The Alternative Investment Fund Managers Regulations 2013

Regulation 80

SCHEDULE 1AMENDMENTS TO PRIMARY LEGISLATION

PART 1Amendments to the Financial Services and Markets Act 2000

1.  The Act is amended as follows.

2.  In section 1A(6) (the Financial Conduct Authority)(1), after paragraph (c) omit “or” and insert—

“(ca)the Alternative Investment Fund Managers Regulations 2013, or”.

3.  In section 1L(2) (supervision, monitoring and enforcement), after paragraph (a) omit “or” and insert—

“(aa)with requirements imposed on them by the Alternative Investment Fund Managers Regulations 2013, or”.

4.  In section 55H (refusal by FCA to vary permission at request of authorised person), after subsection (4) insert—

“(4A) The FCA may also refuse an application under this section if it appears to the FCA that the authorised person would not comply with requirements in Part 5 of the Alternative Investment Fund Managers Regulations 2013 (AIFs which acquire control of non-listed companies and issuers) that would apply to the authorised person.”.

5.  In section 55J (variation or cancellation on initiative of regulator)—

(a)in subsection (1)—

(i)at the end of paragraph (b), omit “or”, and

(ii)at the end of paragraph (c) insert—

“, or

(d)in the case of the FCA, A has failed to comply with a requirement in Part 5 of the Alternative Investment Fund Managers Regulations 2013 (AIFs which acquire control of non-listed companies and issuers), or it is for some other reason desirable to exercise the power for the purposes of ensuring compliance with such a requirement.”;

(b)after subsection (6) insert—

“(6A) Without prejudice to the generality of subsections (1) to (3), the FCA may, in relation to an authorised person who is a full-scope UK AIFM, exercise its power under this section to cancel the Part 4A permission if it appears to it that any of the following conditions is met—

(a)the person has failed, during a period of at least six months, to carry on the regulated activity of managing an AIF;

(b)the person obtained the Part 4A permission to carry on the regulated activity of managing an AIF by making a false statement or by any other irregular means;

(c)in a case where the Part 4A permission includes permission to provide the discretionary portfolio management service referred to in Article 6.4(a) of the alternative investment fund managers directive, the person no longer complies with Directive 2006/49/EC of the European Parliament and of the Council on the capital adequacy of investment firms and credit institutions(2);

(d)the person no longer meets the conditions that a person must meet in order to obtain a Part 4A permission to carry on the regulated activity of managing an AIF;

(e)the person has seriously or systematically infringed—

(i)any provision of the Alternative Investment Fund Managers Regulations 2013;

(ii)a provision of any directly applicable EU regulation made under the alternative investment fund managers directive; or

(iii)any provision made by or under this Act which implements that directive.”.

6.  In section 55V (determination of applications) after subsection (7) insert—

“(8) In the case of an application for permission under this Part which—

(a)relates to the regulated activity of managing an AIF, and

(b)would if granted result in the applicant becoming a full-scope UK AIFM,

this section has effect subject to regulation 5 of the Alternative Investment Fund Managers Regulations 2013 and, accordingly, subsections (1) to (3) do not apply.”.

7.  In section 59 (approval for particular arrangements)(3) after subsection (7B) insert—

“(7C) A regulator may not exercise the power in subsection (3) so as to provide for a function to be a controlled function in relation to the carrying on of the regulated activity of managing an AIF by an AIFM which—

(a)is also an AIF;

(b)does not manage any AIF other than itself;

(c)is a body corporate; and

(d)is not a collective investment scheme.”.

8.  In section 66(2)(b) (disciplinary powers)(4) after sub-paragraph (i) omit “or” and insert—

“(ia)by the Alternative Investment Fund Managers Regulations 2013, or”.

9.  In section 165 (regulators’ power to require information: authorised persons etc.), in subsection (7)(b) omit “270 or”.

10.  In section 168(4) (appointment of persons to carry out investigations in particular cases)(5), omit “or” at the end of paragraph (j), and after paragraph (j) insert—

“(ja)a person may have contravened—

(i)any provision made by or under this Act for the purpose of implementing the alternative investment fund managers directive; or

(ii)any provision made by the Alternative Investment Fund Managers Regulations 2013; or”.

11.  In section 193(1) (interpretation of Part 13)(6), in the definition of “incoming firm”, omit “or” at the end of paragraph (aa) and after paragraph (aa) insert—

“(ab)an EEA AIFM which is exercising, or has exercised, its right to market an AIF in the United Kingdom in accordance with Schedule 3; or”.

12.  In section 194 (general grounds on which power of intervention is exercisable), after subsection (4) insert—

“(5) The FCA may exercise its power of intervention in respect of an EEA AIFM if it appears to the FCA that the EEA AIFM has contravened, or is likely to contravene, a requirement imposed by—

(a)the Alternative Investment Fund Managers Regulations 2013; or

(b)any directly applicable EU regulation made under the alternative investment fund managers directive.”.

13.  In section 195A (contravention by relevant EEA firm or EEA UCITS of directive requirements: home state regulator primarily responsible for securing compliance)(7)—

(a)in the heading, for “or EEA UCITS”, substitute “, EEA UCITS or EEA AIFM”;

(b)after subsection (1)(b) insert—

“; or

(c)that an EEA AIFM has contravened, or is contravening, a requirement falling within subsection (3A) (in a case to which Article 45.7 or 45.8 of the alternative investment fund managers directive applies).”;

(c)after subsection (3) insert—

“(3A) A requirement falls within this subsection if it is imposed on the EEA AIFM—

(a)by or under any provision adopted in the AIFM’s home state for the purpose of implementing the alternative investment fund managers directive; or

(b)by any directly applicable EU regulation made under that directive.”;

(d)for subsection (8) substitute—

“(8) Condition B is—

(a)in the case of a relevant EEA firm, that the firm is acting in a manner which is clearly prejudicial to the interests of investors in the United Kingdom or the orderly functioning of the markets;

(b)in the case of an EEA UCITS, that the EEA UCITS is acting in a manner which is clearly prejudicial to the interests of investors in the United Kingdom; or

(c)in the case of an EEA AIFM, that the AIFM is acting in a manner which is clearly prejudicial to the interests of investors in the United Kingdom or the financial stability or integrity of the markets in the United Kingdom.”;

(e)in subsection (11B), for “or (3)”, substitute “, (3) or (3A)”;

(f)in subsection (12)—

(i)in the definition of “the appropriate regulator” for “where the relevant EEA firm is” substitute “in the case of a relevant EEA firm which is”; and

(ii)in the definition of “home state” after paragraph (b) insert—

“(c)in relation to an EEA AIFM, the EEA State in which the AIFM has its registered office;”.

14.  In section 199 (additional procedure for EEA firms in certain cases)(8)—

(a)in subsection (3A), for “or (f)”, substitute “, (f) or (h)”;

(b)in subsection (3B) for “to (8)” substitute “and (5)”;

(c)after subsection (5), insert—

“(5A) Subsections (6) to (8) apply to an incoming EEA firm other than a firm falling within paragraph 5(da) or (h) of Schedule 3.”.

15.  In section 204A(2) (meaning of “relevant requirement”)(9)—

(a)omit “or” after paragraph (a);

(b)after paragraph (b) insert—

“, or

(c)by the Alternative Investment Fund Managers Regulations 2013.”.

16.  In section 237(3) (other definitions)(10) in the definition of “a recognised scheme” omit “, 270”.

17.  In section 261D(8) (authorisation orders for contractual schemes)(11) for “permission to act as operator” substitute “such permission as may be necessary to act as operator”.

18.  Omit sections 270 and 271 and the preceding cross-heading (schemes authorised in designated countries or territories)(12).

19.  In section 272 (individually recognised overseas schemes)(13), in subsection (1)—

(a)after paragraph (b) insert “and”; and

(b)omit paragraph (c) (including the “and” following it).

20.  In section 277 (alteration of schemes and changes of operator, trustee or depositary), after subsection (3) insert—

“(4) If a change is made, or is to be made, to the law which applies to such a scheme in the country or territory in which it is managed and the change affects or will affect any of the matters mentioned at section 272(2) to (4), the operator of the scheme must give written notice of the change to the FCA—

(a)at least one month before the change takes effect; or

(b)if that is not reasonably practicable, as soon as it is reasonably practicable to do so.

