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Capital Requirements Directive
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ID 1210. Passport issues
General question on Directive 2011/61/EU
Assumed that Member State A provides for the same rules applicable to the marketing of AIF to professional investors on the one hand and on the other hand to so called semi-professional investors (cf. Article 6 of EuVeCa Regulation) in Member State A: Can Member State A also provide that an EU-AIFM from Member State B holding an EU pass for the marketing to professional investors is allowed to market its EU-AIF also to semi-professional investors in Member State A. Or does the AIFMD require a notification with the competent authority of Member State A for such a cross-border marketing to semi-professional investors?
Marketing of AIFs cross-border to professional investors has to be done under the passport and via notification. It is Member States' national law that applies to the marketing of AIFs to non-professional investors, including cross-border marketing to non-professional investors. Article 43 foresees only that no stricter or additional requirements on EU AIFs than those applicable to AIFs marketed domestically should be applied.
Hence, Member State A may allow an EU-AIFM from Member State B to market its EU-AIFs also to semi-professional investors in Member State A. This would not mean that such AIFM would be allowed to market to semi-professional in Member State B if this is not allowed in Member State B. Furthermore, to be able to check compliance with its own rules, Member State A needs to be informed of the EU-AIFs that are marketed in its territory, irrespective where they are established. Requirements on AIF’s or AIFM’s might be stricter under national law, therefore the notification procedure would not be automatically applicable. Member States could decide if they want to rely on the notification procedure or if they want to put in place specific national rules how to be informed.
Submitted on 25/03/2013