S.I. No. 257/2013 - European Union (Alternative Investment Fund Managers) Regulations 2013

(7)(a) A non-EU AIFM intending to manage Irish alternative investment funds without marketing them or to market alternative investment funds managed by it in the European Union (or to do both) in accordance with Regulation 40 or 41 shall submit a request for authorisation to the Bank where the State is its Member State of reference.

• (b) After receiving the application for authorisation, the Bank shall assess whether the determination by the AIFM as regards its Member State of reference complies with the criteria set out in paragraph (4). If the Bank considers that this is not the case, it shall refuse the authorisation request of the non-EU AIFM explaining the reasons for its refusal. If the Bank considers that the criteria set out in paragraph (4) have been complied with, it shall notify ESMA, requesting advice on its assessment. In its notification to ESMA, the Bank shall provide ESMA with the justification by the AIFM of its assessment regarding the Member State of reference and with information on the marketing strategy of the AIFM.

• (c) No part of the time during which ESMA deliberates on the matter referred to in subparagraph (b) shall be reckoned in calculating the period specified in Regulation 9(5).

• (d) If the Bank proposes to grant authorisation contrary to ESMA’s advice it shall inform ESMA, stating its reasons.

• (e) If the Bank proposes to grant authorisation contrary to ESMA’s advice and the AIFM intends to market units or shares of alternative investment funds managed by it in other Member States, the Bank shall also inform the competent authorities of those Member States thereof, stating their reasons. In so far as applicable, the Bank shall also inform the competent authorities of the home Member States of the alternative investment funds managed by the AIFM thereof, stating their reasons.

• (f) Where the Bank disagrees with the determination of the Member State of reference by the AIFM, it may refer the matter to ESMA.

(8)(a) Without prejudice to paragraph (9), no authorisation shall be granted by the Bank unless the following additional conditions are met:

• (i) the State is indicated as the Member State of reference by the AIFM in accordance with the criteria set out in paragraph (4) and supported by the disclosure of the marketing strategy, and the procedure set out in paragraph (7) has been followed by the Bank;

• (ii) the AIFM has appointed a legal representative established in the State;

• (iii) the legal representative shall, together with the AIFM, be the contact person of the non-EU AIFM for the investors of the relevant alternative investment funds, for ESMA and for the Bank and the competent authorities of other Member States as regards the activities for which the AIFM is authorised in the European Union and shall at least be sufficiently equipped to perform the compliance function pursuant to these Regulations;

• (iv) appropriate cooperation arrangements are in place between the Bank, the competent authorities of the home Member State of the EU alternative investment funds concerned and the supervisory authorities of the third country where the non-EU AIFM is established in order to ensure at least an efficient exchange of information that allows the Bank to carry out its duties in accordance with these Regulations;

• (v) the third country where the non-EU AIFM is established is not listed as a NonCooperative Country and Territory by FATF;

• (vi) the third country where the non-EU AIFM is established has signed an agreement with the State, which complies with the standards laid down 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;

• (vii) the effective exercise by the Bank of its supervisory functions under these Regulations is neither prevented by the laws, regulations or administrative provisions of a third country governing the AIFM, nor by limitations in the supervisory and investigatory powers of that third country’s supervisory authorities.

• (b) Where the State is not determined to be the Member State of reference and the Bank disagrees with the assessment made on the application of points (a) to (e) and (g) of Article 37(7) of the Directive by the competent authorities of the Member State of reference, the Bank may refer the matter to ESMA.

• (c) Where a competent authority of an EU AIF does not enter into the required cooperation arrangements referred to in subparagraph (a)(iv) within a reasonable period of time, the Bank may refer the matter to ESMA.

• (9) An authorisation by the Bank shall be given in accordance with Part 2 which shall apply with the necessary modifications and subject to the following provisions:

• (a) the information referred to in Regulation 8(2) shall be supplemented by:

• (i) a justification by the AIFM of its assessment regarding the Member State of reference in accordance with the criteria set out in paragraph (4) with information on the marketing strategy;

• (ii) a list of the provisions of these Regulations for which compliance by the AIFM is impossible as compliance by the AIFM with those provisions is, in accordance with paragraph (2), incompatible with compliance with a mandatory provision in the law to which the non-EU AIFM or the non-EU AIF marketed in the European Union is subject;

• (iii) written evidence based on regulatory technical standards developed by ESMA that the relevant third country law provides for a rule equivalent to the provisions for which compliance is impossible, which has the same regulatory purpose and offers the same level of protection to the investors of the relevant alternative investment funds and that the AIFM complies with that equivalent rule; such written evidence being 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

• (iv) the name of the legal representative of the AIFM and the place where it is established;

• (b) the information referred to in Regulation 8(3) may be limited to the EU alternative investment funds the AIFM intends to manage and to those alternative investment funds managed by the AIFM that it intends to market in the European Union with a passport;

• (c) subparagraph (a) of Regulation 9(1) shall be without prejudice to paragraph (2) of this Regulation;

• (d) subparagraph (e) of Regulation 9(1) shall not apply;

• (e) Regulation 9(7) shall apply as if at the end thereof there were included “and the information referred to in Regulation 38(9)(a)”.

• (10) Where the State is not determined to be the Member State of reference and the Bank disagrees with the authorisation granted by the competent authorities of the Member State of reference of the AIFM, the Bank may refer the matter to ESMA.

• (11) Where the Bank considers that the AIFM may rely on paragraph (2) so as to be exempted from compliance with certain provisions of these Regulations, it shall, without undue delay, notify ESMA thereof. It shall support this assessment by the information provided by the AIFM in accordance with paragraph (9)(a)(ii) and (iii).

(12)(a) No part of the time during which ESMA deliberates on the matter in accordance with the second paragraph of Article 37(9) of the Directive shall be reckoned in calculating the period specified in Regulation 9(5).