(5) A notice under this section—

(a)must be given in such manner as the FCA may direct; and

(b)where the notice is given under subsection (1) or (3), must include such information as the FCA may direct for the purpose of determining whether the requirements for the making of an order under section 272 in respect of the scheme would continue to be satisfied following the alteration or replacement that is the subject of the notice.”.

21.  After section 277 insert—

“Regular provision of information relating to compliance with requirements for recognition

277A.—(1) The operator of a scheme recognised by virtue of section 272 must provide to the FCA such information as the FCA may direct, at such times as the FCA may direct, for the purpose of determining whether the requirements for the making of an order under section 272 in respect of the scheme continue to be satisfied.

(2) A direction under subsection (1) may not require information to be provided within the period of 12 months beginning with the date on which information was last required to be provided to the FCA in respect of the scheme pursuant to a requirement under section 274(2)(c) or a direction under subsection (1) or section 277(5)(b).

(3) The information must be provided in such manner as the FCA may direct.”.

22.  Omit the cross-heading “Schemes recognised under sections 270 and 272” before section 278.

23.  In section 278 (rules as to scheme particulars) omit “270 or”.

24.  In section 279 (revocation of recognition)—

(a)in the opening words, omit “direct that a scheme is to cease to be recognised by virtue of section 270 or”;

(b)in paragraph (c) omit “in the case of an order under section 272,”.

25.  In section 280 (procedure)—

(a)in subsection (1) for “give a direction under section 279 or to make an order under that section” substitute “make an order under section 279”; and

(b)in subsection (2) omit “give a direction or”.

26.  In section 281 (directions)—

(a)in subsection (1) omit “270 or”; and

(b)in subsection (2)(c) for “a scheme under section 272” substitute “such a scheme”.

27.  In section 380(6)(a) (injunctions)(14)—

(a)omit “or” after sub-paragraph (i);

(b)after sub-paragraph (ii) insert—

“; or

(iii)which is imposed by the Alternative Investment Fund Managers Regulations 2013;”.

28.  In section 382(9)(a) (restitution orders)(15)—

(a)omit “or” after sub-paragraph (i);

(b)after sub-paragraph (ii) insert—

“; or

(iii)which is imposed by the Alternative Investment Fund Managers Regulations 2013;”.

29.  In section 384(7) (power of FCA or PRA to require restitution)(16)—

(a)omit “and” after paragraph (a);

(b)after paragraph (b) insert—

“; and

(c)a requirement imposed by the Alternative Investment Fund Managers Regulations 2013.”.

30.  In section 398 (misleading the FCA or PRA: residual cases)(17)—

(a)in subsection (1) for “imposed by or under this Act, or by the short selling regulation,” substitute “falling within subsection (1A)”;

(b)after subsection (1) insert—

“(1A) A requirement falls within this subsection if it is imposed by or under—

(a)this Act;

(b)the Alternative Investment Fund Managers Regulations 2013;

(c)the short selling regulation;

(d)Regulation (EU) No 345/2013 of the European Parliament and the Council of 17 April 2013 on European venture capital funds(18); or

(e)Regulation (EU) No 346/2013 of the European Parliament and the Council of 17 April 2013 on European social entrepreneurship funds(19).”.

31.  In section 417(1) (definitions)(20) in the appropriate places insert—

““AIF” has the meaning given in regulation 3 of the Alternative Investment Fund Managers Regulations 2013;”

““full-scope UK AIFM” has the meaning given in regulation 2(1) of the Alternative Investment Fund Managers Regulations 2013;”.

32.  In section 425 (expressions relating to authorisation elsewhere in the single market)(21), in subsection (1)(a)—

(a)at the beginning insert ““alternative investment fund managers directive”,”, and

(b)after ““life assurance consolidation directive”,”, insert ““EEA AIFM”,”.

33.  In Schedule 1ZA (the Financial Conduct Authority), in paragraph 23(2)(a) (fees)(22) for “other Acts mentioned in section 1A(6)” substitute “other enactments mentioned in section 1A(6)(a) to (ca)”.

34.—(1) Schedule 3 (EEA passport rights) is amended as follows.

(2) In paragraph 1 (the single market directives)(23) omit “and” at the end of paragraph (e), and after paragraph (f) insert—

“; and

(g)the alternative investment fund managers directive.”.

(3) After paragraph 4D (the emission allowance auctioning directive)(24), insert—

“The alternative investment fund managers directive

4E.  “The alternative investment fund managers directive” means Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers.”.

(4) In paragraph 5 (EEA firm)(25), omit “or” at the end of paragraph (f), and after paragraph (g) insert—

“; or

(h)an AIFM (as defined in Article 4.1(b) of the alternative investment fund managers directive) which is authorised (in accordance with Article 6.1 of that directive) by its home state regulator.”.

(5) In paragraph 5A (definition of “relevant office” for EEA firm)(26), after paragraph (a) insert—

“(aa)in relation to a firm falling within sub-paragraph (h) of that paragraph, its registered office;”.

(6) In paragraph 7A (definition of “relevant office” for EEA right), after paragraph (a) insert—

“(aa)in relation to a person whose entitlement is subject to the conditions of the alternative investment fund managers directive, its registered office;”.

(7) In paragraph 10A (definition of “relevant office” for UK firm), after paragraph (a) insert—

“(aa)in relation to a firm whose EEA right derives from the alternative investment fund managers directive, its registered office;”.

(8) After paragraph 11C (UCITS)(27), insert—

“EEA AIFM

11D.  “EEA AIFM” means an EEA firm falling within paragraph 5(h) which is exercising in the United Kingdom a right deriving from the alternative investment fund managers directive.”.

(9) In paragraph 13 (establishment)(28)—

(a)in sub-paragraph (1), for “or (f)”, in the first place, substitute “, (f) or (h)”;

(b)at the end of sub-paragraph (1)(ba), omit “and”;

(c)after sub-paragraph (1)(c), insert—

“; and

(d)in the case of a firm falling within paragraph 5(h), its home state regulator has informed it that the consent notice has been sent to the appropriate UK regulator.”;

(d)in sub-paragraph (2)(b), after “5(a)”, insert “or (h)”.

(10) In paragraph 14 (services)(29)—

(a)in sub-paragraph (1)(b), for “or (f)” substitute “, (f) or (h)”;

(b)in sub-paragraph (1)(c), for “or (e)”, substitute “, (e) or (h)”;

(c)in sub-paragraph (2), for “or (e)”, substitute “, (e) or (h)”;

(d)after sub-paragraph (3), insert—

“(3A) In cases where the firm is an EEA AIFM that seeks to market an AIF in exercise of its rights under Article 32 of the alternative investment fund managers directive, the appropriate UK regulator must ensure that the regulator’s notice may be transmitted to it electronically.”.

(11) In paragraph 19 (establishment)(30)—

(a)in sub-paragraph (1) for “and (5A)” substitute “, (5A) and (7BC)”;

(b)after sub-paragraph (7B), insert—

“(7BA) Sub-paragraph (7BB) applies where—

(a)the firm’s EEA right derives from the alternative investment fund managers directive,

(b)the first condition is satisfied, and

(c)the appropriate UK regulator is satisfied that the firm complies, and will continue to comply, with—

(i)the provisions implementing the alternative investment fund managers directive, and

(ii)any directly applicable EU regulation made under that directive.

(7BB) The appropriate UK regulator must—

(a)within two months of receiving the firm’s notice of intention, give a consent notice to the host state regulator,

(b)send with that notice confirmation that the firm has been authorised by it pursuant to Article 6.1 of the alternative investment fund managers directive, and

(c)immediately notify the firm that it has given the consent notice to the host state regulator.

(7BC) If the firm’s EEA right derives from the alternative investment fund managers directive, the third condition does not apply.”;

(c)in sub-paragraph (12A)(a), after “UCITS directive”, insert “or the alternative investment fund managers directive”.

