European Union (Alternative Investment Fund Managers) Regulations 2013
Source: Iris Oifigiúl 2013-07-30

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paragraphs: These Regulations may be cited as the European Union (Alternative Investment Fund Managers) Regulations 2013.
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paragraphs: These Regulations contain provisions—
(a) for the authorisation and ongoing operation of the managers of alternative investment funds who manage or market alternative investment funds in the State (or do both of the foregoing in the State) and provisions for securing the transparency of those activities of them; and
(b) otherwise giving effect to the Directive.
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paragraphs: (1) Subject to paragraph (3) and Regulation 4, these Regulations apply to—
(a) an AIFM established in the State which manages one or more than one AIF irrespective of whether such AIF is an EU AIF or a non-EU AIF;
(b) a non-EU AIFM whose Member State of reference is the State;
(c) an AIFM from another Member State which markets one or more than one EU AIF in the State;
(d) an AIFM from another Member State which manages one or more than one Irish AIF;
(e) an AIFM from another Member State which markets one or more than one non-EU AIF in the State; and
(f) a non-EU AIFM which markets one or more than one AIF in the State.
(2) For the purposes of paragraph (1), the following shall be immaterial:
(a) whether the AIF belongs to the open-ended or closed-ended type;
(b) whether the AIF is constituted under the law of contract, under trust law, under statute, or has any other legal form;
(c) the legal structure of the AIFM.
(3) These Regulations do not apply to the following entities:
(a) holding companies;
(b) institutions for occupational retirement provision to which Directive 2003/41/EC applies including, where applicable, the authorised entities responsible for managing such institutions and acting on their behalf referred to in Article 2(1) of that Directive or the investment managers appointed pursuant to Article 19(1) of that Directive, in so far as they do not manage alternative investment funds;
(c) supranational institutions, such as the European Central Bank, the European Investment Bank, the European Investment Fund, the European Development Finance Institutions and bilateral development banks, the World Bank, the International Monetary Fund, and other supranational institutions and similar international organisations, in the event that such institutions or organisations manage alternative investment funds and in so far as such funds act in the public interest;
(d) the Bank;
(e) state authorities or local authorities which manage funds supporting social security and pension systems.
(f) employee participation schemes or employee savings schemes;
(g) securitisation special purpose entities.
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paragraphs: (1) These Regulations do not apply to an AIFM in so far as it manages one or more than one AIF whose only investors are the AIFM or the parent undertakings or the subsidiaries of the AIFM or other subsidiaries of those parent undertakings, provided that none of those investors is itself an AIF.
(2) Paragraphs (3) to (5) of this Regulation, and no other provision of these Regulations, with the exception of Regulations 48 and 49, shall apply to an AIFM falling within either of the following subparagraphs:
(a) an AIFM which either directly or indirectly, through a company with which the AIFM is linked by common management or control, or by a substantive direct or indirect holding, manages portfolios of alternative investment funds whose assets under management (including any assets acquired through use of leverage) do not exceed, in total, €100 million; or
(b) an AIFM which either directly or indirectly, through a company with which the AIFM is linked by common management or control, or by a substantive direct or indirect holding, manage portfolios of alternative investment funds whose assets under management do not exceed, in total, €500 million and those portfolios consist of alternative investment funds that—
(i) are unleveraged, and
(ii) have no redemption rights exercisable during a period of 5 years following the date of initial investment in each AIF.
(3) An AIFM referred to in paragraph (2)(a) or (b) shall—
(a) register with the Bank,
(b) at the time of registration, identify itself and the alternative investment funds that it manages to the Bank,
(c) at the time of registration, provide the Bank with information on the investment strategies of the alternative investment funds that it manages,
(d) provide the Bank, at regular intervals, with information on the main instruments in which it is trading and on the principal exposures and most important concentrations of the alternative investment funds that it manages in order to enable the Bank to monitor systemic risk effectively, and
(e) notify the Bank, in the event that it no longer meets the conditions referred to in paragraph (2), of that fact.
(4) Where the conditions referred to in paragraph (2) are no longer met, the AIFM concerned shall apply for authorisation under these Regulations within 30 days after the date of such occurring in accordance with the relevant procedures specified in these Regulations.
(5) The Bank may impose such requirements as it considers appropriate on an AIFM which stands registered with the Bank under this Regulation and the AIFM shall comply with any such requirements. Those requirements shall be no more onerous than the requirements to which an authorised AIFM is subject by or under these Regulations.
(6) An AIFM referred to in paragraph (2)(a) or (b) shall not benefit from any of the rights granted under these Regulations unless it chooses to opt in under these Regulations. Where an AIFM so opts in, these Regulations shall become applicable in their entirety to it.
