On 7 March 2014, the Central Bank published an eighth edition of the AIFMD Q&A. Amendments were made to questions ID 1041, ID 1046 and ID 1058. New questions ID 1069 and ID 1070 were included. The up-to-date position on the various queries is set out below.
ID 1041 - AIFs in liquidation
Q. My AIF is in liquidation or will be in liquidation during the transitional period and I do not propose to establish new AIF. Must I seek authorisation before 22 July 2014?
A. Subject to the AIFM Regulations, the Central Bank considers that AIFMs acting solely for AIF which are in liquidation or will be in liquidation during the transitional period will not require authorisation provided the AIF have entered into a liquidation process before the expiry of the transitional period. The reference to “liquidation” should also be taken to refer to AIF which are undergoing a termination process.
ID 1046 - Transitional arrangements
Q. I am a non-EU AIFM marketing both EU and non-EU AIF to professional investors in Ireland. Can I continue to market these AIF and/or other AIF now that the AIFM Regulations have been implemented?
A. Regulation 43 of the AIFM Regulations permits the marketing by non-EU AIFM of both EU and non-EU AIF, including newly launched AIF, to professional investors. You can continue to market EU and non-EU AIF to professional investors in Ireland. You must comply with the AIFM Regulations on a best efforts basis and submit a notification which meets with the requirements of Regulation 43 before 22 July 2014 at the latest. Regulation 43 requires non-EU AIFM to comply with the reporting obligations set out in Regulation 25. ESMA has published guidelines in relation to AIFM reporting obligations. On 7 March 2014, the Central Bank published a statement concerning the first reporting dates for AIFMs subject to the AIFM Regulations. Non-EU AIFM marketing AIF to professional investors in Ireland must comply with the first reporting dates set out in that statement.
ID 1058 - Professional Investor Funds
Q. 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 condition that it shall comply with the provisions of its prospectus. If the professional investor fund has a registered AIFM, its depositary will also be subject to a condition that it shall comply with the AIFMD depositary regime, except in relation to depositary liability. The current non-UCITS depositary liability regime will apply instead. 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 1069 - MiFID authorisations
Q. Can an AIFM be authorised under MiFID and provide investment management services to managed accounts?
A. An entity authorised as an AIFM may not be authorised under MiFID but may, under Article 6(4) of AIFMD, be authorised to carry out “management of portfolios...in accordance with mandates given by investors on a discretionary, client-by-client basis”. Therefore, an AIFM may manage AIFs and managed accounts.
ID 1070 - Delegation
Q. I am an AIFM who proposes to appoint a delegate investment manager and this entity is not subject to regulation. What process will apply?
A. Regulation 21(1)(c) of the AIFM Regulations provides that “where the delegation concerns portfolio management or risk management, it shall be conferred only on undertakings which are authorised or registered for the purpose of asset management and subject to supervision or, where that condition cannot be met, only subject to prior approval by the Bank”. Accordingly, proposals by AIFM to appoint unregulated investment managers will be assessed by the Central Bank on a case by case basis. This assessment will be based on a review of a completed Investment Manager Application Form which should be sufficient to satisfy the Central Bank in relation to:
- why the proposed delegate is not subject to regulation;
- the track record and expertise of the firm (and its principals) in the relevant asset class; and
- the regulatory status and size of its parent entity (if applicable)