(12) In paragraph 20 (services)(31)—

(a)in sub-paragraph (1), for “sub-paragraphs (4D) and (4E)”, substitute “sub-paragraphs (4D) to (4F)”;

(b)after sub-paragraph (3C), insert—

“(3D) If the firm’s EEA right derives from the alternative investment fund managers directive, the appropriate UK regulator must—

(a)if the condition in sub-paragraph (3E) is satisfied—

(i)within one month of receiving the firm’s notice of intention, send a copy of the firm’s notice of intention to the host state regulator;

(ii)send with that notice confirmation that the firm has been authorised by it pursuant to Article 6.1 of that directive, with such other information as may be specified; and

(iii)immediately notify the firm that it has given the notice and confirmation to the host state regulator; or

(b)give the firm written notice of its refusal to send a copy of the notice of intention to the host state regulator and its reasons for that refusal.

(3E) The condition is that the appropriate UK regulator is satisfied that the firm complies, and will continue to comply, with—

(a)the provisions implementing the alternative investment fund managers directive, and

(b)any directly applicable EU regulation made under that directive.”;

(c)in sub-paragraph (4A) after “sub-paragraph (3A)(b)” insert “or (3D)(b)”;

(d)in sub-paragraph (4B), after “any of the insurance directives or from”, insert “the alternative investment fund managers directive,”; and

(e)after sub-paragraph (4E), insert—

“(4F) This paragraph does not apply to—

(a)the operator of a UCITS established in the United Kingdom seeking to exercise an EEA right to market the units of that UCITS in the territory of another EEA State; or

(b)a UK firm seeking to exercise an EEA right under the alternative investment fund managers directive to market an AIF.”.

(13) In the heading before paragraph 20B (notice of intention to market)(32), after “market” insert “a UCITS”.

(14) After paragraph 20B, insert—

“Notice of intention to market an AIF

20C.—(1) A full-scope UK AIFM may not exercise in the territory of another EEA State an EEA right under the alternative investment fund managers directive to market a UK AIF or EEA AIF managed by it unless two conditions are satisfied.

(2) The first condition is that the full-scope UK AIFM has given the appropriate UK regulator, in the specified way, notice of its intention to market the AIF (“notice of intention”) which contains, and is accompanied by, such information as may be specified.

(3) The appropriate UK regulator must ensure that the notice of intention and any accompanying information may be transmitted to it electronically.

(4) The second condition is that the appropriate UK regulator has sent a copy of the notice of intention to the host state regulator, and has given written notice to the full-scope UK AIFM that it has done so.

(5) Sub-paragraph (6) applies where—

(a)the appropriate UK regulator is satisfied that the full-scope UK AIFM complies, and will continue to comply, with—

(i)the provisions implementing the alternative investment fund managers directive, and

(ii)any directly applicable EU regulation made under that directive, and

(b)if the UK AIF or EEA AIF is a feeder AIF, its master AIF is a UK AIF or EEA AIF that is managed by—

(i)a full-scope UK AIFM, or

(ii)an AIFM authorised in another EEA State in accordance with Article 6.1 of the alternative investment fund managers directive.

(6) The appropriate UK regulator must send a copy of the notice of intention to the host state regulator within 20 working days of receiving it.

(7) When sending a copy of the notice of intention to the host state regulator, the appropriate UK regulator must send with the notice confirmation that the full-scope UK AIFM concerned is authorised to manage AIFs with a particular investment strategy, and a statement of that strategy.

(8) If the notice of intention relates to an EEA AIF, the appropriate UK regulator must, when it sends a copy of the notice to the host state regulator, also inform the competent authority of the EEA AIF that the full-scope UK AIFM may start marketing the AIF in the EEA States covered by the notice.

(9) The appropriate UK regulator must notify the full-scope UK AIFM immediately that the copy of the notice of intention has been sent to the host state regulator.

(10) The full-scope UK AIFM may market the AIF in the territory of the host state regulator from the date it receives the notification referred to in sub-paragraph (9).

(11) If the appropriate UK regulator refuses to send a copy of the notice of intention to the host state regulator—

(a)the appropriate UK regulator must give the AIFM written notice of its refusal and its reasons for that refusal; and

(b)the AIFM may refer the matter to the Tribunal.

(12) In this paragraph—

“competent authority” has the meaning given in regulation 2 of the Alternative Investment Fund Managers Regulations 2013;

“EEA AIF” has the meaning given in regulation 2 of the Alternative Investment Fund Managers Regulations 2013;

“feeder AIF” has the meaning given in Article 4.1(m) of the alternative investment fund managers directive;

“master AIF” has the meaning given in Article 4.1(y) of that directive;

“specified” means specified in rules;

“UK AIF” has the meaning given in regulation 2 of the Alternative Investment Fund Managers Regulations 2013.”.

(15) After paragraph 28 (management companies: request for information)(33) insert—

“Full-scope UK AIFMs: notification of breach by host state regulator

29.  If a host state regulator informs the FCA in accordance with paragraph 5 of Article 45 of the alternative investment fund managers directive that a full-scope UK AIFM has refused to provide the information or to take the steps referred to in that paragraph, the appropriate UK regulator must—

(a)take steps to ensure that the AIFM provides the information or complies with the rules of which it is in breach;

(b)request any necessary information from a supervisory authority in a country that is not an EEA State; and

(c)notify the host state regulator of the steps taken under paragraph (a).”.

35.  In paragraph 2(2) of Schedule 5 (permission for open-ended investment companies to operate collective investment schemes)(34), after “regulated activity” insert “other than the activity of managing an AIF”.

36.  In paragraph 2B of Schedule 6 (threshold conditions)(35)—

(a)in sub-paragraph (1), for “or (4)(a)”, substitute “, (4)(a) or (7)”;

(b)after sub-paragraph (6), insert—

“(7) If A is seeking to carry on, or is carrying on, the regulated activity of managing an AIF and is, or upon being granted Part 4A permission to carry on that regulated activity would be, a full-scope UK AIFM, A’s head office and registered office must be in the United Kingdom.”.

PART 2Amendments to other primary legislation

Charities Act (Northern Ireland) 1964

37.  Until its repeal by the Charities Act (Northern Ireland) 2008 comes into force(36), section 25 of the Charities Act (Northern Ireland) 1964(37) (common investment schemes), has effect with the insertion after subsection (3) of the following—

“(3A) A common investment scheme may provide for appropriate bodies to be admitted to participate in the scheme (in addition to the participating charities) to such extent as the trustees appointed to manage the fund may determine.

(3B) In this section “appropriate body” means—

(a)a Scottish recognised body,

(b)an England and Wales charity, or

(c)any body of persons or trust that—

(i)is established in an EEA state other than the United Kingdom, and

(ii)is a charity as defined by paragraph 1 of Schedule 6 to the Finance Act 2010(38),

and, in the application of the relevant provisions in relation to a scheme which contains provisions authorised by subsection (3A), “charity” includes an appropriate body.

“The relevant provisions” are subsections (1), (4) to (7), (11) and (in relation only to a charity within paragraph (b)) subsection (12).

(3C) In subsection (3B) “Scottish recognised body” means a body—

(a)established under the law of Scotland, or

(b)managed or controlled wholly or mainly in or from Scotland,

to which the Commissioners for Her Majesty’s Revenue and Customs have given intimation, which has not subsequently been withdrawn, that relief is due under Part 10 of the Income Tax Act 2007, or that qualifying relief is due under Part 11 of the Corporation Tax Act 2010, in respect of income of the body which is applicable and applied to charitable purposes only.

(3D) In that subsection “England and Wales charity” means an institution—

(a)which is a charity under the law of England and Wales, and

(b)to which the Commissioners for Her Majesty’s Revenue and Customs have given intimation, which has not subsequently been withdrawn, that relief is due under Part 10 of the Income Tax Act 2007, or that qualifying relief is due under Part 11 of the Corporation Tax Act 2010, in respect of income of the institution which is applicable and applied to charitable purposes only.

(3E) For purposes of this section relief under any provision of Part 11 of the Corporation Tax Act 2010 other than—

(a)section 480 (exemption for profits of small-scale trades), and

(b)section 481 (exemption from charges under provisions to which section 1173 applies),

is qualifying relief under that Part.”.

