INVESTMENT SERVICES ACT (MARKETING OF ALTERNATIVE INVESTMENT FUNDS) REGULATIONS

SUBSIDIARY LEGISLATION 370.21

INVESTMENT SERVICES ACT (MARKETING OF

ALTERNATIVE INVESTMENT FUNDS)

REGULATIONS

22nd July, 2013 *

LEGAL NOTICE 113 of 2013, as amended by Legal Notice 218 of 2016,

360 of 2021 and 129 of 2022.

PRELIMINARY

(1) The title of these regulations is the Investment Services

Act (Marketing of Alternative Investment Funds) Regulations.

(2) These regulations provide the requirements applicable to

the cross-border marketing of Alternative Investment Funds in

Malta or in any other Member State or EEA State.

(3) These regulations transpose and implement, in part, the

provisions of Article 4(1)(a), (b), (h), (j)(i) and (ii), (k), (l), (m), (p),

(q), (r)(i) and (ii), (w), (x), (y), (aa), (ag) and (aj), Article 30a, Article

31(1) to (4) and (6), Article 32(1) to (7) and (9), Article 32a, Article

43, Article 43a, Article 61(2), Article 69a,, Annex III and Annex IV

of the AIFM Directive, and they shall be interpreted and applied

accordingly.

(1)

In these regulations, unless the context otherwise

requires

"the Act" means the Investment Services Act;

"Alternative Investment Fund" or "AIF" means a collective

investment scheme, including subfunds thereof, which 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 which does not qualify as a UCITS Scheme in

terms of the UCITS Directive;

"Alternative Investment Fund Manager" or "AIFM" means a

legal person whose regular business is managing one or more AIFs;

"the AIFM Directive" means Directive 2011/61/EU of the

European Parliam ent and of the Council of 8 June 2011 on

Alternative Investment Fund Managers and amending Directives

2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009

and (EU) No 1095/2010 as amended from time to time, and

includes any implementing measures that may be issued

thereunder;

"competent authority" means the Malta Financial Services

Authority established by the Malta Financial Services Authority

Act, which body shall also carry out the duties as competent

*see regulation 1(2) of these regulations as originally promulgated.

INVESTMENT SERVICES ACT (MARKETING OF

ALTERNATIVE INVESTMENT FUNDS)

authority for all purposes of the AIFM Directive;

"durable medium" means any instrument, which enables a client to

store information addressed personally to that client in a way

accessible for future reference, for a period of time adequate for the

purposes of the information and which allows the unchanged

reproduction of the information stored;

"ESMA" means the European Securities and Markets Authority

established by Regulation (EU) No. 1095/2010 of the European

Parliament and of the Council of the 24 November 2010;

"established" means

(a) in relation to an AIF, the place where the AIF is

authorised or registered or if the AIF is not authorised

or registered, the place where the AIF has its

registered office;

(b) in relation to an AIFM, the place where the AIFM has

its registered office;

"European AIF" means

(a) an AIF which is authorised or registered in a Member

State or EEA State, including Malta, under the

applicable national law;

(b) an AIF which is not authorised or registered in a

Member State or EEA State but has its registered

office and, or head office in a Member State or EEA

State including Malta;

"European AIFM" means an AIFM which has its registered

office in a Member State or EEA State other than Malta;

"European AIFM home Member State or EEA State" means the

Member State or EEA State other than Malta, in which the

European AIFM has its registered office;

"European AIFM host Member State or EEA State" means

(a) a Member State or EEA State, other than the home

Member State or EEA State, in which a European

AIFM manages European AIFs; or

(b) a Member State or EEA State, other than the home

Member State or EEA State, in which a European

AIFM markets units or shares of a European AIF;

"European regulatory authority" means the body or bodies

designated by a Member State or an EEA State other than Malta in

accordance with Article 44 of the AIFMD to carry out the duties

provided for in the AIFM Directive;

"feeder AIF" means an AIF which

(a) invests at least 85% of its assets in units or shares of

another AIF hereinafter referred to as the master AIF;

(b) invests at least 85% of its assets in more than one

master AIFs where those master AIFs have identical

investment strategies; or

(c) has otherwise an exposure of at least 85% of its assets

to such a master AIF;

"home Member State of the AIF" means

(a) the Member State or EEA State in which the AIF is

authorised or registered under applicable national law,

or in case of multiple authorisations or registrations,

the Member State or EEA State in which the AIF has

been authorised or registered for the first time; or

(b) if the AIF is neither authorised nor registered in a

Member State or EEA State, the Member State or EEA

State in which the AIF has its registered office and, or

head office;

"Maltese AIFM" means an AIFM which is licensed in terms of

the Act and which has its registered office in Malta;

"Maltese AIFM host Member State or EEA State" means

(a) a Member State or EEA State, other than Malta, in

which a Maltese AIFM manages European AIFs; or

(b) a Member State or EEA State, other than Malta, in

which a Maltese AIFM markets units or shares of a

European AIF;

"master AIF" means an AIF which a feeder AIF invests in or has

an exposure in accordance with the definition of "feeder AIF";

"managing AIFs" means performing at least investment

management functions referred to in point 1(a) or (b) of Annex I of

the AIFM Directive for one or more AIFs;

"marketing" means a direct or indirect offering or placement at

the initiative of the AIFM or on behalf of the AIFM of units or

shares of an AIF that it manages to or with investors domiciled or

with a registered office in the European Union;