• (b) If the Bank proposes to grant authorisation contrary to ESMA’s advice referred to in the second paragraph of Article 37(9) of the Directive, it shall inform ESMA, stating their reasons.

• (c) If the Bank proposes to grant authorisation contrary to the foregoing advice of ESMA and the AIFM intends to market units or shares of alternative investment funds managed by it in Member States other than the State, the Bank shall also inform the competent authorities of those Member States thereof, stating their reasons.

• (d) Where the State is not determined to be the Member State of reference and the Bank disagrees with the assessment made on the application of paragraph (11) by the competent authorities of the Member State of reference of the AIFM, the Bank may refer the matter to the ESMA.

(13)(a) The Bank shall, without undue delay, inform ESMA of the outcome of the initial authorisation process, about any changes in the authorisation of the AIFM and any withdrawal of authorisation.

• (b) The Bank shall inform ESMA about the applications for authorisation that it has rejected, providing data about the AIFM having asked for authorisation and the reasons for the rejection.

• (c) The Bank shall treat information obtained from the central register maintained by ESMA as confidential.

(14)(a) The determination of the Member State of reference shall not be affected by the further business development of the AIFM in the European Union. However, where the AIFM changes its marketing strategy within 2 years of its initial authorisation, and that change would have affected the determination of the Member State of reference if the modified marketing strategy had been the initial marketing strategy, the AIFM shall, where the State is the original Member State of reference, notify the Bank of the change before implementing it and indicate its new Member State of reference in accordance with the criteria set out in paragraph (4) and based on the new strategy. The AIFM shall justify its assessment by disclosing its new marketing strategy to the Bank. At the same time the AIFM shall provide information on its new legal representative, including its name and the place where it is established. The legal representative shall be established in the new Member State of reference.

• (b) The Bank shall assess whether the determination of the AIFM in accordance with subparagraph (a) is correct and shall notify ESMA thereof.

• (c) In its notification to ESMA, the Bank shall provide the AIFM’s justification of its assessment regarding the Member State of reference and information on the AIFM’s new marketing strategy.

• (d) After receipt of ESMA’s advice in accordance with the third subparagraph of Article 37(11) of the Directive, the Bank shall inform the non-EU AIFM, its original legal representative and ESMA of their decision.

• (e) Where the Bank agrees with the assessment made by the AIFM, it shall also inform the competent authorities of the new Member State of reference of the change. The Bank shall without undue delay, transfer a copy of the authorisation and the supervision file relating to the AIFM to the new Member State of reference. From the date of transmission of the authorisation and supervision file, the Bank shall not be competent for authorising and supervising the AIFM.

• (f) Where the State is the new Member State of reference, the Bank shall be competent for authorising and supervising the AIFM from the date of transmission of the authorisation and supervision file in accordance with the fifth subparagraph of Article 37(11) of the Directive.

• (g) Where the Bank’s final assessment is contrary to advice provided by ESMA in accordance with Article 37(11) of the Directive:

• (i) the Bank shall inform ESMA thereof, stating reasons,

• (ii) where the AIFM markets units or shares of alternative investment funds managed by it in Member States other than the State, the Bank shall inform the competent authorities of those other Member States thereof, stating reasons. Where applicable, the Bank shall also inform the competent authorities of the home Member States of the alternative investment funds managed by the AIFM thereof, stating reasons.

• (15) Where it appears from the actual course of the business development of the AIFM in the European Union within 2 years after its authorisation that the marketing strategy as presented by the AIFM at the time of its authorisation was not followed, the AIFM made false statements in relation thereto or the AIFM has failed to comply with paragraph (14) when changing its marketing strategy, the Bank shall request that the AIFM indicate the Member State of reference based on its actual marketing strategy. The procedure set out in paragraph (14) shall apply with the necessary modifications. If the AIFM does not comply with the Bank’s request, it shall withdraw itsauthorisation.

(16)(a) Where the State is the original Member State of reference and the AIFM changes its marketing strategy after the period referred to in paragraph (14) 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 Member State of reference to the Bank. The procedure referred to in paragraph (14) shall apply with the necessary modifications.

• (b) Where the Bank disagrees with the assessment made on the determination of the Member State of reference under paragraph (14), (15) or this paragraph, the Bank may refer the matter to ESMA.

(17)(a) Any disputes arising between the Bank, where the State is the Member State of reference of the AIFM, and the AIFM shall be settled in accordance with the law of and subject to the jurisdiction of the State.

• (b) Any disputes between the AIFM or the AIF and EU investors of the relevant AIF shall be settled in accordance with the law of and subject to the jurisdiction of a Member State.

• (18) In case a competent authority rejects a request to exchange information in accordance with the regulatory technical standards referred to in Article 37(17) of the Directive, the Bank may refer the matter to ESMA.

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

• (2) Within 2 months after the issuance of a guideline or recommendation referred to in paragraph (1), the Bank shall confirm whether it complies or intends to comply with that guideline or recommendation. In the event that the Bank does not comply or intend to comply, it shall inform ESMA, stating its reasons.

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.

• (2) A duly authorised non-EU AIFM whose Member State of reference is another Member State may market the units or shares of an EU AIF it manages to professional investors in the State with a passport as soon as the conditions specified in Article 39 of the Directive are met.

(3)(a) In case the AIFM intends to market units or shares of the EU AIF in the State where the State is the AIFM’s Member State of reference, the AIFM shall submit a notification to the Bank in respect of each EU AIF that it intends to market.

• (b) That notification shall comprise the documentation and information set out in Schedule 3.

(4)(a) No later than 20 working days after receipt of a complete notification pursuant to paragraph (3), the Bank shall inform the AIFM whether it may start marketing the AIF identified in the notification referred to in paragraph (3) in the State. The Bank may prevent the marketing of the AIF only if the AIFM’s management of the AIF does not or will not comply with these Regulations. In the case of a decision to permit such marketing, the AIFM may start marketing the AIF in State as of the date of the notification by the Bank to that effect.