Fair Trading Act 1973

38.  In section 118(6A) of the Fair Trading Act 1973(39) (trading schemes to which Part 11 applies) after paragraph (e) insert—

“(ea)managing a UCITS;

(eb)acting as trustee or depositary of a UCITS;

(ec)managing an AIF;

(ed)acting as trustee or depositary of an AIF;”.

Companies Act 1989

39.  In section 176(8) of the Companies Act 1989(40) (power to make provision about certain other charges) after paragraph (e) omit “or” and insert—

“(ea)managing a UCITS;

(eb)acting as trustee or depositary of a UCITS;

(ec)managing an AIF;

(ed)acting as trustee or depositary of an AIF; or”.

Value Added Tax Act 1994

40.  In Part 2 of Schedule 9 (exemptions) to the Value Added Tax Act 1994(41), in Group 5 (finance)—

(a)omit paragraphs (g) and (h) of item 9; and

(b)in note (6) omit the definition of “recognised collective investment scheme authorised in a designated country or territory”.

Terrorism Act 2000

41.  In paragraph 6(1A) of Schedule 6 to the Terrorism Act 2000(42) (financial information) after paragraph (e) insert—

“(ea)managing a UCITS,

(eb)acting as trustee or depositary of a UCITS,

(ec)managing an AIF,

(ed)acting as trustee or depositary of an AIF,”.

Companies Act 2006

42.  In section 1278(1) of the Companies Act 2006(43) omit paragraph (f).

Charities Act (Northern Ireland) 2008

43.  In sections 43(5) (schemes to establish common investment funds) and 44(5) (schemes to establish common deposit funds) of the Charities Act (Northern Ireland) 2008—

(a)in paragraph (a), omit “or”;

(b)after paragraph (b), insert—

“; or

(c)any body of persons or trust that—

(i)is established in an EEA state other than the United Kingdom, and

(ii)is a charity as defined by paragraph 1 of Schedule 6 to the Finance Act 2010,”.

Charities Act 2011

44.  In sections 97(3) (bodies which may participate in common investment schemes) and 101(3) (bodies which may participate in common deposit schemes) of the Charities Act 2011(44)—

(a)in paragraph (a), omit “or”;

(b)after paragraph (b), insert—

“; or

(c)any body of persons or trust that—

(i)is established in an EEA state other than the United Kingdom, and

(ii)is a charity as defined by paragraph 1 of Schedule 6 to the Finance Act 2010.”.

PART 3Transitional provisions in respect of recognised overseas schemes

45.—(1) A collective investment scheme which immediately before 22nd July 2013 was recognised by virtue of section 270 of the Act (schemes authorised in designated countries or territories) is to be treated on and after that date as if it were recognised pursuant to an order under section 272 of the Act (individually recognised overseas schemes), and may be revoked in accordance with the provisions applying to such an order.

(2) Sub-paragraphs (3) to (5) apply in relation to a collective investment scheme which immediately before 22nd July 2013 was recognised by virtue of section 270 of the Act or pursuant to an order under section 272 of the Act.

(3) The operator of the scheme is to be treated for the purposes of section 277A(2)(45) of the Act (regular provision of information relating to compliance with requirements for recognition) as if it had provided information to the FCA pursuant to a direction under section 277A(1) of the Act on 21st July 2013.

(4) If the FCA gives a direction under section 277(5) (alteration of schemes and changes of operator, trustee or depositary) or 277A(1) of the Act pursuant to which requires the operator is required to provide information to the FCA before 22nd July 2014, and the operator has not provided such information before 5th August 2014, the scheme will cease to be recognised on 5th August 2014.

(5) If the operator of the scheme gives written notice of a proposed alteration to the FCA under section 277(1) of the Act after 21st July 2013 but before 22nd July 2014, section 277(2) of the Act applies to that proposal as if the reference in section 277(2)(b) to a period of one month referred to a period of three months.

(6) In this paragraph “the operator” has the meaning given in section 237(2) of the Act (other definitions).

Regulation 81

SCHEDULE 2AMENDMENTS TO SECONDARY LEGISLATION

PART 1Amendments to the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001

Financial Services and Markets Act 2000 (Regulated Activities) Order 2001

1.—(1) The Regulated Activities Order is amended as follows.

(2) In article 3(1) (interpretation)(46)—

(a)in paragraph (a) of the definition of “overseas person” for “51” substitute “51ZA, 51ZB, 51ZC, 51ZD, 51ZE”; and

(b)insert the following definitions in the appropriate places—

““AIFM” has the meaning given by regulation 4 of the Alternative Investment Fund Managers Regulations 2013;

“EEA AIFM” has the meaning given by regulation 2(1) of the Alternative Investment Fund Managers Regulations 2013;

“full-scope UK AIFM” has the meaning given by regulation 2(1) of the Alternative Investment Fund Managers Regulations 2013;

“small registered UK AIFM” has the meaning given by regulation 2(1) of the Alternative Investment Fund Managers Regulations 2013;

“UCITS” has the meaning given by Article 1.2 of the UCITS directive;

“UK AIF” has the meaning given by regulation 2(1) of the Alternative Investment Fund Managers Regulations 2013;”.

(3) In articles 4(2) (specified activites: general)(47), 8(a) (sums received by persons authorised to deal etc.), 15(2)(g) (absence of holding out etc.), 16(1)(b) (dealing in contractually based investments)(48) and 33(b)(iii) (introducing), for “51” substitute “51ZA, 51ZB, 51ZC, 51ZD, 51ZE”.

(4) In articles 9AA, 51A, 52A, 58A and 60A (information society services)(49)—

(a)in the heading, at the end insert “and managers of UCITS and AIFs”;

(b)for “exclusion” substitute “exclusions”; and

(c)at the end insert “and article 72AA (managers of UCITS and AIFs).”.

(5) In article 12A (information society services)(50)—

(a)in the heading, at the end insert “and managers of UCITS and AIFs”;

(b)for “exclusion” substitute “exclusions”; and

(c)at the end insert “, and article 72AA (managers of UCITS and AIFs).”.

(6) In articles 20(51), 36(2)(52), 50, 55(2), 63A(53), 63E(54), 63I and 63M(55) (other exclusions), for “and 72A (information society services)” substitute “, 72A (information society services) and 72AA (managers of UCITS and AIFs)”.

(7) In articles 24(56), 36(1)(57), 39C(58) and 55(1) (other exclusions), for “and article 72D (large risks contracts where risk situated outside the EEA)” substitute “, article 72AA (managers of UCITS and AIFs) and article 72D (large risks contracts where risk situated outside the EEA)”.

(8) In article 36(3) (other exclusions)(59), for “the exclusion in article 72 (overseas persons)” substitute “the exclusions in articles 72 (overseas persons) and 72AA (managers of UCITS and AIFs)”.

(9) In articles 39 and 44 (other exclusions)(60), for “and 72C (provisions of information about contracts of insurance on an incidental basis)” substitute “, 72AA (managers of UCITS and AIFs) and 72C (provisions of information about contracts of insurance on an incidental basis)”.

(10) After article 42 (introductions to qualifying custodians), insert—

“Depositaries of UCITS and AIFs

42A.  A person does not carry on an activity of the kind specified by article 40 if the person carries on the activity in relation to—

(a)a UCITS, and the person has a Part 4A permission to carry on the activity specified in article 51ZB in respect of that UCITS; or

(b)an AIF, and the person has a Part 4A permission to carry on the activity specified in article 51ZD in respect of that AIF.”.

(11) In the heading of Chapter 10 (collective investment schemes) omit ‘schemes’.

(12) For article 51 (establishing etc. a collective investment scheme) and the cross-heading following it, substitute—

“Managing a UCITS

51ZA.—(1) Managing a UCITS is a specified kind of activity.

(2) A person manages a UCITS when the person carries on collective portfolio management of the UCITS within the meaning of the UCITS directive, which includes the functions referred to in Annex 2 to that directive (the text of which is set out in Schedule 6) in relation to a UCITS.

(3) If a person manages a UCITS and also carries on other activities in connection with or for the purposes of the management of that UCITS, such other activities are also included in the activity specified in paragraph (1).

