ID 1211. Passport issues
According to Article 33 (1) AIFMD, Member States shall ensure that an authorised EU AIFM may manage EU AIFs established in another Member State provided that the AIFM is authorised to manage that type of AIF. Pursuant to Article 31 (6) , 32 (9), 35 (17), 39 (11) und 40 (17) AIFMD, Member States shall require that the AIFs managed and marketed by the AIFM be marketed only to professional investors. According to the second subparagraph of Article 43 (1) AIFMD, Member States may impose stricter requirements applicable to the AIFs marketed to retail investors in their territory. Taking this into account, the national law of the Member States may provide for a specially regulated type of retail fund which may not be managed by an AIFM established in another Member State.
The AIFMD does not regulate the establishment of retail funds which is a matter of national law.
The AIFMD permits the marketing of AIFs by AIFMs to retail investors only under the conditions foreseen in Article 43 which include also non-discrimination provisions. (see also recital 71).
Article 43 allows Member States to impose stricter requirements than those applicable to the marketing of AIFs to professional investors. This means that in no case can an AIFM bypass the requirements for marketing to professional investors foreseen in the AIFMD by marketing to retail investors.