Marketing under AIFMD The Final Countdown Series. Getting a Grip - the Article 42 registration process under AIFMD. Devarshi Saksena.

Transcription

1 Marketing under AIFMD The Final Countdown Series Getting a Grip - the Article 42 registration process under AIFMD Devarshi Saksena Catherine Weeks Simmons & Simmons LLP Friday 06 June 2014

2 Introduction: what we will cover today What is Article 42? Is Article 42 applicable to you? Formulating your EEA marketing strategy do you need Article 42? How similar is the Article 42 process across the EEA? What s involved in Article 42 notifications / registrations in key jurisdictions? Timing / key dates Process in key jurisdictions Local / national features Coordinating and planning workstreams for Article 42 What s next in the series Q&A 1 / L_LIVE_EMEA1: v1

3 What is Article 42? Route by which you can actively market to EEA investors following the end of AIFMD transitional arrangements (i.e. 22 July 2014 onwards) Continuation (or introduction) of national private placement regimes in various jurisdictions across the EEA In some cases the Article 42 requirements supplement the existing local/national rules; in others the new requirements replace or modify them Key focus today is on the notification or registration process made to the national regulator to permit a non-eu AIFM to continue to market AIFs to professional investors post 22 July / L_LIVE_EMEA1: v1

4 Is Article 42 applicable to you? Non-EU AIFMs marketing EU and non-eu AIFs in certain countries in the EEA US and Asian fund managers expecting to receive investment from the EEA need to formulate their European marketing strategy and if necessary, get to grips with the Article 42 regime Article 42 regime in place until at least 2018 Currently the only means of actively marketing into Europe. Between 2015 and 2018 there may be two options AIFMD passport or Article 42 Not relevant to EU AIFMs who will use either the AIFMD marketing passport (for an EU AIF) or the Article 36 procedure (for a non-eu AIF) 3 / L_LIVE_EMEA1: v1

5 Formulating your marketing strategy do you need Article 42? 4 / L_LIVE_EMEA1: v1

6 How similar is the Article 42 process across Europe? Article 42 status Article 42 implemented. Registration process straightforward (notification requirement) Article 42 implemented. Registration process fairly straightforward (approval process) Article 42 implemented. Registration process difficult, yet achievable (approval process and/or structural changes) Article 42 implemented. Registration process difficult and hard to achieve (approval process and/or difficult evidentiary requirements) Article 42 implemented, complexity of registration process not yet clear Countries UK, Ireland, Netherlands Sweden, Finland, Germany, Denmark France Czech Rep Austria, Croatia, Slovak Rep, Hungary, Bulgaria, Estonia Not possible (Article 42 not implemented) AIFMD not implemented Italy, Greece, Latvia, Liechtenstein Others 5 / L_LIVE_EMEA1: v1

7 What's involved? Process in key jurisdictions Key countries that are popular with managers: UK, Ireland, Netherlands, Finland, Sweden, Denmark, Germany, Luxembourg, France, Spain, Italy Snapshot of requirements Regulators have different timings and requirements for the notification /registration process Do your homework before you begin More detailed information: Simmons & Simmons Country Guides 6 / L_LIVE_EMEA1: v1

8 What's involved? UK Timing No blackout period if made pre 21 July 2014 No post-submission approval waiting period Best practice: wait to receive automated confirmation Process Standard FCA notification form submission Regulatory fees 250 per AIF Local features Straightforward (no gold-plating ) Notification effective immediately Optionality of FCA form Self-certification of compliance with Articles 22, 23 and 24 7 / L_LIVE_EMEA1: v1

9 What's involved? Ireland Timing Submissions up to and including 14 July 2014 (if no blackout) CBI target review time 1 week Must wait to receive the CBI s approval of the application Blackout period commences on 22 July 2014 if notifications not submitted by 14 July 2014 Process Standard CBI notification form submission Regulatory fees No regulatory fees Local features Straightforward process (no gold-plating ) Potential blackout Hard copy submission to follow for CBI records Review time is not prescribed Self-certification of compliance with Articles 22, 23 and 24 8 / L_LIVE_EMEA1: v1

10 What's involved? Netherlands Timing Submissions up to and including 21 July 2014 No post-submission approval waiting period No blackout period (assuming a notification has been submitted prior to 21 July 2014) Process Standard AFM form (watch out for AUM and leverage questions) submission Attestation to be included (issued by the competent authority of the non-eu AIFM that they are able to comply with the relevant cooperation arrangement) Regulatory fees Currently, no fees are payable. However, this may be subject to change Local features Attestation required from AIFM supervising authority AUM calculation Leverage disclosure 9 / L_LIVE_EMEA1: v1

11 What's involved? Finland Timing Submissions up to and including 23 June 2014 to avoid a blackout The FIN-FSA has indicated that it will aim to approve notifications within 20 business days Must receive approval prior to commencing marketing Blackout period commences on 22 July if approval has not been granted Note potential early Annex IV reporting Process No standard forms issued by FIN-FSA notification to FIN-FSA Sufficient supporting documentation required Complete and submit the basic Finnish annex IV reporting form Regulatory fees EUR 2,600 per AIF (or sub-fund thereof) Regulatory fees will be invoiced to the AIFM post-notification Local features Potential blackout versus potential early reporting Supporting documentation requirements Reporting form 10 / L_LIVE_EMEA1: v1