"pre-marketing" means provision of information or

communication, direct or indirect, on investment strategies or

investment ideas by the AIFM or on its behalf, to potential

professional investors domiciled or with a registered office in the

Member State or EEA State in order to test their interest in an AIF

or a compartment which is not yet established, or which is

established, but not yet notified for marketing in accordance with

regulations 3, 4 and 5, in that Member State or EEA State where the

potential investors are domiciled or have their registered office,

and which in each case does not amount to an offer or placement to

the potential investor to invest in the units or shares of that AIF or

compartment;

"professional investor" shall have the meaning assigned to

"professional client" in the Investment Services Rules or an

investor who has opted to be treated as a professional client in

terms of said Rules;

"retail investor" means an investor who is not a professional

investor;

"third country" means a country which is not a Member State or

an EEA State;

"third country AIF" means an AIF which is not a European AIF;

"Tribunal" means the Financial Services Tribunal established in

terms of the Malta Financial Services Authority Act;

"the UCITS Directive" means Council Directive 85/611/EEC of

20 December 1985 on the co-ordination of laws, regulations and

administrative provisions relating to undertakings for collective

investment in transferable securities (UCITS), as amended from

time to time, and includes any implementing measures that may be

issued thereunder.

(2) Words and expressions used in these regulations which are

also used in the Act but which are not defined herein shall have the

same meaning as in the Act.

(3) In the event that any of these regulations conflict with the

provisions of the AIFM Directive, the latter shall prevail.

MARKETING OF UNITS OR SHARES OF EUROPEAN AIFs BY

MALTESE AIFMs TO PROFESSIONAL INVESTORS IN MALTA

(1) A Maltese AIFM may market to professional investors

in Malta, units or shares of a European AIF which it manages and

such European AIF, prior to commencement of its marketing in

Malta, shall meeting the conditions prescribed in this regulation

Provided that the European AIF shall be

(a) authorised or registered in a Member State or EEA

State other than Malta, and in such case shall be

exempt from the provisions of article 4 of the Act;

(b) authorised in Malta;

(c) where not authorised or registered in a Member State

or EEA State, the European AIF has its registered

office and, or head office in a Member State or EEA

State including Malta and in such case it shall be

exempt from the provisions of article 4 of the Act.

(2) Without prejudice to regulation 6, European AIFs managed

and marketed by a Maltese AIFM shall be marketed only to

professional investors.

(3) Where the European AIF is a feeder AIF, the right to market

referred to in sub-regulation (1) is subject to the condition that the

master AIF is also a European AIF which is managed by an AIFM

authorised by a Member State or an EEA State.

(4) The Maltese AIFM shall submit to the competent authority

a notification in respect of each European AIF which it intends to

market. Such notification shall comprise the documentation and

information prescribed hereunder

(a) a notification letter, including a programme of

operations identifying the European AIFs which the

Maltese AIFM intends to market and the information

on where the AIFs are established;

(b) the European AIF’s prospectus or equivalent rules or

instruments of incorporation;

(c) identification of the custodian of the European AIF;

(d) a description of, or any information on, the European

AIF available to investors;

(e) information on where the master AIF is established if

the AIF is a feeder AIF in terms of sub-regulation (3);

(f)

any additional information concerning the disclosure

obligations prescribed in Investment Services Rules,

for each European AIF which the Maltese AIFM

intends to market;

(g) where relevant, information on the arrangements

established to prevent units or shares of the European

AIF from being marketed to retail investors, including

in the case where the Maltese AIFM relies on activities

of independent entities to provide investment services

in respect of the European AIF.

(5) Within twenty working days following receipt of a

complete notification file pursuant to sub-regulation (4), the

competent authority shall inform the Maltese AIFM whether it may

start marketing the European AIF identified in the notification

referred to in sub-regulation (4).

(6) In the case where the AIF identified in the notification

referred to in sub-regulation (4) has been set up in a Member State

or EEA State other than Malta, the competent authority shall

proceed to inform the European Regulatory Authority of the home

Member State or EEA State of the European AIF that the Maltese

AIFM may start marketing the units or shares of the said AIF in

Malta.

(7) In the case of a positive decision by the competent

authority, the Maltese AIFM may start marketing the European AIF

in Malta from the date of notification by the said competent

authority to that effect.

(8) The competent authority shall prevent the marketing in

Malta of a European AIF only if the Maltese AIFM’s management

o f t h e Eu r o p e a n A I F d o e s n o t o r w i l l n o t co m p l y w i t h t h e

provisions of the AIFM Directive, or the Maltese AIFM does not or

will not comply with the provisions of the AIFM Directive.

(9) In the event of a material change to any of the particulars

communicated in accordance with sub-regulation (4), the Maltese

AIFM shall give written notice thereof to the competent authority

at least one month prior to the implementation of such change in

the case of changes planned by the Maltese AIFM, or immediately

after an unplanned change has occurred.

(10) Where, pursuant to a planned change, the AIFM’s

management of the European AIF would no longer comply with the

provisions of the AIFM Directive or the Maltese AIFM would

otherwise no longer comply with the provisions of the AIFM

Directive, the competent authority shall within fifteen (15) working

days of receipt of all the information referred to in the sub-regulation

(9) inform the Maltese AIFM that it shall not implement the change. In

such case, the competent authority shall notify the European

Regulatory Authority of the home Member State or EEA State of the

AIF accordingly.

