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L.S. 370.24 Regolamenti dwar l-Att dwar Servizzi ta’ Investiment (Alternative Investment Fund Manager) (Third Country)

ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 SUBSIDIARY LEGISLATION 370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) REGULATIONS ARRANGEME

Article 19of Regulation (EU) No 1095/2012. INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 5.

(1)Where a Maltese AIFM intends to market units or shares of a third country AIF in Malta, the Maltese AIFM shall submit a notification to the competent authority in respect of each third country AIF that it intends to market: Provided that, without prejudice to regulation 30, third country AIFs managed and marketed by a Maltese AIFM shall be marketed only to professional investors: Provided further that where a Maltese AIFM intends to market units or shares of a third country AIF in Malta to professional investors, such third country AIF shall be exempt from the provisions of Article 4 of the Act.
(2)The notification referred to in sub-regulation
(1)shall comprise the following documentation: (
  1. a)a notification letter, including a programme of operations identifying the third country AIFs which the Maltese AIFM intends to market and the information on where the third country AIFs are established; (
  2. b)the third country AIF’s prospectus or equivalent rules or instruments of incorporation; (
  3. c)identification of the custodian of the third country AIF; (
  4. d)a description of, or any information on, the third country AIF available to investors; (
  5. e)information on where the master AIF is established if the third country AIF is a feeder AIF; (
  6. f)any additional information concerning the disclosure obligations prescribed by the Investment Services Rules for each third country AIF which the Maltese AIFM intends to market; (
  7. g)where relevant, information on the arrangements established to prevent units or shares of the third country AIF from being marketed to retail investors, including in the case where the Maltese AIFM relies on activities of independent entities to provide investment services in respect of the third country AIF.
(3)The competent authority shall, no later than twenty working days after the receipt of a complete notification filed pursuant to sub-regulation
(2), inform the Maltese AIFM whether it may start marketing the third country AIF identified in the said notification in Malta: Provided that in the case of a positive decision, the Maltese AIFM may start marketing the third country AIF in Malta as of the date of the notification by the competent authority to that effect.
(4)The competent authority shall prevent the Maltese AIFM from marketing the third country AIF in Malta only if the Maltese AIFM’s management of the third country AIF does not or will not comply with the provisions of the AIFM Directive or the Maltese AIFM otherwise does not or will not comply with the provisions of 7 Conditions for the marketing in Malta by Maltese AIFMs of third country AIFs. Amended by: L.N. 214 of 2013. 8 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) the AIFM Directive.
(5)The competent authority shall also inform ESMA that the Maltese AIFM may start marketing the units or shares of the third country AIF in Malta.
(6)In the event of a material change to any of the particulars communicated in accordance with sub-regulation
(2), the Maltese AIFM shall give written notice thereof to the competent authority at least one month prior to the implementation of such planned change, or immediately after an unplanned change has occurred.
(7)Where, pursuant to a planned change, the Maltese AIFM’s management of the third country AIF would no longer comply with the provisions of the AIFM Directive, or the Maltese AIFM would no longer comply with the provisions of the AIFM Directive, the competent authority shall inform the Maltese AIFM without undue delay that it shall not implement the change.
(8)Where the Maltese AIFM proceeds with the implementation of the planned change, notwithstanding the notification received pursuant to sub-regulations
(6)and
(7), or if an unplanned change has taken place pursuant to which the Maltese AIFM’s management of the third country AIF no longer complies with the provisions of the AIFM Directive or the Maltese AIFM otherwise no longer complies with the provisions of the AIFM Directive, the competent authority shall take all due measures in accordance with the provisions of the Act and any regulations issued thereunder, including, if necessary, the express prohibition of marketing of the third country AIF.
(9)If the changes are acceptable because they do not affect the compliance of the Maltese AIFM’s management of the third country AIF with the provisions of the AIFM Directive, or the compliance by the Maltese AIFM with the provisions of the AIFM Directive, the competent authority shall, without delay, inform ESMA in so far as the changes concern the termination of the marketing of certain AIFs or additional AIFs marketed. Conditions for the marketing by a Maltese AIFM in a Member State or EEA State, other than Malta, of third country AIFs. 6.
(1)Where a Maltese AIFM intends to market units or shares of a third country AIF in a Member State or EEA State other than Malta, the Maltese AIFM shall submit a notification to the competent authority in respect of every third country AIF that it intends to market: Provided that, without prejudice to Article 43 of the AIFM Directive, third country AIFs managed and marketed by a Maltese AIFM shall be marketed only to professional investors.
(2)The notification referred to in sub-regulation
(1)shall comprise the following documentation: (
  1. a)a notification letter, including a programme of operations identifying the third country AIFs which the Maltese AIFM intends to market and the information on where the third country AIFs are established; (
  2. b)the third country AIF’s prospectus or equivalent rules INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 or instruments of incorporation; (
  3. c)identification of the custodian of the third country AIF; (
  4. d)a description of, or any information on, the third country AIF available to investors; (
  5. e)information on where the master AIF is established if the third country AIF is a feeder AIF; (
  6. f)any additional information concerning the disclosure obligations prescribed in Investment Services Rules for each third country AIF which the Maltese AIFM intends to market; (
  7. g)the indication of the Member State or EEA State in which it intends to market the units or shares of the third country AIF to professional investors; (
  8. h)information on the arrangements made for the marketing of the third country AIF and, where relevant, information on the arrangements established to prevent units or shares of the third country AIF from being marketed to retail investors, including in the case where the Maltese AIFM relies on activities of independent entities to provide investment services in respect of the third country AIF: Provided that the notification letter by the Maltese AIFM referred to above shall be provided in a language customary in the sphere of international finance.
(3)The competent authority shall, no later than twenty working days after the receipt of a complete notification filed pursuant to sub-regulation
(2), transmit the complete notification file to the European regulatory authority of the Member State or EEA State where the third country AIF is intended to be marketed.
(4)The competent authority shall also enclose a statement to the effect that the Maltese AIFM concerned is authorised to manage 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.
(5)The competent authority shall proceed with the transmission of the complete notification file only if the Maltese AIFM’s management of the third country AIF complies and will continue to comply with the provisions of the AIFM Directive and the Maltese AIFM otherwise complies with the provisions of the AIFM Directive.
(6)Upon transmission of the notification file, the competent authority shall, without delay, notify the Maltese AIFM thereof. The Maltese AIFM may start marketing the third country AIF in the h o s t M e m b e r St a t e o r E E A St a t e a s f r o m t h e d a t e o f s u c h notification by the competent authority.
(7)The competent authority shall also inform ESMA that the Maltese AIFM may start marketing the units or shares of the third 9 10 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) country AIF in the host Member State or EEA State of the Maltese AIFM.
(8)Arrangements referred to in sub-regulation
(2)(h) shall be subject to the laws of the host Member State or EEA State of the Maltese AIFM and to the supervision of the European regulatory authority therein.
(9)In the event of a material change to any of the particulars communicated in accordance with sub-regulation
(2), the Maltese AIFM shall give written notice thereof to the competent authority at least one month prior to the implementation of such a planned change, or immediately after an unplanned change has occurred.
(10)Where, pursuant to a planned change, the Maltese AIFM’s management of the third country AIF or the Maltese AIFM would no longer comply with the provisions of the AIFM Directive, the competent authority shall inform the Maltese AIFM without undue delay that it shall not implement the change.
(11)Where the Maltese AIFM proceeds with the implementation of the planned change, notwithstanding the notification received pursuant to sub-regulations
(9)and
(10), or if an unplanned change has taken place pursuant to which the Maltese AIFM’s management of the third country AIF no longer complies with the provisions of the AIFM Directive or the Maltese AIFM otherwise no longer complies with the provisions of the AIFM Directive, the competent authority shall take all due measures in accordance with the provisions of the Act and any regulations issued thereunder, including, if necessary, the express prohibition of marketing of the third country AIF.
(12)If the changes are acceptable because they do not affect the compliance of the Maltese AIFM’s management of the third country AIF with the provisions of the AIFM Directive, or the compliance by the Maltese AIFM with the provisions of the AIFM Directive, the competent authority shall, without delay, inform ESMA in so far as the changes concern the termination of the marketing of certain AIFs or additional AIFs marketed and, if applicable, the European regulatory authority of the host Member State or EEA State of the Maltese AIFM. MALTESE AND EUROPEAN AIFMs MARKETING THIRD COUNTRY AIFs AND EUROPEAN FEEDER AIFs ONLY IN MALTA Conditions for the marketing by a Maltese or European AIFM of third country AIFs in Malta. Amended by: L.N. 214 of 2013. 7.
(1)Without prejudice to regulation 30, a Maltese or European AIFM may market units or shares of a third country AIF it manages, and of European feeder AIFs that do not fulfil the requirements prescribed in the second sub-paragraph of Article 31
(1)of the AIFM Directive, only in Malta to professional investors, without complying with the passport notification prescribed in regulations 5 and 8 respectively, provided that: (a) the Maltese or European AIFM complies with all the requirements prescribed in the AIFM Directive other than Article 21. The Maltese or European AIFM shall however ensure that one or more entities are appointed INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 11 to carry out the duties referred to in Article 21
(7),
(8)and
(9)of the AIFM Directive and the Maltese or European AIFM shall not perform those functions. The Maltese of European AIFM shall provide the competent authority with information about the identity of those entities responsible for carrying on the duties referred to in Article 21
(7),
(8)and
(9)of the AIFM Directive; (
  1. b)appropriate cooperation arrangements for the purpose of systemic risk oversight and in line with international standards are in place between the competent authority, in the case of a Maltese AIFM, or the European regulatory authority, in case of a European AIFM, and the supervisory authorities of the third country where the third country AIF is established in order to ensure an efficient exchange of information that allows the competent authority to carry out its duties in accordance with the provisions of the AIFM Directive; (
  2. c)the third country where the third country AIF is established is not listed as a Non-Cooperative Country and Territory by FATF.
(2)Where a Maltese or European AIFM intends to market units or shares of a third country AIF it manages in Malta to professional investors, such third country AIF shall be exempt from the provisions of Article 4 of the Act.
(3)For the purposes of this regulation, the competent authority may impose stricter rules in the Maltese or European AIFM in respect of the marketing of units or shares of third country AIFs to investors in Malta. EUROPEAN AIFMs MARKETING THIRD COUNTRY AIFs AND EUROPEAN FEEDER AIFs IN MALTA 8.
(1)Where a European AIFM intends to market units or shares of a third country AIF in Malta, the European AIFM shall submit a notification to its European regulatory authority in respect of each third country AIF that it intends to market and such European AIFM and third country AIF shall be exempt from the provisions of articles 3 and 4 of the Act respectively: Provided that, without prejudice to regulation 30, AIFs managed and marketed by a European AIFM shall be marketed in Malta only to professional investors.
(2)The notification referred to in sub-regulation
(1)shall comprise the following documentation: (
  1. a)a notification letter, including a programme of operations identifying the third country AIFs which the European AIFM intends to market and the information on where the third country AIFs are established; (
  2. b)the third country AIF’s prospectus or equivalent rules or instruments of incorporation; Conditions for marketing in Malta by European AIFMs of third country AIFs. Amended by: L.N. 214 of 2013. 12 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 (
  3. c)identification of the custodian of the third country AIF; (
  4. d)a description of, or any information on, the third country AIF available to investors; (