• (b) The Bank shall also inform ESMA and the competent authorities of the AIF of a notification in accordance with this paragraph that the AIFM may start marketing units or shares of the AIF in the State.

(5)(a) Where an AIFM whose Member State of reference is the State intends to market units or respect of each EU AIF that it intends tomarket.

• (b) That notification shall comprise the documentation and information set out in Schedule 4.

(6)(a) The Bank shall, no later than 20 working days after the date of receipt of the complete notification file referred to in paragraph (5), transmit the complete notification file to the competent authorities of the Member States where the units or shares of the AIF are intended to be marketed. Such transmission shall be effected only if the AIFM’s management of the AIF complies and will continue to comply with these Regulations and if the AIFM otherwise complies with these Regulations.

• (b) The Bank shall enclose a statement to the effect that the AIFM concerned is authorised to manage alternative investment funds with a particular investment strategy.

(7)(a) Upon transmission of the notification file, the Bank shall, without delay, notify the AIFM about the transmission. The AIFM may start marketing the AIF in the relevant host Member State as of the date of notification.

• (b) The Bank shall also inform ESMA and the competent authorities of the AIF that the AIFM may start marketing the units or shares of the AIF in the other Member State of the transmission of the notification file.

• (8) An AIFM whose Member State of reference is another Member State may start marketing an AIF in the State as of the date of that the competent authorities of the Member State of reference of the AIFM notify the AIFM about the transmission made in accordance with Article 39(6) of the Directive.

• (9) Where a non-EU AIFM whose Member State of reference is another Member State markets in the State with a passport one more than one EU AIF managed by it, the arrangements referred to in point (h) of Annex IV of the Directive shall be subject to the laws and supervision of the State.

• (10) The notification letter referred to in paragraph (5) by an AIFM whose Member State of reference is the State must be provided in the English language. Where the Bank provides a statement in accordance with paragraph (6) that statement shall be provided in the English language.

• (11) Where the Bank receives a notification in accordance with Article 39(5) of the Directive from the competent authorities of another Member State which is the Member State of reference for an AIFM, the Bank shall accept the electronic transmission and filing of those documents.

(12)(a) In the event of a material change to any of the particulars provided in accordance with paragraph (3) or (5) (or both), the AIFM shall give written notice of that change to the Bank—

• (i) in the case of any change planned by the AIFM — at least 1 month before implementing the change, or

• (ii) in the case of where an unplanned change has occurred — immediately after its occurrence.

• (b) If, pursuant to a planned change, the AIFM’s management of the AIF would no longer comply with these Regulations or the AIFM would otherwise no longer comply with these Regulations, the Bank shall inform the AIFM, without undue delay, that it is not to implement the change.

• (c) If, notwithstanding the requirements of subparagraphs (a) and (b), a planned change is implemented or if an unplanned change has taken place pursuant to which the AIFM’s management of the AIF no longer complies with these Regulations or the AIFM otherwise no longer complies with these Regulations, the Bank shall take all due measures in accordance with Regulation 49, including, if necessary, the express prohibition of marketing of the AIF.

• (d) If the changes are acceptable because they do not affect compliance of the AIFM’s management of the AIF with these Regulations or the compliance by the AIFM with these Regulations otherwise, the Bank shall, without delay, inform ESMA in so far as the changes concern the termination of the marketing of certain alternative investment funds or additional alternative investment funds being marketed and, in so far as applicable, the competent authorities of the host Member States of those changes.

• (13) Without prejudice to Regulation 44(1), alternative investment funds managed and marketed by the AIFM shall be marketed in the State only to professional investors.

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.

• (2) An authorised non-EU AIFM whose Member State of reference is another Member State may market units or shares of a non-EU AIF it manages to professional investors in the State with a passport as soon as the conditions laid down in Article 40 of the Directive are met.

• (3) In addition to the requirements of these Regulations in relation to an Irish AIFM, for an non-EU AIFM whose Member State of reference is the State the following conditions shall be met:

• (a) appropriate cooperation arrangements are in place between the Bank and the supervisory authority of the third country where the non-EU AIF is established in order to ensure at least an efficient exchange of information that allows the Bank to carry out its duties in accordance with these Regulations;

• (b) the third country where the non-EU AIF is established is not listed as a NonCooperative Country and Territory by FATF;

• (c) the third country where the non-EU AIF is established has signed an agreement with the State and with each other Member State in which the units or shares of the non-EU AIF are intended to be marketed which complies with the standards laid down 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.

• (4) Where a competent authority of another Member State disagrees with the assessment made on the application of subparagraphs (a) and (b) of paragraph (3) by the Bank, the Bank may refer the matter to ESMA to act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No. 1095/2010.

• (5) Where the Bank disagrees with the assessment made on the application of points (a) and (b) of the first subparagraph of Article 40(2) of the Directive by the competent authority of another Member State, the Bank may refer the matter to ESMA to act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No. 1095/2010.

(6)(a) Where the State is the Member State of reference the AIFM shall submit a notification to the Bank in respect of each non-EU AIF that it intends to market in the State.

• (b) That notification shall comprise the documentation and information set out in Schedule 3.

(7)(a) No later than 20 working days after receipt of a complete notification pursuant to paragraph (6), the Bank shall inform the AIFM whether it may start marketing the AIF identified in the notification referred to in paragraph (6) in the State. The Bank may prevent the marketing of the AIF only if the AIFM’s management of the AIF does not or will not comply with these Regulations or the AIFM otherwise does not or will not comply with these Regulations. In the case of a decision to permit such marketing, the AIFM may start marketing the AIF in the State from the date of the notification by the Bank to that effect.

• (b) The Bank shall also inform ESMA that the AIFM may start marketing units or shares of the AIF in the State.

(8)(a) If the AIFM intends to market the units or shares of a non-EU AIF also in Member States other than the State where the State is the Member State of reference, the AIFM shall submit a notification to the Bank in respect of each non-EU AIF that it intends to market.