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paragraphs: (1) In these Regulations—
(a) raises capital from a number of investors, with a view to investing it in accordance with a defined investment policy for the benefit of those investors, and
(b) does not require authorisation under Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS):
“alternative investment fund manager” or “AIFM” means a legal person whose regular business is managing one or more than one AIF;
“Bank” means the Central Bank of Ireland;
“branch”, in relation to an AIFM, means a place of business which is a part of the AIFM, which has no legal personality and which provides the services for which the AIFM has been authorised; where all the places of business of an AIFM, whose registered office is in another Member State or in a third country, are established in the State, they shall be regarded as a single branch;
“carried interest” means a share in the profits of the AIF accrued to the AIFM as compensation for the management of the AIF and excluding any share in the profits of the AIF accrued to the AIFM as a return on any investment by the AIFM into theAIF;
“close links” means a situation in which two or more natural or legal persons are linked by:
(a) participation, namely ownership, directly or by way of control, of 20 per cent or more of the voting rights or capital of an undertaking,
(b) control, namely the relationship between a parent undertaking and a subsidiary, as referred to in Regulation 4 of the European Communities (Companies: Group Accounts) Regulations 1992 ( S.I. No. 201 of 1992 ), or a similar relationship between a natural or legal person and an undertaking; for the purposes of this subparagraph a subsidiary undertaking of a subsidiary undertaking shall also be considered to be a subsidiary of the parent undertaking of those subsidiaries.
and a situation in which 2 or more natural or legal persons are permanently linked to the same person by a control relationship shall also be regarded as constituting a “close link” between such persons for the purpose of these Regulations;
“competent authority” means the Bank or, in the case of another Member State, the body or bodies designated by that state to act as a competent authority for the purposes of the Directive;
“competent authorities” in relation to a depositary means:
(a) if the depositary is a credit institution authorised under Directive 2006/48/EC, the competent authorities as defined in point (4) of Article 4 thereof,
(b) if the depositary is an investment firm authorised under Directive 2004/39/EC, the competent authorities as defined in point (22) of Article 4(1) thereof,
(c) if the depositary falls within a category of institution referred to in Regulation 22(3)(c), the Bank;
(d) if the depositary is an entity referred to in Regulation 22(3)(f), the national authorities of the Member State in which that entity has its registered office and which are empowered by law or regulation to supervise such entity or the official body competent to register or supervise such entity pursuant to the rules of professional conduct applicable thereto;
(e) if the depositary is appointed as depositary for a non-EU AIF in accordance with Regulation 22(5)(c) and does not fall within any of subparagraphs (a) to (d) of this definition, the relevant national authorities of the third country where the depositary has its registered office;
“competent authorities of the EU AIF” means the national authorities of a Member State which are empowered by law or regulation to supervise alternative investment funds;
“contravene”, in relation to a provision, includes fail to comply with the provision;
“control” means the relationship between a parent undertaking and a subsidiary, in all the cases being the relationship referred to in Regulation 4 of the European Communities (Companies: Group Accounts) Regulations 1992 ( S.I. No. 201 of 1992 );
“employees’ representatives” means employees’ representatives as defined in point (e) of Article2 of Directive 2002/14/EC;
“ESMA” means the European Securities and Markets Authority established by Regulation (EU) No. 1095/2010 of the European Parliament and of the Council of 24 November 2010;
“established”, in relation to a place, means:
(a) in the case of an AIFM, the AIFM having its registered office in the place;
(b) in the case of an AIF, the AIF being authorised or registered in the place, or, if the AIF is not authorised or registered, the AIF having its registered office in the place;
(c) in the case of a depositary, the depositary having its registered office or branch in the place;
(d) in the case of a legal representative that is a legal person, the legal representative having its registered office or branch in the place;
(e) in the case of a legal representative who is a natural person, the legal representative being domiciled in the place;
“EU alternative investment fund” or “EU AIF” means:
(a) an AIF which is authorised or registered in a Member State under the applicable national law; or
(b) an AIF which is not authorised or registered in a Member State, but has its registered office or head office, or both, in a Member State;
“EU alternative investment fund manager or “EU AIFM” means an AIFM which has its registered office in a Member State;
“external AIFM” shall be read in accordance with Regulation 6(2)(a);
“feeder alternative investment fund” or “feeder AIF” means an AIF which:
(a) invests at least 85 per cent of its assets in units or shares of another AIF (the “master alternative investment fund”),
(b) invests at least 85 per cent of its assets in more than one master alternative investment fund where those master alternative investment funds have identical investment strategies; or
(c) has otherwise an exposure of at least 85 per cent of its assets to such a master alternative investment fund;