Acting as trustee or depositary of a UCITS

51ZB.—(1) Acting as—

(a)the trustee of an authorised unit trust scheme, or

(b)the depositary of an open-ended investment company or authorised contractual scheme,

where the scheme or company is a UCITS, is a specified kind of activity.

(2) In paragraph (1), “authorised contractual scheme”, “authorised unit trust scheme”, “trustee” and “depositary” have the meanings given by section 237 of the Act (other definitions).

Managing an AIF

51ZC.—(1) Managing an AIF is a specified kind of activity.

(2) A person manages an AIF when the person performs at least risk management or portfolio management for the AIF.

(3) A person does not manage an AIF if the functions they perform for the AIF have been delegated to it by another person, provided that such other person is not an AIFM that has delegated such functions to the extent that it is a letter-box entity.

(4) Paragraph (5) applies if a person manages an AIF, and also carries on—

(a)one or more of the additional activities listed in paragraph 2 of Annex 1 to the alternative investment fund managers directive (the text of which is set out in Schedule 7) for that AIF; or

(b)one or more other activities in connection with or for the purposes of the management of that AIF.

(5) The additional or other activities are included in the activity specified in paragraph (1).

(6) Any expression used in this article which is not defined in this Order and is used in the alternative investment fund managers directive has the same meaning as in that directive.

Acting as trustee or depositary of an AIF

51ZD.—(1) Acting as—

(a)the depositary of an AIF falling within paragraph (2),

(b)the trustee of an authorised unit trust scheme which is an AIF that does not fall within paragraph (2), or

(c)the depositary of an open-ended investment company or authorised contractual scheme which is an AIF that does not fall within paragraph (2),

is a specified kind of activity.

(2) An AIF falls within this paragraph if it is—

(a)an AIF managed by a full-scope UK AIFM; or

(b)a UK AIF managed by an EEA AIFM.

(3) In paragraph (1)(a) “depositary” means—

(a)a person appointed in compliance with the requirement for the AIFM to appoint a depositary at Article 21.1 of the alternative investment fund managers directive; or

(b)an Article 36 custodian as defined in regulation 57(5)(a) of the Alternative Investment Fund Managers Regulations 2013.

(4) In paragraph (1)(b) “authorised unit trust scheme” and “trustee” have the meanings given by section 237 of the Act.

(5) In paragraph (1)(c) “authorised contractual scheme” and “depositary” have the meanings given by section 237 of the Act.

(6) Until 22nd July 2017, an AIF also falls within paragraph (2) if the FCA or an authority in another EEA State has permitted a person with its registered office or a branch in the United Kingdom to be appointed as a depositary of the AIF in accordance with Article 61.5 of the alternative investment fund managers directive.

Establishing etc. a collective investment scheme

51ZE.  Establishing, operating or winding up a collective investment scheme is a specified kind of activity.

Exclusions

Persons excluded from managing an AIF

51ZF.  There is excluded from article 51ZC the activity of managing an AIF if the person carrying on the activity is listed or described in Schedule 8.

Operating a collective investment scheme in relation to a UCITS or an AIF

51ZG.—(1) A person does not carry on an activity of the kind specified by article 51ZE if the person carries on the activity—

(a)in relation to a UCITS, and—

(i)at the time the person carries on the activity, the UCITS is managed by a person with a Part 4A permission to carry on the activity specified by article 51ZA in respect of that UCITS; or

(ii)no more than the permitted period has passed since the UCITS was managed by a person with such a Part 4A permission; or

(b)in relation to an AIF, and—

(i)at the time the person carries on the activity, the AIF is managed by—

(aa)a person with a Part 4A permission to carry on the activity specified by article 51ZC in respect of that AIF; or

(bb)a person registered as a small registered UK AIFM because the conditions in regulation 10(4) of the Alternative Investment Fund Managers Regulations 2013 are met in respect of that AIF; or

(ii)no more than the permitted period has passed since the AIF was managed by a person with such a Part 4A permission or registration.

(2) In this article “the permitted period” means a period calculated as follows—

(a)subject to sub-paragraphs (b) and (c), the period is 30 days;

(b)if, before the end of the period, the FCA receives notice of the action being taken to appoint a person with a Part 4A permission or registration to manage the UCITS or AIF, the period is extended by a further 30 days, and may be so extended a second time;

(c)if, before the end of the period calculated in accordance with sub-paragraphs (a) and (b), the FCA receives notice of a proposal in respect of the UCITS or AIF for a new manager under section 251(3) of the Act, a new operator under section 261Q(5) of the Act or a new director under regulation 21(1)(e) of the Open-Ended Investment Company Regulations 2001, the period is further extended until the earlier of—

(i)the date on which the FCA gives written notice of its approval to the proposal;

(ii)the date on which the FCA gives a decision notice refusing the proposal; or

(iii)one month after the date on which notice of the proposal was given.”.

(13) In article 51A (information society services)(61), for “Article 51 is” substitute “Articles 51ZA, 51ZB, 51ZC, 51ZD, and 51ZE are also”.

(14) In articles 64 (agreeing to carry on specified kinds of activity)(62), 68(1) and (3)(b)(ii) (activities carried on in connection with the sale of goods or supply of services)(63) and 69(2)(b)(ii) (groups and joint enterprises), for “51”, substitute “51ZA, 51ZB, 51ZC, 51ZD, 51ZE”.

(15) In article 72E(5) (Business Angel-led Enterprise Capital Funds)(64), for “51(1)(a)” substitute “51ZA, 51ZC or 51ZE”.

(16) After article 72A (information society services)(65), insert—

“Managers of UCITS and AIFs

72AA.—(1) This article applies to a person with a Part 4A permission to carry on the activity of the kind specified by article 51ZA or 51ZC.

(2) Activities carried on by the person in connection with or for the purposes of managing a UCITS or, as the case may be, managing an AIF, are excluded from the activities specified by this Part, other than the activities mentioned in paragraph (1).”.

(17) After Schedule 5 (specified benchmarks)(66) insert—

Article 51ZA

“SCHEDULE 6FUNCTIONS INCLUDED IN THE ACTIVITY OF MANAGING A UCITS: ANNEX II TO THE UCITS DIRECTIVE

1.  Investment management.

2.  Administration—

(a)legal and fund management accounting services;

(b)customer inquiries;

(c)valuation and pricing (including tax returns);

(d)regulatory compliance monitoring;

(e)maintenance of unit-holder register;

(f)distribution of income;

(g)unit issues and redemptions;

(h)contract settlements (including certificate dispatch);

(i)record keeping.

3.  Marketing.

Article 51ZC

SCHEDULE 7ADDITIONAL ACTIVITIES INCLUDED IN THE ACTIVITY OF MANAGING AN AIF LISTED IN PARAGRAPH 2 OF ANNEX I TO THE ALTERNATIVE INVESTMENT FUND MANAGERS DIRECTIVE

Article 51ZF

SCHEDULE 8PERSONS EXCLUDED FROM REGULATED ACTIVITY OF MANAGING AN AIF

Interpretation of this Schedule

1.  Any expression used in this Schedule which is used in the alternative investment fund managers directive has the same meaning as in that directive.

Persons excluded

2.  A small registered UK AIFM, in respect of the AIFs managed by it by virtue of which it is entitled to be registered as a small registered UK AIFM (but not in respect of any other AIFs managed by it).

3.  An AIFM in so far as it manages one or more AIFs whose only investors are—

(a)the AIFM,

(b)the parent undertakings of the AIFM,

(c)the subsidiaries of the AIFM, or

(d)other subsidiaries of those parent undertakings,

provided that none of the investors is an AIF.

4.  An institution for occupational retirement provision which falls within the scope of Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision(67), 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 AIFs.

5.  The European Central Bank, the European Investment Bank, the European Investment Fund, a bilateral development bank, the World Bank, the International Monetary Fund, any other supranational institution or similar international organisation, or a European Development Finance Institution, in the event that such institution or organisation manages AIFs and in so far as those AIFs act in the public interest.

6.  A national central bank.

7.  A national, regional or local government or body or other institution which manages funds supporting social security and pension systems.