• (b) That notification shall comprise the documentation and information set out in Schedule 4.

(9)(a) The Bank shall, no later than 20 working days after the date of receipt of the complete notification file referred to in paragraph (8), transmit the complete notification file to the competent authorities of the Member States where the units or shares of the AIF are intended to be marketed. Such transmission shall occur only if the AIFM’s management of the AIF complies and will continue to comply with these Regulations and that in general the AIFM complies with these Regulations.

• (b) The Bank shall enclose a statement to the effect that the AIFM concerned is authorised to manage alternative investment funds with a particular investment strategy.

• (c) Upon transmission of the notification file, the Bank shall, without delay, notify the AIFM of the transmission.

• (d) The Bank shall also inform ESMA of the transmission of the notification file.

• (10) An AIFM whose Member State of reference is another Member State may start marketing an AIF in the State as of the date of that the competent authorities of the Member State of reference of the AIFM notify the AIFM about the transmission made in accordance with Article 40(6) of the Directive.

(11)(a) Where an non-EU AIFM whose Member State of reference is the State markets in the State with a passport non-EU alternative investment funds managed by it, the arrangements referred to in point (h) of Annex IV of the Directive shall be subject to the laws and supervision of the State.

• (b) Where a non-EU AIFM whose Member State of reference is another Member State markets in the State with a passport non-EU alternative investment funds managed by it, the arrangements referred to in point (h) of Annex IV of the Directive shall be subject to the laws and supervision of the State.

• (12) The notification letter referred to in paragraph (8) by an AIFM whose Member State of reference is the State shall be provided in the English language. Where the Bank provides a statement in accordance with paragraph (9) that statement shall be provided in the English language.

• (13) Where the Bank receives a notification in accordance with Article 40(6) of the Directive from the competent authorities of another Member State which is the Member State of reference for an AIFM, the Bank shall accept the electronic transmission and filing of those documents.

(14)(a) In the event of a material change to any of the particulars provided in accordance with paragraph (6) or (8), the AIFM shall give written notice of that change to Bank—

• (i) in the case of any change planned by the AIFM — at least 1 month before implementing the change, or

• (ii) in the case of where an unplanned change has occurred — immediately after its occurrence.

• (b) If, pursuant to a planned change, the AIFM’s management of the AIF would no longer comply with these Regulations, or the AIFM would otherwise no longer comply with these Regulations, the Bank shall inform the AIFM, without undue delay, that it is not to implement the change.

• (c) If, notwithstanding the requirements of subparagraphs (a) and (b), the planned change is implemented or if an unplanned change has taken place pursuant to which the AIFM’s management of the AIF no longer complies with these Regulations or the AIFM otherwise no longer complies with these Regulations, the Bank shall take all due measures in accordance with Regulation 49 including, if necessary, the express prohibition of marketing of the AIF.

• (d) If the changes are acceptable because they do not affect the compliance of the AIFM’s management of the AIF with these Regulations or the compliance by the AIFM with these Regulations otherwise, the Bank shall without delay, inform ESMA in so far as the changes concern the termination of the marketing of certain alternative investment funds or additional alternative investment funds being marketed and, in so far as applicable, the competent authorities of the host Member States of the AIFM of those changes.

• (15) Where the Bank rejects a request to exchange information in accordance with regulatory technical standards adopted by the Commission, or where the competent authority of another Member State rejects a request by the Bank to exchange information in accordance with such regulatory technical standards, the Bank may refer the matter to ESMA.

• (16) Without prejudice to Regulation 44(1), alternative investment funds managed and marketed by the AIFM may be marketed in the State only to professional investors.

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.

• (2) An authorised non-EU AIFM whose Member State of reference is another Member State may manage Irish alternative investment funds either directly or via the establishment of a branch, provided that the AIFM is authorised to manage that type of AIF.

• (3) Where the State is the Member State of reference, any non-EU AIFM intending to manage EU alternative investment funds established in another Member State for the first time shall provide the following information to the Bank:

• (a) the Member State in which it intends to manage such funds directly or establish a branch;

• (b) a programme of operations stating in particular the services which it intends to perform and identifying the alternative investment funds it intends to manage.

• (4) If the non-EU AIFM intends to establish a branch, it shall provide, in addition to the information referred to in paragraph (3), the following information:

• (a) the organisational structure of the branch;

• (b) the address in the home Member State of the AIF from which documents may beobtained;

• (c) the names and contact details of persons responsible for the management of thebranch.

(5)(a) The Bank shall, within 1 month after receiving the complete documentation in accordance with paragraph (3) or within 2 months after receiving the complete documentation in accordance with paragraph (4), transmit that documentation to the competent authorities of the host Member States of the AIFM. Such transmission shall occur only if the AIFM’s management of the AIF complies and will continue to comply with these Regulations and the AIFM otherwise complies with these Regulations.

• (b) The Bank shall enclose a statement to the effect that the AIFM concerned is authorised by it.

• (c) The Bank shall immediately notify the AIFM of the transmission. Upon receipt of such notification the AIFM may start to provide its services in the host Member States of the AIFM.

• (d) The Bank shall also inform ESMA of transmission of the notification.

• (6) An AIFM whose Member State of reference is another Member State may start to provide its services in the State as of the date that the competent authorities of the Member State of reference of the AIFM notify the AIFM about the transmission made in accordance with Article 41(4) of the Directive.

(7)(a) In the event of a change to any of the information provided in accordance with paragraph (3) and, if relevant, paragraph (4), an AIFM shall give written notice of that change to the Bank—

• (i) in the case of any change planned by the AIFM — at least 1 month before implementing the change, or

• (ii) in the case of where an unplanned change has occurred — immediately after its occurrence.

• (b) If, pursuant to a planned change, the AIFM’s management of the AIF would no longer comply with these Regulations or the AIFM would otherwise no longer comply with these Regulations, the Bank shall inform the AIFM without undue delay that it is not to implement the change.

