PART 9Transitional Provisions
AIFMs managing AIFs immediately before 22nd July 201372
1
An AIFM falls within this paragraph if—
a
it manages an AIF immediately before 22nd July 2013; and
b
in the case of a third country AIFM, it markets that AIF in an EEA State before 22nd July 2013.
2
Until the relevant date, an AIFM falling within paragraph (1) need not comply with implementing provisions other than those imposed by this regulation.
3
A UK AIFM falling within paragraph (1) must submit an application for—
a
a Part 4A permission to carry on the regulated activity of managing an AIF, or
b
registration as a small registered UK AIFM,
before 22nd July 2014.
4
Paragraph (3) does not apply to an AIFM that ceases to manage AIFs before 22nd July 2014.
5
Part 6 does not apply in respect of an AIF managed by an AIFM falling within paragraph (1) until the relevant date.
6
Until the relevant date, amendments and modifications to other enactments made by these Regulations F2or the Alternative Investment Fund Managers Order 2014 do not have effect in respect of an AIFM falling within paragraph (1) except in so far as they relate to the making or determination of applications for registration as a small registered UK AIFM or for a Part 4A permission to carry on the regulated activity of managing an AIF.
F36A
Paragraphs (6B) and (6C) apply where a UK AIFM falling within paragraph (1) submits an application in accordance with paragraph (3)(a) or (b), but on 22nd July 2014—
a
where the application was submitted in accordance with paragraph (3)(a), the AIFM does not have a Part 4A permission to carry on the regulated activity of managing an AIF;
b
where the application was submitted in accordance with paragraph (3)(b), the AIFM is not a small registered UK AIFM;
c
the AIFM has not received a decision notice from the FCA or the PRA refusing the application; and
d
the AIFM has not withdrawn the application in accordance with section 55V(4) of the Act (determination of applications).
6B
During the additional transitional period—
a
sections 19(1) (the general prohibition) and 20(1) and (1A) of the Act (authorised persons acting without permission) do not apply to the AIFM in respect of the activities to which the application relates, in so far as those activities are specified in article 51ZC of the Regulated Activities Order;
b
notwithstanding paragraph (5), Part 6 of these Regulations does not apply to the AIFM in respect of the AIFs to which the application relates;
c
all other implementing provisions apply in respect of the AIFM—
i
where the application was submitted in accordance with paragraph (3)(a), as if the appropriate regulator (within the meaning of section 55V(1) of the Act (determination of applications)) had given the AIFM written notice on 22nd July 2014 granting its application with immediate effect;
ii
where the application was submitted in accordance with paragraph (3)(b), as if the AIFM had been entered on the register of small registered UK AIFMs on 22nd July 2014; and
d
if the AIFM is not an authorised person and is not an unauthorised AIFM (as defined in regulation 71(5)), the AIFM is to be treated as an unauthorised AIFM for the purposes of paragraphs (1) to (4) of regulation 71 (application of provisions of the Act to unauthorised AIFMs).
6C
In paragraph (6B) “the additional transitional period” means the period starting on 22nd July 2014 and ending—
a
where the application was submitted in accordance with paragraph (3)(a), on the date on which a Part 4A permission for the AIFM to carry on the regulated activity of managing an AIF has effect;
b
where the application was submitted in accordance with paragraph (3)(b), on the date on which the AIFM becomes a small registered UK AIFM;
c
on the date on which the FCA or the PRA gives the AIFM a decision notice refusing the application; or
d
on the date on which the AIFM withdraws the application.
7
In this regulation, the “relevant date” means the earlier of—
a
i
in respect of a UK AIFM that complies with the requirement in paragraph (3) to submit an application before 22nd July 2014, and AIFs managed by it, the date on which the FCA or PRA notifies the AIFM that its application has been determined;
ii
in respect of an AIFM established in an EEA State other than the United Kingdom that applies for authorisation in accordance with Article 6.1 of the directive or registration in accordance with Article 3.3(a) of the directive before 22nd July 2014, and AIFs managed by it, the date on which the relevant competent authority notifies the AIFM that the application has been determined;
iii
in respect of an AIF managed by a third country AIFM that notifies the FCA under regulation 58 or 59, the date on which the AIFM gives the notification; or
b
22nd July 2014.
AIFs subject to prospectus directive73
1
This regulation applies to an AIF, the securities of which are subject to an offer to the public under a prospectus that has been drawn up and published in accordance with the prospectus directive before 22nd July 2013, for the duration of the validity of that prospectus.
2
Part 6 does not apply in respect of an AIF falling within paragraph (1).
3
In this regulation, “prospectus directive” means Directive 2003/71/EC of the 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 M1.
Closed-ended AIFs that make no additional investments74
1
This regulation applies to an AIFM in so far as immediately before 22nd July 2013 it manages an AIF that—
a
is closed-ended; and
b
makes no additional investments after 22nd July 2013.
