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The Alternative Investment Fund Managers Regulations 2013, PART9A is up to date with all changes known to be in force on or before 26 April 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
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Textual Amendments
F1Regulations revoked (14.12.2023 for the revocation of reg. 79) by Financial Services and Markets Act 2023 (c. 29), s. 86(3), Sch. 1 Pt. 2 (with s. 1(4)); S.I. 2023/1382, reg. 2(c)(vi)
F2Pt. 9A inserted (20.2.2019) by The Alternative Investment Fund Managers (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/328), regs. 1(2), 14 (as amended by S.I. 2019/325, reg. 58)
78A.—(1) If this regulation applies—
(a)an AIF, a EuVECA or a EuSEF (a “relevant fund”) may be marketed in the United Kingdom on the same terms and subject to the same conditions as the relevant fund was, or could have been, marketed in the United Kingdom before [F3IP completion day] until the end of the period determined in accordance with regulation 78C;
(b)an AIFM which is authorised (in accordance with Article 6.1 of the alternative investment fund managers directive) by its home state regulator (“an EEA AIFM”) may continue to market a UK AIF in the United Kingdom on the same terms and subject to the same conditions as it was able to do before [F3IP completion day] until the end of the period determined in accordance with regulation 78C.
(2) This regulation applies in relation to AIFs where—
(a)an EEA AIFM satisfied the conditions entitling it to market an EEA AIF in the United Kingdom before [F3IP completion day] under regulation 49;
(b)the entitlement to market that AIF has not been suspended or revoked before [F3IP completion day];
(c)the AIFM of the AIF has, before [F3IP completion day], notified the FCA that it wishes the relevant fund to have temporary permission to be marketed in the United Kingdom after [F3IP completion day] under paragraph (1); and
(d)the AIFM is an authorised person, or is authorised or registered as an AIFM in a Member State.
(3) This regulation applies in relation to EuVECAs where—
(a)the EuVECA is—
(i)registered under Article 14a of the EuVECA Regulation (as it applies in the European Union) in a Member State, or
(ii)managed by a small registered UK AIFM or a EuVECA Manager;
(b)the FCA has, before [F3IP completion day], received a notification under Article 16 of the EuVECA Regulation that the United Kingdom has been added to the list of Member States in which the manager intends to market the EuVECA;
(c)the AIFM or EuVECA Manager of the EuVECA—
(i)has not been subject to any sanctions under Article 18 of the EuVECA Regulation, and
(ii)has notified the FCA that it wishes the relevant fund to have temporary permission to be marketed in the United Kingdom after [F3IP completion day] under paragraph (1).
(4) This regulation applies in relation to EuSEFs where—
(a)the EuSEF is—
(i)registered under Article 15a of the EuSEF Regulation (as it applies in the European Union), or
(ii)managed by a small registered UK AIFM or a EuSEF Manager;
(b)the FCA has, before [F3IP completion day], received a notification under Article 17 of the EuSEF Regulation that the United Kingdom has been added to the list of Member States in which the manager intends to market the EuSEF;
(c)the AIFM or EuSEF Manager marketing the relevant fund—
(i)has not been subject to any sanctions under Article 19 of the EuSEF Regulation, and
(ii)has notified the FCA that it wishes the relevant fund to have temporary permission to be marketed in the United Kingdom after [F3IP completion day] under paragraph (1).
(5) This regulation applies in relation to EEA AIFMs marketing UK AIFs where the EEA AIFM—
(a)satisfied the conditions entitling it to market the UK AIF in the United Kingdom before [F3IP completion day] under regulation 49;
(b)is authorised or registered as an AIFM in a Member State;
(c)has notified the FCA that it wishes to have temporary permission to market the UK AIF in the United Kingdom after [F3IP completion day] under paragraph (1).
(6) For the purposes of paragraphs (2)(c), (3)(c)(ii), (4)(c)(ii) and (5)(c), the notification must—
(a)be made in such manner, and during such period, and
(b)contain, or be accompanied by, such information,
as the FCA may direct.