  5. e)information on where the master AIF is established if the third country AIF is a feeder AIF; (
  6. f)any additional information concerning the disclosure obligations referred to in Article 23
(1)of the AIFM Directive for each third country AIF which the European AIFM intends to market; (
  1. g)the indication of Malta as being the Member State in which it intends to market the units or shares of the third country AIF to professional investors; (
  2. h)information on the arrangements made for the marketing of the third country AIF and, where relevant, information on the arrangements established to prevent units or shares of the third country AIF from being marketed to retail investors, including in the case where the European AIFM relies on activities of independent entities to provide investment services in respect of the third country AIF: Provided that the notification letter by the European AIFM referred to above shall be provided in a language customary in the sphere of international finance.
(3)The competent authority shall, no later than twenty working days after the date of receipt of a complete notification file p u r su an t t o s u b - r e g u l at i o n
(2), r e c e i v e f r o m t h e E u r o p ea n regulatory authority of the European AIFM’s home Member State or EEA State the complete notification file.
(4)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 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.
(5)The competent authority shall receive the complete notification file from the European regulatory authority only if the European AIFM’s management of the third country 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.
(6)Upon transmission of the notification file to the competent authority, the European AIFM may start marketing the third country AIF in Malta as from the date that it is notified by the European regulatory authority of such transmission.
(7)Arrangements referred to in sub-regulation
(2)(h) shall be subject to the laws of the host Member State or EEA State of the Maltese AIFM and to the supervision of the European regulatory INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 13 authority therein.
(8)In the event of the implementation of an acceptable material change to any of the particulars communicated in accordance with sub-regulation
(2), the competent authority shall receive notification thereof from the European regulatory authority of the home Member State or EEA State of the European AIFM, in so far as the changes concern the termination of the marketing of certain third country AIFs or additional third country AIFs marketed. LICENSING OF THIRD COUNTRY AIFMs AND CHOICE OF MALTA AS MEMBER STATE OF REFERENCE 9.
(1)A third country AIFM intending to manage European AIFs in Malta and, or market such AIFs in a Member State or EEA State, in accordance with regulations 11 to 14, shall be required to acquire a licence from the competent authority in terms of the Act in the case where Malta is deemed to be its Member State of reference in accordance with this regulation.
(2)A third country AIFM intending to obtain a licence in terms of the Act, as referred to in sub-regulation
(1), shall comply with the provisions of the AIFM Directive with the exception of Chapter VI thereof as transposed in the Investment Services Act (Alternative Investment Fund Manager Passport) Regulations, and the Investment Services Act (Marketing of Alternative Investment Funds) Regulations.
(3)If and to the extent that compliance with a provision of the AIFM Directive is incompatible with compliance with the law to which the third country AIFM and, or the third country AIF marketed in the Union is subject, there shall be no obligation on the third country AIFM to comply with that provision of the AIFM Directive if it can demonstrate that: (
  1. a)it is impossible to combine such compliance with compliance with a mandatory provision in the law to which the third country AIFM and, or the third country AIF marketed in any Member State or EEA State is subject; (
  2. b)the law to which the third country AIFM and, or the third country AIF is subject provides for an equivalent rule having the same regulatory purpose and offering the same level of protection to the investors of the relevant AIF; and (
  3. c)the third country AIFM and, or the third country AIF complies with the equivalent rule referred to in paragraph (b).
(4)The third country AIFM intending to obtain a licence in terms of the Act, as referred to in sub-regulation
(1), shall have a legal representative established in Malta.
(5)The legal representative referred to in sub-regulation
(4)shall be the contact point of the third country AIFM in the Union. Any official correspondence between the competent authority, the third country AIFM and the investors in any Member State or EEA State of the relevant AIF and of the third country AIFM as provided Licensing of third country AIFMs intending to manage European AIFs in Malta and, or market AIFs managed by them a Member State or EEA State in accordance with regulations 11 to 14. S.L. 370.22 S.L. 370.21 14 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) for in the AIFM Directive, shall take place through the said legal representative. The legal representative shall perform the compliance function relating to the management and marketing activities performed by the third country AIFM under the AIFM Directive together with the third country AIFM.
(6)The choice of Malta as a Member State of reference shall be determined as follows: (
  1. a)if the third country AIFM intends to manage only one AIF or several AIFs established in Malta, and does not intend to market any AIF in accordance with regulations 11 to 14 in any Member State or EEA State, Malta, being the home Member State of that or those AIFs, shall be deemed to be the Member State of reference and the competent authority shall be competent for the licensing procedure and for the supervision of the third country AIFM; (
  2. b)if the third country AIFM intends to manage several European AIFs established in different Member States and does not intend to market any AIF in accordance with regulations 11 to 14 in any Member State or EEA State, Malta shall be deemed to be the Member State of reference where: (
  3. i)it is the Member State where most of the AIFs are established; or (
  4. ii)it is the Member State where the largest amount of assets is being managed; (
  5. c)if the third country AIFM intends to market only one European AIF in only one Member State, Malta shall be deemed to be the Member State of reference where: (
  6. i)Malta is the country where the AIF is licensed or registered, that is the home Member State of the AIF, or the Member State where the third country AIFM intends to market the AIF; (
  7. ii)if the AIF is not licensed or registered in Malta or any other Member State or EEA State, the third country AIFM intends marketing the AIF in Malta; (
  8. d)if the third country AIFM intends to market only one third country AIF only in Malta, Malta shall be deemed to be the Member State of reference; (
  9. e)if the third country AIFM intends to market only one European AIF, but in different Member States or EEA States, Malta shall be deemed to be the Member State of reference in the following cases: (
  10. i)if the AIF is licensed or registered in Malta and Malta is the home Member State of such AIF or otherwise Malta is one of the Member States where the third country AIFM intends to develop effective marketing; or (
  11. ii)if although the AIF is not licensed or registered INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 in Malta or any other Member State or EEA State, one of the Member States where the third country AIFM intends to develop effective marketing is Malta; (
  12. f)if the third country AIFM intends to market only one third country AIF, in different Member States or EEA States, Malta shall be deemed to be the Member State of reference if it is one of the Member States where the third country AIFM intends to market the third country AIF; (
  13. g)if the third country AIFM intends to market several European AIFs in Member States or EEA States, Malta shall be deemed to be the Member State of reference in the following cases: (
  14. i)in so far as those AIFs are all registered or licensed in Malta, Malta is the home Member State of the AIFs or the Member State where the third country AIFM intends to develop effective marketing for most of those AIFs; (
  15. ii)in so far as those AIFs are not all registered or licensed in Malta or any other Member State or EEA State, Malta is still the Member State where the third country AIFM intends to develop effective marketing for most AIFs; (
  16. h)if the third country AIFM intends to market several European and third country AIFs, or several third country AIFs in the any Member State or EEA State, Malta shall be deemed to be the Member State of reference if the third country AIFM intends to develop effective marketing for most of those AIFs in Malta.
(7)In accordance with the criteria prescribed in sub-regulation
(6)(b), (c)(i), (e), (f) and (g)(i), more than one Member State of reference is possible. In such cases, the European regulatory authorities including the competent authority, shall require that the third country AIFM intending to manage European AIFs without marketing them and, or marketing AIFs managed by it in any Member State or EEA State according to regulations 11 to 14, submits a request to all the European regulatory authorities including the competent authority of all the Member States or EEA States that are possible Member States of reference in accordance with the criteria prescribed in the aforementioned paragraphs, to determine the Member State of reference from among them.
(8)The European regulatory authorities including the competent authority shall jointly decide which Member State shall be the Member State of reference for the third country AIFM within one month from the receipt of such request.
(9)In the case where Malta is deemed to be the Member State of reference, the competent authority shall, without undue delay, inform the third country AIFM of that appointment.
(10)Where the competent authority fails to notify the third country AIFM of the decision made by same within seven days of 15 16 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) the decision, or if the relevant European regulatory authorities including the competent authority have not made a decision within a period of one month, the third country AIFM may itself choose its Member State of reference based on the criteria outlined in subregulation
(6).
(11)The third country AIFM shall be able to prove its intention to develop effective marketing in Malta by disclosing its marketing strategy to the competent authority.
(12)Where Malta is the Member State of reference, a third country AIFM intending to manage European AIFs without marketing them and, or to market AIFs managed by it in a Member State or EEA State in accordance with regulations 11 to 14, shall submit a request for a licence with the competent authority.
(13)After receiving the licensing application, the competent authority shall assess whether the determination of Malta by the third country AIFM as its Member State of reference complies with the criteria prescribed in sub-regulations
(6)to
(11).
(14)If the competent authority considers that the criteria prescribed in sub-regulations
(6)to
(11)have not been complied with, it shall refuse the licensing application of the third country AIFM explaining the reasons for its refusal.
(15)If the competent authority considers that the criteria prescribed in sub-regulations
(6)to
(11)have been complied with, i t s h a l l p r o c e e d t o n o t i f y E SM A , r e q u e s t i n g a d v i c e o n i t s assessment. In its notification to ESMA, the competent authority shall provide ESMA with the justification by the AIFM of its assessment regarding the choice of Malta as the Member State of reference and with information on the marketing strategy of the third country AIFM.
(16)Within one month of having notified ESMA pursuant to sub-regulation
(15), the competent authority shall receive advice from ESMA about its assessment on the choice of Malta as the M e m b e r St a t e o f r ef er en c e i n a c c o r d a n c e w i t h t h e c r i t e r i a prescribed in sub-regulations
(6)to
(11): Provided that the competent authority shall be notified by ESMA with a negative advice only if ESMA considers that the criteria prescribed in sub-regulations
(6)to
(11)have not been complied with: Provided further that the term of three months granted to the competent authority in terms of Article 8
(5)of the AIFM Directive to inform the applicant whether or not a licence has been granted shall be suspended during ESMA’s deliberation.
(17)Where the competent authority proposes to grant a licence contrary to ESMA’s advice referred to in the first proviso to subregulation
(16), it shall proceed to inform ESMA, stating its reasons. ESMA shall publish the fact that the competent authority does not comply or does not intend to comply with its advice: Provided that ESMA may also decide, on a case-by-case basis, to publish the reasons provided by the competent authority INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 for not complying with that advice and it shall proceed to notify the competent authority in advance of such publication.
(18)Where the competent authority proposes to grant a licence contrary to ESMA’s advice as referred to in sub-regulation
(16)and the third country AIFM intends to market units or shares of the AIFs managed by it in a Member State or EEA State other than Malta, the competent authority shall inform the European regulatory authorities of those Member States or EEA States thereof, stating its reasons. In so far as applicable, the competent authority shall also inform the European regulatory authority of the home Member States or EEA States of the AIFs managed by the AIFM thereof, stating its reasons.
(19)Where the European regulatory authority of a Member State or EEA State disagrees with the determination by the third country AIFM of Malta as the Member State of reference, the European regulatory authority concerned may refer the matter to ESMA, which may act in accordance with