8.  A holding company.

9.  An employee participation scheme or employee savings scheme.

10.  A securitisation special purpose entity.

11.  An AIFM, the registered office of which is not in an EEA State.”.

PART 2Amendments to other secondary legislation

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975

2.—(1) The Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975(68) is amended as follows.

(2) In article 2(1), in the definition of “relevant collective investment scheme” omit “, 270 (schemes authorised in designated countries or territories)”.

(3) In article 4(1)(d)(ix)—

(a)omit the words from the beginning to “that section or”; and

(b)for “that Act” substitute “the 2000 Act”.

Companies (No. 2) (Northern Ireland) Order 1990

3.  In article 98(8) of the Companies (No. 2) (Northern Ireland) Order 1990(69) (power to make provision about certain other charges) after sub-paragraph (e) omit “or” and insert—

“(ea)managing a UCITS;

(eb)acting as trustee or depositary of a UCITS;

(ec)managing an AIF;

(ed)acting as trustee or depositary of an AIF; or”.

Individual Savings Account Regulations 1998

4.  In regulation 2(1)(b) of the Individual Savings Account Regulations 1998(70) (interpretation), in paragraph (b) of the definition of “non-UCITS retail scheme” omit “270 or”.

Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) Order 2001

5.—(1) The Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) Order 2001(71) is amended as follows.

(2) In article 2(1) (interpretation) in the definition of “relevant scheme activities” for “the activity specified by article 51” substitute “any activity specified by article 51ZA, 51ZB, 51ZD or 51ZE”.

(3) In article 16 (communications required or authorised by enactments)—

(a)renumber the text of the article as paragraph (1) of the article;

(b)after that paragraph insert—

“(2) A communication which may be made because a condition imposed by regulation 49 or 50 of the Alternative Investment Fund Managers Regulations 2013 has been met, is to be treated as authorised by those Regulations for the purposes of paragraph (1) in so far as it is made to a professional investor (as defined in regulation 2(1) of those Regulations).

(3) A communication permitted by Article 2.2, 4 or 14.3 of Regulation (EU) No 345/2013 of the European Parliament and the Council of 17 April 2013 on European venture capital funds, or by Article 2.2, 4 or 15.3 of Regulation (EU) No 346/2013 of the European Parliament and the Council of 17 April 2013 on European social entrepreneurship funds, is to be treated as authorised by another enactment for the purposes of paragraph (1).”.

Financial Services and Markets Act 2000 (Collective Investment Schemes) Order 2001

6.  In paragraph 5(2)(a) of the Schedule to the Financial Services and Markets Act 2000 (Collective Investment Schemes) Order 2001(72) (arrangements not amounting to a collective investment scheme) for “51 (establishing etc. a collective investment scheme)” substitute “51ZA (managing a UCITS), 51ZB (acting as trustee or depositary of a UCITS), 51ZC (managing an AIF), 51ZD (acting as trustee or depositary of an AIF), 51ZE (establishing etc. collective investment scheme)”.

Financial Services and Markets Act 2000 (Carrying on Regulated Activities by Way of Business) Order 2001

7.  For article 3(2)(g) of the Financial Services and Markets Act 2000 (Carrying on Regulated Activities by Way of Business) Order 2001(73) (investment business), substitute—

“(ga)article 51ZA (managing a UCITS);

(gb)article 51ZB (acting as a trustee or depositary of a UCITS);

(gc)article 51ZC (managing an AIF);

(gd)article 51ZD (acting as a trustee or depositary of an AIF);

(ge)article 51ZE (establishing etc. a collective investment scheme);”.

Financial Services and Markets Act 2000 (Exemption) Order 2001

8.—(1) The Financial Services and Markets Act 2000 (Exemption) Order 2001(74) is amended as follows.

(2) For article 5(1)(g) (persons exempt in respect of particular regulated activities) substitute—

“(ga)article 51ZA (managing a UCITS);

(gb)article 51ZB (acting as a trustee or depositary of a UCITS);

(gc)article 51ZC (managing an AIF);

(gd)article 51ZD (acting as a trustee or depositary of an AIF);

(ge)article 51ZE (establishing etc. a collective investment scheme);”.

(3) In paragraphs 44(1) and (2) and 45 of the Schedule (persons exempt in respect of particular regulated activities – charities and schemes established under the Trustee Investments Act 1961) for “article 51 of the Regulated Activities Order (establishing etc. a collective investment scheme)” substitute “articles 51ZA to 51ZE of the Regulated Activities Order (managing or acting as trustee or depositary of a UCITS or an AIF, or establishing etc. a collective investment scheme)”.

Financial Services and Markets Act 2000 (Professions) (Non-Exempt Activities) Order 2001

9.  For article 4(d) of the Financial Services and Markets Act 2000 (Professions) (Non-Exempt Activities) Order 2001(75), substitute—

“(da)article 51ZA (managing a UCITS);

(db)article 51ZB (acting as a trustee or depositary of a UCITS);

(dc)article 51ZC (managing an AIF);

(dd)article 51ZD (acting as a trustee or depositary of an AIF);

(de)article 51ZE (establishing etc. a collective investment scheme);”.

Open-Ended Investment Companies Regulations 2001

10.—(1) The Open-Ended Investment Companies Regulations 2001(76) are amended as follows.

(2) In regulation 15 (requirements for authorisation)—

(a)for paragraph (6) substitute—

“(6) If the company has only one director, that director must be a body corporate which is an authorised person and which has a Part 4A permission to carry on the regulated activity of managing a UCITS or, as the case may be, managing an AIF.”;

(b)in paragraph (8)(e) after “the depositary of an open-ended investment company” insert “that is a UCITS or, as the case may be, of an open-ended investment company that is an AIF”.

(3) In regulation 62(3) (exemptions from liability to be void), for “This regulation” substitute “Except in the case of the depositary of an AIF (as to which see regulations 29 to 32 of the Alternative Investment Fund Managers Regulations 2013), this regulation”.

Financial Services and Markets Act 2000 (Compensation Scheme: Electing Participants) Regulations 2001

11.—(1) The Financial Services and Markets Act 2000 (Compensation Scheme: Electing Participants) Regulations 2001(77) are amended as follows.

(2) In regulation 1(2) (interpretation) in the appropriate places insert—

““authorised contractual scheme” has the meaning given at section 237(3) of the Act;”;

““authorised open-ended investment company” has the meaning given at section 237(3) of the Act;”;

““authorised unit trust scheme” has the meaning given at section 237(3) of the Act;”;

““relevant AIFM” means an EEA firm falling within paragraph 5(h) of Schedule 3 to the Act which—

““UK AIF” has the meaning given in regulation 2 of the Alternative Investment Fund Managers Regulations 2013.”.

(3) In regulation 2 (persons not to be regarded as relevant persons)—

(a)omit “and” after sub-paragraph (1)(c);

(b)after sub-paragraph (1)(d) insert—

“; and

(e)any relevant AIFM.”;

(c)after paragraph (3) insert—

“(4) A relevant AIFM is prescribed in relation to all authorised activities other than any services specified by Annex I to the alternative investment fund managers directive provided in respect of an authorised unit trust scheme, an authorised contractual scheme or an authorised open-ended investment company.”.

(4) In regulation 3(1) (persons who may elect to participate)—

(a)omit “and” after sub-paragraph (b);

(b)after sub-paragraph (c) insert—

“; and

(d)any relevant AIFM which has established a branch in the United Kingdom in exercise of an EEA right to the extent that it—

(i)provides services specified by Annex I to the alternative fund managers directive in respect of a UK AIF which is not an authorised unit trust scheme, an authorised contractual scheme or an authorised open-ended investment company, unless the relevant AIFM is a member of another investor-compensation scheme which affords investors protection which equals or exceeds that provided by the Financial Services Compensation Scheme; or

(ii)provides services specified in Article 6.4 of the alternative investment fund managers directive (discretionary portfolio management and non-core services), and is a member of a home State investor-compensation scheme which meets the condition in paragraph (2);”.

(5) In regulation 4 (persons in respect of whom inspection under section 224 does not apply)—

(a)omit “and” after paragraph (c);

(b)after paragraph (d) insert—

“; and

(e)any relevant AIFM to the extent that it provided services in the United Kingdom other than services specified by Annex I to the alternative investment fund managers directive that were provided in respect of an authorised unit trust scheme, an authorised contractual scheme or an authorised open-ended investment company.”.

Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001

12.—(1) The Financial Services and Markets Act 2000 (Disclosure of Confidential Information) Regulations 2001(78) are amended as follows.

(2) In regulation 2 (interpretation), in the definition of “single market restrictions”, after paragraph (g) insert—

“(ga)articles 47.2, 47.3, 51, 52 and 53.2 of the alternative investment fund managers directive;”.

(3) In regulation 9 (disclosure by regulators or regulator workers to certain other persons)—

(a)for paragraph (2) for the words from “the disclosure is provided for” to the end substitute “the condition in paragraph (2ZA) is met or the conditions in (2B) are met.”;

(b)after paragraph (2) insert—

“(2ZA) The condition in this paragraph is that the disclosure is provided for by a cooperation agreement of the kind referred to in—

(a)article 63 of the markets in financial instruments directive;

(b)article 46 of the banking consolidation directive;

(c)article 16.3 of the life assurance consolidation directive;

(d)article 16.3 of the non- life assurance directive;

(e)article 102.3 of the UCITS directive; or

(f)article 26 of the reinsurance directive.”;

(c)after paragraph (2A) insert—

“(2B) The conditions in this paragraph are that—

(a)the conditions in articles 25 or 26 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(79) are met;

(b)the regulator or regulator worker is satisfied that the disclosure is necessary for the purpose of complying with a requirement of the alternative investment fund managers directive; and

(c)in the case of disclosure of information received from an EEA competent authority—

(i)that authority has given its express agreement to the disclosure; and

(ii)if such agreement was given for a particular purpose, the disclosure is solely for that purpose.”.

Financial Services and Markets Act 2000 (Consultation with Competent Authorities) Regulations 2001

13.—(1) In regulation 5(3) of the Financial Services and Markets Act 2000 (Consultation with Competent Authorities) Regulations 2001(80), for sub-paragraph (b) substitute—

“(b)that UK authorised person has a Part 4A permission to carry on the regulated activity of managing a UCITS”.

Financial Services and Markets Act 2000 (EEA Passport Rights) Regulations 2001

14.—(1) The Financial Services and Markets Act 2000 (EEA Passport Rights) Regulations 2001(81) are amended as follows.

(2) After regulation 2(5) (establishment of a branch: contents of consent notice) insert—

“(6) In the case of an EEA AIFM, the prescribed information is—

(a)a statement that the firm is an EEA AIFM;

(b)the identity of the AIFs that the EEA AIFM intends to manage;

(c)the organisational structure of the branch;

(d)the address in the home state of each AIF that the EEA AIFM intends to manage from which documents relating to that AIF may be obtained;

(e)the names and contact details of the persons responsible for the management of the branch.

(7) In paragraph (6) “home state” in relation to an AIF means—

(a)the EEA State in which the AIF is authorised or registered, or in the case of multiple authorisations or registrations, the EEA State in which the AIF was first authorised or registered; or

(b)if the AIF is not authorised or registered in an EEA State, the EEA State in which it has its registered office or head office.”.

(3) After regulation 3(4) (provision of services: contents of regulator’s notice) insert—

“(5) In the case of an EEA AIFM, the prescribed information is—

(a)a statement that the firm is an EEA AIFM;

(b)if the EEA AIFM wishes to manage an AIF in the United Kingdom—

(i)particulars of the programme of operations to be carried on in the United Kingdom, including a description of the particular EEA activities to be carried on; and

(ii)the identity of the AIFs that the EEA AIFM intends to manage; and

(c)if the EEA AIFM wishes to market an AIF in the United Kingdom—

(i)the documents and information set out in Annex IV to the alternative investment fund managers directive; and

(ii)a statement to the effect that the AIFM concerned is authorised to manage AIFs with a particular management strategy.”.

(4) After regulation 7 (insurance firms: changes to services) insert—

“EEA AIFM: changes to branch details or services

7A.—(1) An EEA AIFM which is exercising an EEA right in the United Kingdom deriving from the alternative investment fund managers directive must not make a material change to any of the matters referred to in regulation 2(6)(b) to (e) or 3(5)(b) or (c) unless the relevant requirement has been complied with.

(2) Where the relevant requirement has been complied with, the EEA AIFM’s permission is to be treated as varied accordingly.

(3) For the purposes of this regulation, the “relevant requirement” is that the home state regulator has informed the appropriate UK regulator that it has approved the proposed change.

(4) In this regulation “the appropriate UK regulator” has the same meaning as in paragraph 14 of Schedule 3.”.

(5) After regulation 17 (relevant details for purposes of regulation 16) insert—

“Full-scope UK AIFM: changes to branch details or services

17A.—(1) A full-scope UK AIFM which has exercised an EEA right, deriving from the alternative investment fund managers directive, to establish a branch must not change any of the matters referred to in regulation 2(6)(b) to (e) unless the relevant requirements have been complied with.

(2) A full-scope UK AIFM which is providing services in exercise of an EEA right deriving from the alternative investment fund managers directive, other than the EEA right to market an AIF, must not change—

(a)the programme of operations, or the EEA activities, to be carried out in exercise of that right,

(b)the EEA States, other than the United Kingdom, in which it manages AIFs, or

(c)the identity of the AIFs it manages in those States,

unless the relevant requirements have been complied with.

(3) A full-scope UK AIFM which is marketing an AIF in exercise of an EEA right deriving from the alternative investment fund managers directive, must not make a material change to any of the following matters, unless the relevant requirements have been complied with—

(a)the programme of operations identifying the AIF the AIFM intends to market and information on where the AIF is established;

(b)the AIF rules or instruments of incorporation;

(c)identification of the depositary of the AIF;

(d)the description of, or any information on, the AIF available to investors;

(e)where the master AIF is established, if the AIF is a feeder AIF;

(f)any additional information referred to in Article 23.1 of the alternative investment fund managers directive, for each AIF the AIFM intends to market;

(g)the EEA States, other than the United Kingdom, in which the AIFM intends to market the units or shares of the AIF to professional investors;

(h)information about arrangements made for the marketing of the AIF and, where relevant, arrangements established to prevent the AIF from being marketed to retail investors, including in the case where the AIFM relies on the activities of independent entities to provide investment services in respect of the AIF.

(4) For the purposes of this regulation, the “relevant requirements” in the case of a planned change are that—

(a)the AIFM has given written notice of the change to the appropriate UK regulator at least one month before implementing the change; and

(b)either—

(i)the appropriate UK regulator has consented to the change; or

(ii)the appropriate UK regulator has not objected to the change in the period of one month beginning on the day on which the firm gave notice.

(5) For the purposes of this regulation, the “relevant requirements” in the case of an unplanned change are that—

(a)the AIFM has given written notice of the change to the appropriate UK regulator as soon as reasonably practicable and, at the latest, immediately after an unplanned change has occurred; and

(b)the appropriate UK regulator has not objected to the change.

(6) If a planned change would mean the AIFM no longer complied with an implementing provision, the appropriate UK regulator must inform the AIFM without undue delay that—

(a)the FCA objects to the change; and

(b)the AIFM must not implement the change.

(7) If—

(a)a planned change is implemented, or

(b)an unplanned change takes place,

as a result of which the AIFM no longer complies with an implementing provision, the appropriate UK regulator must take steps to ensure that the AIFM complies with that provision or ceases to exercise the EEA right.

(8) If a change notified under paragraph (4)(a) or (5)(a) does not affect compliance with an implementing provision, the appropriate UK regulator must—

(a)give a notice to the host state regulator informing it of the change; and

(b)inform the firm that it has given the notice, stating the date on which it did so.

(9) If the appropriate UK regulator objects to a change under paragraph (6), takes steps under paragraph (7) or refuses to give notice to the host state regulator under paragraph (8)—

(a)the AIFM may refer the matter to the Tribunal; and

(b)the appropriate UK regulator must give notice to the AIFM of the reasons for its decision to object, to take such steps or to refuse to give such notice.

