EU Directive on Alternative Investment Fund Managers (AIFMs)
from the International Association of Hedge
Funds Professionals (IAHFP)
Proposal for a Directive on Alternative Investment Fund Managers
Chapter II
AUTHORISATION OF AIFM
Article 4
Requirement for authorisation
1. Member States shall ensure that no
Alternative Investment Fund Manager (AIFM) covered by this Directive
provides
management services to any AIF or markets shares or units thereof
without prior
authorisation.
Entities which are neither authorised in accordance with this
Directive nor, in case of
Alternative Investment Fund Managers (AIFM) not covered by this Directive, in accordance with the national
law of a
Member State, shall not be allowed to provide management services to
AIF or
market units or shares thereof within the Community.
2.
Alternative Investment Fund Managers (AIFM) may be
authorised to provide management services either for
all or certain
types of AIF.
An AIFM may hold an authorisation pursuant to this Directive and be
authorised as a
management or investment company pursuant to Directive 2009/…/EC – [UCITS
Directive]
Article 5
Procedure for granting the authorisation
An AIFM applying for an authorisation shall provide the following to
the competent
authorities of the Member State where it has its registered office:
(a) information on the identities of the
Alternative Investment Fund Managers (AIFM) shareholders or
members, whether
direct or indirect, natural or legal persons, that have qualifying
holdings and of
the amounts of those holdings.
(b) a programme of activity, including information on how the
Alternative Investment Fund Manager (AIFM)
intends to
comply with its obligations under chapters III, IV and where
applicable, V, VI
and VII;
(c) detailed information about the characteristics of the AIF it
intends to manage,
including the identification of the Member States or third countries
on whose
territory they are domiciled;
(d) the fund rules or instruments of incorporation of each AIF the
Alternative Investment Fund Manager (AIFM) intends to
manage;
(e) information on arrangements made for the delegation to third
parties of
management services functions as referred to in Article 18 and where
applicable Article 35;
(f) information on the arrangements made for the safe-keeping of the
assets of AIF
including, where applicable, arrangements made under Article 38;
(g) any additional information referred to in Article 20(1).
The AIFM must have its head office in the same Member State as its
registered office.
Article 6
Conditions for granting the authorisation
1. The competent authorities of the home Member State shall grant
authorisation only if
they are satisfied that the
Alternative Investment Fund Manager (AIFM) will be able to fulfil the
conditions of this Directive.
The authorisation shall be valid for all Member States.
2. The competent authorities of the home Member State shall refuse
authorisation
where the effective exercise of their supervisory functions is
prevented by any of the
following:
(a) the laws, regulations or administrative provisions of a third
country governing
one or more natural or legal persons with which the AIFM has close
links as
defined in Article 4(31)of Directive 2004/39/EC;
(b) difficulties involved in the enforcement of those laws,
regulations and
administrative provisions .
3. The authorisation shall cover any delegation arrangements made by
the
Alternative Investment Fund Managers (AIFM) and
communicated in the application.
The competent authorities of the home Member State may restrict the
scope of the
authorisation, in particular as regards the type of AIF the AIFM is
allowed to
manage, as well as the delegation arrangements.
4. The competent authorities shall inform the applicant, within two
months of the
submission of a complete application, whether or not authorisation
has been granted.
Reasons shall be given whenever an authorisation is refused or when
restrictions are
imposed.
5. AIFM may start providing management services in the home Member
State as soon
as the authorisation is granted.
Article 7
Changes in the scope of the authorisation
AIFM shall, before implementation, notify the competent authorities
of the home Member
State of any change regarding the information provided in their
initial application that may
substantially affect the conditions under which the authorisation
has been granted, in
particular changes of the investment strategy and policy of any AIF
managed by it, of the AIF
rules or instruments of incorporation and the identity of any
further AIF the
Alternative Investment Fund Manager (AIFM) intends to
manage.
The competent authorities shall, within a month of receipt of that
notification, either approve,
or impose restrictions, or reject those changes.
Article 8
Withdrawal of the authorisation
The competent authorities may withdraw the authorisation issued to
an AIFM where that
AIFM:
(1) has obtained the authorisation by making false statements or by
any other
irregular means;
(2) no longer fulfils the conditions under which authorisation was
granted;
(3) has seriously or systematically infringed the provisions
transposing this
Directive.
|
