News Update Investment Management

17 June 2021

On 8 June 2021, the Dutch Minister of Finance sent the bill to the House of Representatives (the "Bill") concerning the implementation act of the directive (EU) 2019/1160 on the cross-border distribution of collective investment undertakings (the "Directive") (with the accompanying Explanatory Memorandum, only in Dutch). The Directive must be implemented no later than 1 August 2021 and must be applied as of 2 August 2021.

The Bill introduces rules for pre-marketing in the Netherlands; a definition of pre-marketing will be included in the Dutch Financial Supervision Act (Wet op het financieel toezicht, "FSA") and conditions are set for alternative investment fund managers ("AIFMs") that want to engage in pre-marketing. Pre-marketing means, in short, that before offering units in an alternative investment fund ("AIF"), it is first ascertained the extent to which potential professional investors are interested in a certain investment strategy or investment idea.

Below is a non-exhaustive list of key points of the Bill:

• Pre-marketing will not be permitted if the information enables professional investors to commit to acquiring an interest in the AIF;
• Pre-marketing will not be permitted if the information comprises subscription documents or similar documents (in either draft or final form); and
• The Dutch Authority for the Financial Markets must be notified within two weeks after the start of the pre-marketing activities, accompanied by certain information.

The new pre-marketing rules apply to licensed Dutch AIFMs (see Article 2:69 FSA). In addition, the Dutch government announced in the Bill that the following non-EU AIFMs will be subject to the same rules regarding pre-marketing as Dutch AIFMs:

• Non-EU AIFMs that wish to use the Dutch 'private placement regime'; and
• Non-EU AIFMs that wish to use the 'designated states regime', namely certain jurisdictions, e.g., Guernsey, Jersey, US (provided that the AIF is registered with the SEC). These qualify as 'designated states' under Dutch law and non-EU AIFMs domiciled in such 'designated state' can benefit from a light regime, assuming that the jurisdiction of domicile exercises adequate supervision.

We note that the Bill explicitly states that the pre-marketing rules will not apply to AIFMs that fall under Article 2:66a FSA ('light regime').

The implementation is in line with recital 12 of the Directive ("harmonised rules on pre-marketing should not in any way disadvantage EU AIFMs vis-à-vis non-EU AIFMs") and, of course, is good news for non-EU fund managers that wish to engage in pre-marketing in the Netherlands.

If you have any questions on the new pre-marketing rules or if you need help implementing them, do not hesitate to contact Oscar van Angeren, Daan Horsthuis, Harm-Paul Plas or Elise Stormmesand.