S.L. 370.32 Art. 29AAdditional eligibility criteria.

(1) Notwithstanding the provisions of regulation 29(1) and any other applicable law, the competent authority may allow a credit institution that is authorised in accordance with the CRD, as transposed in national law and established in a Member State other than Malta, to be appointed to provide depositary services to a Maltese AIF, provided that the following conditions are fulfilled:

(a) the competent authority has received a reasoned request from the AIFM to allow the appointment of a European depositary established in another Member State and that request demonstrates the lack of depositary services in Malta that are able to meet effectively the needs of the AIF having regard to its investment strategy; and

(b) the aggregate amount in the national depositary market of Malta of assets entrusted for safe-keeping, as referred to in regulation 32, on behalf of AIFs authorised or registered under the applicable national law in accordance with Article 4(1)(k)(i) of the AIFMD, as transposed in national law, and managed by an EU AIFM does not exceed fifty billion euro (€50,000,000,000) or the equivalent in any other currency: Provided that for the purposes of paragraph (b), assets entrusted for safe-keeping by depositaries acting under regulation 7(1)(a) of the Investment Services Act (AIFM

Third Country) Regulations, as well as the own assets of depositaries, shall not be taken into account for the purpose of determining whether the conditions established in paragraph (b) is met.

(2) Notwithstanding the conditions established in sub-regulation (1) being met, the competent authority shall allow the appointment of a European depositary established in a Member State other than Malta only after carrying out a case-by-case assessment of the lack of relevant depositary services in Malta having regard to the investment strategy of the AIF.

(3) Where the competent authority allows the appointment of a European depositary, it shall inform ESMA thereof.

(4) The provisions of this regulation shall be without prejudice to the application of the provisions of Article 21, other than Article 21(5)(a) of the AIFMD, as transposed in these regulations and the Investment Services Rules.

(5) Without prejudice to the powers and functions of the competent authority under the Act and any regulations made and Rules issued thereunder, where Malta is the home Member State of an AIF or, where an AIF is unregulated, the home Member State of the AIFM managing such AIF, and a European depositary is appointed in accordance with the provisions of this regulation in relation to such AIF, the competent authority shall, where it has reasonable grounds to suspect that acts contrary to the provisions of the AIFMD, as transposed in national law, are being or have been carried out by such European depositary, promptly notify ESMA and the European regulatory authority of the European depositary concerned thereof in as specific a manner as possible.

(6) Where a depositary established in Malta has been appointed in accordance with Article 21(5a) of the AIFMD, as transposed in national law, in relation to an AIF having as a home Member State a Member State other than Malta, or an AIF, being unregulated, that is managed by an AIFM having as a home Member State a Member State other than Malta, and the European regulatory authority of the AIFM managing such AIF has notified the competent authority in accordance with Article 50(5g) of the AIFMD, as transposed in national law, the competent authority shall take appropriate action and shall notify ESMA and such European regulatory authority of the outcome of the action taken.