European Union (Alternative Investment Fund Managers) Regulations 2013

• Jurisdiction: Ireland
• Citation: IR SI 257/2013

PART 1

Preliminary

1. Citation

2. Subject matter

3. Scope

4. Exemptions

5. Interpretation

6. Determination of the AIFM

PART 2

Authorisation of AIFMs

7. Conditions for taking up AIFM activities

8. Application for authorisation

9. Conditions for granting authorisation

10. Initial capital and own funds

11. Changes in the scope of the authorisation

12. Withdrawal of the authorisation

PART 3

Operating conditions for AIFMs

CHAPTER 1

General requirements

13. General principles

14. Remuneration

15. Conflicts of interest

16. Risk management

17. Supplemental provision in relation to Regulation 16

18. Liquidity management

CHAPTER 2

Organisational Requirements

19. General principles

20. Valuation

CHAPTER 3

Delegation of Aifm Functions

21. Delegation

CHAPTER 4

Depositary

22. Depositary

CHAPTER 5

Transparency Requirements

23. Annual report

24. Disclosure to investors

25. Reporting obligations to competent authorities

CHAPTER 6

AIFMs Managing Specfic Types of AIF

DIVISION 1

AIFMS MANAGING LEVERAGED AIFS

26. Use of information by competent authorities, supervisory cooperation and limits to leverage

DIVISION 2

OBLIGATIONS FOR AIFMS MANAGING AIFS WHICH ACQUIRE CONTROL OF NON-LISTED COMPANIES AND ISSUERS

27. Scope

28. Notification of the acquisition of major holdings and control of non-listed companies

29. Disclosure in case of acquisition of control

30. Specific provisions regarding the annual report of AIFs exercising control of non-listed companies

31. Asset stripping

CHAPTER 7

Marketing and Managing EU aifs

32. Marketing of units or shares of EU AIFs managed by Irish AIFMs in the State

33. Other Cases of Marketing of Units or Shares of EU AIFs

34. Conditions for Irish AIFMs managing EU AIFs established in other Member States and for AIFMs from other Member States managing Irish AIFs

CHAPTER 8

Specific Rules In Relation To Third Countries

35. Conditions for Irish AIFMs which manage non-EU AIFs which are not marketed in Member States

36. Conditions for marketing, with a passport, of non-EU AIFs in the European Union or in the State by, respectively, Irish AIFMs and Other Member State AIFMs

37. Conditions for the marketing in the State without a passport of non-EU AIFs managed by an Irish AIFM or an AIFM from another Member State

38. Authorisation of non-EU AIFMs intending to manage Irish AIFs or market AIFs managed by them in the European Union in accordance with Regulation 40 or 41

39. Peer review of authorisation and supervision of non-EU AIFMs

40. Conditions for marketing, with a passport, in the European Union or in the State of EU AIFs managed by, respectively, a non-EU AIFM whose Member State of reference is the State and by such an AIFM whose Member State of reference is another Member State

41. Conditions for marketing, with a passport, in the European Union or in the State of non-EU AIFs managed by, respectively, a non-EU AIFM whose Member State of reference is the State and by such an AIFM whose Member State of reference is another Member State

42. Conditions for managing AIFs established in other Member States and Irish AIFs by, respectively, a non-EU AIFM whose Member State of reference is the State and such an AIFM whose Member State of reference is another Member State

43. Conditions for the marketing in the State without a passport of AIFs managed by a non-EU AIFM

CHAPTER 9

Marketing To Retail Investors

44. Marketing of AIFs by AIFMs to retail investors

PART 4

Competent Authorities

DESIGNATION, POWERS AND REDRESS PROCEDURES

45. Designation of competent authorities

46. Responsibility of the Bank

47. Supplemental provisions in relation to Regulation 46

48. Powers of the Bank to request Information

49. Power to issue directions

50. Restrictions on certain proceedings or certain other action being taken where direction given

51. Power of High Court to compel compliance with direction

52. Information exchanged to be confidential

53. Reasons for decisions to be given, etc.

54. Cooperation between different competent authorities, obligation to cooperate

55. Transfer and retention of personal data

56. Disclosure of information to third countries

57. Exchange of information relating to the potential systemic consequences of AIFM activity

58. Cooperation in supervisory activities

59. Dispute settlement

PART 5

Transitional and Final Provisions

60. Transitional provisions

61. Delegated act on the application of Article 35 and Articles 37 to 41

62. Bank to provide certain information to ESMA

63. Amendments of Central Bank Act 1942

64. Amendments of Unit Trusts Act 1990

65. Amendments of Companies Act 1990

66. Amendments of Investment Funds, Companies and Miscellaneous Provisions Act 2005

67. Amendments of Investment Limited Partnerships Act 1994

SCHEDULE 1

SCHEDULE 2

REMUNERATION POLICY

SCHEDULE 3

DOCUMENTATION AND INFORMATION TO BE PROVIDED IN CASE OF INTENDED MARKETING IN THE STATE BY IRISH AIFMs OR BY AIFMs WHOSE MEMBER STATE OF REFERENCE IS THE STATE