(11) Where the Maltese AIFM proceeds with the implementation

of the planned change, notwithstanding the notification received

pursuant to sub-regulation (10), or if an unplanned change has

taken place pursuant to which the management of the European AIF

by the Maltese AIFM no longer complies with the provisions of the

AIFM Directive or the Maltese AIFM otherwise no longer complies

with the provisions of the AIFM Directive, the competent authority

shall take all due measures in accordance with the provisions of the

Act and any regulations issued thereunder including, if necessary,

the express prohibition of marketing of the European AIF.

(12) The Maltese AIFM may de-notify arrangements made for

marketing of units or shares of some or all of the European AIFs

under its management, in respect of which it has made a notification

pursuant to this regulation, where all the following conditions are

fulfilled

(a) except in the case of closed-ended AIFs and funds

regulated by the Regulation on European long-term

investment funds, a blanket offer is made to

repurchase or redeem, free of any charges or

deductions, all such European AIF units or shares held

by investors in Malta, is publicly available for at least

thirty (30) working days, and is addressed, directly or

through financial intermediaries, individually to all

investors in Malta, whose identity is known;

(b) the intention to terminate arrangements made for

marketing units or shares of some or all of its

European AIFs in Malta is made public by means of a

publicly available medium, including by electronic

means, which is customary for marketing European

AIFs and suitable for a typical European AIF investor;

and

(c) any contractual arrangements with financial

intermediaries or delegates are modified or terminated

with effect from the date of de-notification in order to

prevent any new or further, direct or indirect, offering

or placement of the units or shares identified in the

notification referred to in sub-regulation (13).

As of the date referred to in paragraph (c), the Maltese

AIFM shall cease any new or further, direct or indirect, offering or

placement of units or shares of the European AIF it manages in

Malta, in respect of which it has submitted a notification in

accordance with sub-regulation (13).

(13) The Maltese AIFM shall submit a notification to the

competent authority containing the information referred to in

paragraphs (a), (b) and (c) of sub-regulation (12).

(14) The

competent

authority

shall

verify

whether

the

notification submitted by the Maltese AIFM in accordance with

sub-regulation (13) is complete and shall, no later than fifteen (15)

working days from the receipt of a complete notification, transmit

that notification to ESMA. Upon transmission of the notification,

the competent authority shall without undue delay, notify the

Maltese AIFM of that transmission. For a period of thirty six (36)

months from the date referred to in paragraph (c) of sub-regulation

(12), the Maltese AIFM shall not engage in pre-marketing of units

or shares of the European AIFs referred to in the notification, or in

respect of similar investment strategies or investment ideas, in the

Member State identified in the notification referred to in sub-

regulation (13).

(15) The Maltese AIFM may engage in pre-marketing to

professional investors of units or shares of a European AIF in

Malta, except where the information presented to potential

professional investors

(a) is sufficient to allow investors to commit to acquiring

units or shares of a particular AIF;

(b) amounts to subscription forms or similar documents

whether in a draft or a final form; or

(c) amounts to constitutional documents, a prospectus or

offering documents of a not-yet-established AIF in a

final form.

(16) Where a draft prospectus or offering documents are

provided, they shall not contain information sufficient to allow

investors to take an investment decision and shall clearly state that

(a) they do not constitute an offer or an invitation to

subscribe to units or shares of an AIF; and

(b) the information presented therein should not be relied

upon because it is incomplete and may be subject to

change.

(17) The Maltese AIFM is not required to submit any prior

notification to the competent authority, of the content or of the

addressees o f pre -m ark eti ng, or to f ulfil any co ndi ti ons or

requirements other than those set out in this regulation, before it

engages in pre-marketing activity in Malta.

(18) The Maltese AIFM shall ensure that investors do not

acquire units or shares in a European AIF through pre-marketing

and that investors contacted as part of pre-marketing shall only

acquire units or shares in that European AIF through marketing

permitted under regulation 3(1).

(19) Any subscription by professional investors, within eighteen

(18) months of the Maltese AIFM having begun pre-marketing, to

units or shares of a European AIF referred to in the information

provided in the context of pre-marketing, or of a European AIF

established as a result of the pre-marketing, shall be considered to

be the result of marketing and shall be subject to the applicable

notification procedures referred to in regulation 3(4).

(20) Within two (2) weeks of it having begun pre-marketing, the

Maltese AIFM shall send to the competent authority an informal

letter, in paper form or by electronic means, which letter shall

specify

(a) a brief description of the pre-marketing including

information on the investment strategies presented;

and

(b) where relevant, a list of the AIFs and compartments of

AIFs which are or were the subject of pre-marketing.

(21) The Maltese AIFM shall ensure that pre-marketing is

adequately documented.

(22) A third party shall only engage in pre-marketing on behalf

of the Maltese AIFM where it is authorised as an investment firm in

accordance with MIFID, as a credit institution in accordance with

the CRD, as a UCITS management company in accordance with the

UCITS Directive, as an AIFM in accordance with the AIFM

Directive or acts as a tied agent in accordance with MIFID. Such a

third party shall be subject to the conditions set out in this

regulation in respect of the Maltese AIFM.

