The Alternative Investment Fund Managers (Amendment) Regulations 2013

Regulation 3

SCHEDULE 1 Amendments to legislation that implement Articles 35 and 37 to 41 of the directive

Amendments to the Act

1.—(1) The Act is amended as follows.

(2) In section 55V(8) (determination of applications)(1) for “regulation 5” insert “regulations 5 and 5A”.

(3) In section 195A(12) (contravention by relevant EEA firm or EEA UCITS of directive requirements: home state regulator primarily responsible for securing compliance)(2), in the definition of “home state”, in paragraph (c) for “has its registered office” substitute “is authorised in accordance with the alternative investment fund managers directive”.

(4) In section 418 (carrying on regulated activities in the United Kingdom)(3)—

(a) in subsection (1) for “five” substitute “six”,

(b) after subsection (5A) insert—

“(5B) The sixth case is where—

(a) the regulated activity being carried on by the person is the regulated activity of managing an AIF,

(b) the AIF being managed—

(i) has its registered office in an EEA State, or

(ii) is marketed in an EEA State,

(c) if the AIF being managed is marketed in an EEA State, it is marketed otherwise than in accordance with provisions made under Article 42 of the alternative investment fund managers directive,

(d) the person does not have a registered office in an EEA State, and

(e) the person’s Member State of reference (as defined in Article 4.1(z) of the alternative investment fund managers directive), or the state that would be the person’s Member State of reference if the person were required to be authorised in accordance with Article 37 of the alternative investment fund managers directive, is the United Kingdom.

(5C) In subsection (5B) “marketed” is to be read in accordance with the definition of “marketing” in Article 4.1(x) of the alternative investment fund managers directive.”, and

(c) in subsection (6) for “(5A)” substitute “(5B)”.

(5) In Schedule 3 (EEA passport rights)—

(a) in paragraph 5(h) (EEA firm)(4) omit “Article 6.1 of”,

(b) in paragraph 7A(aa) (EEA right: meaning of “relevant office”)(5) for paragraph (aa) substitute—

“(aa) in relation to a person whose entitlement is subject to the conditions of the alternative investment fund managers directive—

(i) if the person’s registered office is in an EEA State, its registered office;

(ii) if the person’s registered office is not in an EEA State, the registered office or branch of its legal representative (as defined in Article 4(1)(u) of the alternative investment fund managers directive);”,

(c) in paragraph 10A(aa) (UK firm: meaning of “relevant office”)(6) for paragraph (aa) substitute—

“(aa) in relation to a firm whose EEA right derives from the alternative investment fund managers directive—

(i) if the firm’s registered office is in an EEA State, its registered office;

(ii) if the firm’s registered office is not in an EEA State, the registered office or branch of its legal representative (as defined in Article 4(1)(u) of the alternative investment fund managers directive);”,

(d) in paragraph 14(3A) (services)(7) after “Article 32” insert “, 35, 39 or 40”,

(e) in paragraph 19(7BB)(b) (establishment)(8) omit “Article 6.1 of”,

(f) in paragraph 20(3D)(a)(ii) (services)(9) omit “Article 6.1 of”, and

(g) in paragraph 20C (notice of intention to market an AIF)(10)—

(i) in sub-paragraph (1) for “a UK AIF or EEA AIF” substitute “an AIF”,

(ii) for sub-paragraph (5)(b) substitute—

“(b) if the AIF is a third country AIF or a third country feeder AIF—

(i) appropriate co-operation arrangements are in place between the FCA and the supervisory authorities of the relevant third country in order to ensure an efficient exchange of information that allows the FCA to carry out its duties in accordance with the alternative investment fund managers directive,

(ii) the relevant third country is not listed as a Non-Cooperative Country and Territory by the Financial Action Task Force,

(iii) the relevant third country has signed an agreement with the United Kingdom and with each other EEA State in which the units or shares of the AIF are intended to be marketed, and

(iv) the agreement fully complies with the standards laid down in Article 26 of the Organisation for Economic Co-operation and Development’s Model Tax Convention on Income and on Capital 2010(11) and ensures an effective exchange of information on tax matters, including any multilateral tax agreements.”, and