• (c) If, notwithstanding the requirements of subparagraphs (a) and (b), a planned change is implemented or if an unplanned change has taken place pursuant to which the AIFM’s management of the AIF no longer complies with these Regulations or the AIFM otherwise no longer complies with these Regulations, the Bank shall take all due measures in accordance with Regulation 49, including, if necessary, the express prohibition of marketing of the AIF.

• (d) If the changes are acceptable because they do not affect the compliance of the AIFM’s management of the AIF with these Regulations or the compliance by the AIFM with these Regulations otherwise, the Bank shall without undue delay inform the competent authorities of the host Member States of the AIFM of those changes.

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

• (a) the non-EU AIFM complies with Regulations 23, 24 and 25 in respect of each AIF marketed by it pursuant to this Regulation and with Regulations 27 to 31 where an AIF marketed by it pursuant to this Regulation falls within the scope of Regulation 27(1);

• (b) appropriate cooperation arrangements for the purpose of systemic risk oversight and in line with international standards are in place between the Bank, in so far as applicable, the competent authorities of the EU alternative investment funds concerned and the supervisory authorities of the third country where the non-EU AIFM is established and, in so far as applicable, the supervisory authorities of the third country where the non-EU AIF is established in order to ensure an efficient exchange of information that allows the Bank to carry out its duties in accordance with these Regulations;

• (c) the third country where the non-EU AIFM or the non-EU AIF is established is not listed as a Non-Cooperative Country and Territory by FATF.

• (2) Where a competent authority of an EU AIF does not enter into the required cooperation arrangements referred to in paragraph (1)(b) within a reasonable period of time, the Bank may refer the matter to ESMA.

• (3) An AIFM falling with paragraph (1) shall give written notification to the Bank before marketing to professional investors in the State units or shares of an AIF managed by it that falls within paragraph (1). This notification shall include the name of the AIFM and the AIF and the identity of the jurisdiction in which the AIFM is domiciled and the jurisdiction where the AIF is domiciled.

(4)(a) Without prejudice to the power of the Bank to impose conditions or requirements under these Regulations, where the Bank considers it necessary for the proper and orderly regulation and supervision of alternative investment fund managers, the Bank may impose conditions or requirements, in addition to those specified in paragraph (1), on an AIFM that markets to professional investors in the State units or shares of one or more than one AIF it manages.

• (b) A condition or requirement imposed by the Bank under this paragraph has effect from the date specified by the Bank.

Chapter 9 Marketing To Retail Investors

Marketing of AIFs by AIFMs to retail investors.

• (2) In such cases, the Bank may impose stricter requirements on the AIFM or the AIF than the requirements applicable to the alternative investment funds marketed to professional investors. However, the Bank shall not impose stricter or additional requirements on EU alternative investment funds established in another Member State.

(3)(a) Without prejudice to the power of the Bank to impose conditions or requirements under these Regulations, where the Bank considers it necessary for the proper and orderly regulation and supervision of alternative investment fund managers, the Bank may impose conditions or requirements on such managers which market in the State to retail investors units or shares of alternative investment funds that they manage.

• (b) A condition or requirement imposed by the Bank under this paragraph has effect from the date specified by the Bank.

Part 4 Competent Authorities

Designation, Powers And Redress Procedures

Designation of competent authorities.

• (2) The Bank shall establish the appropriate methods to monitor that each AIFM complies with its obligations under these Regulations, where relevant on the basis of guidelines developed by ESMA.

Responsibility of the Bank.

• (2) The supervision of an AIFM’s compliance with Regulations 13 and 15 shall be the responsibility of the Bank where the State is the host Member State of the AIFM if the AIFM manages or markets alternative investment funds (or does both) through a branch in the State.

• (3) The Bank may require an AIFM managing or marketing alternative investment funds in the State, whether or not through a branch, to provide the information necessary for the supervision of the AIFM’s compliance with the applicable rules for which the Bank is responsible.

• (4) The requirements referred to in paragraph (3) shall not be more stringent than those imposed on an Irish AIFM for the monitoring of its compliance with the same rules.

• (5) Where the Bank ascertains that an AIFM managing or marketing alternative investment funds (or doing both) in the State, whether or not through a branch, is contravening one of the rules in relation to which it has responsibility for supervising compliance, the Bank shall require the AIFM concerned to put an end to that contravention and inform the competent authorities of the home Member State thereof.

• (6) If the AIFM concerned refuses to provide the Bank with information falling under its responsibility, or fails to take the necessary steps to put an end to the contravention referred to in paragraph (5), the Bank shall inform the competent authorities of its home Member State thereof.

(7)(a) Where the Bank receives a notification in accordance with Article 45(5) of the Directive from the competent authorities of the host Member State of an Irish AIFM or an AIFM whose Member State of reference is the State it shall, at the earliest opportunity:

• (i) take all appropriate measures to ensure that the AIFM concerned provides the information requested by the competent authorities of its host Member State pursuant to Article 45(3) of the Directive, or puts an end to the contravention referred to in Article 45(4) of the Directive;

• (ii) request the necessary information from the relevant supervisory authorities in thirdcountries

• (b) The Bank shall communicate the nature of the measures referred to in subparagraph (a)(i) to the competent authorities of the host Member State of the AIFM.

(8)(a) If, despite the measures taken by the competent authorities of the home Member State of the AIFM pursuant to Article 45(5) of the Directive or because such measures prove to be inadequate or are not available in the Member State in question, the AIFM continues to refuse to provide the information requested by the Bank pursuant to paragraph (3), or persists in contravening legal or regulatory provisions, referred to in paragraph (5), the Bank may, after informing the competent authorities of the home Member State of the AIFM, take appropriate measures, including those specified in Regulation 49 and provided under the Central Bank Act 1942 , to prevent or penalise further irregularities and, in so far as necessary, to prevent that AIFM from initiating any further transactions in the State.

