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 VI
Provision of management and marketing services by AIFM
Article 31
Marketing of shares or units of AIF in the home Member State
1. An authorised
Alternative Investment Fund Managers (AIFM) may market shares or units of AIF to
professional investors in
the home Member State as soon as the conditions laid down in this
Article are met.
2. The
Alternative Investment Fund Manager (AIFM) shall submit a notification to the competent authorities
of its home
Member State in respect of each AIF that it intends to market.
That notification shall comprise the following:
(a) identification of the AIF it intends to market and information
on where the AIF
are domiciled;
(b) the AIF rules or instruments of incorporation;
(c) a description of, or any information on the AIF available to
investors;
(d) information on the arrangements established to prevent units or
shares of that
AIF from being marketed to retail investors, including in the case
where the
Alternative Investment Fund Manager (AIFM) relies on activities of independent entities to provide
investment services
in respect of its AIF.
3. No later than ten working days after receipt of a complete
notification pursuant to
paragraph 2, the competent authorities of the home Member State
shall inform the
AIFM whether it may start marketing the AIF identified in the
notification referred to
in paragraph 2.
Subject to the implementing measures referred to in the third
subparagraph, the
competent authorities may impose restrictions or conditions on the
marketing of AIF
pursuant to this Article.
The Commission shall adopt implementing measures specifying the
types of
restrictions or conditions that can be imposed on the marketing of
AIF pursuant to
the second subparagraph of this paragraph.
Those measures, designed
to amend nonessential
elements of this Directive by supplementing it, shall be adopted in
accordance with the regulatory procedure with scrutiny referred to
in Article 49(3).
4. Without prejudice to Article 32(1), Member States shall ensure
that AIF managed by
AIFM are only marketed to professional investors.
Article 32
Option for Member States to allow the marketing of AIF to retail
investors
1. Member States may allow the marketing of AIF to retail investors
in their territory.
Member States may for that purpose impose stricter requirements on
AIFM or the
AIF.
2. Member States that permit the marketing of AIF to retail
investors on their territory,
shall, within one year of the date referred to in Article 54(1)
inform the Commission
of:
(a) the types of AIF which AIFM may market to retail investors on
their territory;
(b) any additional requirements that the Member State imposes for
the marketing
of AIF to retail investors on their territory.
Member States shall also inform the Commission of any subsequent
changes with
regard to the first subparagraph.
Article 33
Conditions for marketing in other Member States
1. Where an authorised
Alternative Investment Fund Manager (AIFM) intends to market to professional
investors the units or
shares of an AIF it manages in another Member State, it shall submit
the following
documents to the competent authorities of its home Member State:
(a) a notification letter, including a programme of operations
identifying the AIF it
intends to market and information on where the AIF are domiciled;
(b) the AIF rules or instruments of incorporation;
(c) a description of, or any information on the AIF available to
investors;
(d) the indication of the Member State in which it intends to market
the units or
shares of an AIF under its management to professional investors;
(e) arrangements made for the marketing of AIF and, where relevant,
information
on the arrangements established to prevent units or shares of that
AIF from
being marketed to retail investors.
2. The competent authorities of the home Member State shall, no
later than ten working
days after the date of receipt of the complete documentation,
transmit the complete
documentation referred to in paragraph 1 to the competent
authorities of the Member
State where the AIF will be marketed.
They shall enclose an
attestation that the
AIFM concerned is authorised.
3. Upon transmission of the documentation, the competent authorities
of the home
Member State shall without delay notify the AIFM about the
transmission.
The
AIFM may start the marketing of AIF in the host Member State as of
the date of that
notification.
4. Arrangements referred to in point (e) of paragraph 1 shall be
subject to the laws and
supervision of the host Member State.
5. Member States shall ensure that the notification letter and the
attestation referred to
in paragraph 1 are provided in a language customary in the sphere of
international
finance.
Member States shall ensure that electronic transmission and filing
of the documents
referred to in paragraph 2 is accepted by their competent
authorities.
6. In the event of a change in any of the particulars communicated
in accordance with
paragraph 2, an AIFM shall give written notice of that change to the
competent
authorities of its home Member State at least one month before
implementing the
change.
The competent authorities of the home Member State shall without
delay inform the
competent authorities of the host Member State of those changes.
7. The Commission shall, in accordance with the procedure referred
to in Article 49(2),
adopt implementing measures specifying the following:
(a) the form and content of a standard model of the notification
letter;
(b) the form and content of a standard model of attestation.
8. AIFM may only market shares or units of an AIF domiciled in a
third country to
professional investors domiciled in another Member State than the
home Member
State of the AIFM as from the date referred to in the second
subparagraph of Article
54(1).
Article 34
Conditions for providing management services in other Member States
1. Member States shall ensure that an authorised
Alternative Investment Fund Manager (AIFM) may provide
management
services in relation to an AIF domiciled in another Member State
either directly or
via the establishment of a branch, provided that the AIFM is
authorised to manage
that type of AIF.
2. Any AIFM wishing to provide management services in relation to an
AIF domiciled
in another Member State for the first time shall communicate the
following
information to the competent authorities of its home Member State:
(a) the Member State in which it intends to provide management
services directly
or establish a branch;
(b) a programme of operations stating in particular the services
which it intends to
perform and identifying the AIF it intends to manage.
3. If the
Alternative Investment Fund Manager (AIFM) intends to establish a branch, it shall provide, in
addition to paragraph 2,
the following information:
(a) the organisational structure of the branch;
(b) the address in the home Member State from which documents may be
obtained;
(c) the names of persons responsible for the management of the
branch.
4. The competent authorities of the home Member State shall, no
later than ten working
days after the date of receipt of the complete documentation,
transmit the complete
documentation referred to in paragraph 2, and where relevant 3, to
the competent
authorities of the Member State where the management services will
be provided and
an attestation that they have authorised the AIFM concerned.
They
shall immediately
notify theAlternative
Investment Fund Manager (AIFM) about the transmission.
Upon receipt of the transmission notification the AIFM may start to
provide its
services in the host Member State.
5. The host Member States shall not impose any additional
requirements on the AIFM
concerned in respect of the matters covered by this Directive.
6. In the event of a change in any of the particulars communicated
in accordance with
paragraph 2, and where relevant 3, an AIFM shall give written notice
of that change
to the competent authorities of its home Member State at least one
month before
implementing the change.
The competent authority of the home Member State shall inform the
competent
authority of the host Member State of those changes.
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