in accordance with MIFID, as a credit institution in accordance with the CRD, as a UCITS management company in accordance with the UCITS Directive, as an AIFM in accordance with the AIFM Directive, or acts as a tied agent in accordance with MIFID. Such a third party shall be subject to the conditions set out in this regulation in respect of the European AIFM. MARKETING OF AIFs TO RETAIL INVESTORS IN MALTA Marketing of AIFs by AIFMs to retail investors in Malta. Amended by: L.N. 360 of 2021. 6.

(1)An AIF shall not be marketed to retail investors in Malta unless it is in possession of an authorisation for this purpose from the competent authority.

(2)Regulations 3 and 5 shall, in so far as applicable, apply mutatis mutandis and reference to the term "professional investor" shall be deemed to be a reference to "retail investors", subject to such variations or modifications as may be prescribed: Provided that the AIFM shall not be allowed to engage in the pre-marketing of any units or shares of an AIF to retail investors.

(3)Where an AIF is to be marketed to retail investors in Malta, the AIF and its AIFM shall be subject to Investment Services Rules, which shall prescribe the following: (

a)the types of AIF with respect to which an application for marketing to retail investors may be made to the competent authority; (
b)the manner and form of an application for an authorisation to market an AIF to retail investors in Malta, including the imposition of an application fee where applicable; (
c)the conditions for authorisation for marketing to retail investors; (
d)the on-going obligations applicable to the marketing of an AIF to retail investors in Malta, including the INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) [ S.L.370.21 imposition of a supervision fee where applicable; and (
e)any other relevant matter determined by the competent authority. (3A) The AIFM shall submit the notification letter referred to in regulations 3

(4)and 5

(4)respectively and shall also provide information on the facilities for performing the tasks referred to in sub-regulation

(7)of this regulation.

(4)The competent authority may in Investment Services Rules impose stricter requirements on the AIFM or the AIF than the requirements applicable to the AIFs marketed to professional investors in Malta in accordance with the provisions of the AIFM Directive. The competent authority shall not, however, impose stricter or additional requirements on European AIFs established in Member State or EEA State other than Malta and marketed on a cross-border basis than on AIFs marketed in Malta.

(5)The competent authority shall, by 22 July 2014, inform the European Commission and ESMA of: (

a)the types of AIF which AIFMs may market to retail investors in Malta; and (
b)any additional requirements that the competent authority imposes for the marketing of AIFs to retail investors.

(6)The competent authority shall also inform the European Commission and ESMA of any subsequent changes with regard to sub-regulation

(5).

(7)Where an AIF is to be marketed to retail investors in Malta, the AIFM shall take the measures necessary to ensure that facilities are available therein to perform the following tasks: (

a)process investors’ subscription, payment, repurchase and redemption orders relating to the units or shares of an AIF, in accordance with the conditions set out in the AIF’s documents; (
b)provide investors with information on how orders referred to in paragraph (
a)can be made and how repurchase and redemption proceeds are paid; (
c)facilitate the handling of information relating to the exercise of investors’ rights arising from their investment in an AIF in Malta; (
d)provide investors with information relevant to the tasks that the facilities perform in a durable medium; and (
e)act as a contact point for communicating with the competent authority.

(8)In respect of an AIF, units of which are intended for marketing in Malta, the AIFM shall make available to investors for the purposes of inspection and obtaining copies thereof an annual report for each financial year as well as the information and documents required pursuant to Article 23 of AIFM Directive. 19 20 [ S.L.370.21 INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS)

(9)The AIFM shall ensure that the facilities to perform the tasks referred to in sub-regulation

(7), are provided, including electronically: (

a)in the official language or one of the official languages of Malta or in a language approved by the competent authority; (
b)by the AIFM itself, by a third party which is subject to regulation and supervision governing the tasks to be performed, or by both.

(10)For the purposes of paragraph (b) of sub-regulation

(9), w h e r e t h e t a s k s a r e t o b e p e r f o r m e d b y a t h i r d p a r t y, t h e appointment of that third party shall be evidenced by a written contract specifying which of the tasks referred to in sub-regulation

(7)are not to be performed by the AIFM and that the third party will receive all the relevant information and documents from the AIFM.

(11)The AIFM shall not be required to have a physical presence in Malta or to appoint a third party for the purposes of subregulation 7.TRANSITORY PROVISIONS Transitory provision. 7. Regulations 3 and 4 shall not apply to the marketing of units or shares of European AIFs that are subject to a current offer to the public under a prospectus that has been drawn up and p u bl i s he d i n ac c o rd a n c e w i th Di r e c t i ve 2 0 03 / 71 / E C o f t he European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC before 22 July 2013 for the duration of validity of that prospectus.

🔗 Għas-sors uffiċjali

AI explanation based on the official legal text. Indicative, not a substitute for legal advice.

L.S. 370.21 Regolamenti dwar l-Att dwar Servizzi ta’ Investiment (Marketing of Alternative Investment Funds)