(iii) in sub-paragraph (12), in the appropriate places insert the following definitions—

““relevant third country” means—

(a)

in relation to a third country AIF, the country in which the AIF is authorised or registered or, if the AIF is not authorised or registered, the country in which it has its registered office;

(b)

in relation to a third country feeder AIF, the country in which the master AIF is authorised or registered or, if the master AIF is not authorised or registered, the country in which it has its registered office;

“third country AIF” has the meaning given in regulation 2 of the Alternative Investment Fund Managers Regulations 2013;

“third country feeder AIF” has the meaning given in regulation 2 of the Alternative Investment Fund Managers Regulations 2013;

“third country AIFM” has the meaning given in regulation 2 of the Alternative Investment Fund Managers Regulations 2013.”.

(6) In paragraph 2B of Schedule 6 (threshold conditions - location of offices)(12), in sub-paragraph (7), for “a full-scope UK AIFM, A’s head office and registered office must be in the United Kingdom” substitute—

“a full-scope UK AIFM—

(a) A’s head office and registered office must be in the United Kingdom, or

(b) A’s registered office must be in a country that is not an EEA State.”.

Amendments to the principal regulations

2.—(1) The principal regulations are amended as follows.

(2) In regulation 2(1) (interpretation)—

(a) in the definition of “external valuer” after “full-scope UK AIFM” insert “other than an AIF that is marketed only pursuant to provisions implementing Article 42 of the directive”,

(b) in the definition of “full-scope EEA AIFM” omit “Article 6.1 of”,

(c) in the definition of “small registered EEA AIFM”—

(i) omit sub-paragraph (b), and

(ii) in sub-paragraph (c), after “Article 3.3(a) of the directive” insert “in an EEA State other than the United Kingdom”,

(d) in the definition of “small third country AIFM” at the end insert “and which has not exercised the option mentioned in Article 3.4 of the directive to meet the full requirements of the directive”,

(e) at the appropriate place insert—

““third country feeder AIF” means a UK AIF or EEA AIF that—

(a)

is managed by an AIFM with its registered office in an EEA State, and

(b)

is a feeder AIF whose the master AIF is a third country AIF or is managed by a third country AIFM;”, and

(f) for the definition of “UK AIFM” substitute—

““UK AIFM” means an AIFM that—

(a)

has its registered office in the United Kingdom,

(b)

has its registered office in a third country, and has the United Kingdom as its Member State of reference, or

(c)

has its registered office in a third country, and would have the United Kingdom as its Member State of reference if it were required to be authorised in accordance with Article 37 of the directive;”.

(3) At the end of regulation 2 insert—

“(4) Any reference in these Regulations to cancellation of a Part 4A permission to carry on the regulated activity of managing an AIF includes reference to the variation of a Part 4A permission to remove the regulated activity of managing an AIF from those activities to which the permission relates.”.

(4) In regulation 5 (applications for Part 4A permission)—

(a) in paragraph (1) for “applies” in the first place it appears substitute “and regulation 5A apply”,

(b) in paragraph (3)(b) for “the regulator” substitute “subject to regulation 5A(4), the regulator”,

(c) in paragraph (4) for “The regulator” substitute “Subject to regulation 5A(5), the regulator”,

(d) in paragraph (7) for “If the regulator” substitute “Subject to regulation 5A(5), if the regulator”, and

(e) in paragraph (8) for “An application” substitute “Subject to regulation 5A(6), an application”.

(5) After regulation 5 insert—

“Applications by AIFMs from third countries

5A.— (1) Paragraph (2) applies where—

(a) a person whose registered office is in a third country intends to become authorised under the directive in an EEA State in order to manage or market an AIF in an EEA State;

(b) there is more than one EEA State that may be the person’s Member State of reference; and

(c) the United Kingdom is a possible Member State of reference.

(2) The person must submit a request to the FCA and to the competent authority of each other possible Member State of reference to determine its Member State of reference.