2
F4Notwithstanding regulation 72(3), the AIFM need not apply for—
a
permission under Part 4A of the Act to manage that AIF; or
b
registration as a small registered UK AIFM in respect of that AIF.
3
The AIFM need not comply with the implementing provisions in respect of that AIF.
F54
If the AIFM is given a Part 4A permission to carry on the regulated activity of managing an AIF, article 72AA of the Regulated Activities Order (managers of UCITS and AIFs) does not apply in respect of the AIFM's management of the AIF referred to in paragraph (1).
5
If, at the same time that the AIFM is given a Part 4A permission to manage an AIF, the AIFM's Part 4A permission is also varied by the removal from the regulated activities to which that permission relates of regulated activities that the AIFM carries on in connection with or for the purposes of managing the AIF referred to in paragraph (1), the AIFM is to be treated as if the AIFM's Part 4A permission had not been varied by such removal at such time.
6
If, immediately before 22nd July 2013, the AIFM had a Part 4A permission to carry on an activity of the kind specified by article 51 of the Regulated Activities Order (establishing, operating or winding up a collective investment scheme) as that article applied at that date , from the relevant date (as defined in regulation 72(7)) that permission is to be treated as if it were a Part 4A permission to carry on an activity of the kind specified by article 51ZE of the Regulated Activities Order.
Closed-ended AIFs whose subscription period has closed75
1
This regulation applies to an AIFM in so far as immediately before 22nd July 2013 it manages an AIF—
a
that is closed-ended;
b
for which the subscription period for investors closed before 22nd July 2011; and
c
that is constituted for a period that expires before 22nd July 2016.
2
F6Notwithstanding regulation 72(3), the AIFM need not apply for—
a
permission under Part 4A of the Act to manage that AIF; or
b
registration as a small registered UK AIFM in respect of that AIF.
F72A
If the AIFM is given a variation of its Part 4A permission to add the regulated activity of managing an AIF, article 72AA of the Regulated Activities Order (managers of UCITS and AIFs) does not apply in respect of the AIFM's management of the AIF referred to in paragraph (1).
2B
If at the same time that the AIFM is given a Part 4A permission to manage an AIF, the AIFM's Part 4A permission is also varied by the removal from the regulated activities to which that permission relates of regulated activities that the AIFM carries on in connection with or for the purposes of managing the AIF referred to in paragraph (1), the AIFM is to be treated as if the AIFM's Part 4A permission had not been varied by such removal at such time.
2C
If, immediately before 22nd July 2013, the AIFM had a Part 4A permission to carry on an activity of the kind specified by article 51 of the Regulated Activities Order (establishing, operating or winding up a collective investment scheme) as that article applied at that date , from the relevant date (as defined in regulation 72(7)) that permission is to be treated as if it were a Part 4A permission to carry on an activity of the kind specified by article 51ZE of the Regulated Activities Order.
F83
Subject to paragraph (4), the AIFM need not comply with the implementing provisions in respect of that AIF.
4
From 22nd July 2014, the AIFM must comply with—
a
provisions in Part 5 of these Regulations, and
b
implementing provisions relating to Article 22 of the directive (annual report)
F9with which it would be required to comply in respect of that AIF but for the preceding paragraphs of this regulation.
F105
The AIFM must give the FCA such information in respect of its compliance with paragraph (4) as the FCA may direct.
6
The AIFM must give information required under paragraph (5) at such times and in such manner, and verify that information in such manner, as the FCA may direct.
7
The AIFM must take such steps as are necessary to ensure compliance with paragraph (4) as the FCA may direct.
8
Sections 55Y (exercise of own-initiative power: procedure) and 55Z3(2) (right to refer matters to the Tribunal) of the Act apply to a direction to an AIFM under paragraph (7) as they apply to a requirement imposed on an authorised person under section 55L(3) of the Act (imposition of requirements by the FCA).
Permission to act as trustee or depositary of an AIF76
1
In this regulation—
“the new activity” means the activity specified in article 51ZD of the Regulated Activities Order (acting as trustee or depositary of an AIF) M2;
“the old activity” means the activity of acting as trustee of an authorised unit trust scheme, acting as the depositary of an authorised contractual scheme or acting as the depositary of an open-ended investment company, as specified in article 51(1)(b), (bb) or (c) of the Regulated Activities Order as it was in force immediately before 22nd July 2013 M3;
“the relevant date” in respect of a person means the earlier of—
- a
the date on which the FCA or PRA notifies the person that their application for Part 4A permission to carry on the new activity has been determined; or
- b
22nd July 2014.
- a
2
Section 20(1) and (1A) M4 of the Act (authorised persons acting without permission) does not apply to an authorised person who carries on the new activity before the relevant date without a Part 4A permission to carry on that activity if the person meets condition A and condition B.
