15 December 2021

Regulatory updates – pre-marketing and its practical challenges

With the recent introduction of a European pre-marketing legal framework in the member states of the European Union (“EU”) which applies since August 2nd, 2021 common provisions for the advertisement of alternative investment funds (“AIFs”) to professional investors before the actual marketing process were established. The EU legislators’ intention was to create a consistent pre-marketing approach within all EU member states to better protect investors however the newly established provisions also cause practical problems to some extent in its adoption for AIFMs and initiators.

The Directive (EU) 2019/1160 of 20 June 2019 with regard to cross-border distribution of collective investment undertakings (“CBD”) was implemented into Luxembourg laws through the law of 21 July 2021 amending the law of 12 July 2013 on alternative investment fund managers, as amended (“AIFM Law”) in relation to AIFs and the law of 17 December 2010 on undertakings for collective investment, as amended for UCITS funds.

So far, for “pre-marketing” no European but only sporadic national provisions existed in some EU member states. The CBD and its implementation in the AIFM Law define pre-marketing as “provision of information or communication, direct or indirect, on investment strategies or investment ideas by an EU AIFM or on its behalf, to potential professional investors domiciled or with a registered office in the European Union in order to test their interest in an AIF or a compartment which is not yet established, or which is established, but not yet notified for marketing in accordance with Article 31 or 32 of Directive 2011/61/EU, in that Member State where the potential investors are domiciled or have their registered office, and which in each case does not amount to an offer or placement to the potential investor to invest in the units or shares of that AIF or compartment.

The article is available for download as a PDF file; the whole edition is free to access on the AGEFI website.


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