12 What's involved? Sweden Timing Submissions up to and including 21 July 2014 Approval granted within 60 days No blackout period (assuming a notification has been submitted by 21 July 2014) Process Letter of application to be filed with the Swedish Financial Supervisory Authority ( SFSA ) No standard forms issued by the SFSA Supporting documentation must be submitted Regulatory fees SEK 16,000 per AIF (or sub-fund thereof) Local features English OK; Swedish not required Payment must be in advance of submission Hard copy submissions 11 / L_LIVE_EMEA1: v1

13 What's involved? Denmark Timing No Danish FSA recommended deadline of submission Blackout period from 22 July 2014 Approval issued by Danish Financial Services Authority ( Danish FSA ) Minimum three process for approval following submission Process Standard Danish FSA form English language Reciprocity statement requirement Regulatory fees No initial application fees. Local features Gold-plating! Before you begin, beware depositary-lite Comfort that the depositary-lite functions are being met (although NB no-look through to master fund) Reciprocity statement 12 / L_LIVE_EMEA1: v1

14 What's involved? Germany Timing No recommended deadline of submission to BaFIN Blackout period commences on 22 July 2014 Express approval is issued by the BaFIN Timing varies according to type of AIF and investors generally between 2 and 4 months Process Notification letter to be filed with BaFIN (no standard template) Hard copy submission preferred Regulatory fees Approx. EUR 6,500 per AIF (or each sub-fund thereof). Local features Gold-plating! Depositary-lite arrangements (look through to master fund on master-feeder structure) Reader specific re information required on depo-lite requirement Timing begins only when application completed 13 / L_LIVE_EMEA1: v1

15 What's involved? Luxembourg France Spain Italy Article 42 notifications are permitted. Article 42 has been implemented. The AIFMD has not been implemented. Article 42 will not be implemented. The Commission de Surveillance du Secteur Financier has not yet issued guidelines as to the process required. We expect the process to be straightforward. However, prior to approval by the Autorite des marches financiers ( AMF ): non-eu AIF must be subject to transparency and security rules equivalent to French rules However, not expected that there will be any Article 42 private placement exemptions available for open-ended collective investment schemes (based on current draft implementing legislation). an exchange of information and mutual assistance arrangement between the AMF and the competent authority of the non-eu AIF must have been entered into with respect to investment management activities. No further guidance has been issued on the above, and we expect the net effect of these conditions to make it very difficult to obtain AMF approval. 14 / L_LIVE_EMEA1: v1

16 Coordinating and planning work streams for Article 42 NOW PREPARATORY 1 JULY 2014* EARLY 2015 Decide Countries W O R K S T R E A S Art 23 disclosures (OM wrapper / update / other documents Registration / notification packs If Germany and Denmark depo-lite in place? Check co-operation agreements in place S U B M I S S I O N Annex IV registration (discuss process with service providers) Reporting obligations 15 / L_LIVE_EMEA1: v1 *Finland blackout consideration

17 Q&A Any questions? 16 / L_LIVE_EMEA1: v1

18 Access to a dedicated registration portal 17 / L_LIVE_EMEA1: v1

19 Upload and store fund documentation 18 / L_LIVE_EMEA1: v1

20 Track your registrations 19 / L_LIVE_EMEA1: v1

21 Simmons & Simmons article 42 registration service Differing levels of article 42 support Support for those making their own article 42 submissions Collaborative projects to assist with making submissions Full outsourcing service with Simmons & Simmons project managing and facilitating submissions Find out more We recognise that each client will need different levels of support when going through the Article 42 process. We have, therefore, devised several ways in which we can assist. Contact us at or come and see us at stand 89 at Fund Forum in Monaco in June 20 / L_LIVE_EMEA1: v1

22 Simmons & Simmons navigator: funds Complex regulation made easy User friendly, easy source of reference Tracks implementation of the AIFMD Up-to-date Cost-effective An online service providing access to key regulatory information regarding the marketing and sale of open ended funds on a global basis. Find out more Contact us at navigator@simmons-simmons.com 21 / L_LIVE_EMEA1: v1

23 Devarshi Saksena Catherine Weeks elexica.com is the award winning online legal resource of Simmons & Simmons Simmons & Simmons LLP All rights reserved, and all moral rights are asserted and reserved. This document is for general guidance only. It does not contain definitive advice. SIMMONS & SIMMONS and S&S are registered trade marks of Simmons & Simmons LLP. Simmons & Simmons is an international legal practice carried on by Simmons & Simmons LLP and its affiliated practices. Accordingly, references to Simmons & Simmons mean Simmons & Simmons LLP and the other partnerships and other entities or practices authorised to use the name Simmons & Simmons or one or more of those practices as the context requires. The word partner refers to a member of Simmons & Simmons LLP or an employee or consultant with equivalent standing and qualifications or to an individual with equivalent status in one of Simmons & Simmons LLP s affiliated practices. For further information on the international entities and practices, refer to simmons-simmons.com/legalresp Simmons & Simmons LLP is a limited liability partnership registered in England & Wales with number OC and with its registered office at CityPoint, One Ropemaker Street, London EC2Y 9SS. It is authorised and regulated by the Solicitors Regulation Authority. A list of members and other partners together with their professional qualifications is available for inspection at the above address.

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