3
Condition A is that the person—
a
carries on the activity for an AIF that is not an authorised AIF; or
b
has a Part 4A permission to carry on the old activity (see paragraph (5)).
4
Condition B is that the person—
a
meets the requirements for appointment as a depositary imposed by implementing provisions relating to Article 21.3 of the directive; and
b
has its registered office or has established a branch in the United Kingdom.
5
If a person has a Part 4A permission to carry on the old activity immediately before 22nd July 2013 and that person continues to carry on that activity on or after 22nd July 2013, the amendments to other enactments made by these Regulations which relate to removal from the Regulated Activities Order of the specification of the old activity do not apply in respect of that person until the relevant date.
6
Article 42A of the Regulated Activities Order (depositaries of UCITS and AIFs) M5 applies to a person who—
a
is carrying on the new activity without a Part 4A permission to carry on that activity but who, pursuant to paragraph (2), is not to be taken to have contravened a requirement, and
b
does not have a Part 4A permission to carry on the regulated activity specified in article 40 of the Regulated Activities Order (safeguarding and administering investments),
as it does to a person who has a Part 4A permission to carry on the new activity.
7
A person who carries on the new activity and who, pursuant to paragraph (2), need not have a Part 4A permission to carry on that activity, must comply with all other implementing provisions in respect of that activity that would apply if the person had such a Part 4A permission.
Depositaries of EEA AIFs until 22nd July 201777
1
This regulation applies if, in accordance with the transitional provision in article 61.5 of the directive, the FCA or an authority in another EEA State permits a credit institution that is—
a
authorised under the F1capital requirements directive, and
b
established in the United Kingdom,
to be appointed as the depositary of an EEA AIF.
2
Until 22nd July 2017, regulations 29 to 32 (depositary liability) apply in relation to such a depositary as they apply in relation to the depositary of a UK AIF managed by a full-scope UK AIFM.
Permission for existing managers, depositaries and trustees of UCITS78
1
In this regulation—
“new activity” means—
- a
the regulated activity of managing a UCITS, specified in article 51ZA of the Regulated Activities Order;
- b
the regulated activity of acting as the trustee of an authorised unit trust scheme where the scheme is a UCITS, specified in article 51ZB(1)(a) of the Regulated Activities Order;
- c
the regulated activity of acting as the depositary of an authorised contractual scheme where the scheme is a UCITS, specified in article 51ZB(1)(b) of the Regulated Activities Order; or
- d
the regulated activity of acting as the depositary of an open-ended investment company where the company is a UCITS, specified in article 51ZB(1)(b) of the Regulated Activities Order;
- a
“old activity” means—
- e
the regulated activity of establishing, operating or winding up a collective investment scheme or acting as sole director of an open-ended investment company, specified in article 51(1)(a) or (c) of the Regulated Activities Order as it was in force immediately before 22nd July 2013, where the scheme or company is a UCITS;
- f
the regulated activity of acting as a trustee of an authorised unit trust scheme, specified in article 51(1)(b) of the Regulated Activities Order as it was in force immediately before 22nd July 2013, where the scheme is a UCITS;
- g
the regulated activity of acting as a depositary of an authorised contractual scheme, specified in article 51(1)(bb) of the Regulated Activities Order as it was in force immediately before 22nd July 2013, where the scheme is a UCITS; or
- h
the regulated activity of acting as a depositary of an open-ended investment company, specified in article 51(1)(c) of the Regulated Activities Order as it was in force immediately before 22nd July 2013, where the company is a UCITS;
- e
“the relevant date” in respect of a person means the earlier of—
- i
the date on which the FCA or PRA notifies the person that their application for Part 4A permission to carry on the new activity has been determined; or
- j
22nd July 2014;
- i
“UCITS” has the meaning given in Article 1.2 of the UCITS directive.
2
For the purposes of this regulation the activity described in paragraph (a), (b), (c) or (d) of the definition of “new activity” in paragraph (1) is equivalent to the activity described in the paragraph bearing the same letter in the definition of “old activity” in paragraph (1).
3
If a person has a Part 4A permission to carry on an old activity immediately before 22nd July 2013 and that person continues to carry on that activity in relation to a UCITS on or after 22nd July 2013, the amendments to other enactments made by these Regulations F11or the Alternative Investment Fund Managers Order 2014 which relate to removal from the Regulated Activities Order of the specification of that old activity do not apply in respect of that person until the relevant date.
4
Section 20(1) and (1A) of the Act (authorised persons acting without permission) does not apply to a person's carrying on of a new activity before the relevant date without a Part 4A permission to carry on that activity if the person continues to have a Part 4A permission to carry on the equivalent old activity in relation to a UCITS.
5
If, immediately before 22nd July 2014, the person continues to carry on the old activity in relation to a UCITS, and has a Part 4A permission to do so, from 22nd July 2014 the person has Part 4A permission to carry on the equivalent new activity.