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Mandatory notification of pre-marketing For AIFM / Collective investment schemes

An alternative investment fund manager (AIFM), EuVECA fund manager or EuSEF fund manager, wishing to engage in pre-marketing must notify this to the AFM. This follows from Article 30a of Directive (EU) 2019/1160 on the cross-border distribution of collective investment undertakings (the CBDF Directive). This obligation is not applicable to an AIFM using the registration regime, who does not manage, and does not intend to manage, an EuVECA fund or an EuSEF fund. 

Pre-marketing is defined as: provision of information, direct or indirect, on investment strategies or investment ideas by an EU AIFM or on its behalf, to potential professional investors in the EU in order to test their interest in an AIF or a compartment or sub fund which is not yet established, or which is established, but not yet registered or notified. 

Obligation to report

An AIFM, an EuVECA fund manager or an EuSEF fund manager, that is obliged to notify pre-marketing must notify this to the AFM within two weeks of commencing pre-marketing by submitting a completed notification form via Cryptshare by email to meldingenaifmd@afm.nl.

This notification must include the following information:

  • the Member States and the periods in which pre-marketing is occurring or has occurred;
  • a brief description of the pre-marketing, including the information on the investment strategies presented, and, if relevant, a list of AIFs and compartments of AIFs that are being or have been pre-marketed. 

If the pre-marketing is occurring in another Member State, the AFM will notify the competent supervisory authority. We would prefer to receive the information in English if the pre-marketing is to take place outside the Netherlands as well.

An EU AIFM, an EuVECA fund manager or an EuSEF fund manager, wishing to pre-market an AIF in the Netherlands must submit this notification to the supervisory authority in the country in which it is located.

 

Requirements for information provided in the context of pre-marketing’

The information provided in the context of pre-marketing may not:

  • be sufficient to allow investors to commit to acquiring units or shares in a particular AIF, an EuVECA fund manager, or an EuSEF fund manager;
  • amount to subscription forms or similar documents, whether in draft or final form; or
  • amount to constitutional documents, a prospectus or offering documents of a not-yet-established AIF, an EuVECA fund manager, or an EuSEF fund manager in a final form.
  • contain information to allow investors to take an investment decision where a draft prospectus or offering documents are provided. They shall clearly state that they do not constitute an offer or an invitation to subscribe to units or shares in an AIF, and the information presented therein should not be relied upon because it is incomplete and may be subject to change.

Engagement of third parties for pre-marketing

A third party may only engage in pre-marketing on behalf of an AIFM in accordance with the CBDF Directive if it is licensed as an investment firm, a credit institution, a UCITS management company or an AIFM, or acts as a tied agent for an investment firm. Such a third party is subject to the conditions stated above.

Mandatory notification

If within 18 months of the commencement of pre-marketing, professional investors subscribe to units or shares of an AIF, an EuVECA fund, or an EuSEF fund, referred to in the information provided in the context of the pre-marketing, or of an AIF, an EuVECA fund, or an EuSEF fund, established as a result of the pre-marketing, this shall be considered to be the result of marketing, and shall be subject to the applicable notification procedures. In addition, no pre-marketing with respect to a de-notified AIF, an EuVECA fund, or an EuSEF fund, may occur during a period of 36 months after de-notification.

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