Pre-marketing by non-EU AIFMs: update of the notification letter
On 29 July 2021, the CSSF published a notification letter form for pre-marketing by non-EU AIFMs to potential investors in Luxembourg, which was updated on 15 November 2022 (the "Form"). The purpose of the notification by non-EU AIFMs is to allowing them to conduct pre-marketing activities with potential investors in Luxembourg. As reminder, pre-marketing relates to the provision of information or communication on investment strategies or ideas, by a direct or indirect way, addressed to prospective professional investors domiciled or with a registered office in Luxembourg. The purpose of pre-marketing is to test investors’ interest in an AIF which is not yet established or which is established but not yet notified for marketing.
By completing the Form, the non-EU AIFMs inter alia confirm, that the pre-marketing will be done in a manner that does not enable investors to commit to acquire units or shares in a fund and they will not be presented with final subscription documents.
CSSF update on marketing communication requirements for AIFMs
On 12 November 2022, the CSSF updated its FAQ on marketing communications to include new requirements for authorised AIFMs in the scope of CSSF Circular 22/795. Previously, these AIFMs were required to provide the CSSF only with information on the types of marketing communication they used, the countries in which these communications were disseminated, and the type of targeted investors.
With effect from 1 January 2023, AIFMs must also identify whether the information provided in the marketing communication is aligned with the requirements of the SFDR. This update is in line with the CSSF's FAQ issued in September 2022, which clarified key aspects of the implementation of Regulation (EU) 2019/1156 on facilitating cross-border distribution of UCIs.
ESMA clarifies the notifications for cross-border marketing and cross-border management
On 15 December 2022, the ESMA published its final report on the draft of implementing technical standards (“ITS”) and RTS aiming at facilitating the process for notifying cross-border marketing and management activities in relation to AIFs.
Further to the consultation paper proposed on 17 May 2022, the ESMA aims at amending and simplifying some requirements in the templates annexed to the ITS and RTS and acknowledges the difficulties for management companies to provide relevant information and to keep their home NCA informed of any subsequent change as well as the costs associated with the implementation of the draft ITS and RTS.
The draft ITS and RTS set out in this final report, after requested amendments, have been submitted to the European Commission for adoption.