MARKETING OF UNITS OR SHARES OF EUROPEAN AIFs BY

MALTESE AIFMs TO PROFESSIONAL INVESTORS IN A

MEMBER STATE OR EEA STATE OTHER THAN MALTA

(1) A Maltese AIFM may market to professional investors

in a Member State or EEA State other than Malta, units or shares of

a European AIF which it manages and such European AIF, prior to

commencement of its marketing in a Member State or EEA State

other than Malta, shall meet the conditions prescribed in this

regulation

Provided that the European AIF shall be

(a) authorised or registered in a Member State or EEA

State other than Malta, and in such case shall be

exempt from the provisions of article 4 of the Act;

(b) authorised in Malta;

(c) where not authorised or registered in a Member State

or EEA State, the European AIF has its registered

office and, or head office in a Member State or EEA

State including Malta and in such case it shall be

exempt from the provisions of article 4 of the Act.

(2) Without prejudice to Article 43(1) of the AIFM Directive,

European AIFs managed and marketed by the Maltese AIFM shall

be marketed only to professional investors.

(3) Where the European AIF is a feeder AIF, the right to market

referred to in sub-regulation (1) is subject to the condition that the

master AIF is also a European AIF which is managed by an AIFM.

(4) The Maltese AIFM shall submit to the competent authority

a notification in respect of each European AIF which it intends to

market. Such notification shall comprise the documentation and

information prescribed hereunder

(a) a notification letter, including a programme of

operations identifying the European AIFs which the

Maltese AIFM intends to market and the information

on where the European AIFs are established;

(b) the European AIF’s prospectus or equivalent rules or

instruments of incorporation;

(c) identification of the custodian of the European AIF;

(d) a description of, or any information on, the European

AIF available to investors;

(e) information on where the master AIF is established if

the European AIF is a feeder AIF in terms of sub-

regulation (3);

(f)

any additional information concerning the disclosure

obligations prescribed in the Investment Services

Rules for each European AIF which the Maltese AIFM

intends to market;

(g) an indication of the Member State or EEA State in

which the Maltese AIFM intends to market the units or

shares of the European AIF to professional investors;

(h) information about arrangements made for the

marketing of European AIFs and, where relevant,

information on the arrangements established to prevent

units or shares of the European AIFs from being

marketed to retail investors, including in the case

where the Maltese AIFM relies on activities of

independent entities to provide investment services in

respect of the AIF;

(i)

the details necessary, including the address, for the

invoicing or for the communication of any applicable

regulatory fees or charges by the competent authorities

of the host Member State

Provided that the notification letter to the competent

authority by the Maltese AIFM as referred to above shall be

provided in a language customary in the sphere of international

finance.

(5) The competent authority shall, no later than twenty

working days after the date of receipt of a complete notification file

pursuant to sub-regulation (4), transmit the complete notification

file to the European regulatory authority of the Member State or

E E A St a t e w h e r e th e Ma lt e s e A I F M in t e nd s m a r k e t i ng t h e

European AIF.

(6) The competent authority shall also enclose a statement to

the effect that the Maltese AIFM concerned is authorised to manage

European AIFs with a particular investment strategy

Provided that the statement referred to above shall be

provided in a language customary in the sphere of international

finance.

(7) The competent authority shall transmit the complete

notification file only if the Maltese AIFM’s management of the

European AIF complies with and will continue to comply with the

provisions of the AIFM Directive and if the Maltese AIFM

otherwise complies with the provisions of the AIFM Directive.

(8) Upon transmission of the notification file, the competent

authority shall, without delay, notify the Maltese AIFM thereof.

The Maltese AIFM may start marketing the European AIF in the

Maltese AIFM’s host Member State or EEA State as from the date

of such notification.

(9) In so far as they are different, the competent authority shall

also inform the European regulatory authority of the home Member

State or EEA State of the European AIF that the Maltese AIFM

may start marketing the units or shares of the European AIF in the

host Member State or EEA State of the Maltese AIFM.

(10) Arrangements referred to in sub-regulation (4)(h) shall be

subject to the laws of the Maltese AIFM host Member State or EEA

State where the European AIF is to be marketed and to the

supervision of the European regulatory authority therein.

(11) In the event of a material change to any of the particulars

communicated in accordance with sub-regulation (4), the Maltese

AIFM shall give written notice thereof to the competent authority

at least one month prior to the implementation of such planned

change, or immediately after an unplanned change has occurred.

(12) Where, pursuant to a planned change, the Maltese AIFM’s

management of the European AIF would no longer comply with the

provisions of the AIFM Directive or the Maltese AIFM would

otherwise no longer comply with the provisions of the AIFM

Directive, the competent authority shall inform the Maltese AIFM

within fifteen (15) working days of receipt of all the information

referred to in sub-regulation (11) that it shall not implement the

change. In that case, the competent authority shall notify the

European Regulatory Authority of the host Member State of the

Maltese AIFM accordingly.

(13) Where the Maltese AIFM proceeds with the implementation

of the planned change, notwithstanding the notification received

pursuant to sub-regulations (12), or if an unplanned change has taken

place pursuant to which the Maltese AIFM’s management of the

European AIF no longer complies with the provisions of the AIFM

Directive or the Maltese AIFM otherwise no longer complies with

the provisions of the AIFM Directive, the competent authority shall

take all due measures in accordance with the provisions of the Act

and any regulations issued thereunder including, if necessary, the

express prohibition of marketing of the European AIF. The

competent authority shall also notify the European Regulatory

Authority of the host Member State of the Maltese AIFM accordingly

without undue delay.

