Malta offers a competitive and comprehensive legal framework for the establishment of various types of investment funds within the European Union. To this end a fund may be set up as a:
- SICAV (investment company with variable share capital – i.e. open-ended fund);
- investment company with fixed share capital (that is a closed-ended fund);
- limited partnership;
- incorporated cell company; or
- unit trust;
- contractual fund
A contractual fund may also set up a Special Investment Vehicle (SIV) for the purpose of investing and holding assets on behalf of the fund in accordance with the fund’s deed of constitution and offering document (prospectus). This SIV would take the form of a limited liability company set up under the laws of Malta.
Collective investment schemes can be licenced as UCITS Schemes. UCITS schemes are open-ended schemes. These schemes benefit from passporting and can hence be marketed in other EU or EEA member states. Thus UCITS schemes which fulfil the requirements prescribed by the pertinent legislation can, by virtue of the European passport be freely marketed throughout the European Union.
Non-UCITS schemes are open-ended or closed-ended retail schemes formed in accordance with the laws of Malta. Retail schemes that are intended to be marketed only in Malta are normally established as non-UCITS schemes. Another form of non-UCITS scheme is the Professional Investor Fund (PIFs). PIFs are regulated under a separate framework which is particularly suited for funds following alternative investment strategies and sold internationally on a private placement basis.
A CIS organised under the Malta financial services legislation as well as a CIS operating in or from Malta requires a licence. Certain exemptions from the requirement to obtain a CIS licence also exist in specific scenarios.
The MFSA may only grant a CIS licence if it is satisfied that the Scheme will comply in all respects with the provisions of Malta financial services legislation and that its directors and officers are fit and proper persons to carry out the functions required of them in connection with the CIS. To this end the MFSA will look into the experience and track record of all parties who will be involved with the scheme. Such persons should primarily be of good standing and should likewise be competent. The “fit and proper” test is one which an applicant and a licence holder ought to satisfy on a continuous basis. Each case is assessed on its own merits and on the basis of the relevant circumstances of the case.
- Phase 1: Preparatory Phase
- Phase 2: Pre-Licencing Phase
- Phase 3: Post-Licencing/Pre-Commencement of Business
At this initial stage of the application it is recommended that the promoters hold a preliminary meeting with the MFSA to outline their proposal. Such meeting should be held in advance of submitting an application for a licence. It is fundamental that the applicant provides a comprehensive description of the proposed activity from the very beginning. With regard to an Overseas Based Non-UCITS Schemes, the applicant ought to provide full information on the manner in which it proposes to market the units of the scheme in Malta.
Following the preliminary discussions, the promoters should submit a draft licence application as well as the supporting documents. A non-refundable application fee is also due at this stage. All material submitted should be in English, or if in another language, should be accompanied by an English translation.
The draft application form(s) and the supporting documentation are reviewed and comments are provided to the Applicant within 3 weeks from submission of the pertinent documents. The applicant is invited to revert with his own comments. The MFSA may ask for more information and may make such further enquiries as it considers necessary. The fit and proper checks also begin at this stage. This entails following up all the information which has been provided in the application documents submitted.
Pre Licensing Phase
Once the review of the application and supporting documentation has been completed and the draft licence conditions have been agreed, the MFSA will issue an “in principle” approval for the issue of a licence. At this stage, the applicant will be required to finalise any outstanding matters. Submission of signed copies of the revised application form together with supporting documentation in their final format, and any other issues raised during the application process should be resolved. A licence will be issued as soon as all pre-licensing issues are resolved.
Post Licensing Requirements
The applicant may be required to satisfy a number of post-licensing matters prior to formal commencement of business.
Service Providers: Managers, Custodians, Administrators, Investment Adviser
Generally service providers of a Maltese UCITS scheme and a Maltese Non UCITS scheme are required to be based in Malta and regulated by the MFSA.
Service providers generally include, amongst others, a manager, a custodian, an administrator and an investment adviser. Service Providers who benefit from EU Treaties are allowed to provide services to Malta-based schemes following notification under the applicable passporting legislation. Where permitted in terms of EU legislation, other foreign service providers, who may be accepted by the MFSA as Service providers of Maltese schemes, should be established and regulated in a recognised jurisdiction.
WDM International, through its expertise and good standing with the MFSA can duly assist in all of the above stages.
A Maltese UCITS scheme, a Maltese Non-UCITS scheme or an overseas based Non-UCITS scheme may apply for admissibility to listing with the Malta Listing Authority. A European UCITS Scheme may also apply for admissibility to listing with the Malta Listing Authority.
A formal application for authorisation for admissibility to listing can be made to the Malta listing authority concurrently with the submission to the MFSA of an application for a licence. In such a scenario the listing authority would consider such application for authorisation for Admissibility to Malta Listing provided that in the case of a CIS established under Maltese legislation or established in a recognised jurisdiction and which is to be marketed in Malta, the listing authority shall only issue the authorisation for admissibility to listing under after the license pertinent to the CIS has been duly issued by the MFSA. At the outset, the MFSA will request permission from the applicant to copy all communication concerning licensing to the Listing Authority so that when the licensing procedure has been completed, the Listing Authority will be aware of relevant information, thus avoiding duplication of work.
Opting for listing, translates in enhancing the international profile of the listed security. Secondly, certain institutional investors may only acquire units in a CIS that is listed. Consequently, listing on the Stock Exchange increases the marketability of the CIS. For information on the taxation of collective investment schemes click here.
WDM International, through its expertise and good standing with the MFSA can duly assist in an application for listing, together with the preparation of the pertinent documentation attributable to such a process.