IRELAND: Central Bank of Ireland Publishes Thirteenth Edition of the AIFMD Q&A

Wednesday June 17 2015

The Central Bank of Ireland has published a thirteenth edition of the AIFMD Q&A, with amendments to questions ID 1030 and ID 1058.  New questions ID1093 (Marketing of unauthorised AIF) has been included.

ID 1030: Can a professional investor fund or a QIAIF have a non-EU AIFM?

Under the current transitional arrangements for AIFMD, a professional investor fund or a QIAIF can have a non-EU AIFM. However, in accordance with Article 67(1)(b) of the AIFMD, ESMA has to issue advice to the European Commission on inter alia the application of the AIFMD passport to non-EU AIFMs by 22 July 2015. If that advice is positive, the European Commission must, by 22 October 2015, adopt a delegated act specifying the date when the non-EU AIFM passport will be ‘turned on’. This process is underway and the outcome is not yet known. Accordingly, professional investor funds and QIAIFs can continue to be managed by non-EU AIFMs under the existing transitional arrangements until at least 22 October 2015. At that time this position will be revisited and, if necessary, revised to align it with the European Commission’s decision and any transitional arrangements provided.

ID 1058: I am a professional investor fund. When will the NU Series of Notices cease to apply to me? What rules will apply instead?

A professional investor fund will continue to be subject to the NU Series of Notices until the date that its AIFM becomes registered or authorised. From that date, the professional investor fund will be subject to a number of conditions the cumulative effect of which will be to apply an equivalent regime to the professional investor fund regime as is currently set out in the NU Series of Notices. For example, it will be subject to a condition that it shall comply with the provisions of its prospectus and to conditions concerning the publication and content of financial statements. If the professional investor fund has a registered AIFM, its depository will also be subject to a condition that it shall comply with the AIFMD depository regime, except in relation to depository liability. The current non-UCITS depository liability regime will apply instead unless the parties choose to apply the AIFMD depositary liability regime.

A professional investor fund may convert to become a RIAIF or a QIAIF in which case it must comply with all of the rules applicable to a RIAIF or QIAIF.

ID 1093: I am an unauthorised AIF with Irish retail investors due to secondary market trading in my units. I am proposing a rights issue and pursuant to Company law must provide relevant documentation to all existing shareholders. Does the circulation of this documentation come within the scope of marketing to retail investors?

The Central Bank does not consider the provision of documents, including rights issue and/or open offer documentation, to existing investors, as an actionable breach of the rules in relation to the marketing of AIF provided that the documentation is strictly confined to what is necessary to comply with applicable law obligations in relation to the treatment of shareholders.

Click on the link above for further details.