(14) If the changes do not affect the compliance of the Maltese

AIFM’s management of the European AIF with the provisions of

the AIFM Directive, or the compliance by the Maltese AIFM with

the provisions of the AIFM Directive, the competent authority shall

within one month inform the European regulatory authority of the

host Member State of the Maltese AIFM of those changes.

(15) The Maltese AIFM may de-notify arrangements made for

marketing of units or shares of some or all of the European AIFs

under its management in a Member State or EEA State, in respect of

which it has made a notification pursuant to this regulation, where

all the following conditions are fulfilled

(a) except in the case of closed-ended AIFs and funds

regulated by Regulation (EU) 2015/760 of the

European Parliament and of the Council of 29 April

2015 on European long-term investment funds a

blanket offer is made to repurchase or redeem, free of

any charges or deductions, all such European AIF units

or shares held by investors in that Member State or

EEA State, is publicly available for at least thirty (30)

working days, and is addressed, directly or through

financial intermediaries, individually to all investors

in that Member State or EEA State, whose identity is

known;

(b) the intention to terminate arrangements made for

marketing units or shares of some or all of its

European AIFs in that Member State or EEA State is

made public by means of a publicly available medium,

including by electronic means, which is customary for

marketing European AIFs and suitable for a typical

European AIF investor;

(c) any contractual arrangements with financial

intermediaries or delegates are modified or terminated

with effect from the date of de-notification in order to

prevent any new or further, direct or indirect, offering

or placement of the units or shares identified in the

notification referred to in sub-regulation (16).

As of the date referred to in paragraph (c) of this sub-

regulation, the Maltese AIFM shall cease any new or

further, direct or indirect, offering or placement of

units or shares of the European AIF it manages in the

Member State or EEA State, in respect of which it has

submitted a notification in accordance with sub-

regulation (16).

(16) The Maltese AIFM shall submit a notification to the

competent authority containing the information referred to in

paragraphs (a), (b) and (c) of sub-regulation (15).

(17) The competent authority shall verify whether the

notification submitted by the Maltese AIFM in accordance with

sub-regulation (16) is complete and no later than fifteen (15)

working days from the receipt of a complete notification, transmit

that notification to the European regulatory authority of the

Member State or EEA State, identified in the notification referred

to in sub-regulation (16), and to ESMA. Upon transmission of the

notification, the competent authority shall promptly notify the

Maltese AIFM of that transmission. For a period of thirty-six (36)

months from the date referred to in paragraph (c) of sub-regulation

(15), the Maltese AIFM shall not engage in pre-marketing of units

or shares of the European AIFs referred to in the notification, or in

respect of similar investment strategies or investment ideas, in the

Member State or EEA State identified in the notification referred to

in sub-regulation (16).

(18) The Maltese AIFM shall provide investors who remain

invested in the European AIF as well as the competent authority

with the information required under Articles 22 and 23 of the AIFM

Directive. Such information can be provided, among others, using

means of any electronic or other distance communication.

(19) The competent authority shall transmit to the European

regulatory authority of the Member State or EEA State identified in

the notification referred to in sub-regulation (16), information on

any changes to the documentation and information referred to in

paragraphs (b) to (f) of sub-regulation (4).

(19A) Without prejudice to other supervisory powers referred to in

Article 45(3) of the AIFM Directive, as from the date of transmission

under sub-regulation (19), the European regulatory authority of the

Member State or EEA State identified in the notification referred to in

sub-regulation (16), shall not require the Maltese AIFM concerned to

demonstrate compliance with national laws, regulations and

administrative provisions governing marketing requirements as

referred to in Article 5 of Regulation (EU) 2019/1156 of the European

Parliament and of the Council of 20 June 2019 on facilitating cross-

border distribution of collective investment undertakings and

amending Regulations (EU) No 345/2013, (EU) No 346/2013 and

(EU) No 1286/2014.

(20) The Maltese AIFM may engage in pre-marketing to

professional investors of units or shares of a European AIF in a

Member State or EEA State other than Malta, except where the

information presented to potential professional investors

(a) is sufficient to allow investors to commit to acquiring

units or shares of a particular European AIF;

(b) amounts to subscription forms or similar documents

whether in a draft or a final form; or

(c) amounts to constitutional documents, a prospectus or

offering documents of a not-yet-established AIF in a

final form.

(21) Where a draft prospectus or offering documents are

provided, they shall not contain information sufficient to allow

investors to take an investment decision and shall clearly state that

(a) they do not constitute an offer or an invitation to

subscribe to units or shares of a European AIF; and

(b) the information presented therein should not be relied

upon because it is incomplete and may be subject to

change.

(22) The Maltese AIFM does not require to submit any prior

notification to the competent authority before it engages in pre-

marketing activity in Malta, provided however that it fulfils the

requirements set out in this regulation.

(23) The Maltese AIFM shall ensure that investors do not

acquire units or shares in a European AIF through pre-marketing

and that investors contacted as part of pre-marketing shall only

acquire units or shares in that European AIF through marketing

permitted under sub-regulation 4(1).