Article 19of Regulations (EU) No. 1095/2010.

(20)Without prejudice to sub-regulations
(23)and
(24), the competent authority shall not grant a licence unless the following additional conditions are met: (a) Malta is indicated as a Member State of reference by the third country AIFM in accordance with the criteria prescribed in sub-regulations
(6)to
(11)and supported by the disclosure of the marketing strategy, and the procedure prescribed in sub-regulations
(12)to
(18)has been followed by the competent authority and the relevant European regulatory authorities concerned; (
  1. b)the third country AIFM has appointed a legal representative established in Malta; (
  2. c)the legal representative shall, together with the third country AIFM, be the contact person of the third country AIFM for the investors of the relevant AIFs, for ESMA and for the competent authority as regards the activities for which the third country AIFM is licensed in Malta and shall at least be sufficiently equipped to perform the compliance function pursuant to the provisions of the AIFM Directive; (
  3. d)appropriate cooperation arrangements are in place between the competent authority, the European regulatory authority of the home Member State or EEA State of the European AIFs concerned and the supervisory authorities of the third country where the third country AIFM is established in order to ensure at least an efficient exchange of information that allows the competent authority to carry out its duties in accordance with the provisions of the AIFM Directive; (
  4. e)the third country where the third country AIFM is established is not listed as a Non-Cooperative Country and Territory by FATF; (
  5. f)the country where the third country AIFM is 17 18 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) established has signed an agreement with Malta, which fully complies with the standards prescribed in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements; (
  6. g)the effective exercise by the competent authority of its supervisory functions under the AIFM Directive is neither prevented by the laws, regulations or administrative provisions of a third country governing the third country AIFM, nor by limitations in the supervisory and investigatory powers of that third country’s supervisory authorities.
(21)Where a European regulatory authority of another Member State or EEA State disagrees with the assessment made by the competent authority on the application of sub-regulation
(20)(
  1. a)to (
  2. e)and (g), the European regulatory authority concerned may refer the matter to ESMA, which may act in accordance with

Article 19of Regulation (EU) No. 1095/2010.

(22)Where a European regulatory authority of a European AIF d o e s n o t e n t er i n t o t h e r e q u i r e d c o o p e r a t i o n a r r a n g e m en t s prescribed in sub-regulation
(20)(d) within a reasonable period of time, the competent authority may refer the matter to ESMA, which may act in accordance with

Article 19of Regulation (EU) No. 1095/2010.

(23)The authorisation granted by the competent authority shall be in accordance with Chapter II of the AIFM Directive as transposed in the Investment Services Act and the Investment Services Rules issued thereunder which shall apply mutatis mutandis subject to the following criteria: (a) the information referred to in Article 7
(2)of the AIFM Directive shall be supplemented by: (i) a justification by the third country AIFM of its assessment regarding the choice of Malta as a Member State of reference in accordance with the criteria prescribed in sub-regulations
(6)to
(11)with information on the marketing strategy; (ii) a list of the provisions of the AIFM Directive for which compliance by the third country AIFM is impossible since compliance by the said AIFM with those provisions is, in accordance with subregulations
(2)to
(3), incompatible with compliance with a mandatory provision in the law to which the third country AIFM or the third country AIF marketed in any Member State or EEA State is subject; (iii) written evidence which is based on the regulatory technical standards developed by ESMA that the relevant third country law provides for a rule equivalent to the provision for which compliance is impossible, which has INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) (
  1. iv)[ S.L.370.24 the same regulatory purpose and offers the same level of protection to the investors of the relevant AIFs and that the third country AIFM complies with that equivalent rule; and such written evidence is supported by a legal opinion on the existence of the relevant incompatible mandatory provision in the law of the third country and including a description of the regulatory purpose and the nature of the investor protection pursued by it; and the name of the legal representative of the third country AIFM and the place where it is established; (
  2. b)the information referred to in Article 7
(3)of the AIFM Directive may be limited to the European AIFs the third country AIFM intends to manage, and to those AIFs managed by the third country AIFM that it intends to market in another Member State or EEA State with a passport; (c) the competent authority’s satisfaction that the AIFM will be able to meet the conditions of the AIFM Directive shall be without prejudice to sub-regulations
(2)and
(3); (d) the requirement stipulated in Article 8
(1)(
  1. e)of the AIFM Directive that the head office and the registered office of the AIFM are located in Malta shall not apply; (
  2. e)the requirement to submit a complete application in terms of the Investment Services Rules shall, for the purposes of this regulation, be deemed to include a reference to the information referred to in paragraph (a).
(24)Where a European regulatory authority of another Member State or EEA State disagrees with the licence granted by the competent authority, the European regulatory authority concerned may refer the matter to the ESMA which may act in accordance with

Article 19of Regulation (EU) No. 1095/2010.

(25)In the case where the competent authority considers that the third country AIFM may rely on sub-regulations
(2)and
(3)to be exempted from compliance with certain provisions of the AIFM Directive, it shall, without undue delay, notify ESMA thereof. It shall support this assessment by the information provided by the AIFM in accordance with sub-regulation
(23)(a)(ii) and (iii).
(26)Within one month of receipt of the notification referred to in sub-regulation
(25), ESMA shall issue advice to the competent authority about the application of the exemption for compliance with the provisions of the AIFM Directive, caused by the incompatibility in accordance with sub-regulations
(2)and
(3). In particular, the advice may address whether the conditions for such exemption appear to be met based on the information provided by 19 20 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) t h e t h i r d c o u nt r y A I F M i n a c c o r d a n c e w i th s u b - r e gu l a ti o n
(23)(a)(ii) and (iii) and on the regulatory technical standards on equivalence: Provided that the term of three months granted to the competent authority in terms of Article 8
(5)of the AIFM Directive shall be suspended during the ESMA review.
(27)If the competent authority proposes to grant a licence contrary to ESMA’s advice as referred to in sub-regulation
(26), it shall inform ESMA stating its reasons. ESMA shall publish the fact that the competent authority does not comply or does not intend to comply with that advice: Provided that ESMA may also decide, on a case-by-case basis, to publish the reasons provided by the competent authority for not complying with that advice and it shall proceed to notify the competent authority in advance of such publication.
(28)If the competent authority proposes to grant a licence contrary to ESMA’s advice as referred to in sub-regulation
(26), and the third country AIFM intends to market units or shares of AIFs managed by it in Member States or EEA States other than Malta, the competent authority shall inform the European regulatory authorities of those Member States or EEA States, stating its reasons.
(29)Where a European regulatory authority of another Member State or EEA State disagrees with the assessment made on the application of sub-regulations
(25)to
(28)by the competent authority, the European regulatory authority concerned may refer the matter to the ESMA which may act in accordance with

Article 19of Regulation (EU) No. 1095/2010.