(3) In the case of an applicant for Part 4A permission whose registered office is in a third country, the regulator must not give the Part 4A permission unless, in addition to the conditions specified in regulation 5(3) being met—

(a) the regulator is satisfied that the determination by the applicant that the United Kingdom is its Member State of reference complies with the criteria laid down in Article 37.4 of the directive;

(b) the applicant has appointed a legal representative who—

(i) is the point of contact for the FCA, other competent authorities, ESMA and investors in relation to the AIFs managed or to be managed by the applicant;

(ii) is sufficiently equipped to perform the compliance function pursuant to the directive in relation to those AIFs; and

(iii) if an individual, is domiciled in the United Kingdom, or if not an individual, has a registered office or a branch in the United Kingdom;

(c) appropriate co-operation arrangements are in place between the FCA, the competent authority in relation to any EEA AIF managed by the applicant, and the supervisory authorities of the third country in which the applicant has its registered office, in order to ensure an efficient exchange of information that enables the FCA and any other relevant competent authority to carry out their duties in accordance with the directive;

(d) the third country in which the applicant has its registered office is not listed as a Non-Cooperative Country and Territory by the Financial Action Task Force;

(e) the third country in which the applicant has its registered office has signed an agreement with the United Kingdom, which fully complies with the standards laid down in Article 26 of the Organisation for Economic Co-operation and Development’s Model Tax Convention on Income and on Capital and ensures an effective exchange of information on tax matters, including any multilateral tax agreements; and

(f) the effective exercise by the FCA or the competent authority in relation to any EEA AIF managed by the applicant of its supervisory functions under the directive is not prevented by the laws, regulations or administrative provisions of a third country which apply to the applicant, nor by limitations in the supervisory and investigatory powers of that country’s supervisory authorities.

(4) Notwithstanding regulation 5(3)(b), the regulator may give the Part 4A permission to an applicant whose registered office is in a third country if the regulator is satisfied that—

(a) it is impossible for the applicant to comply with an implementing provision applicable to a full-scope UK AIFM which has its registered office in a third country because of a mandatory provision in the law that applies to the applicant or a third country AIF that the applicant intends to market in an EEA State,

(b) the law that applies to the applicant or the third country AIF provides for a rule that is equivalent to that implementing provision, has the same regulatory purpose as that provision and offers the same level of protection to the investors of the AIFs managed by the applicant or, as the case may be, the investors of that AIF, and

(c) the applicant or, as the case may be, the AIF complies with that equivalent rule.

(5) Where regulation 8A(3) or (7)(a) applies, when calculating the periods mentioned in regulation 5(4) and (7), the period starting with the date on which the regulator notifies or informs ESMA in accordance with regulation 8A(3) or (7)(a) and ending with the date on which ESMA issues advice under paragraph 5 or 9 of Article 37 of the directive is not to be counted.

(6) In the case of an applicant whose registered office is in a third country, the application is complete if, in addition to containing the information mentioned in regulation 5(8), it contains—

(a) a justification by the applicant of its assessment regarding the Member State of reference in accordance with the criteria set out in Article 37.4 of the directive, with information on the applicant’s marketing strategy;

(b) a list of any implementing provisions with which it is impossible for the applicant to comply because of a mandatory provision in the law that applies to the applicant or a third country AIF that the applicant intends to market in an EEA State, or confirmation that there are no such provisions;

(c) if any provision is included in a list provided under sub-paragraph (b), written evidence that—

(i) the law that applies to the applicant or the third country AIF provides for a rule that is equivalent to the provision;

(ii) the equivalent provision has the same regulatory purpose as the provision included in the list provided under sub-paragraph (b);

(iii) the equivalent provision offers the same level of protection to the investors of the AIFs managed by the applicant or, as the case may be, the investors of the third country AIF; and

(iv) the applicant or, as the case may be, the third country AIF complies with that equivalent rule,

such evidence being based on regulatory standards developed by ESMA;

(d) if evidence is provided under sub-paragraph (c), a legal opinion in support of the evidence on the existence of the relevant mandatory provision, and a description of the regulatory purpose of and the nature of the investor protection pursued by the equivalent rule;

(e) the name of the legal representative of the applicant and the place where the legal representative has its registered office or a branch (in the case of a legal person) or where he or she is domiciled (in the case of an individual).”.