(24) Any subscription by professional investors, within eighteen

(18) months of the Maltese AIFM having begun pre-marketing, to

units or shares of a European AIF referred to in the information

provided in the context of pre-marketing, or of a European AIF

established as a result of the pre-marketing, shall be considered to

be the result of marketing and shall be subject to the applicable

notification procedures referred to in sub-regulation 4(4).

(25) Within two (2) weeks of it having begun pre-marketing, the

Maltese AIFM shall send to the competent authority an informal

letter, in paper form or by electronic means, which letter shall

specify

(a) the Member States in which and the periods during

which the pre-marketing is taking or has taken place;

(b) a brief description of the pre-marketing including

information on the investment strategies presented;

and

(c) where relevant, a list of the AIFs and compartments of

AIFs which are or were the subject of pre-marketing.

(26) The competent authority shall promptly inform the

European regulatory authority of the Member State or EEA State, in

which the Maltese AIFM is or was engaged in pre-marketing.

(27) The European regulatory authority of the Member State or

EEA State, in which pre-marketing is taking or has taken place may

request the competent authority to provide further information on

the pre-marketing that is taking or has taken place on its territory.

(28) The Maltese AIFM shall ensure that pre-marketing is

adequately documented.

(29) A third party shall only engage in pre-marketing on behalf

of the Maltese AIFM where it is authorised as an investment firm in

accordance with MIFID Directive, as a credit institution in

accordance with CRD, as a UCITS management company in

accordance with UCITS Directive, as an AIFM in accordance with

AIFM Directive, or acts as a tied agent in accordance with MIFID

Directive. Such a third party shall be subject to the conditions set out

in this regulation in respect of the Maltese AIFM.

MARKETING OF UNITS OR SHARES OF EUROPEAN AIFs BY

EUROPEAN AIFMs TO PROFESSIONAL INVESTORS IN

MALTA

(1) A European AIFM may market to professional

investors in Malta, units or shares of a European AIF that it

manages and such European AIF, prior to commencement of its

marketing in Malta, shall meet the conditions prescribed in this

regulation

Provided that the European AIF shall be

INVESTMENT SERVICES ACT (MARKETING OF

ALTERNATIVE INVESTMENT FUNDS)

(a) authorised or registered in a Member State or EEA

State other than Malta, and in such case shall be

exempt from the provisions of article 4 of the Act;

(b) authorised in Malta;

(c) where not authorised or registered in a Member State

or EEA State, the European AIF has its registered

office and, or head office in a Member State or EEA

State including Malta and in such case it shall be

exempt from the provisions of article 4 of the Act.

(2) Without prejudice to regulation 6, European AIFs managed

and marketed by a European AIFM shall be marketed only to

professional investors.

(3) Where the European AIF is a feeder AIF, the right to market

referred to in sub-regulation (1) is subject to the condition that the

m ast er AI F is also a E ur op ean AI F wh ich i s m an aged b y a

European AIFM or by a Maltese AIFM.

(4) The European AIFM shall submit to the European

regulatory authority in its home Member State or EEA State a

notification in respect of each European AIF which it intends to

market. Such notification shall comprise the documentation and

information prescribed hereunder

(a) a notification letter, including a programme of

operations identifying the European AIFs which the

European AIFM intends to market and the information

on where the AIFs are established;

(b) the European AIF’s prospectus or equivalent rules or

instruments of incorporation;

(c) identification of the custodian of the European AIF;

(d) a description of, or any information on, the European

AIF available to investors;

(e) information on where the master AIF is established if

the AIF is a feeder AIF in terms of sub-regulation (3);

(f)

any additional information referred to in Article 23(1)

of the AIFM Directive for each European AIF which

the European AIFM intends to market;

(g) the indication that the European AIFM intends

marketing the units or shares of the European AIF to

professional investors in Malta;

(h) information about arrangements made for the

marketing of European AIFs and, where relevant,

information on the arrangements established to prevent

units or shares of the European AIFs from being

marketed to retail investors, including in the case

where the European AIFM relies on activities of

independent entities to provide investment services in

respect of the AIF;

(i)

the details necessary, including the address, for the

invoicing or for the communication of any applicable

regulatory fees or charges by the competent authorities

of the host Member State

Provided that the notification letter to the European

regulatory authority by the European AIFM as referred to above

shall be provided in a language customary in the sphere of

international finance.

(5) The competent authority shall, no later than twenty working

days after the date of receipt of a complete notification file

pursuant to sub-regulation (4), receive from the European

regulatory authority of the AIFM’s home Member State or EEA

State the complete notification file.

(6) The notification file transmitted to the competent authority

shall also include a statement to the effect that the European AIFM

concerned is authorised to manage European AIFs with a particular

investment strategy

Provided that the statement referred to above shall be

provided in a language customary in the sphere of international

finance.

(7) The competent authority shall only receive the complete

notification file if the European AIFM’s management of the

European AIF complies with and will continue to comply with the

provisions of the AIFM Directive and if the European AIFM

otherwise complies with the provisions of the AIFM Directive.

(8) Upon transmission of the notification file to the competent

authority, the European AIFM may start marketing the European

AIF in Malta as from the date that it is notified by the European

regulatory authority of such transmission.

(9) Arrangements referred to in sub-regulation (4)(h) shall be

subj ect t o the laws of Malta and t o the supervisions of t he

competent authority.

