Pre-marketing, marketing and discontinuation of marketing – How to notify in Luxembourg? | Goodwin
[co-author: Bill Toussaint]
The objective of this Insights article is to examine some practical issues for alternative investment fund managers (“AIFM”) when undertaking pre-marketing/marketing activities in the European Union following the implementation of implementation of the Directive on the cross-border distribution of funds (the “Directive”).
Marketing and discontinuation
The CSSF issued on 12 June 2022 circular 22/810 (available here) relating to certain notification procedures, including for the marketing (and the cessation of marketing) of UCITS units and pre-marketing in Luxembourg or in another Member State by AIF managers based in Luxembourg to the following entities:
(i) Luxembourg UCITS;
(ii) managers of Luxembourg AIFs wishing to notify or de-notify agreements entered into for the marketing in Luxembourg of units or shares of an EU AIF they manage in accordance with Article 29 respectively article 29-1 of the AIFM law;
(iii) managers of Luxembourg AIFs wishing to notify or de-notify agreements entered into for the marketing in another Member State of units or shares of an EU AIF they manage in accordance with Article 30 respectively in article 30-1 of the AIFM law; and
(iv) Managers of Luxembourgish EuVECA or EuSEF wishing to market in Luxembourg or in another Member State.
AIFMs also include Luxembourg AIFMs of European long-term investment funds (“ELTIFs”) who wish to (de-)notify agreements to market units or shares of ELTIFs in accordance with Articles 29, 29-1, 30 and 30-1 of the AIFM Law, respectively.
All the above entities must comply with the marketing notification and de-notification procedures, which are exclusively available via the CSSF eDesk portal since 1 July 2022. The list of relevant procedures can be found on the eDesk homepage.
This list will be updated regularly and further information and instructions in the form of a user guide will also be made available on eDesk.
However, it remains that the Pre-Marketing Notification Letter or any modification thereof must be sent to the following email address: [email protected]
Depending on the location of the alternative investment fund (“AIF”) and the investors involved, AIF managers will be subject to one of the following pre-market notification letter forms:
(i) Pre-marketing by Luxembourg AIF managers to potential professional investors in Luxembourg and other EU Member States must send a duly completed and signed pre-marketing notification letter (form here) to the CSSF within two weeks of the start of pre-marketing;
(ii) Pre-marketing by EU AIF managers engaging non-EU AIFs in pre-marketing to potential professional investors in Luxembourg must send a duly completed and signed pre-marketing notification letter (form for Luxembourg AIF managers here) and a pre-marketing notification letter Art. 37 (form for non-Luxembourgish EU AIFMs here) directly to the CSSF and not to the authorities of their home Member State within two weeks of the start of pre-marketing; and
(iii) Managers of non-EU AIFs carrying out a pre-marketing to potential professional investors in Luxembourg must send a duly completed and signed pre-marketing notification letter (form here) to the CSSF within two weeks following the start of pre-marketing.
The notification letter should include details of the period during which the pre-marketing takes place, a description of the pre-marketing activities and a list of AIFs or AIF Funds, if any.
The marketing rules also specified the conditions for pre-marketing by AIF managers. Accordingly, AIF managers should be aware that no pre-marketing is permitted where the information presented to potential professional investors:
(i) is sufficient to enable investors to commit to acquiring units or shares of a particular AIF;
(ii) Amounts of subscription forms or similar documents, whether in draft or definitive form; Where
(iii) Amounts to constitutive documents, a prospectus or offering documents of an AIF not yet drawn up in definitive form.