(6) For regulation 8 (notification to ESMA) substitute–—

“Change of Member State of reference

8.— (1) The FCA must require a full-scope UK AIFM that has its registered office in a third country to indicate to the FCA its Member State of reference based on its actual marketing strategy if—

(a) it appears from the actual course of the AIFM’s business development in the EEA within a period of 2 years from the date on which it was given Part 4A permission to carry on the regulated activity of managing an AIF that the marketing strategy presented by the AIFM in its application for such Part 4A permission was not followed;

(b) the AIFM made false statements in relation to its marketing strategy in connection with its application for Part 4A permission; or

(c) the AIFM changes its marketing strategy without complying with implementing provisions relating to Article 37.11 of the directive(15).

(2) If an AIFM does not comply with a requirement under paragraph (1), the FCA must cancel the AIFM’s Part 4A permission to carry on the regulated activity of managing an AIF.

(3) Paragraphs (4) to (8) apply where the FCA receives—

(a) an indication by a full-scope UK AIFM that has its registered office in a third country following a requirement imposed under paragraph (1);

(b) a notification by a full-scope UK AIFM that has its registered office in a third country under implementing provisions relating to Article 37.11 of the directive(16); or

(c) a request by a full-scope UK AIFM that has its registered office in a third country to change its Member State of reference on the basis of a change to its marketing strategy made more than 2 years after the date on which it was given Part 4A permission to carry on the regulated activity of managing an AIF.

(4) The FCA must—

(a) assess whether the AIFM’s determination of its Member State of reference is correct; and

(b) notify ESMA of its assessment and provide with that notification—

(i) the AIFM’s justification of its determination regarding its Member State of reference; and

(ii) information on the AIFM’s new marketing strategy.

(5) After receiving advice issued by ESMA under the third sub-paragraph of Article 37.11 of the directive, the FCA must—

(a) decide whether the AIFM’s determination of its Member State of reference is correct; and

(b) inform the AIFM, the AIFM’s original legal representative and ESMA of its decision.

(6) If the AIFM determined that its Member State of reference is an EEA State other than the United Kingdom and the FCA decides that the AIFM’s determination of its Member State of reference is correct, the FCA must—

(a) inform the competent authority of the new Member State of reference of the change; and

(b) transfer a copy of the authorisation and the supervision file relating to the AIFM to the competent authority of the new Member State of reference.

(7) On the date on which the FCA transfers the authorisation and the supervision file relating to the AIFM in accordance with paragraph (6)(b), the FCA must cancel the AIFM’s Part 4A permission to carry on the regulated activity of managing an AIF.

(8) If the FCA’s decision under paragraph (5)(a) is contrary to advice issued by ESMA under the third sub-paragraph of Article 37.11 of the directive—

(a) the FCA must inform ESMA, stating its reasons;

(b) if the AIFM markets units or shares of an AIF managed by it in an EEA State other than the United Kingdom, the FCA must inform the competent authority of that EEA State, stating its reasons;

(c) if the AIFM manages an EEA AIF, the FCA must inform the competent authority for that EEA AIF, stating its reasons.

(9) If the authorisation and the supervision file relating to an AIFM is transferred to the FCA by a competent authority under the fifth sub-paragraph of Article 37.11 of the directive, from the date of transmission of the authorisation and the supervision file the AIFM has a Part 4A permission to carry on the regulated activity of managing an AIF.

Other notifications to ESMA

8A.— (1) The FCA must inform ESMA—

(a) without undue delay, about the outcome of an application for permission under Part 4A of the Act to carry on the regulated activity of managing an AIF from a person whose registered office is in a third country;

(b) where an application referred to at sub-paragraph (a) is refused, about the applicant and the reasons for the refusal; and

(c) on a quarterly basis, about—

(i) permissions granted under Part 4A of the Act to full-scope UK AIFMs to carry on the regulated activity of managing an AIF;

(ii) the cancellation of such permissions; and

(iii) the AIFs managed or marketed in EEA States by full-scope UK AIFMs.