(10) The European AIFM may de-notify arrangements made for

marketing of units or shares of some or all of the European AIFs

under its management in Malta, in respect of which it has made a

notification pursuant to sub-regulation (4), where all the following

conditions are fulfilled

(a) except in the case of closed-ended AIFs and funds

regulated by Regulation (EU) 2015/760 of the

European Parliament and of the Council of 29 April

2015 on European long-term investment funds, a

blanket offer is made to repurchase or redeem, free of

any charges or deductions, all such European AIF units

or shares held by investors in Malta, is publicly

available for at least thirty (30) working days, and is

addressed, directly or through financial intermediaries,

individually to all investors in Malta, whose identity is

known;

(b) the intention to terminate arrangements made for

marketing units or shares of some or all of its

European AIFs in Malta is made public by means of a

publicly available medium, including by electronic

means, which is customary for marketing European

AIFs and suitable for a typical European AIF investor;

and

(c) any contractual arrangements with financial

intermediaries or delegates are modified or terminated

with effect from the date of de-notification in order to

prevent any new or further, direct or indirect, offering

or placement of the units or shares identified in the

notification referred to in sub-regulation (11). As of

the date referred to in point (c) of this sub-regulation,

the European AIFM shall cease any new or further,

direct or indirect, offering or placement of units or

shares of the European AIF it manages in Malta, in

respect of which it has submitted a notification in

accordance with sub-regulation (11).

(11) The European AIFM shall submit a notification to the

European regulatory authority of its home Member State or EEA

State containing the information referred to in points (a), (b) and

(c) of sub-regulation (10).

(12) The European regulatory authority of the AIFM’s home

Member State or EEA State shall verify whether the notification

s u b m i t t e d b y t h e E u r o p e a n A I F M i n a c c o r d a n c e w i t h su b -

regulation (11) is complete and no later than 15 working days from

the receipt of a complete notification, transmit that notification to

the competent authority and to ESMA. Upon transmission of the

notification, the European regulatory authority of the home

Member State or EEA State shall promptly notify the European

AIFM of that transmission. For a period of 36 months from the date

referred to in point (c) of the sub-regulation (10), the European

AIFM shall not engage in pre-marketing of units or shares of the

European AIFs referred to in the notification, or in respect of

similar investment strategies or investment ideas, in Malta.

(13) The European AIFM shall provide investors who remain

invested in the European AIF as well as the competent authorities

o f t h e A I F M ’s h o s t M e m b e r S t a t e o r E E A S t a t e w i t h t h e

information required under Articles 22 and 23 of the AIFM

Directive. Such information can be provided, among others, using

means of any electronic or other distance communication.

(14) The European regulatory authority of the European AIFM’s

home Member State or EEA State shall transmit to the competent

authorities of the Member State or EEA State, identified in the

notification referred to in sub-regulation (11), information on any

changes to the documentation and information referred to in points

(b) to (f) of sub-regulation (4).

(14A) Where the competent authority is identified in

the notification referred to in sub-regulation (11), it shall

have the same rights and obligations as the competent

authorities of the host Member State of the AIFM as set out in

Article 45 of the AIFM Directive.

(14B) Without prejudice to other supervisory powers referred to

in Article 45(3) of the AIFM Directive, as transposed into national

law, as from the date of transmission under sub-regulation (14), the

competent authority shall not require the European AIFM concerned

to demonstrate compliance with national laws, regulations and

administrative provisions governing marketing requirements as

referred to in Article 5 of Regulation (EU) 2019/1156 of the

European Parliament and of the Council of 20 June 2019 on

facilitating cross-border distribution of collective investment

undertakings and amending Regulations (EU) No 345/2013, (EU)

No 346/2013 and (EU) No 1286/2014.

(15) The European AIFM may engage in pre-marketing in

Malta, except where the information presented to potential

professional investors

(a) is sufficient to allow investors to commit to acquiring

units or shares of a particular AIF;

(b) amounts to subscription forms or similar documents

whether in a draft or a final form; or

(c) amounts to constitutional documents, a prospectus or

offering documents of a not-yet-established AIF in a

final form.

(16) Where a draft prospectus or offering documents are

provided, they shall not contain information sufficient to allow

investors to take an investment decision and shall clearly state that

(a) they do not constitute an offer or an invitation to

subscribe to units or shares of an AIF; and

(b) the information presented therein should not be relied

upon because it is incomplete and may be subject to

change.

(17) The European AIFM does not require to submit any prior

notification to the competent authority before it engages in pre-

marketing activity in Malta, provided however that it fulfils the

requirements set out in this regulation.

(18) The European AIFM shall ensure that investors do not

acquire units or shares in an AIF through pre-marketing and that

investors contacted as part of pre-marketing may only acquire units

or shares in that AIF through marketing permitted under sub-

regulation 5(1).

(19) Any subscription by professional investors, within

eighteen (18) months of the European AIFM having begun pre-

marketing, to units or shares of an AIF referred to in the

information provided in the context of pre-marketing, or of an AIF

established as a result of the pre-marketing, shall be considered to

be the result of marketing and shall be subject to the applicable

notification procedures referred to in sub-regulation 5(4).

(20) Within two (2) weeks of it having begun pre-marketing, the

European AIFM shall send to the European regulatory authority of

the European AIFM’s home Member State or EEA State an informal

letter, in paper form or by electronic means, which letter shall

specify

(a) the Member States in which and the periods during

which the pre-marketing is taking or has taken place;

(b) a brief description of the pre-marketing including

information on the investment strategies presented;

and

(c) where relevant, a list of the AIFs and compartments of

AIFs which are or were the subject of pre-marketing.