• (b) Where the function carried out in the State is the management of alternative investment funds, the Bank may require the AIFM to cease managing those funds.

Supplemental provisions in relation to Regulation 46.

• (2) Where the Bank receives a communication pursuant to Article 45(7) of the Directive from the competent authorities of the host Member State of an Irish AIFM or an AIFM whose Member State of reference is the State, it shall take appropriate measures, including, if necessary, requesting additional information from the relevant supervisory authorities in third countries.

• (3) If despite the measures taken by the competent authorities of the home Member State of the AIFM or because such measures prove to be inadequate, or because the home MemberState of the AIFM fails to act within a reasonable timeframe, the AIFM persists in acting in a manner that is clearly prejudicial to the interests of the investors of the relevant AIF, the financial stability or the integrity of the market in the State the Bank may, after informing the competent authorities of the home Member State of the AIFM, take all appropriate measures needed in order to protect the investors of the relevant AIF, the financial stability and the integrity of the market in the State, including preventing the AIFM concerned from further marketing the units or shares of the relevant AIF in the State.

• (4) The procedure specified in paragraphs (1) to (3) shall also apply in the event that Bank has clear and demonstrable grounds for disagreement with the authorisation of a non-EU AIFM by the Member State of reference.

• (5) Where the Bank disagrees with the competent authorities of another Member State on any of the measures taken by the Bank pursuant to Regulation 46(5) to (8) or paragraphs (1) to (3) of this Regulation or, as the case may be, by that competent authority pursuant to Articles 45(4) to (9) of the Directive it may refer the matter to ESMA.

Powers of the Bank to request Information.

• (a) an AIFM, AIF or depositary;

• (b) a person who has applied for an authorisation as an AIFM or, where relevant, an AIF but whose application has not been determined;

• (c) a person whom the Bank reasonably believes is or has been an AIFM, AIF or depositary or is or has been acting as, or claiming or holding himself or herself out to be, an AIFM, AIF or depositary;

• (d) a person who is or has been, or whom the Bank reasonably believes is or has been, without an authorisation, providing a service in respect of which an authorisation is required under these Regulations;

• (e) a related undertaking of any of the persons referred to in any of the preceding subparagraphs;

• (f) any other person whom the Bank reasonably believes may possess information about a person referred to in any of the preceding paragraphs;

• (g) a person who is, in relation to a person referred to in any of the preceding paragraphs, a person mentioned in paragraph (2);

• (h) a person who is or has been an officer or employee or agent of a person referred to in any of the preceding paragraphs or is, in relation to a person who is or has been such an officer, employee or agent, a person mentioned in paragraph (2).

• (2) The persons referred to in paragraph (1)(g) and (h) are—

• (a) an administrator, examiner, liquidator, receiver or official assignee, and

• (b) a person with functions corresponding to those of any of the persons within the preceding paragraphs under the law of a territory other than the State.

• (3) In paragraph (1)(h) “agent”, in relation to a person referred to in paragraph (1)(a) to (g), includes a past (as well as a present) agent and includes the person’s banker, accountant, solicitor, auditor and financial or other adviser.

• (4) Where it is necessary to do so for the purpose of the performance of the Bank’s functions under these Regulations or any other enactment relating to the proper and effective regulation of an AIFM, AIF or depositary, the Bank may, by notice in writing given to a person to whom this Regulation applies, require the person—

• (a) to provide to the Bank the information specified in the notice,

• (b) to provide to the Bank the records (including phone and data traffic records) so specified,

• (c) to prepare and provide to the Bank the forecasts, plans, accounts or other documents so specified,

• (d) to appear before the Bank and

• (i) to give such information as the Bank may reasonably require,

• (ii) to provide the Bank any information or records which the person has control of, or access to, and which the Bank may reasonably require, or

• (iii) to provide an explanation of a decision, course of action, system or practice or the nature or content of any records or information provided to the Bank under any these Regulations or any other enactment.

• (5) A person on whom a requirement is imposed under paragraph (4) shall comply with the requirement—

• (a) at such time or times, or within such period, as may be specified in the notice or in a further notice given by the Bank, and

• (b) at such place as may be so specified.

• (6) The Bank may require that information, records or other documents provided in compliance with a requirement under paragraph (4) be certified or attested as to their authenticity or correctness in such manner as the Bank may reasonably require, including by statutory declaration.

• (7) The Bank may take copies of, or extracts from, any records or other documents provided in compliance with a requirement under paragraph (4).

• (8) This Regulation does not limit any other power of the Bank to require the provision of information or records or the preparation and provision of documents.

• (9) The Bank may require that information, records or other documents provided in response to a requirement under paragraph (4) be provided in such form and manner as the Bank may reasonably require.

• (10) A person who fails to provide any information, records or other documents in the form reasonably required by the Bank shall be treated as not having provided it or them in compliance with the requirement.

Power to issue directions.

• (2) The circumstances referred to in paragraph (1) are as follows:

• (a) that the AIFM, AIF or depositary, or related undertaking, has become or is likely to become unable to meet its obligations to its creditors or professional or retail investors;

• (b) that the AIFM, AIF or depositary, or related undertaking, is not maintaining or is unlikely to be in a position to maintain adequate capital or other financial resources having regard to the volume and nature of its business;

• (c) that the AIFM, AIF or depositary, or related undertaking, has failed to comply with, is failing to comply with or is likely to fail to comply with any condition or requirement imposed by, or by virtue of, these Regulations or any other enactment;

• (d) that the AIFM, AIF or depositary, or related undertaking, is conducting business in such a manner as to jeopardise or prejudice—

• (i) monies, securities or other investment instruments or other property held by or controlled by it on behalf of a professional or retail investor,

• (ii) the rights and interests of a professional or retail investor or;

• (iii) in a market for a financial instrument, the orderly functioning of that market.

• (e) that there may be grounds for revoking the authorisation or approval of an AIFM, AIF or depositary under these Regulations or any other enactment.