(2) Paragraphs (3) and (4) apply where—

(a) a regulator receives an application for permission under Part 4A of the Act to carry on the regulated activity of managing an AIF from a person whose registered office is in a third country, and

(b) the regulator assesses that the determination by the applicant that the United Kingdom is its Member State of reference complies with the criteria laid down in Article 37.4 of the directive.

(3) Before determining the application, the regulator must notify ESMA and must, in the notification—

(a) request advice on the regulator’s assessment of the applicant’s determination of its Member State of reference;

(b) provide the justification given by the applicant regarding its determination of the Member State of reference; and

(c) provide information on the applicant’s marketing strategy.

(4) If the regulator proposes to give the permission otherwise than in accordance with advice issued by ESMA under Article 37.5 of the directive, before giving the permission—

(a) the regulator must inform ESMA, stating its reasons;

(b) if the applicant intends to market units or shares of an AIF managed by it in an EEA State other than the United Kingdom, the regulator must inform the competent authority of that EEA State, stating its reasons;

(c) if the applicant manages or intends to manage an EEA AIF, the regulator must inform the competent authority for that EEA AIF, stating its reasons.

(5) Paragraphs (6) and (7) apply where—

(a) a regulator receives an application for permission under Part 4A of the Act to carry on the regulated activity of managing an AIF from a person whose registered office is in a third country, and

(b) the regulator is satisfied that the conditions specified in regulation 5A(4) are met (impossible for applicant to comply with implementing provision).

(6) The regulator must, without undue delay, notify ESMA and provide to ESMA the information mentioned at regulation 5A(6)(b) to (d).

(7) If the regulator proposes to give the permission contrary to advice issued by ESMA under Article 37.9 of the directive—

(a) the regulator must inform ESMA, stating its reasons;

(b) if the applicant intends to market units or shares of an AIF managed by it in an EEA State other than the United Kingdom, the regulator must inform the competent authority of that EEA State, stating its reasons.

(8) The FCA must inform ESMA where, in relation to an AIF managed by a full-scope UK AIFM with its registered office in a third country, or a third country AIF or a third country feeder AIF managed by a full-scope UK AIFM with its registered office in the United Kingdom—

(a) the FCA approves the marketing of the AIF under regulation 54 or sends a copy of a notice of intention in respect of the marketing of the AIF under paragraph 20C of Schedule 3 to the Act;

(b) a change is made or planned to information provided by the AIFM under regulation 54(2)(b) in respect of which the FCA has not informed the AIFM under regulation 55(2) and has not required the FCA to take steps under 55(3), and the change results in the termination of the marketing of the AIF or the marketing of an additional AIF; or

(c) a change is made or planned in relation to which regulation 17A(8) of the Financial Services and Markets Act 2000 (EEA Passport Rights) Regulations 2001 applies, and the change results in the termination of the marketing of the AIF or the marketing of an additional AIF.

(9) If the FCA considers that a full-scope UK AIFM that has its registered office in a third country is in breach of an obligation under an implementing provision, it must notify ESMA as soon as possible, explaining why it considers the AIFM to be in breach of such obligation.”.

(7) For regulation 10(2)(c) (small registered UK AIFMs) substitute—

“(c) either—

(i) in the case of an AIFM with its registered office in the United Kingdom, grounds do not exist which would permit or require a court to make a disqualification order within the meaning of section 1(1) of the Company Directors Disqualification Act 1986(13) against an individual responsible for the management or operation of the AIFM; or

(ii) in the case of an AIFM with its registered office in a third country, such grounds would not exist if the AIFM were a company incorporated in the United Kingdom.”.