SCHEDULE 4

DOCUMENTATION AND INFORMATION TO BE PROVIDED IN THE CASE OF INTENDED MARKETING IN OTHER MEMBER STATES BY IRISH AIFMs OR BY AIFMs WHOSE MEMBER STATE OF REFERENCE IS THE STATE

S.I. No. 257 of 2013

EUROPEAN UNION (ALTERNATIVE INVESTMENT FUND MANAGERS) REGULATIONS 2013

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 30th July, 2013.

I, MICHAEL NOONAN, Minister for Finance, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972), and for the purpose of giving effect to Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EU and 2009/65/EC and Regulations (EC) No. 1060/2009 and (EU) No. 1095/20101 , hereby make the following regulations:

PART 1

Preliminary

Citation.

1. These Regulations may be cited as the European Union (Alternative Investment Fund Managers) Regulations 2013.

Subject matter.

2. These Regulations contain provisions—

(a) for the authorisation and ongoing operation of the managers of alternative investment funds who manage or market alternative investment funds in the State (or do both of the foregoing in the State) and provisions for securing the transparency of those activities of them; and

(b) otherwise giving effect to the Directive.

Scope.

3. (1) Subject to paragraph (3) and Regulation 4, these Regulations apply to—

(a) an AIFM established in the State which manages one or more than one AIF irrespective of whether such AIF is an EU AIF or a non-EU AIF;

(b) a non-EU AIFM whose Member State of reference is the State;

(c) an AIFM from another Member State which markets one or more than one EU AIF in the State;

(d) an AIFM from another Member State which manages one or more than one Irish AIF;

(e) an AIFM from another Member State which markets one or more than one non-EU AIF in the State; and

(f) a non-EU AIFM which markets one or more than one AIF in the State.

(2) For the purposes of paragraph (1), the following shall be immaterial:

(a) whether the AIF belongs to the open-ended or closed-ended type;

(b) whether the AIF is constituted under the law of contract, under trust law, under statute, or has any other legal form;

(c) the legal structure of the AIFM.

(3) These Regulations do not apply to the following entities:

(a) holding companies;

(b) institutions for occupational retirement provision to which Directive 2003/41/EC applies including, where applicable, the authorised entities responsible for managing such institutions and acting on their behalf referred to in Article 2(1) of that Directive or the investment managers appointed pursuant to Article 19(1) of that Directive, in so far as they do not manage alternative investment funds;

(c) supranational institutions, such as the European Central Bank, the European Investment Bank, the European Investment Fund, the European Development Finance Institutions and bilateral development banks, the World Bank, the International Monetary Fund, and other supranational institutions and similar international organisations, in the event that such institutions or organisations manage alternative investment funds and in so far as such funds act in the public interest;

(d) the Bank;

(e) state authorities or local authorities which manage funds supporting social security and pension systems.

(f) employee participation schemes or employee savings schemes;

(g) securitisation special purpose entities.

Exemptions.

4. (1) These Regulations do not apply to an AIFM in so far as it manages one or more than one AIF whose only investors are the AIFM or the parent undertakings or the subsidiaries of the AIFM or other subsidiaries of those parent undertakings, provided that none of those investors is itself an AIF.

(2) Paragraphs (3) to (5) of this Regulation, and no other provision of these Regulations, with the exception of Regulations 48 and 49, shall apply to an AIFM falling within either of the following subparagraphs:

(a) an AIFM which either directly or indirectly, through a company with which the AIFM is linked by common management or control, or by a substantive direct or indirect holding, manages portfolios of alternative investment funds whose assets under management (including any assets acquired through use of leverage) do not exceed, in total, €100 million; or

(b) an AIFM which either directly or indirectly, through a company with which the AIFM is linked by common management or control, or by a substantive direct or indirect holding, manage portfolios of alternative investment funds whose assets under management do not exceed, in total, €500 million and those portfolios consist of alternative investment funds that—

(i) are...