(30)The competent authority shall, without undue delay, inform ESMA of the outcome of the initial licensing process, about any changes in the licensing of the third country AIFM and any withdrawal of a licence.
(31)The competent authority shall inform ESMA about the licensing applications it has rejected, providing data about the third country AIFM having asked for a licence and the reasons for the rejection. ESMA shall keep a central register of those data, which shall be at the disposal of all European regulatory authorities including the competent authority, on request. This information shall be treated as confidential.
(32)Where Malta is the Member State of reference and the competent authority considers that a licensed third country AIFM is in breach of its obligations under the AI FM Directive, the competent authority shall notify ESMA, setting out detailed reasons as soon as possible. INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 10.
(1)The determination of Malta as a Member State of reference shall not be affected by the further business development of the third country AIFM in any Member State or EEA State.
(2)Where, however, the third country AIFM changes its marketing strategy within two years of its initial authorisation, and that change would have affected the choice of Malta as a Member State of reference if the modified marketing strategy had been the initial marketing strategy, the said AIFM shall notify the competent authority of the change before implementing it and it shall indicate its Member State of reference in accordance with the criteria prescribed in regulation 9
(6)to
(11)and based on the new strategy. The said AIFM shall justify its assessment by disclosing its new marketing strategy to the competent authority. At the same time, the said AIFM shall provide information on its legal representative, including its name and the place where it is established: Provided that the legal representative shall be established in the new Member State of reference.
(3)The competent authority shall assess whether the determination of the third country AIFM in accordance with subregulations
(1)and
(2)is correct and shall notify ESMA thereof. In its notification to ESMA, the competent authority shall provide the third country AIFM’s justification of its assessment regarding the Member State of reference and information on the said AIFM’s new marketing strategy: Provided that ESMA shall issue advice on the assessment made by the competent authority.
(4)Within one month of receipt of the notification referred to in sub-regulation
(3), the competent authority shall receive ESMA’s advice on the assessment carried out: Provided that ESMA shall issue a negative advice only where it considers that the criteria prescribed in regulation 9
(6)to
(11)have not been complied with.
(5)After receipt of ESMA’s advice in accordance with subregulation
(4), the competent authority shall inform the third country AIFM, its original legal representative and ESMA of its decision.
(6)Where the competent authority agrees with the assessment made by the third country AIFM, it shall also inform the European regulatory authority of the new Member State of reference of the change. The competent authority shall also, without undue delay, transfer a copy of the licensing and the supervision file relating to the said AIFM to the European regulatory authority of the new Member State of reference. From the date of transmission of the licensing and supervision file, the European regulatory authority of the new Member State of reference shall be responsible for the licensing and supervision of the said AIFM.
(7)Where the final assessment of the competent authority is contrary to ESMA’s advice as referred to in sub-regulation
(4): (
  1. a)the competent authority shall inform ESMA thereof, stating reasons. ESMA shall publish the fact that the 21 Changes in marketing strategy of third country AIFM within two years of its initial authorisation by the competent authority. 22 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) competent authority does not comply, or does not intend to comply with its advice: Provided that ESMA may also decide, on a case-bycase basis, to publish the reasons for non-compliance provided by the competent authority and it shall proceed to notify the competent authority in advance of such publication; (
  2. b)where the third country AIFM markets units or shares of the AIFs managed by it in Member States or EEA States other than Malta, the competent authority shall inform the European regulatory authorities of those other Member States or EEA States thereof, stating reasons. Where applicable, the competent authority shall also inform the European regulatory authority of the home Member State or EEA State of the AIFs managed by the said AIFM thereof, stating reasons.
(8)Where it appears from the actual course of the business development of the third county AIFM in the Member State or EEA State within two years after its licensing, that the marketing strategy as presented by the AIFM at the time of its licensing was not followed, that the AIFM made false statements in relation thereto or that the AIFM has failed to comply with the conditions p r e s c r i b e d i n s u b - r e gu l a t i o ns
(1)t o
(7)w h e n c h a n g i n g i t s marketing strategy, the competent authority shall request that the third country AIFM indicates the Member State of reference based on its actual marketing strategy. The procedure prescribed in subregulations
(1)to
(7)shall apply mutatis mutandis.
(9)If the third country AIFM fails to comply with the request made by the competent authority, it shall withdraw the AIFM’s licence.
(10)Where the AIFM changes its marketing strategy after the period of two years as referred to in sub-regulations
(1)to
(7), and intends to change its Member State of reference on the basis of its new marketing strategy, it may submit a request to change its Mem ber State of reference to the competent authority. The procedure prescribed in sub-regulations
(1)to
(7)shall apply mutatis mutandis.
(11)Where a European regulatory authority of a Member State or EEA State disagrees with the assessment made on the determination of the Member State of reference under subregulations
(1)to
(7)hereof under sub-regulations
(8)to
(10), the European regulatory authority concerned may refer the matter to ESMA which may act in accordance with

Article 19of Regulation (EU) No 1095/2010.

(12)Any disputes arising between the competent authority as the third county AIFM’s Member State of reference, and the said AIFM, shall be settled in accordance with the law of Malta and shall be subject to the jurisdiction of the Courts of Malta.
(13)Any disputes between the AIFM or the AIF and investors in any Member State or EEA State of the relevant AIF shall be settled INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 23 in accordance with the law of and subject to the jurisdiction of the Member State or EEA State involved.
(14)Where a European regulatory authority rejects a request to exchange information in accordance with the regulatory technical standards developed by ESMA, the competent authority may refer the matter to ESMA which may act in accordance with

Article 19of Regulation (EU) No 1095/2010.

THIRD COUNTRY AIFMs HAVING MALTA AS MEMBER STATE OF REFERENCE AND MARKETING EUROPEAN AIFs IN MALTA OR IN ANY MEMBER STATE OTHER THAN MALTA 11.