(8) For regulation 29(1) (depositary liability: general provisions) for the words from “in relation to” to the end substitute—

“in relation to—

(a) the depositary of a UK AIF managed by a full-scope UK AIFM or an EEA AIFM; or

(b) the depositary of a third country AIF managed by a full-scope UK AIFM if—

(i) the depositary has its registered office or a branch in the United Kingdom; and

(ii) the AIF is marketed otherwise than pursuant to provisions implementing Article 36 or Article 42 of the directive.”.

(9) In regulation 33 (management of third country AIFs) after “full-scope UK AIFM” insert “that has its registered office in the United Kingdom”.

(10) In regulation 49 (marketing by full-scope EEA AIFMs of certain AIFs)—

(a) in the heading omit “of certain AIFs”,

(b) in the opening words omit “that does not fall within regulation 57(1)”,

(c) at the end of sub-paragraph (a) omit “or”, and

(d) after sub-paragraph (b) insert—

“; or

(c) the marketing is permitted under regulation 50.”.

(11) For the table in regulation 50 (marketing by AIFMs of other AIFs) substitute the following table—

“A – AIFM	B – AIF	C – Condition
Full-scope UK AIFM with its registered office in the United Kingdom	An AIF that is not a third country AIF or a third country feeder AIF	The FCA has approved marketing of the AIF in accordance with regulation 54.
Full-scope UK AIFM with its registered office in the United Kingdom	A third country AIF or a third country feeder AIF	The FCA has approved marketing of the AIF in accordance with regulation 54; or the AIFM has notified the FCA in accordance with regulation 57 and meets the conditions at regulation 57(4)(a) to (c), and the FCA has not suspended or revoked the AIFM’s entitlement to market the AIF.
Full-scope UK AIFM with its registered office in a third country	Any AIF	The FCA has approved marketing of the AIF in accordance with regulation 54; or the AIFM has notified the FCA in accordance with regulation 59 and meets the conditions at regulation 59(2)(a) to (e), and the FCA has not suspended or revoked the AIFM’s entitlement to market the AIF.
Full-scope EEA AIFM with its registered office in an EEA State other than the United Kingdom	A third country AIF or a third country feeder AIF	The marketing is permitted under regulation 49; or the AIFM has notified the FCA in accordance with regulation 57 and meets the conditions at regulation 57(4)(a) to (c), and the FCA has not suspended or revoked the AIFM’s entitlement to market the AIF.
Full-scope EEA AIFM with its registered office in a third country	Any AIF	The marketing is permitted under regulation 49; or the AIFM has notified the FCA in accordance with regulation 59 and meets the conditions at regulation 59(2)(a) to (e), and the FCA has not suspended or revoked the AIFM’s entitlement to market the AIF.
Small third country AIFM that is not a full-scope UK AIFM or a full-scope EEA AIFM	Any AIF	The AIFM is a small registered UK AIFM or a small authorised UK AIFM; or the AIFM has notified the FCA in accordance with regulation 58 and meets the conditions at regulation 58(2)(a) and (b), and the FCA has not suspended or revoked the AIFM’s entitlement to market the AIF.
Third country AIFM that is not a small AIFM, a full-scope UK AIFM or a full-scope EEA AIFM	Any AIF	The AIFM has notified the FCA in accordance with regulation 59 and meets the conditions at regulation 59(2)(a) to (e), and the FCA has not suspended or revoked the AIFM’s entitlement to market the AIF.”

(12) In regulation 54 (FCA approval for marketing)—

(a) for paragraph (1) substitute—

“(1) This regulation applies to—

(a) a full-scope UK AIFM seeking to market in the United Kingdom an AIF managed by the AIFM;

(b) a full-scope EEA AIFM seeking to market in the United Kingdom to retail investors an AIF managed by the AIFM, where the FCA has not received a regulator’s notice in relation to the marketing of the AIF in accordance with Schedule 3 to the Act (EEA passport rights).”, and

(b) after paragraph (8) insert—

“(9) The FCA must refuse an application if satisfied that the AIF is a third country AIF or a third-country feeder AIF and the following conditions are not met—