• (3) The actions referred to in paragraph (1) are as follows:

• (a) to suspend, for such period not exceeding 12 months as is specified in the direction, any one or more of the following:

• (i) the provision of any financial service, or description of financial service, specified in the direction;

• (ii) the making of payments to which clause (i) does not relate or any such payments or description of such payments specified in the direction;

• (iii) the acquisition or disposal of any assets or liabilities, or description of assets or liabilities, specified in the direction;

• (iv) entering into transactions or agreements, or description of transactions or agreements, specified in the direction, or entering into them except in specified circumstances or to a specified extent;

• (v) soliciting business from persons of a class specified in the direction;

• (vi) carrying on business in a manner specified in the direction or otherwise than in a manner so specified;

• (b) to dispose of, on terms specified in the direction, assets or liabilities so specified, or a part or parts of its business so specified, within such period as may be so specified;

• (c) to raise and maintain such capital or other financial resources as may be specified in the direction;

• (d) to make such modifications to its systems and controls as may be specified in the direction;

• (e) to make such modifications to its business practices and dealings with third parties as may be specified in the direction;

• (f) to comply with the condition or requirement referred to in paragraph (2)(c);

• (g) to notify third parties of any such actions within subparagraphs (a) to (f) as may be specified in the direction.

• (4) Where the Bank gives a direction under paragraph (1) to an AIFM, AIF or depositary or a related undertaking (in this paragraph referred to as the “principal provider”), the Bank may, where it considers it necessary for the purpose of securing compliance with that direction, give a direction in writing to any regulated financial service provider at which the principal provider holds an account of any description to cease making payments from, or entering into or performing other transactions in respect of, such account without the prior authorisation of the Bank.

• (5) The provisions of a direction under paragraph (1) or (4) have effect from the date specified in the direction in relation to them.

• (6) A direction under paragraph (1) or (4) shall set out—

• (a) all terms of the direction, including any specification of a date by which, or a period within which, any provision made by it is to be complied with, and

• (b) any incidental, consequential or supplemental provisions for implementing the direction and securing that it is fully and effectively carried out.

• (7) The Bank may publish a direction under paragraph (1) or (4) in any such manner as the Bank considers appropriate.

• (8) An AIFM, AIF or depositary, or a related undertaking, to whom a direction is given under subparagraph (a) or (b) of paragraph (3) may apply to the High Court for an order setting aside the direction.

• (9) An AIFM, AIF or depositary to whom a direction is given under paragraph (4) may apply to the High Court for an order setting aside the direction.

• (10) An application under paragraph (8) shall be made to the High Court within 14 days beginning on the date of receipt of the direction by the person concerned, or the related undertaking, or such further period as the High Court considers just and equitable in the circumstances, and the High Court may make any such interim or interlocutory order as it considers appropriate.

• (11) An application under paragraph (9) shall be made to the High Court within 14 days beginning on the date of receipt of the direction by the person concerned or such further period as the High Court considers just and equitable in the circumstances, and the High Court may make any interim or interlocutory order as it considers appropriate.

• (12) Where the High Court is satisfied, because of the nature or the circumstances of the case or otherwise in the interests of justice that it is desirable, the whole or any part of proceedings relating to an application under paragraph (8) or (9) may be heard otherwise than in public.

• (13) A decision by the Bank to issue a direction under any of subparagraphs (c) to (g) of paragraph (3) is an appealable decision for the purposes of Part VIIA of the Central Bank Act 1942 .

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

• (a) no relevant proceedings may be commenced or continued, and

• (b) no assets of the regulated financial service provider or related undertaking may be attached, sequestered or otherwise distrained,

except with the prior approval of the High Court while the direction remains to be complied with.

• (2) For the purposes of paragraph (1) “relevant proceedings”, in relation to a regulated financial service provider or related undertaking, means—

• (a) proceedings relating to the winding-up or dissolution of the regulated financial service provider or related undertaking,

• (b) receivership or bankruptcy proceedings of which the regulated financial service provider or related undertaking is the subject, or

• (c) any other proceedings under which an assignee or other person becomes responsible for the affairs of the regulated financial service provider or related undertaking pending the regulated financial service provider or related undertaking ceasing to carry on business.

Power of High Court to compel compliance with direction.

• (2) If the High Court is satisfied that a person has refused or failed or is refusing or failing to take an action the person is required to take by or under a direction given under paragraph (1) or (4) of Regulation 49, the High Court may make an order requiring the person to take that action.

• (3) On an application to it under paragraph (1), the High Court may make any such interim or interlocutory order as it considers appropriate.

• (4) An order under paragraph (2) may include an order to take such ancillary or incidental steps as the High Court may consider appropriate to give full effect to the order.

• (5) Where the High Court is satisfied, because of the nature or the circumstances of the case or otherwise in the interests of justice that it is desirable, the whole or any part of proceedings under this paragraph may be heard otherwise than in public.

Information exchanged to be confidential.

• (2) All the information exchanged under these Regulations between the Bank and ESMA, EBA, the European Supervisory Authority (European Insurance and Occupational Pensions Authority) established by Regulation (EU) No. 1094/2010 of the European Parliament and of the Council⁷ and the ESRB shall be deemed to be confidential, except where the Bank, ESMA or the other authority or body concerned states, at the time of communication, that such information may be disclosed or where such disclosure is necessary for legal proceedings.

• (3) Where the Bank undertakes a measure in response to a request under Article 9 of Regulation (EU) No. 1095/2010 it shall endeavour to—

• (a) address effectively the threat to the orderly functioning and the integrity of the financial market or to the stability of the whole or a part of the financial system in the European Union or significantly improve the ability of competent authorities to monitor thethreat;

• (b) not create a risk of regulatory arbitrage;

• (c) not have a detrimental effect on the efficiency of the financial markets, including reducing liquidity in those markets or creating uncertainty for market participants, in a way that is disproportionate to the benefits of the measures.