(1)A third country AIFM duly licensed in Malta may market to professional investors, in Malta, units or shares of a European AIF which it manages as soon as the conditions prescribed in this regulation are met: Provided that, without prejudice to regulation 30, AIFs managed and marketed by a third country AIFM shall be marketed in Malta only to professional investors: Provided further, where a duly licensed third country AIFM intends to market units or shares of a European AIF, registered in a Member State or EEA State other than Malta, to professional investors, such European AIF shall be exempt from the provisions of Article 4 of the Act.
(2)Where the third country AIFM duly authorised in Malta intends to market units or shares of the European AIF in Malta, after having deemed Malta as its Member State of reference, the third country AIFM shall submit a notification to the competent authority in respect of each European AIF that it intends to market. The notification shall comprise the documentation and information prescribed hereunder: (
  1. a)a notification letter, including a programme of operations identifying the European AIFs which the AIFM intends to market and the information on where the European AIFs are established; (
  2. b)the European AIF’s prospectus or equivalent rules or instruments of incorporation; (
  3. c)identification of the custodian of the European AIF; (
  4. d)a description of, or any information on, the European AIF available to investors; (
  5. e)information on where the master AIF is established if the European AIF is a feeder AIF; (
  6. f)any additional information concerning the disclosure obligations prescribed in Investment Services Rules for each European AIF which the AIFM intends to market; (
  7. 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 AIFM relies on activities of Third country AIFM licensed in Malta marketing European AIF in Malta. Amended by: L.N. 214 of 2013. 24 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) independent entities to provide investment services in respect of the European AIF.
(3)The competent authority shall, within twenty working days from receipt of a complete notification pursuant to sub-regulation
(2), inform the third country AIFM whether it may start marketing the European AIF identified in the notification referred to in subregulation
(2)in Malta.
(4)The competent authority may prevent the marketing of the E u r o p e a n A I F i n M a l t a o n l y i f t h e t h i r d c o u n t r y A I F M ’s management of the European AIF does not or will not comply with the provisions of the AIFM Directive or if the third country AIFM otherwise does not or will not comply with the provisions of the AIFM Directive.
(5)In the case of a positive decision by the competent a ut ho r i ty, th e t hi r d c o un t r y A I F M m a y s t a r t m a r k e t in g t he European AIF in Malta as from the date of the notification by the competent authority to that effect.
(6)The competent authority shall also inform ESMA and the European regulatory authorities of the European AIFs that the third country AIFM may start marketing the units or shares of the European AIF in Malta.
(7)In the event of a material change to any of the particulars communicated in accordance with sub-regulation
(2), the third country 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.
(8)Where, pursuant to a planned change, the third country AIFM’s management of the European AIF would no longer comply with the provisions of the AIFM Directive, or the third country AIFM would otherwise no longer comply with the provisions of the AIFM Directive, the competent authority shall inform the third country AIFM without undue delay, that it shall not implement the change.
(9)Where the third country AIFM proceeds with the implementation of the planned change, notwithstanding the notification received pursuant to sub-regulations
(7)and
(8), or if an unplanned change has taken place pursuant to which the third country AIFM’s management of the European AIF no longer complies with the provisions of the AIFM Directive or the third country AIFM otherwise no longer complies with the provisions of the AIFM Directive, the competent authority shall take all due measures in accordance with the provisions of the Act and any regulations issued thereunder, including, if necessary, the express prohibition of marketing of the European AIF.
(10)If the changes are acceptable because they do not affect the compliance of the third country AIFM’s management of the European AIF with the provisions of the AIFM Directive, or the compliance by the third country AIFM with the provisions of the AIFM Directive, the competent authority shall, without delay, INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 25 inform ESMA in so far as the changes concern the termination of the marketing of certain European AIFs or additional European AIFs being marketed and, if applicable, the European regulatory authorities of the host Member State or EEA State of the third country AIFM of such changes. 12.
(1)A third country AIFM duly licensed in Malta 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 as soon as the conditions prescribed in this regulation are met: Provided that, without prejudice to Article 43 of the AIFM Directive, AIFs managed and marketed by a third country AIFM shall be marketed only to professional investors.
(2)Where the third country AIFM duly licensed in Malta intends to market units or shares of the European AIF in any Member State or EEA State other than Malta, the third country AIFM shall submit a notification to the competent authority in respect of each European AIF that it intends to market. The notification shall comprise the documentation and information prescribed hereunder: (
  1. a)a notification letter, including a programme of operations identifying the European AIFs which the third country AIFM intends to market and the information on where the European AIFs are established; (
  2. b)the European AIF’s prospectus or equivalent rules or instruments of incorporation; (
  3. c)identification of the custodian of the European AIF; (
  4. d)a description of, or any information on the European AIF available to investors; (
  5. e)information on where the master AIF is established if the European AIF is a feeder AIF; (
  6. f)any additional information concerning the disclosure obligations prescribed in Investment Services Rules for each European AIF which the third country AIFM intends to market; (
  7. g)the indication of the Member State or EEA State in which it intends to market the units or shares of the European AIF to professional investors; (
  8. g)information on the arrangements made for the marketing of the European AIFs and, 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 third country AIFM relies on activities of independent entities to provide investment services in respect of the European AIF: Provided that the notification letter by the third country AIFM referred to above shall be provided in a language customary Third country AIFM licensed in Malta marketing European AIFs in a Member State or EEA State other than Malta. 26 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) in the sphere of international finance.
(3)The competent authority shall, within twenty working days from receipt of a complete notification pursuant to sub-regulation
(2), transmit the complete notification file to the European regulatory authorities of the Member States or EEA States where t he uni ts or shares of th e Eu rop ean AIF are int ended t o be marketed. The competent authority shall also enclose a statement to the effect that the third country AIFM concerned is licensed to manage 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.
(4)The competent authority shall proceed with the transmission of the complete notification file pursuant to subregulation
(3), only if the third country AIFM’s management of the European AIF complies and will continue to comply with the provisions of the AIFM Directive and if the third country AIFM otherwise complies with the provisions of the said Directive.
(5)Upon transmission of the notification file, the competent authority shall, without delay, notify the third country AIFM about the transmission. The third country AIFM may start marketing the European AIF in the relevant host Member State or EEA State as of the date of that notification.
(6)The competent authority shall also inform ESMA and the European regulatory authorities of the European AIFs that the third country AIFM may start marketing the units or shares of the European AIF in the host Member States or EEA State of the third country AIFM.
(7)The arrangements referred to in sub-regulation
(2)(h) shall be subject to the laws of the host Member State or EEA State of the third country AIFM and to the supervision of the European regulatory authority therein.
(8)In the event of a material change to any of the particulars communicated in accordance with sub-regulation
(2), the third country 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.
(9)Where, pursuant to a planned change, the third country AIFM’s management of the European AIF would no longer comply with the provisions of the AIFM Directive, or the third country AIFM would otherwise no longer comply with the provisions of the AIFM Directive, the competent authority shall inform the third country AIFM without undue delay that it shall not implement the change.
(10)Where the third country AIFM proceeds with the implementation of the planned change, notwithstanding the notification received pursuant to sub-regulations
(8)and
(9), or if an unplanned change has taken place pursuant to which the third country AIFM’s management of the European AIF no longer INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 27 complies with the provisions of the AIFM Directive or the third country AIFM otherwise no longer complies with the provisions of the AIFM Directive, the competent authority shall take all due measures in accordance with the provisions of the Act and any regulations made thereunder, including, if necessary, the express prohibition of marketing of the European AIF.
(11)If the changes are acceptable because they do not affect the compliance of the third country AIFM’s management of the European AIF with the provisions of the AIFM Directive, or the compliance by the third country AIFM with the provisions of the AIFM Directive, the competent authority shall, without delay, inform ESMA in so far as the changes concern the termination of the marketing of certain European AIFs or additional European AIFs markete d and, if applicable, the European regulatory authorities of the host Member State or EEA State of the third country AIFM of such changes. THIRD COUNTRY AIFMs HAVING MALTA AS MEMBER STATE OF REFERENCE AND MARKETING THIRD COUNTRY AIFs IN MALTA OR IN ANY MEMBER STATE OTHER THAN MALTA 13.
(1)A third country AIFM duly licensed in Malta may market in Malta units or shares of a third country AIF it manages, to professional investors in Malta as soon as the conditions prescribed in this regulation are met: Provided that, without prejudice to regulation 30, third country AIFs managed and marketed by a third country AIFM shall be marketed only to professional investors: Provided further, where a duly licensed third country AIFM intends to market units or shares of a third country AIF it manages in Malta to professional investors, such third country AIF shall be exempt from the provisions of Article 4 of the Act.
(2)In addition to the requirements prescribed in the AIFM Directive in relation to European AIFMs, the following conditions shall also be met for third country AIFMs: (
  1. a)appropriate cooperation arrangements are in place between the competent authority as the Member State of reference and the supervisory authority of the country where the third country AIF is established in order to ensure at least an efficient exchange of information, which allows the competent authority to carry out its duties in accordance with the provisions of the AIFM Directive; (
  2. b)the third country where the third country AIF is established is not listed as a Non-Cooperative Country and Territory by FATF; (
  3. c)the country where the third country AIF is established has signed an agreement with the competent authority and with each other Member State or EEA State in which the units or shares of the third country AIF are intended to be marketed, which fully complies with the Third country AIFM licensed in Malta to market third country AIFs in Malta. Amended by: L.N. 214 of 2013. 28 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 standards prescribed in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements.
(3)Where a European regulatory authority of another Member State or EEA State disagrees with the assessment made on the application of sub-regulation
(2)(
  1. a)and (
  2. b)by the competent authority, the European regulatory authority concerned may refer the matter to ESMA which may act in accordance with

Article 19of Regulation (EU) No. 1095/2010.

(4)Where the third country AIFM duly licensed in Malta, intends to market units or shares of a third country AIF in Malta, as its Member State of reference, the third country AIFM shall submit a notification to the competent authority in respect of each third country AIF that it intends to market in Malta. The notification shall comprise the documentation and information prescribed hereunder: (
  1. a)a notification letter, including a programme of operations identifying the third country AIFs which the third country AIFM intends to market and the information on where the third country AIFs are established; (
  2. b)the third country AIF’s prospectus or equivalent rules or instruments of incorporation; (
  3. c)identification of the custodian of the third country AIF; (
  4. d)a description of, or any information on the third country AIF available to investors; (
  5. e)information on where the master AIF is established if the third country AIF is a feeder AIF; (
  6. f)any additional information concerning the disclosure obligations prescribed in Investment Services Rules for each third country AIF which the third country AIFM intends to market; (
  7. g)where relevant, information on the arrangements established to prevent units or shares of the third country AIF from being marketed to retail investors, including in the case where the third country AIFM relies on activities of independent entities to provide investment services in respect of the third country AIF.
(5)The competent authority shall, within twenty working days from receipt of a complete notification pursuant to sub-regulation
(4), inform the third country AIFM whether it may start marketing the third country AIF identified in the notification referred to in sub-regulation
(4)in Malta.
(6)The competent authority may prevent the marketing of the third country AIF in Malta only if the third country AIFM’s management of the third country AIF does not or will not comply with the provisions of the AIFM Directive or if the third country INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 29 AIFM otherwise does not or will not comply with the provisions of the AIFM Directive.
(7)In the case of a positive decision by the competent authority, the AIFM may start marketing the third country AIF in Malta as from the date of the notification by the competent authority to that effect.
(8)The competent authority shall also inform ESMA that the third country AIFM may start marketing the units or shares of the third country AIF in Malta.
(9)In the event of a material change to any of the particulars communicated in accordance with sub-regulation
(4), the third country AIFM shall give written notice thereof to the competent authority at least one month prior to the implementation of the planned change, or immediately after an unplanned change has occurred.
(10)Where, pursuant to a planned change, the third country AIFM’s management of the third country AIF would no longer comply with the provisions of the AIFM Directive, or the third c ou n tr y A IF M w ou ld ot her w ise n o l on ge r c o mp l y wi th th e provisions of the AIFM Directive, the competent authority shall inform the third country AIFM without undue delay that it shall not implement the change.
(11)Where the third country AIFM proceeds with the implementation of the planned change, notwithstanding the notification received pursuant to sub-regulations
(9)and
(10), or if an unplanned change has taken place pursuant to the which the third country AIFM’s management of the third country AIF no longer complies with the provisions of the AIFM Directive or the third country AIFM otherwise no longer complies with the provisions of the AIFM Directive, the competent authority shall take all due measures in accordance with the provisions of the Act and any regulations made thereunder, including, if necessary, the express prohibition of marketing the third country AIF.
(12)If the changes are acceptable because they do not affect the compliance of the third country AIFM’s management of the third country AIF with the provisions of the AIFM Directive, or the compliance by the third country AIFM with the provisions of the AIFM Directive, the competent authority shall, without delay, inform ESMA in so far as the changes concern the termination of the marketing of certain third country AIFs or additional third country AIFs being marketed and, if applicable, the European regulatory authorities of the host Member State of the third country AIFM of such changes. 14.
(1)A third country AIFM duly licensed in Malta may market units or shares of a third country AIF it manages to professional investors in a Member State or EEA State other than Malta, as soon as the conditions prescribed in this regulation are met: Provided that, without prejudice to Article 43 of the AIFM Directive, AIFs managed and marketed by a third country AIFM shall be marketed only to professional investors. Third country AIFM licensed in Malta marketing third country AIFs in any Member State or EEA State other than Malta. 30 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY)
(2)In addition to the requirements prescribed in the AIFM Directive in relation to European AIFMs, the following conditions shall also be met for third country AIFMs: (
  1. a)appropriate cooperation arrangements are in place between the competent authority and the supervisory authorities of the third country where the third country AIF is established in order to ensure at least an efficient exchange of information, which allows the competent authority to carry out its duties in accordance with the provisions of the AIFM Directive; (
  2. b)the third country where the third country AIF is established is not listed as a Non-Cooperative Country and Territory by FATF; (
  3. c)the third country where the third country AIF is established has signed an agreement with the competent authority and with each other Member State or EEA State in which the units or shares of the third country AIF are intended to be marketed, which fully complies with the standards prescribed in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements.
(3)Where a European regulatory authority of another Member State or EEA State disagrees with the assessment made on the application of sub-regulation
(2)(
  1. a)and (
  2. b)by the competent authority, the European regulatory authority concerned may refer the matter to ESMA which may act in accordance with

Article 19of Regulation (EU) No. 1095/2010.