(a) appropriate co-operation arrangements are in place between the FCA (or, in the case of an AIF managed by an AIFM with its registered office in an EEA State other than the UK, the competent authority in that EEA State) and the supervisory authorities of the relevant third country in order to ensure an efficient exchange of information that allows the FCA or competent authority to carry out its duties in accordance with the directive;

(b) the relevant third country is not listed as a Non-Cooperative Country and Territory by the Financial Action Task Force; and

(c) the relevant third country has signed an agreement with the United Kingdom (or, in the case of an AIF managed by an AIFM with is registered office in an EEA State other than the UK, with that EEA State) and with each other EEA State in which the units or shares of the AIF are intended to be marketed, which fully complies with the standards laid down in Article 26 of the Organisation for Economic Co-operation and Development’s Model Tax Convention on Income and on Capital 2010(14) and ensures an effective exchange of information on tax matters, including any multilateral tax agreements.

(10) In paragraph (9) “relevant third country” means—

(a) in relation to a third country AIF, the country in which the AIF is authorised or registered or, if the relevant AIF is not authorised or registered, the country in which it has its registered office;

(b) in relation to a third country feeder AIF, the country in which the AIF’s master AIF is authorised or registered or, if the master AIF is not authorised or registered, the country in which it has its registered office.”.

(13) In regulation 57 (marketing under Article 36 of the directive)—

(a) in paragraph (3) for “must give written notification to the FCA before marketing” substitute “may give written notification to the FCA that it intends to market”, and

(b) at the beginning of paragraph (5) for “The AIFM” substitute “An AIFM that has given a notification under paragraph (3)”.

(14) In regulation 58 (marketing of AIFs managed by small third country AIFMs)—

(a) in paragraph (1) for “must give written notification to the FCA before marketing” substitute “may give written notification to the FCA that it intends to market”, and

(b) at the beginning of paragraph (3) for “The AIFM” substitute “An AIFM that has given a notification under paragraph (1)”.

(15) In regulation 59 (marketing under Article 42 of the directive)—

(a) in paragraph (1) for “must give written notification to the FCA before marketing” substitute “may give written notification to the FCA that it intends to market”, and

(b) after paragraph (4) insert—

“(5) Paragraph (6) applies where a full-scope UK AIFM that has its registered office in a third country markets an AIF only—

(a) pursuant to a notification under this regulation, or

(b) pursuant to provisions in other states implementing Article 42.

(6) The AIFM need not comply with implementing provisions in respect of the AIF other than as required by this Part.”.

(1)

Section 55V was inserted by section 11 of the Financial Services Act 2012 (c.21) and amended by the principal regulations

(2)

Inserted by S.I. 2007/126, substituted by S.I. 2011/1613 and amended by paragraph 35 of Schedule 4 to the Financial Services Act 2012, S.I. 2012/916 and the principal regulations

(3)

Amended by S.I. 2002/1775 and S.I. 2012/1906

(4)

Inserted by the principal regulations

(5)

Inserted by S.I. 2003/1473 and amended by the principal regulations

(6)

Inserted by S.I. 2003/1473 and amended by the principal regulations

(7)

Inserted by the principal regulations

(8)

Inserted by the principal regulations

(9)

Inserted by the principal regulations

(10)

Inserted by the principal regulations

(11)

ISBN 978-92-64-17517-4

(12)

Paragraph 2B was substituted by S.I. 2013/555 and sub-paragraph (7) was inserted by the principal regulations

(13)

1986 c. 46. Section 1(1) was amended by section 204(1) and (3) of the Enterprise Act 2002 (c. 40) and section 5(1) of the Insolvency Act 2000 (c. 39)

(14)

ISBN 978-92-64-17517-4

(15)

The relevant paragraph of Article 37.11 of the directive is implemented by rule FUND 12.3.8R in Annex B to the Alternative Investment Fund Managers Directive (No.2) Instrument 2013, made by the Financial Conduct Authority, which can be found at http://media.fshandbook.info/Legislation/2013/FCA_2013_54.pdf.

(16)

The relevant paragraph of Article 37.11 of the directive is implemented as mentioned in footnote (a) above.