• (4) Where the State is the Member State of reference, the Bank may request ESMA to reconsider its decision under Article 47(4) of the Directive. The procedure set out in the second subparagraph of Article 44(1) of Regulation (EU) No. 1095/2010 shall apply.

Reasons for decisions to be given, etc.

• (2) Without prejudice to the circumstances, under the general law, in which judicial review shall lie in respect of the exercise or non-exercise by the Bank of its powers under these Regulations, judicial review shall lie in respect of a failure by the Bank to make, or inform the applicant of the making of, (in accordance with Regulation 9) a decision to grant or refuse to grant an authorisation under these Regulations to an applicant therefor.

Cooperation between different competent authorities obligation to cooperate.

• (2) The Bank shall cooperate with other competent authorities even in cases where the conduct under investigation does not constitute a contravention of any law of the State.

• (3) The Bank shall immediately, upon request, provide other competent authorities with the information required for the purposes of their carrying out their duties under the Directive.

• (4) In relation to an Irish AIFM or an AIFM whose Member State of reference is the State, the Bank shall forward a copy of the relevant cooperation arrangements entered into by it, in accordance with any of Regulations 36, 38 and 41, to the host Member States of the AIFM where relevant.

• (5) In relation to an Irish AIFM or an AIFM whose Member State of reference is the State the Bank shall, in accordance with procedures relating to the applicable regulatory technical standards referred to in Article 35(14), Article 37(17) or Article 40(14) of the Directive, forward the information received from third-country supervisory authorities in accordance with cooperation arrangements with such supervisory authorities in respect of an AIFM, or, where relevant, pursuant to Article 45(6) or (7) of the Directive, to the competent authorities of host Member State of the AIFM concerned.

• (6) Where the State is the host Member State of the AIFM and the Bank considers that the contents of the cooperation arrangement entered into by the home Member State of the AIFM concerned in accordance with any of Articles 35, 37 and 40 of the Directive do not comply with what is required pursuant to the applicable regulatory technical standards, the Bank may refer the matter to the ESMA.

• (7) Where the Bank has clear and demonstrable grounds to suspect that acts in contravention of these Regulations or the Directive are being or have been carried out by an AIFM not subject to its supervision, it shall notify ESMA and the competent authorities of the home and host Member States of the AIFM concerned thereof in as specific a manner as possible.

• (8) Where the Bank is in receipt of a notification under Article 50(5) of the Directive it shall take appropriate action and shall inform ESMA and the notifying competent authorities of the outcome of that action and, to the extent possible, of significant interim developments.

• (9) Where the State is the Member State of reference for an authorised non-EU AIFM and the Bank considers that that AIFM is contravening or has contravened its obligations under the Directive, the Bank shall notify ESMA, setting out full reasons as soon as possible.

Transfer and retention of personal data.

• (2) Personal data shall be retained for a maximum period of 5 years.

Disclosure of information to third countries.

• (2) The Bank shall only disclose information received from a competent authority of another Member State to a supervisory authority of a third country where Bank has obtained express agreement of the competent authority which transmitted the information and, where applicable, the information is disclosed solely for the purposes for which that competent authority gave its agreement.

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

• (b) The Bank shall inform ESMA and the ESRB of the information communicated.

• (2) Subject to the conditions laid down in Article 35 of Regulation (EU) No. 1095/2010, aggregated information relating to the activities of Irish alternative investment fund managers and alternative investment fund managers whose Member State of reference is the State shall be communicated by the Bank to ESMA and the ESRB.

Cooperation in supervisory activities.

• (a) carry out the verification or investigation itself,

• (b) allow the requesting authority to carry out the verification or investigation, or

• (c) allow auditors or experts to carry out the verification or investigation.

(2)(a) Where the verification or investigation is carried out in the State by the Bank, the Bank may, upon request from the competent authority which has requested cooperation, permit officials of that competent authority to assist the Bank’s officials carrying out the verification or investigation. The verification or investigation shall, however, be subject to the overall control of the Bank.

• (b) Where the verification or investigation is carried out in the State by a competent authority of another Member State, the Bank may request that its own officials assist the officials carrying out the verification or investigation.

• (3) The Bank may refuse to exchange information as provided for in Regulation 57 or to act on a request for cooperation in carrying out an investigation or on-the-spot verification as provided for in paragraph (1) or (2), only where—

• (a) such an investigation, on-the-spot verification or exchange of information might adversely affect the sovereignty, security or public policy of the State,

• (b) judicial proceedings have already been initiated in respect of the same persons and the same actions before the authorities of the State, or

• (c) final judgment in respect of the same persons and the same actions has already been delivered in the State.

• (4) The Bank shall inform the requesting competent authorities of any decision taken under this paragraph (3), stating the reasons therefor.

Dispute settlement.

PART 5 Transitional and Final Provisions

Transitional provisions.

• (2) Regulations 32, 33 and 34 shall not apply to the marketing of units or shares of an AIF that are subject to a current offer to the public under a prospectus that has been drawn up and published in accordance with the Prospectus (Directive 2003/71/EC) Regulations 2005 ( S.I. No. 324 of 2005 ) before 22 July 2013 for the duration of validity of that prospectus.

• (3) An Irish AIFM in so far as it manages one or more than one AIF of the closed-ended type before 22 July 2013 which does not make any additional investments after that date may, however, continue to manage any such AIF without authorisation under these Regulations.

• (4) An Irish AIFM in so far as it manages one or more than AIF of the closed-ended type whose subscription period for investors has closed prior to the date of entry into force of the Directive and are constituted for a period of time which expires at the latest 3 years after 22 July 2013, may, however, continue to manage any such AIF without having to comply with these Regulations except for Regulation 23 and, where relevant, Regulations 27 to 31 or to submit an application for authorisation under these Regulations.

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

Bank to provide certain information to ESMA.

Amendments of Central Bank Act 1942.