Registration and deregistration of alternative investment funds (AIFs)

Foreign AIFMs or AIFs originating from a designated third country that wish to market units in the Netherlands or that wish to manage a Dutch AIF can, under certain circumstances, make use of the designated third country regime of Articles 2:66(1) and 2:73 of the Financial Supervision Act.

Conditions

Currently, Guernsey, Jersey, the United States of America (provided that the fund is regulated by the SEC) and Hong Kong SAR (provided that the fund is regulated by the Securities and Futures Commission of Hong Kong (SFC) and meets the other market access conditions under the relevant SFC Circular) qualify as designated States for this regime.
A manager or AIF that makes use of this regime is exempt from the licensing requirement of Section 2:65 of the Wft, but will have to comply with a number of ongoing obligations. Provided that the top-up retail of Section 4:37p of the Financial Supervision Act is complied with, such a party can also market to non-professional investors in the Netherlands.

Costs and term

The cost of registering an AIF with a registered office in a designated state is €4,400.

The manager or the AIF may commence marketing units in the Netherlands or managing the Dutch AIF eight weeks after this notification, unless the AFM has notified before the expiry of this period that this activity is in breach of applicable Dutch statutory provisions. If the AFM has included the manager or the AIF in its register before the expiry of this period, the marketing of units in the Netherlands or the management of the Dutch AIF can start from that moment on.

European licensed managers of alternative investment funds (AIFMs) who wish to manage a Dutch alternative investment fund (AIF) must notify it. European supervisors can send a notification to the Netherlands at the request of the European licensed manager. For information on notifying the management of a Dutch AIF, please contact the supervisor of the relevant Member State.

Retail investors

If you comply with Section 2:70(2) and (3) of the Financial Supervision Act, licensed European managers can, under certain conditions, manage Dutch AIFs that have been marketed to retail investors in the Netherlands in the past and in which Dutch retail investors still have a holding. In addition to the notification by the European regulator to the Netherlands, the manager must comply with the specific requirements that apply in the Netherlands for marketing units to non-professional investors (the 'retail top-up' as included in Section 4:37p of the Financial Supervision Act).

There is no decision period. As soon as the notification has been received by the AFM, the European manager can manage the Dutch AIF from that moment on. The supervisory authority of the EU member state that sent the notification will inform the manager. The AFM does not charge any costs for notifying the management of a Dutch AIF. It is possible that the EU member state to which the notification is made does charge costs. For information about these costs, please contact the supervisory authority of the relevant country.

To notify the management of a Dutch AIF by a European manager, you can contact the supervisory authority of the home Member State of the manager.

Retail top-up

In order to make use of the 'retail top-up' as included in Section 4:37p of the Financial Supervision Act, you must send the notification to the AFM. In addition, you must provide the following documents:

• retail distribution notification form licensed EU managers
• a statement signed by the manager in which the manager explicitly declares that it meets the requirements that apply in the Netherlands for marketing units to non-professional investors (pursuant to Section 4:37p of the Financial Supervision Act) 

Secure contact via Cryptshare

Mail the completed form and attachments to notifications.aifmd@afm.nl via Cryptshare. (Use that email address to send us the Cryptshare password as well, read the webpage on it.)

Confidential data is sent via Cryptshare with encryption. In the subject: 'retail top-up' and the name of the manager, the name of the AIF and the country of origin.

Non-European managers of alternative investment funds (AIFMs) who want to market an AIF in the Netherlands must notify it. To this end, they can make use of the third-country regime of Section 1:13b of the Financial Supervision Act.

Send notification form

Use our notification form to notify an AIF by a non-European manager. Send it to non.eu.notifications.aifmd@afm.nl.

Conditions

In order to be eligible for the exception in Section 1:13b(1) and (2) of the Wft, a non-EU manager must in any case meet the following requirements, as described in Section 1:13b(1) of the Wft:

• units in the AIF should only be marketed to qualified investors;
• the non-EU manager must not be established in a state that is on the list of non-cooperative countries and territories of the Financial Action Task Force or its successor;
• the AFM must have concluded a cooperation agreement with the supervisor of the non-EU country where the manager, or if applicable the AIF, is established; and
• to enable the AFM to ensure that these cooperation agreements can be effectively implemented with regard to the specific manager or AIF, the manager, or if applicable the AIF, requests confirmation from the relevant supervisor that it is a covered entity under the cooperation agreement.

Managers who make use of this exception are also subject to a number of continuous requirements, which are listed in Section 1:13b(2) of the Wft. For example, there is a periodic reporting obligation to DNB.

Costs and term

The AFM does not charge any costs for notifying an AIF by a non-European manager to the Netherlands.
Once the manager has sent the complete notification, he can market the AIF in the Netherlands.

• Notification form

A manager must appoint one individual depositary for each of the AIFs it manages. The depositary shall carry out its tasks in relation to the specific AIF for which it has been appointed.

If changes affect the depositary, these changes must be reported to the AFM. These include, for example:

• Replacement of current depositary with new depositary
• Material changes in the business operations of the depositary

Conditions

The depositary is assessed on a number of components, including:

• controlled and ethical business operations and fulfilment of depositary duties
• suitability in relation to the specific AIFs for which the depositary has been appointed
• financial position
• fit and proper assessment of (executive) directors
• fit and proper assessment of supervisory directors (if any) or comparable supervisors of the depositary
• newly concluded depositary agreement

Costs and term

If the change (also) involves a notification of a new depositary, the AFM will charge the following amounts in the context of assessing the fitness and/or propriety of the depositary.

The costs of an assessment of propriety are €700 per executive director, co-director or supervisory director. No costs will be charged for a person who has already been tested.

The costs of an assessment of suitability are €2,900 per executive director or supervisory director. No costs will be charged for a person who has already been assessed for a depositary with a similar service package.

If the AFM has doubts about the fit and proper assessment of a previously assessed person when it registers, the AFM must reassess. The AFM imposes the rate of a person who has not yet been assessed. Reassessment takes place after, for example, a bankruptcy, misdemeanour fine or criminal conviction.

Once the application has been submitted, the costs for the assessment of propriety are due, regardless of the outcome of the application procedure. This means that the costs are charged in the following situations: 

• if the AFM approves or rejects the application;
• when you withdraw the registration in the interim;
• if an assessment has not been submitted in full within the set period and the AFM has disregarded the application.

The AFM must indicate within one month of receipt of the full notification of the change if it rejects the proposed change or wants to impose restrictions on it.

If there is no response, the proposed changes may be implemented. The AFM may extend this period by a maximum of 1 month if it deems this necessary in view of the specific circumstances of the case. In the event of an extension, the manager will be informed.

With effect from 21 January 2019, it is no longer licensed to manage or market Money Market Funds (MMFs) without an application for a licence extension and the relevant MMFs having been notified to the AFM.

A manager must not only extend his licence, but also register all his marketed and/or managed MMFs separately. In order to be able to register an MMF with the AFM, you must be able to demonstrate that you meet the requirements arising from the MMFR. 

You can think of requirements for:

• the investment policy
• the valuation methodology

If you do not yet have a licence or if it concerns a new (sub)fund, you must first apply for a licence as a manager and/or register the (sub)fund.
The costs for registering an MMF are €2500 per registered MMF. The legal processing period for the report is two months.