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The Alternative Investment Fund Managers (Amendment) Regulations 2013

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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..

(1)

Section 55V was inserted by section 11 of the Financial Services Act 2012 (c.21) and amended by the principal regulations Back [1]

(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

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