Answer ... Marketing in Ireland to retail investors: A non-Irish AIF must be approved by the Central Bank to market in Ireland to retail investors. Non-Irish AIFs which propose to market their units in Ireland to retail investors must be authorised by a supervisory authority set up in order to ensure the protection of unitholders and which, in the opinion of the Central Bank, provides an equivalent level of investor protection to that provided under Irish laws, regulations and conditions governing retail investor AIFs (RIAIF)s).
A non-Irish AIF which proposes to market its units/shares or interests in Ireland to retail investors must make an application to the Central Bank in writing, enclosing certain prescribed information. The following AIFs will receive approval to market their units in Ireland to retail investors on completion of the information and documentation requirements:
- those established in Guernsey and authorised as Class A schemes;
- those established in Jersey and authorised as recognised funds; and
- those established in the Isle of Man as authorised schemes.
Other AIFs must demonstrate an equivalent level of investor protection to that provided under Irish laws, regulations and conditions governing RIAIFs. The marketing of AIF units in Ireland to retail investors may not take place until the AIF has received a letter of approval from the Central Bank.
If a RIAIF managed by an Irish AIFM is proposed to be marketed in Ireland to Irish retail investors, Regulation 44 of the AIFM Regulations permits the marketing of AIFs to retail investors in Ireland. An Irish RIAIF which is authorised and regulated by the Central Bank may be marketed to Irish retail investors by the relevant AIFM of the RIAIF.
Marketing in Ireland to professional investors: The marketing of EU AIFs (including Irish qualifying investor AIFs (QIAIFs)) by an Irish AIFM to professional investors in Ireland must be notified to the Central Bank in accordance with Regulation 32 of the AIFM Regulations. Where the AIF is regulated by the competent authorities of another EU member state, the Central Bank must inform those competent authorities that the Irish AIFM may start marketing units or shares of the EU AIF in Ireland. Within 20 working days of receipt of a complete notification file, the Central Bank must inform the Irish AIFM as to whether it may start marketing the EU AIF in Ireland.
Irish AIFMs proposing to market EU AIFs – including QIAIFs – to professional investors in another EU member state must notify the Central Bank in accordance with Regulation 33 of the AIFM Regulations. The notification letter and accompanying prescribed form (available on the Central Bank website) should be submitted by the Irish AIFM to the Central Bank for each member state in respect of the AIF(s) it intends to market, together with the following:
- the AIF rules or instruments of incorporation for each AIF being marketed;
- any additional information referred to in Regulation 24(1) of the AIFM Regulations for each AIF that the AIFM intends to market;
- a description of, or any information on, the AIF available to investors; and
- a letter, signed by a director of the AIFM, stating that the AIFM will market the relevant AIFs in accordance with AIFMD.
The Central Bank will inform the AIFM once transmission to the relevant host member state competent authorities has taken place and the AIFM can then commence to market the QIAIF in the relevant member states. Transmission of marketing notifications to host member states must be completed within 20 working days of receipt of a complete application.
When an AIFM from another EU member state proposes to market shares or units of an EU AIF to professional investors in Ireland, it must comply with the requirements set down by its own local competent authority.
Irish AIFMs or AIFMs from other EU member states proposing to market non-EU AIFs to professional investors in Ireland must apply to the Central Bank for approval in accordance with the requirements of Regulation 37 of the AIFM Regulations.
A non-EU AIFM proposing to market an AIF to professional investors in Ireland must apply to the Central Bank for approval in accordance with Regulation 43 of the AIFM Regulations, and the marketing of such AIFs can commence only once the Central Bank has informed the relevant non-EU AIFM that it can start marketing. The relevant AIFM must comply with basic depositary and custody requirements under the AIFMD Framework (eg, the safekeeping of assets and the supervision of administrative functions) and also the substantive transparency and other requirements set out under Articles 22, 23, 24 of the AIFMD and where relevant, Articles 26 to 30 of the AIFMD for private equity funds.
Furthermore, a cooperation arrangement for the purpose of systemic risk oversight must be in place between the authorities of each EU member state in which the non-EU AIF is marketed and those in the third countries in which the AIFM and the AIF are established. Finally, the non-EU country in which the AIF is established must not be listed as a non-cooperative country or territory by the Financial Action Task Force on anti-money laundering and terrorist financing.
Marketing of AIFs other than in accordance with the AIFM Regulations: The marketing of units in collective investment schemes (CIS) in Ireland, other than in accordance with the requirements of the AIFM Regulations, must be undertaken by entities authorised to provide such marketing services. The regulation of the receipt and transmission of orders in relation to, and the placing of financial instruments (including shares and units in CIS) by, Irish entities is regulated by the European Union (Markets in Financial Instruments) Regulation 2017, as amended, the Investment Intermediaries Act 1995 and consumer protection legislation.
Non-Irish EU AIFMs marketing EU AIFs to professional investors in Ireland must comply only with their local rules. Non-Irish-registered EU AIFMs (as opposed to non-Irish-authorised EU AIFMs that can avail of the passport pursuant to Article 33 of the AIFM Directive) cannot market AIFs that they manage to professional investors in Ireland.