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 VII
Specific rules in relation to third countries
Article 35
Conditions for the marketing in the Community of AIF domiciled in
third countries
An
Alternative Investment Fund Manager (AIFM) may only market shares or units of an AIF
domiciled in a
third country to
professional investors domiciled in a Member State, if the third
country has signed an
agreement with this Member State which fully complies with the
standards laid down in
Article 26 of the OECD Model Tax Convention and ensures an effective
exchange of
information in tax matters.
Where AIFM market shares or units of AIF domiciled in a third
country the home Member
States may prolong the period referred to in Article 31(3), when
this is necessary to check
whether the conditions of this Directive are met.
Before allowing AIFM to market shares or units of AIF domiciled in a
third country, the Member State shall have particular regard to the arrangements
made by the AIFM in
accordance with Article 38, where relevant.
Article 36
Delegation by the AIFM of administrative tasks to an entity
established in a third country
Member States shall only allow an
Alternative Investment Fund Manager (AIFM)to delegate administrative
services to entities
established in a third country, provided that all of the following
conditions are met:
(a) the requirements set out in Article 18 are fulfilled;
(b) the entity is authorised to provide administration services or
registered in the
third country in which it is established and is subject to
prudential supervision;
(c) there is an appropriate co-operation agreement between the
competent
authority of the AIFM and the supervisory authority of the entity.
Article 37
Valuator established in a third country
1. Member States shall only allow the appointment of a valuator
established in a third
country, provided that all of the following conditions are met:
(a) the requirements set out in Article 16 are fulfilled;
(b) the third country is the subject of a decision taken pursuant to
paragraph 3
stating that the valuation standards and rules used by valuators
established on
its territory are equivalent to those applicable in the Community.
2. The Commission shall adopt implementing measures specifying the
criteria for
assessing the equivalence of the valuation standards and rules of
third countries as
referred to in paragraph (1) (b).
Those measures, designed to amend non-essential elements of this
Directive by
supplementing it, shall be adopted in accordance with the regulatory
procedure with
scrutiny referred to in Article 49(3).
3. On the basis of the criteria referred to in paragraph 2, the
Commission shall, in
accordance with the procedure referred to in Article 49(2), adopt
implementing
measures, stating that the valuation standards and rules of a third
country legislation
are equivalent to those applicable in the Community.
Article 38
Delegation of the depositary tasks in respect of AIF domiciled in
third countries
1. By way of derogation from Article 17(4), in respect of AIF
domiciled in a third
country Member States shall allow the depositary of that AIF
appointed in
accordance with Article 17 to delegate the performance of one or
more of its
functions to a sub-depositary domiciled in the same third country
provided that the
legislation of that third country is equivalent to the provisions of
this Directive and is
effectively enforced.
The following conditions shall also be met:
(a) the third country is the subject of a decision taken pursuant to
paragraph 4
stating sub-depositaries domiciled in that country are subject to
effective
prudential regulation and supervision which is equivalent to the
provisions laid
down in Community law;
(b) co-operation between the home Member State and the relevant
authorities of
the third country is sufficiently ensured;
(c) the third country is the subject of a decision taken pursuant to
paragraph 4
stating that the standards to prevent money laundering and terrorist
financing
are equivalent to those laid down in Community law.
2. The depositary's liability towards investors shall not be
affected by the fact that it has
delegated to a third country depositary the performance of all or a
part of its tasks.
3. The Commission shall adopt implementing measures specifying the
criteria for
assessing the equivalence of the prudential regulation, supervision
and standards of
third countries as referred to in paragraph 1.
Those measures, designed to amend non-essential 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. On the basis of the criteria referred to in paragraph 3, the
Commission shall, in
accordance with the procedure referred to in Article 49(2), adopt
implementing
measures, stating that prudential regulation, supervision and
standards of a third
country are equivalent to this Directive.
Article 39
Authorisation of AIFM established in third countries
1. Member States may authorise, in accordance with this Directive,
Alternative Investment Fund Managers (AIFM) established
in a third country to market units or shares of an AIF to
professional investors in the
Community under the conditions of this Directive, provided that:
(a) the third country is the subject of a decision taken pursuant to
paragraph 3 (a)
stating that its legislation regarding prudential regulation and
on-going
supervision is equivalent to the provisions of this Directive and is
effectively
enforced;
(b) the third country is the subject of a decision taken pursuant to
paragraph 3 (b)
stating that it grants Community AIFM effective market access
comparable to
that granted by the Community to AIFM from that third country;
(c) the AIFM provides the competent authorities of the Member State
in which it
applies for authorisation with the information referred to in
Articles 5 and 31 ;
(d) a cooperation-agreement between the competent authorities of
that Member
State and the supervisor of the
Alternative Investment Fund Managers (AIFM)
exists which ensures an
efficient
exchange of all information that are relevant for monitoring the
potential
implications of the activities of the AIFM for the stability of
systemically
relevant financial institutions and the orderly functioning of
markets in which
the AIFM is active.
(e) the third country has signed an agreement with the Member State
in which it
applies for authorisation which fully complies with the standards
laid down in
Article 26 of the OECD Model Tax Convention and ensures an effective
exchange of information in tax matters.
2. The Commission shall adopt implementing measures aimed at
establishing:
(a) general equivalence criteria for the equivalence and effective
enforcement of
third country legislation on prudential regulation and on-going
supervision,
based on the requirements laid down in Chapters III, IV and V.
(b) general criteria for assessing whether third countries grant
Community AIFM
effective market access comparable to that granted by the Community
to AIFM
from those third countries.
Those measures, designed to amend non-essential elements of this
Directive by
supplementing it, shall be adopted in accordance with the regulatory
procedure with
scrutiny referred to in Article 49(3).
3. On the basis of the criteria referred to in paragraph 2, the
Commission shall, in
accordance with the regulatory procedure referred to in Article
49(2), adopt
implementing measures stating:
(a) that the legislation on prudential regulation and ongoing
supervision of AIFM rd country is equivalent to this Directive and effectively
enforced;
(b) that a third country grant Community AIFM effective market
access at least
comparable to that granted by the Community to AIFM from that third
country.
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