(4)Where the third country AIFM duly licensed in Malta intends to market units or shares of a third country AIF in any Member State or EEA State other than Malta, the third country AIFM shall submit a notification to the competent authority in respect of the third country AIF that it intends to market. The notification shall comprise the documentation and information prescribed hereunder: (
  1. a)a notification letter, including a programme of operations identifying the third country AIFs which the third country AIFM intends to market and the information on where the third country AIFs are established; (
  2. b)the third country AIF’s prospectus or equivalent rules or instruments of incorporation; (
  3. c)identification of the custodian of the third country AIF; (
  4. d)a description of, or any information on the third country AIF available to investors; (
  5. e)information on where the master AIF is established if the third country AIF is a feeder AIF; INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) (
  6. f)[ S.L.370.24 any additional information concerning the disclosure obligations prescribed in Investment Services Rules for each third country AIF which the third country AIFM intends to market; (
  7. g)the indication of the Member State or EEA State in which it intends to market the units or shares of the third country AIF to professional investors; (
  8. h)information on the arrangements made for the marketing of the third country AIFs and, where relevant, information on the arrangements established to prevent units or shares of the third country AIF from being marketed to retail investors, including in the case where the third country AIFM relies on activities of independent entities to provide investment services in respect of the third country AIF: Provided that the notification letter by the third country AIFM referred to above shall be provided in a language customary in the sphere of international finance.
(5)The competent authority shall within twenty working days from receipt of a complete notification pursuant to sub-regulation
(4), transmit the complete notification file to the European regulatory authorities of the Member States or EEA States where the units or shares of the third country AIF are intended to be marketed. The competent authority shall also enclose a statement to the effect that the third country AIFM concerned is licensed to manage third country 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.
(6)The competent authority shall proceed with the transmission of the complete notification file pursuant to subregulation
(4), only if the third country AIFM’s management of the third country AIF complies and will continue to comply with the provisions of the AIFM Directive and if the third country AIFM otherwise complies with the provisions of the AIFM Directive.
(7)Upon transmission of the notification file, the competent authority shall, without delay, notify the third country AIFM about the transmission. The third country AIFM may start marketing the third country AIF in the relevant host Member State or EEA State as of the date of that notification.
(8)The competent authority shall also inform ESMA that the third country AIFM may start marketing the units or shares of the third country AIF in the host Member States or EEA State of the third country AIFM.
(9)The arrangements referred to in sub-regulation
(4)(h) shall be subject to the laws and supervision of the European regulatory authority of the third country AIFM’s host Member State or EEA State.
(10)In the event of a material change to any of the particulars communicated in accordance with sub-regulation
(4), the third 31 32 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) country AIFM shall give written notice thereof to the competent authority at least one month prior to the implementation of the planned change, or immediately after an unplanned change has occurred.
(11)Where, pursuant to a planned change, the third country AIFM’s management of the third country AIF would no longer comply with the provisions of the AIFM Directive, or the third c ou nt r y AI F M wo ul d o th e r wi s e no lo ng e r c om p ly w i th t he provisions of the AIFM Directive, the competent authority shall inform the third country AIFM without undue delay that it shall not implement the change.
(12)Where the third country AIFM proceeds with the implementation of the planned change, notwithstanding the notification received pursuant to sub-regulations
(10)and
(11), or if an unplanned change has taken place pursuant to which the third country AIFM’s management of the third country AIF no longer complies with the provisions of the AIFM Directive or the third country AIFM otherwise no longer complies with the provisions of the AIFM Directive, the competent authority shall take all due measures in accordance with the provisions of the Act and any regulations issued thereunder including, if necessary, the express prohibition of marketing of the third country AIF.
(13)If the changes are acceptable because they do not affect the compliance of the third country AIFM’s management of the third country AIF with the provisions of the AIFM Directive, or the compliance by the third country AIFM with the provisions of the AIFM Directive, the competent authority shall, without delay, inform ESMA in so far as the changes concern the termination of the marketing of certain third country AIFs or additional third country AIFs marketed and, if applicable, the European regulatory authorities of the host Member State of the third country AIFM of such changes. LICENSING OF THIRD COUNTRY AIFMs AND CHOICE OF MALTA AS ALTERNATIVE MEMBER STATE OF REFERENCE Choice of Malta as new Member State of reference. 15.
(1)Where a third country AIFM which has been granted an authorisation by a European regulatory authority of a Member State or EEA State other than Malta after having deemed such Member State or EEA State as its Member State of reference, changes its marketing strategy within two years of its initial authorisation, and that change would have affected the choice of its Member State of reference to be Malta had the modified marketing strategy been the initial marketing strategy, the third country AIFM shall proceed as follows: (a) it shall inform the European regulatory authority of the original Member State of reference of the change prior to implementation; and (b) it shall indicate Malta as being the Member State of reference in accordance with the criteria prescribed in Article 37
(4)of the AIFM Directive based on the new strategy. INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 33
(2)The third country AIFM shall justify its assessment by disclosing its new marketing strategy to its original Member State of reference.
(3)The third country AIFM shall also provide information on its legal representative including its name and the place where it is established: Provided that the new legal representative shall be established in Malta.
(4)The European regulatory authority of the original Member State of reference shall assess whether the determination of the third country AIFM in accordance with sub-regulations
(1)to
(3)is correct and shall notify ESMA thereof. The European regulatory authority shall also provide ESMA with the third country AIFM’s justification of its assessment regarding the choice of the new Member State of reference and information on the third country AIFM’s new marketing strategy.
(5)Where the European regulatory authority agrees with the assessment made by the third country AIFM, the competent authority shall be notified of the change by the said European r e g u l a t o r y a u t h o r i t y, a n d s h a l l d u l y r e c e i v e a c o p y o f t h e authorisation and the supervision file relating to the third country AIFM: Provided that from the date of transmission to the competent authority of the authorisation and supervision file, the competent authority shall be competent for the licensing and supervision of the third country AIFM.
(6)Where a third country AIFM changes its marketing strategy after a period of two years and intends to designate Malta as its new Member State of reference on the basis of its new marketing strategy, it may submit a request to change its Member State of reference to the European regulatory authorities of the original Member State of reference. The procedure indicated in subregulations
(2)to
(5)shall apply mutatis mutandis. THIRD COUNTRY AIFMs HAVING AN EU OR EEA MEMBER STATE OF REFERENCE OTHER THAN MALTA MARKETING EU OR THIRD COUNTRY AIFs IN MALTA 16.
(1)A third country AIFM authorised in a Member State or EEA State other than Malta may market to professional investors in Malta units or shares of a European AIF which it manages as soon as the conditions prescribed in this regulation are met. In such case the third country AIFM shall be exempt from the provisions of article 3 of the Act, and the European AIF, if authorised in a Member State or EEA State other than Malta, shall be exempt from the provisions of Article 4 of the Act: Provided that, without prejudice to regulation 30, European AIFs managed and marketed by a third country AIFM, shall be marketed in Malta only to professional investors.
(2)Where a third country AIFM authorised in a Member State or EEA State, other than Malta, intends to market units or shares of the European AIF in Malta, the third country AIFM shall submit to Third country AIFM authorised in a Member State or EEA State other than Malta marketing European AIFs in Malta. Amended by: L.N. 214 of 2013. 34 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 the European regulatory authority of the Member State or EEA State a notification in respect of the European AIFs that it intends to market. The notification shall comprise the documentation and information prescribed hereunder: (
  1. a)a notification letter, including a programme of operations identifying the European AIFs which the third country AIFM intends to market and the information on where the European AIFs are established; (
  2. b)the European AIF’s prospectus or equivalent rules or instruments of incorporation; (
  3. c)identification of the custodian of the European AIF; (
  4. d)a description of, or any information on the European AIF available to investors; (
  5. e)information on where the master AIF is established if the European AIF is a feeder AIF; (
  6. f)any additional information concerning the disclosure obligations prescribed in Article 23
(1)of the AIFM Directive for each European AIF which the third country AIFM intends to market; (
  1. g)the indication of Malta as being the Member State in which it intends to market the units or shares of the European AIFs to investors; (
  2. h)information on the arrangements made for the marketing of the 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 third country AIFM relies on activities of independent entities to provide investment services in respect of the European AIF: Provided that the notification letter by the third country AIFM referred to above shall be provided in a language customary in the sphere of international finance.
(3)The competent authority shall, no later than twenty working days after the date of receipt of a complete notification file p u r su an t t o s u b - r e g u l at i o n
(2), r e c e i v e f r o m t h e E u r o p ea n regulatory authority of the third country AIFM’s home Member State or EEA State the complete notification file.
(4)The notification file transmitted to the competent authority shall also include a statement to the effect that the third country 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.
(5)The competent authority shall receive the complete notification file only if the third country AIFM’s management of INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 35 the European AIF complies with and will continue to comply with the provisions of the AIFM Directive and if the third country AIFM otherwise complies with the provisions of the AIFM Directive.
(6)The third country AIFM may start marketing the European AIFs in Malta as from the date that the European regulatory authority has notified the third country AIFM of the transmission to the competent authority of the notification file.
(7)Arrangements referred to in sub-regulation
(2)(h) shall be subject to the laws of Malta and to the supervision of the competent authority.
(8)In the event that the European regulatory authority accepts a change to any of the particulars communicated in accordance with sub-regulation
(2)by the third country AIFM, the competent authority shall receive notification thereof from the said European regulatory authority in so far as the changes concern the termination of the marketing of certain European AIFs or additional European AIFs marketed. 17.
(1)A third country AIFM duly authorised in a Member State or EEA State other than Malta may market units or shares of a third country AIF to professional investors in Malta as soon as the conditions prescribed in this regulation are met. The third country AIFM and the third country AIF shall be exempt from the provisions of articles 3 and 4 of the Act respectively: Provided that, without prejudice to regulation 30, AIFs managed and marketed by a third country AIFM shall be marketed only to professional investors.
(2)Where the third country AIFM authorised in a Member State or EEA State other than Malta intends to market units or shares of a third country AIF in Malta, the third country AIFM shall submit a notification to the European regulatory authority of its home Member State or EEA State in respect of the third country AIF that it intends to market. The notification shall comprise the documentation and information prescribed hereunder: (
  1. a)a notification letter, including a programme of operations identifying the third country AIFs which the third country AIFM intends to market and the information on where the third country AIFs are established; (
  2. b)the third country AIF’s prospectus or equivalent rules or instruments of incorporation; (
  3. c)identification of the custodian of the third country AIF; (
  4. d)a description of, or any information on the third country AIF available to investors; (
  5. e)information on where the master AIF is established if the third country AIF is a feeder AIF; (
  6. f)any additional information concerning the disclosure obligations prescribed in Investment Services Rules for each third country AIF which the third country Third country AIFM authorised in a Member State or EEA Member State other than Malta marketing third country AIFs in Malta. Amended by: L.N. 214 of 2013. 36 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) AIFM intends to market; (
  7. g)the indication of Malta as being the Member State in which it intends to market the units or shares of the third country AIF to professional investors; (
  8. h)information on the arrangements made for the marketing of the third country AIFs and, where relevant, information on the arrangements established to prevent units or shares of the third country AIF from being marketed to retail investors, including in the case where the third country AIFM relies on activities of independent entities to provide investment services in respect of the third country AIF: Provided that the notification letter by the third country AIFM referred to above shall be provided in a language customary in the sphere of international finance.
(3)The competent authority shall, no later than twenty working days after the date of receipt by the European regulatory authority of the third country AIFM’s home Member State or EEA State of a complete notification file pursuant to sub-regulation
(2), receive the complete notification file from the said European regulatory authority.
(4)The notification file transmitted to the competent authority shall also include a statement to the effect that the third country AIFM concerned is authorised to manage third country 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.
(5)The competent authority shall receive the complete notification file in terms of sub-regulation
(3)only if the third country AIFM’s management of the third country AIF complies with and will continue to comply with the provisions of the AIFM Directive and if the third country AIFM otherwise complies with the provisions of the AIFM Directive.
(6)Upon transmission of the notification file to the competent authority by the European regulatory authority, the third country AIFM may start marketing the third country AIF in Malta as from the date that it is notified by the European regulatory authority of such transmission.
(7)Arrangements referred to in sub-regulation
(2)(h) shall be subject to the laws of Malta and to the supervision of the competent authority.
(8)In the event that the European regulatory authority accepts a change to any of the particulars communicated in accordance with sub-regulation
(2)by the third country AIFM, the competent authority shall receive notification thereof from the said European regulatory authority in so far as the changes concern the termination of the marketing of certain third country AIFs or additional third country AIFs marketed. INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 37 FREEDOM TO PROVIDE SERVICES AND FREEDOM OF ESTABLISHMENT BY THIRD COUNTRY AIFMs HAVING MALTA AS THEIR MEMBER STATE OF REFERENCE 18.