(21) The competent authority may request the European

regulatory authority of the European AIFM’s home Member State or

EEA State to provide further information on the pre-marketing that

is taking or has taken place on its territory.

(22) The European AIFM shall ensure that pre-marketing is

adequately documented.

(23) A third party shall only engage in pre-marketing on behalf of

a European AIFM where it is authorised as an investment firm in

accordance with MIFID, as a credit institution in accordance with

the CRD, as a UCITS management company in accordance with the

UCITS Directive, as an AIFM in accordance with the AIFM

Directive, or acts as a tied agent in accordance with MIFID. Such a

third party shall be subject to the conditions set out in this

regulation in respect of the European AIFM.

MARKETING OF AIFs TO RETAIL INVESTORS IN MALTA

(1) An AIF shall not be marketed to retail investors in

Malta unless it is in possession of an authorisation for this purpose

from the competent authority.

(2) Regulations 3 and 5 shall, in so far as applicable, apply

mutatis mutandis and reference to the term "professional investor"

shall be deemed to be a reference to "retail investors", subject to

such variations or modifications as may be prescribed

Provided that the AIFM shall not be allowed to engage in

the pre-marketing of any units or shares of an AIF to retail

investors.

(3) Where an AIF is to be marketed to retail investors in Malta,

the AIF and its AIFM shall be subject to Investment Services

Rules, which shall prescribe the following

(a) the types of AIF with respect to which an application

for marketing to retail investors may be made to the

competent authority;

(b) the manner and form of an application for an

authorisation to market an AIF to retail investors in

Malta, including the imposition of an application fee

where applicable;

(c) the conditions for authorisation for marketing to retail

investors;

(d) the on-going obligations applicable to the marketing of

an AIF to retail investors in Malta, including the

imposition of a supervision fee where applicable; and

(e) any other relevant matter determined by the competent

authority.

(3A) The AIFM shall submit the notification letter referred to in

regulations 3(4) and 5(4) respectively and shall also provide

information on the facilities for performing the tasks referred to in

sub-regulation (7) of this regulation.

(4) The competent authority may in Investment Services Rules

impose stricter requirements on the AIFM or the AIF than the

requirements applicable to the AIFs marketed to professional

investors in Malta in accordance with the provisions of the AIFM

Directive. The competent authority shall not, however, impose

stricter or additional requirements on European AIFs established in

Member State or EEA State other than Malta and marketed on a

cross-border basis than on AIFs marketed in Malta.

(5) The competent authority shall, by 22 July 2014, inform the

European Commission and ESMA of

(a) the types of AIF which AIFMs may market to retail

investors in Malta; and

(b) any additional requirements that the competent

authority imposes for the marketing of AIFs to retail

investors.

(6) The competent authority shall also inform the European

Commission and ESMA of any subsequent changes with regard to

sub-regulation (5).

(7) Where an AIF is to be marketed to retail investors in Malta,

the AIFM shall take the measures necessary to ensure that facilities

are available therein to perform the following tasks

(a) process investors’ subscription, payment, repurchase

and redemption orders relating to the units or shares of

an AIF, in accordance with the conditions set out in the

AIF’s documents;

(b) provide investors with information on how orders

referred to in paragraph (a) can be made and how

repurchase and redemption proceeds are paid;

(c) facilitate the handling of information relating to the

exercise of investors’ rights arising from their

investment in an AIF in Malta;

(d) provide investors with information relevant to the

tasks that the facilities perform in a durable medium;

and

(e) act as a contact point for communicating with the

competent authority.

(8) In respect of an AIF, units of which are intended for

marketing in Malta, the AIFM shall make available to investors for

the purposes of inspection and obtaining copies thereof an annual

report for each financial year as well as the information and

documents required pursuant to Article 23 of AIFM Directive.

(9) The AIFM shall ensure that the facilities to perform the

tasks referred to in sub-regulation (7), are provided, including

electronically

(a) in the official language or one of the official languages

of Malta or in a language approved by the competent

authority;

(b) by the AIFM itself, by a third party which is subject to

regulation and supervision governing the tasks to be

performed, or by both.

(10) For the purposes of paragraph (b) of sub-regulation (9),

w h e r e t h e t a s k s a r e t o b e p e r f o r m e d b y a t h i r d p a r t y, t h e

appointment of that third party shall be evidenced by a written

contract specifying which of the tasks referred to in sub-regulation

(7) are not to be performed by the AIFM and that the third party will

receive all the relevant information and documents from the AIFM.

(11) The AIFM shall not be required to have a physical presence

in Malta or to appoint a third party for the purposes of sub-

regulation 7.TRANSITORY PROVISIONS

Regulations 3 and 4 shall not apply to the marketing of

units or shares of European AIFs that are subject to a current offer

to the public under a prospectus that has been drawn up and

p u bl i s he d i n ac c o rd a n c e w i th Di r e c t i ve 2 0 03 / 71 / E C o f t he

European Parliament and of the Council of 4 November 2003 on

the prospectus to be published when securities are offered to the

public or admitted to trading and amending Directive 2001/34/EC

before 22 July 2013 for the duration of validity of that prospectus.