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Central Bank of Ireland issues an updated “AIFMD - Questions and Answers”
On the 23 January 2015 the Central Bank of Ireland issued an updated version of its document “AIFMD - Questions and Answers”. They relate to delegation (question ID1085), transitional arrangements (ID1086-ID1087) and disclosure (ID1088).
I am an Irish authorised AIFM and I manage AIFs which are not authorised by the Central Bank. Does the guidance set out on the Central Banks website entitled “Third Party Notification and Fund Authorisation Processes” apply to arrangements relating to the delegation of investment management in respect of those AIF?
No. That particular guidance relates to the authorisation of investment funds and the powers available to the Central Bank under domestic investment fund legislation. An AIFM authorised in Ireland under the AIFM Regulations, which proposes to delegate investment management in relation to AIFs which are not authorised by the Central Bank, must nonetheless comply with Regulation 21 of the AIFM Regulations which inter alia requires that an AIFM must notify the Central Bank fully before any delegation arrangements become effective. Should the Central Bank have concerns regarding any proposed arrangements, these concerns will be pursued with the AIFM.
I am a non-EU AIFM who will be the designated AIFM for a QIAIF. Am I subject to the investment manager notification process as described in the Central Bank’s guidance “Third Party Notification and Fund Authorisation Processes”?
Yes. As you are not an authorised AIFM within the European Union, the Central Bank will apply the investment manager notification process which will inter alia require you to complete the Investment Manager Notification form.
Can an AIFM authorised in a non-EU EEA Member State manage and market AIF in Ireland or act as a delegate investment manager to an Irish authorised AIFM?
In light of the agreement in October 2014 to incorporate the EU ESAs Regulations into the EEA Agreement and pending amendment of that agreement to include AIFMD, the Central Bank will permit AIFMs authorised in the EEA to manage and market AIF in Ireland, under Article 42 of AIFMD, or act as a delegate investment manager to an Irish authorised AIFM, as long as the supervisory authority of the AIFM has already entered into the ESMA Multilateral Memorandum of Understanding. Pending amendment of the EEA agreement to include AIFMD, applications from AIFMs authorised in a non-EU EEA Member State will be processed under the procedure set out in Articles 32-33 of AIFMD and accordingly will be submitted to the Central Bank by the relevant authority. As a result, once the EEA agreement has been amended to include AIFMD, there will be no need to submit new applications in relation to these AIFM.
Regulation 24(4) of the AIFM Regulations requires AIFMs to provide certain disclosures on a periodic basis. Regulation 24(5) requires certain other disclosures on a regular basis. Is it sufficient if, in respect of the AIFs I manage and in accordance with the Level 2 Regulation, I provide these disclosures in the AIF periodic reports?
It would be sufficient to provide the disclosures required by Regulation 24(4)(a) and (c) and Regulation 24(5)(b) in periodic reports but only as long as you have indicated this in your prospectus in accordance with Regulation 24(1)(p) of the AIFM Regulations. In relation to Regulation 24(4)(b) and Regulation 24(5)(a), you must include in the prospectus an undertaking to provide details of any new arrangements for managing the liquidity of the AIF immediately and details of any changes to the maximum level of leverage, any right of re-use of collateral and any guarantee under leveraging arrangements without undue delay.