(1)A third country AIFM which has been licensed in Malta and which has appointed Malta as its Member State of reference may directly manage a European AIF established in any Member State or EEA State other than Malta, provided the third country AIFM is authorised to manage that type of European AIF.
(2)A third country AIFM which has been licensed in Malta and intending to manage a European AIF established in any Member State or EEA State other than Malta for the first time shall communicate the following information to the competent authority: (
  1. a)the Member State or EEA State in which it intends to manage European AIFs directly; (
  2. b)a programme of operations stating the particular services which the third country AIFM intends to perform and identifying the European AIFs it intends to manage.
(3)The competent authority shall, within one month of receiving the complete documentation submitted in accordance with sub-regulation
(2), transmit the complete documentation to the European regulatory authority of the AIFM host Member State or EEA State. The competent authority shall also enclose a statement to the effect that the third country AIFM is in possession of a licence granted by the competent authority: Provided that such transmission shall occur only if the third country AIFM’s management of the European AIF complies and will continue to comply with the provisions of the AIFM Directive and if the third country AIFM otherwise complies with the provisions of the AIFM Directive.
(4)The competent authority shall immediately notify the third country AIFM about the transmission of the notification pursuant to sub-regulation
(3). The competent authority shall also inform ESMA that the third country AIFM may start managing the European AIF in the host Member State or EEA State of the third country AIFM.
(5)Upon receipt of the transmitted notification by the European regulatory authority, the third country AIFM may start directly managing the European AIF in the host Member State or EEA State of the third country AIFM.
(6)In the event of a change to any of the information communicated in accordance with sub-regulation
(2), the third country AIFM shall give written notice of such change to the competent authority at least one month before implementing the planned change, or immediately after an unplanned change has occurred.
(7)Where, pursuant to a planned change, the third country AIFM’s management of the European AIF would no longer comply with the provisions of the AIFM Directive or the third country AIFM would otherwise no longer comply with the provisions of the Freedom of third country AIFMs to provide services direct management of a European AIF in a Member State or EEA State other than Malta. 38 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) AIFM Directive, the competent authority shall inform the third country AIFM without undue delay that it shall not implement the change.
(8)Where the third country AIFM proceeds with the implementation of the planned change, notwithstanding the notification made pursuant to sub-regulations
(6)and
(7), or if an unplanned change has taken place pursuant to which the third country AIFM’s management of the AIF referred to in subregulation
(1)no longer complies with the provisions of the AIFM Directive or the third country AIFM otherwise no longer complies with the provisions of the AIFM Directive, the competent authority shall take all due measures in accordance with the provisions of the Act and any regulations issued thereunder, including, if deemed necessary, the express prohibition of marketing of such European AIFs.
(9)If the changes are acceptable because they do not affect the compliance by the third country AIFM’s management of the European AIF with the provisions of the AIFM Directive, or the compliance by the third country AIFM with the provisions of the AIFM Directive, the competent authority shall, without undue delay, inform the European regulatory authority of the third country AIFM host Member State or EEA State of those changes. Freedom of establishment of third country AIFMs establishment of a branch. 19.
(1)A third country AIFM which has been licensed in Malta and which has appointed Malta as its Member State of reference may manage a European AIF established in any Member State or EEA State other than Malta through the establishment of a branch, provided the third country AIFM is authorised to manage that type of European AIF.
(2)A third country AIFM which has been licensed in Malta and which intends managing European AIFs in another Member State or EEA State for the first time and establish a branch shall communicate the following information to the competent authority: (
  1. a)the Member State or EEA State in which it intends to establish a branch; (
  2. b)a programme of operations stating the particular services which the third country AIFM intends to perform and identifying the European AIFs it intends to manage; (
  3. c)the organisational structure of the branch; (
  4. d)the address in the home Member State or EEA State of the European AIF from where documents may be obtained; (
  5. e)the names and contact details of the persons responsible for the management of the branch.
(3)The competent authority shall within two months of receiving the complete documentation submitted in accordance with sub-regulation
(2), transmit the said complete documentation to the European regulatory authority of the host Member State or EEA State where the third country AIFM intends establishing a branch. The competent authority shall also enclose a statement to INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 the effect that the third country AIFM is licensed in terms of the Act: Provided that such transmission shall occur only if the third country AIFM’s management of the European AIF complies and will continue to comply with the provisions of the AIFM Directive and the third country AIFM itself otherwise complies with the provisions of the AIFM Directive.
(4)The competent authority shall immediately notify the third country AIFM about the transmission pursuant to sub-regulation
(3). The competent authority shall also inform ESMA that the third country AIFM may start managing the European AIF in the host Member State or EEA State of the third country AIFM.
(5)Upon receipt of the transmission notification referred to in sub-regulation
(4), the third country AIFM may start managing the European AIF in the host Member State or EEA State of the third country AIFM.
(6)In the event of a change to any of the information communicated in accordance with sub-regulation
(2), the third country AIFM shall give written notice of such change to the competent authority at least one month before implementing the planned change, or immediately after an unplanned change has occurred.
(7)Where, pursuant to a planned change, the third country AIFM’s management of the European AIF would no longer comply with the provisions of the AIFM Directive or the third country AIFM itself would otherwise no longer comply with the provisions of the AIFM Directive, the competent authority shall inform the third country AIFM without undue delay that shall not implement the change.
(8)Where the third country AIFM proceeds with the implementation of the planned change, notwithstanding the notification received pursuant to sub-regulations
(6)and
(7), or if an unplanned change has taken place pursuant to which the third country AIFM’s management of the AIF referred to in subregulation
(1)no longer complies with the provisions of the AIFM Directive or the third country AIFM otherwise no longer complies with the provisions of the AIFM Directive, the competent authority shall take all due measures in accordance with the provisions of the Act and any regulations issued thereunder, including, if necessary, the express prohibition of marketing of such European AIFs.
(9)If the changes are acceptable because they do not affect the compliance of the third country AIFM’s management of the European AIF with the provisions of the AIFM Directive, or the compliance by the third country AIFM with the provisions of the AIFM Directive, the competent authority shall, without undue delay, inform the European regulatory authority of the third country AIFM host Member State or EEA State of those changes. 39 40 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) FREEDOM TO PROVIDE SERVICES AND FREEDOM OF ESTABLISHMENT BY THIRD COUNTRY AIFMs HAVING AS THEIR MEMBER STATE OF REFERENCE A MEMBER STATE OR EEA STATE OTHER THAN MALTA Freedom to provide services by third country AIFMs - Direct management of a European AIF in Malta. 20.
(1)A third country AIFM which has been authorised in a Member State or EEA State other than Malta and which has appointed such Member State or EEA State as its Member State of reference may directly manage a European AIF in Malta provided the said AIFM is authorised to manage that type of European AIF.
(2)A third country AIFM authorised in a Member State or EEA State other than Malta and intending to directly manage European AIFs in Malta for the first time shall communicate the following information to the European regulatory authority in its home Member State or EEA State and shall thereafter be exempt from the provisions of Article 3 of the Act: (a) the intention to manage European AIFs directly in Malta; (b) a programme of operations stating the particular services which the third country AIFM intends to perform and identifying the European AIFs it intends to manage.
(3)The competent authority shall, within one month from submission by the third country AIFM to the European regulatory authority of the complete documentation in accordance with subregulation
(2), receive the complete documentation from the European regulatory authority of the third country AIFM’s home Member State or EEA State. The competent authority shall receive a statement to the effect that the third country AIFM is authorised in terms of the AIFM Directive: Provided that such transmission shall occur only if the third country AIFM’s management of the European AIF complies and will continue to comply with the provisions of the AIFM Directive and the third country AIFM otherwise complies with the provisions of the AIFM Directive.
(4)Upon notification by the European regulatory authority of the home Member State or EEA Member State of the third country AIFM of the transmission notification referred to in sub-regulation
(3), the third country AIFM may start to provide its services in Malta.
(5)The competent authority shall not impose any additional requirements on the third country AIFM concerned in respect of matters which are covered by the AIFM Directive.
(6)In the event of a change, accepted by the European regulatory authority, to any of the information communicated in accordance with sub-regulation
(2), which changes do not affect the compliance by the third country AIFM’s management of the European AIF with the provisions of the AIFM Directive or the compliance by the third country AIFM of the provisions of the AIFM Directive, the competent authority shall receive notification of such changes from the European regulatory authority of the INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 41 home Member State or EEA State of the third country AIFM. 21.
(1)A third country AIFM which has been authorised in a Member State or EEA State other than Malta and which has appointed such Member State or EEA State as its Member State of reference may manage a European AIF in Malta through the establishment of a branch, provided the AIFM is authorised to manage that type of AIF.
(2)A third country AIFM intending to manage European AIFs in Malta for the first time through the establishment of a branch shall communicate the following information to the European regulatory authority in its home Member State or EEA State and shall thereafter be exempt from the provisions of Article 3 of the Act: (
  1. a)the intention to establish a branch in Malta; (
  2. b)a programme of operations stating the particular services which the AIFM intends to perform and identifying the AIFs it intends to manage; (
  3. c)the organisational structure of the branch; (
  4. d)the address in the home Member State of the AIF from where documents may be obtained; (
  5. e)the names and contact details of the persons responsible for the management of the branch.
(3)The competent authority shall, within two months from submission by the third country AIFM of the complete documentation to the European regulatory authority of the third country AIFM’s home Member State or EEA State in accordance with sub-regulation
(2), receive the complete documentation from such European regulatory authority. The competent authority shall receive a statement from the said European regulatory authority to the effect that the third country AIFM is authorised in terms of the AIFM Directive: Provided that such transmission shall occur only if the third country AIFM’s management of the European AIF complies and will continue to comply with the provisions of the AIFM Directive and the third country AIFM otherwise complies with the provisions of the AIFM Directive.
(4)Upon notification to the third country AIFM by the European regulatory authority of the home Member State or EEA State of the third country AIFM of the transmission notification, the third country AIFM may start managing the European AIF in Malta.
(5)The competent authority shall not impose any additional requirements on the third country AIFM concerned in respect of matters which are covered by the AIFM Directive.
(6)In the event of a change, accepted by the European regulatory authority, to any of the information communicated in accordance with sub-regulation
(2), which changes do not affect the compliance by the third country AIFM’s management of the European AIF with the provisions of the AIFM Directive or the Freedom of establishment of third country AIFMs establishment of a branch in Malta. 42 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) compliance by the third country AIFM of the provisions of the AIFM Directive, the competent authority shall receive notification of such changes from the European regulatory authority of the home Member State or EEA State of the third country AIFM. THIRD COUNTRY AIFMs MARKETING UNITS OR SHARES OF AIFs IN MALTA Marketing of units or shares of AIFs by a third country AIFM in Malta. Amended by: L.N. 214 of 2013. 22.
(1)Without prejudice to regulation 30, a third country AIFM may market, only to professional investors within the territory of Malta, units or shares of a third country AIF or a European AIF which is registered in another Member State or EEA State other than Malta and which it manages. The third country AIF and the third country AIFM shall be exempt from the provisions of articles 3 and 4 of the Act respectively: Provided that at least the following conditions shall be satisfied: (
  1. a)the third country AIFM complies with Articles 22, 23 and 24 of the AIFM Directive in respect of each AIF marketed by it pursuant to this regulation and with Articles 26 to 30 of the AIFM Directive where an AIF marketed by it pursuant to this regulation is one of the following: (
  2. i)one or more AIFs managed by third country AIFMs, where such AIFs either individually or jointly on the basis of an agreement aimed at acquiring control, acquire control of a non-listed company in accordance with Article 26
(5)of the AIFM Directive; (ii) AIFs managed by third country AIFMs jointly, where such third country AIFMs cooperate with one or more other AIFMs on the basis of an agreement pursuant to which the AIFs managed by those AIFMs jointly acquire control of a nonlisted company in accordance with Article 26
(5)of the AIFM Directive: Provided that the term ‘competent authorities’ and ‘AIF investors’ referred to in articles 22, 23, 24, 26 to 30 shall be deemed to refer to the competent authority and to the investors in Malta; (
  1. b)appropriate cooperation arrangements for the purpose of systemic risk oversight and in line with international standards are in place between the competent authority, in so far as applicable, the European regulatory authorities of the European AIFs concerned and the supervisory authorities of the third country where the third country AIFM and, in so far as applicable, the supervisory authorities of the third country where the third country AIF is established in order to ensure an efficient exchange of information that allows the competent authority to carry out its duties in accordance with the provisions of the AIFM Directive; INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) [ S.L.370.24 43 (
  2. c)the third country where the third country AIFM or the third country AIF is established is not listed as a NonCooperative Country and Territory by the FATF.
(2)Where a European regulatory authority of a European AIF does not enter into the required cooperation arrangements as prescribed in sub-regulation
(1)(b) within a reasonable period of time, the competent authority may refer the matter to ESMA which may act in accordance with