(10) In this regulation—

“depositary” has the meaning given in regulation 2 of the Alternative Investment Fund Managers Regulations 2013;

“feeder AIF” has the meaning given in Article 4.1(m) of the alternative investment fund managers directive;

“implementing provision” means a provision implementing the alternative investment fund managers directive or a provision of any directly applicable EU regulation made under that directive;

“master AIF” has the meaning given in Article 4.1(y) of that directive;

“retail investor” has the meaning given in Article 4.1(aj) of that directive.”.

Uncertificated Securities Regulations 2001

15.  After regulation 9(10)(f) of the Uncertificated Securities Regulations 2001(82) (injunctions and restitution orders) insert—

“(fa)managing a UCITS;

(fb)acting as trustee or depositary of a UCITS;

(fc)managing an AIF;

(fd)acting as trustee or depositary of an AIF;”.

Financial Services and Markets Act 2000 (Collective Investment Schemes) (Designated Countries and Territories) Order 2003

16.  The Financial Services and Markets Act 2000 (Collective Investment Schemes) (Designated Countries and Territories) Order 2003(83) is revoked.

Financial Conglomerates and Other Financial Groups Regulations 2004

17.—(1) The Financial Conglomerates and Other Financial Groups Regulations 2004(84) are amended as follows.

(2) In regulation 1(2) (interpretation), in the definition of “regulated entity”—

(a)at the end of paragraph (c) omit “or”;

(b)after paragraph (d) insert—

“; or

(e)an alternative investment fund manager (as referred to in Article 4(1)(b), (l) or (ab) of the alternative investment fund managers directive) or an undertaking which is outside the EEA but which would require authorisation in accordance with that Directive if it had its registered office in the EEA; and”.

(3) In regulation 7(1) (supervision of third-country financial conglomerates and third-country groups - interpretation), before the definition of “asset management company” insert—

““alternative investment fund manager” means—

(4) In regulation 9 (supervision of third-country banking groups), after paragraph (5) insert—

“(6) Where a regulator has, for the purposes of Article 30a of the conglomerates directive (alternative investment fund managers), included an alternative investment fund manager in the scope of supervision of a credit institution in a third-country group, each reference in this regulation to a “credit institution” is to be treated as including a reference to that alternative investment fund manager.”.

(5) In regulation 10 (supervision of third-country groups subject to the capital adequacy directive), after paragraph (6) insert—

“(7) Where a regulator has, for the purposes of Article 30a of the conglomerates directive, included an alternative investment fund manager in the scope of supervision of—

(a)credit institutions and investment firms in a third-country group; or

(b)investment firms in a third-country group,

each reference in this regulation to an “investment firm” is to be treated as including a reference to that alternative investment fund manager.”.

Child Trust Funds Regulations 2004

18.  In regulation 2(1)(b) of the Child Trust Funds Regulations 2004 (interpretation)(86), in paragraph (b) of the definition of “non-UCITS retail scheme” omit “270 or”.

Financial Services and Markets Act 2000 (Financial Promotion) Order 2005

19.  In the Financial Services and Markets Act 2000 (Financial Promotion) Order 2005(87)—

(a)after article 29(2) (communications required or authorised by enactments) insert—

“(3) A communication which may be made because a condition imposed by regulation 49 or 50 of the Alternative Investment Fund Managers Regulations 2013 has been met, is to be treated as authorised by those Regulations for the purposes of paragraph (1) in so far as it is made to a professional investor (as defined in regulation 2(1) of those Regulations).

(4) A communication permitted by Article 2.2, 4 or 14.3 of Regulation (EU) No 345/2013 of the European Parliament and the Council of 17 April 2013 on European venture capital funds, or by Article 2.2, 4 or 15.3 of Regulation (EU) No 346/2013 of the European Parliament and the Council of 17 April 2013 on European social entrepreneurship funds, is to be treated as authorised by an enactment other than the Act for the purposes of paragraph (1).”;

(b)in article 40(a) omit “270 or”.

Offshore Funds (Tax) Regulations 2009

20.  In regulation 74(2) of the Offshore Funds (Tax) Regulations 2009(88) (the equivalence condition) omit “, 270”.

Financial Services and Markets Act 2000 (Short Selling) Regulations 2012

21.  Omit regulation 2(14) of the Financial Services and Markets Act 2000 (Short Selling) Regulations 2012(89).

Financial Services and Markets Act 2000 (Qualifying EU Provisions) Order 2013

22.—(1) The Financial Services and Markets Act 2000 (Qualifying EU Provisions) Order 2013(90) is amended as follows.

(2) In article 1(2) (interpretation) at the end insert—

““EuSEF Regulation” means Regulation (EU) No 346/2013 of the European Parliament and the Council of 17 April 2013 on European social entrepreneurship funds;

“EuVECA Regulation” means Regulation (EU) No 345/2013 of the European Parliament and the Council of 17 April 2013 on European venture capital funds;”.

(3) In article 2(2) (qualifying EU provisions: general)—

(a)after sub-paragraph (b) insert—

“(ba)any directly applicable regulation made under the alternative investment fund managers directive;”;

(b)after sub-paragraph (e) insert—

“(f)the EuSEF Regulation and any directly applicable regulation made under that Regulation;

(g)the EuVECA Regulation and any directly applicable regulation made under that Regulation.”.

(4) In article 3 (qualifying EU provisions: disciplinary measures)—

(a)in paragraph (2)—

(i)after sub-paragraph (b) insert—

“(ba)any directly applicable regulation made under the alternative investment fund managers directive;”;

(ii)after sub-paragraph (e) insert—

“(f)the EuSEF Regulation and any directly applicable regulation made under that Regulation;

(g)the EuVECA Regulation and any directly applicable regulation made under that Regulation.”;

(b)in paragraph (3)—

(i)in sub-paragraph (b) after “UCITS directive” insert “or the alternative investment fund managers directive”;

(ii)after sub-paragraph (d) insert—

“(e)in relation to a contravention of a requirement imposed by the EuSEF Regulation, the EuVECA Regulation or any directly applicable regulation made under either the EuSEF Regulation or the EuVECA Regulation, the FCA.”.

(5) In article 5 (qualifying EU provisions: injunctions and restitution)—

(a)in paragraph (2)—

(i)after sub-paragraph (b) insert—

“(ba)any directly applicable regulation made under the alternative investment fund managers directive;”;

(ii)after sub-paragraph (e) insert—

“(f)the EuSEF Regulation and any directly applicable regulation made under that Regulation;

(g)the EuVECA Regulation and any directly applicable regulation made under that Regulation.”;

(b)in paragraph (5)—

(i)in sub-paragraph (b) after “UCITS directive” insert “or the alternative investment fund managers directive”;

(ii)after sub-paragraph (e) insert—

“(f)in relation to a contravention of a requirement imposed by the EuSEF Regulation, the EuVECA Regulation or any directly applicable regulation made under either the EuSEF Regulation or the EuVECA Regulation, the FCA.”.

(6) In article 6(2) (qualifying EU provisions: fees)—

(a)after sub-paragraph (b) insert—

“(ba)any directly applicable regulation made under the alternative investment fund managers directive;”;

(b)after sub-paragraph (g) insert—

“(h)the EuSEF Regulation and any directly applicable regulation made under that Regulation;

(i)the EuVECA Regulation and any directly applicable regulation made under that Regulation.”.

Financial Services Act 2012 (Misleading Statements and Impressions) Order 2013

23.  For article 2(b)(ii) of the Financial Services Act 2012 (Misleading Statements and Impressions) Order 2013(91) (relevant agreements – specified kinds of activity) substitute—

“(ia)article 51ZA (managing a UCITS),

(ib)article 51ZB (acting as a trustee or depositary of a UCITS),

(ic)article 51ZC (managing an AIF),

(id)article 51ZD (acting as a trustee or depositary of an AIF),

(ii)article 51ZE (establishing etc. a collective investment scheme),”.

CRC Energy Efficiency Scheme Order 2013

24.  In regulation 3 of the CRC Energy Efficiency Scheme Order 2013(92) (interpretation), in the definition of “regulated activity” for “51(1)(a)” substitute “51ZA, 51ZC or 51ZE”.