(7) The power to give a direction under this regulation includes the power—
(a)to give different directions to different persons or categories of person;
(b)to vary or revoke a previous direction.
Textual Amendments
F3Words in reg. 78A substituted (31.1.2020 immediately before exit day) by The Financial Services (Consequential Amendments) Regulations 2020 (S.I. 2020/56), regs. 1, 3(a)
78B.—(1) During the period referred to in regulation 78A(1), an EEA AIFM (as defined by regulation 78A(1)(b)) is to be treated as if it is an authorised person for the purposes of the Act if it satisfies the conditions in paragraph (2).
(2) An EEA AIFM satisfies the conditions in this paragraph if—
(a)immediately before [F4IP completion day] the EEA AIFM—
(i)was marketing an EEA AIF or a UK AIF in the United Kingdom in reliance on its rights under Article 32 of the directive; and
(ii)was authorised to carry on a regulated activity in the United Kingdom by virtue of section 31(1)(b) or (c) (but not section 31(1)(a)) of the Act; and
(b)after [F4IP completion day], it is permitted to market that EEA AIF under regulation 78A.
Textual Amendments
F4Words in reg. 78B substituted (31.1.2020 immediately before exit day) by The Financial Services (Consequential Amendments) Regulations 2020 (S.I. 2020/56), regs. 1, 3(b)
78C.—(1) The period referred to in regulation 78A(1) (“the relevant period”) ends—
(a)after three years beginning with the day on which [F5IP completion day] occurs; or
(b)if paragraph (4) applies, the day determined in accordance with paragraph (4).
(2) Paragraph (4) applies where a person has given written notification under regulation 57 (subject to paragraph (3)), 58 or 59—
(a)during such period, ending no later than the end of the period of two years beginning with the day on which [F5IP completion day] occurs (“the two year period”), as the FCA may direct, or
(b)if the FCA does not direct such a period, before the end of the two year period.
(3) If an AIF was marketed in the United Kingdom by an EEA AIFM before [F5IP completion day] under regulation 57, the AIFM must give notice to the FCA for the purposes of paragraph (2) under regulation 58 or 59.
(4) Where this paragraph applies, the relevant period ends with the day after the day on which notice is given by the person concerned.
(5) If the FCA exercises the power to direct a period during which notice may be given, the FCA must direct the same period in relation to all persons to whom the power relates.
(6) Subject to paragraph (5), the power to give a direction under this regulation includes the power—
(a)to give different directions to different persons or categories of person;
(b)to vary or revoke a previous direction.
Textual Amendments
F5Words in reg. 78C substituted (31.1.2020 immediately before exit day) by The Financial Services (Consequential Amendments) Regulations 2020 (S.I. 2020/56), regs. 1, 3(c)
78D. The FCA’s powers under regulations 62, 63 and 64 are exercisable in relation to an AIF, EuVECA or EuSEF marketed under regulation 78A as they are in relation to an entitlement to market an AIF following a notification under regulation 57, 58 or 59, but with the modification that references in those regulations—
(a)to a notification under regulation 57, 58 or 59 are to be read as references to notification under regulation 78A;
(b)to an AIF are to be read as including references to a EuVECA and EuSEF.
78E.—(1) The Treasury may by regulations made by statutory instrument amend regulation 78C(1)(a) to extend the period during which a relevant fund or a UK AIF may be marketed in the United Kingdom under regulation 78A(1) (“the relevant period”), if the Treasury considers it necessary to do so.
(2) The Treasury may only make regulations under paragraph (1) if, no later than six months before the end of the period to be extended, the FCA has submitted to the Treasury an assessment as to the effect of extending, and not extending, the relevant period on—
(a)persons entitled to market AIFs pursuant to regulation 78A;
(b)the financial markets; and
(c)the ability of the FCA to discharge its functions in a way that advances the FCA’s objectives under Part 1A of the Act.
(3) Regulations under paragraph (1) may not extend the relevant period by more than 12 months.
(4) A statutory instrument which contains regulations under paragraph (1) is subject to annulment in pursuance of a resolution of either House of Parliament.]]
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