Article 19of Regulation (EU) No 1095/2010.

(3)The competent authority may, for the purposes of this regulation, impose stricter rules on the third country AIFM in respect of the marketing of units or shares of AIFs to investors in Malta. POWERS AND DUTIES OF THE COMPETENT AUTHORITY 23.
(1)The competent authority shall be responsible for the prudential supervision of any Maltese AIFM or third country AIFM licensed in Malta, whether the AIFM manages and, or markets AIFs in another Member State or EEA State or not, without prejudice to the provisions of the AIFM Directive which confer the responsibility for supervision on the European regulatory authority of the host Member State or EEA State of the AIFM.
(2)The supervision of the AIFM’s compliance with Articles 12 and 14 of the AIFM Directive shall be the responsibility of the European regulatory authority of the host Member State or EEA State where the AIFM manages and, or markets AIFs through a branch in that Member State or EEA State.
(3)Where an AIFM is managing and, or marketing AIFs in a Member State or EEA State other than Malta whether or not through a branch, and is in breach of one of the regulatory requirements for which the European regulatory authority is responsible for ensuring compliance, the competent authority shall receive notification from the European regulatory authority of the host Member State or EEA State of the request made to the AIFM to put an end to that breach.
(4)If the AIFM refuses to provide the European regulatory authority with information necessary for the supervision of the AIFM’s compliance with the applicable regulatory requirements of such European regulatory authority, or fails to take the necessary steps to put an end to breach referred to in sub-regulation
(3), the competent authority shall be duly informed of such matter by the European regulatory authority.
(5)Where the competent authority receives a notification from a European regulatory authority pursuant to sub-regulation
(4), the competent authority shall, at the earliest opportunity: (a) take all appropriate measures to ensure that the AIFM concerned provides the information requested by the European regulatory authority of the host Member State or EEA State, pursuant to sub-regulation
(4)or puts an end to the breach referred to in sub-regulation
(3); Breaches by Maltese AIFMs or third country AIFMs licensed in Malta. 44 [ S.L.370.24 INVESTMENT SERVICES ACT (ALTERNATIVE INVESTMENT FUND MANAGER) (THIRD COUNTRY) (b) request the necessary information from the relevant supervisory authorities in third countries: Provided that the competent authority shall communicate to the European regulatory authority of the host Member State or EEA State the nature of the measures taken pursuant to paragraph (a).
(6)Where the AIFM continues to refuse to provide the information requested by the European regulatory authority in the host Member State or EEA State pursuant to sub-regulation
(4)or persists in breaching the legal or regulatory provisions referred to in sub-regulation
(3)in force in the host Member State or EEA State, despite the measures taken by the competent authority, or due to the inadequacy or unavailability of such measures in Malta, the competent authority shall be notified of the measures that are

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