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PERG 8.37 AIFMD Marketing

Introduction and purpose

PERG 8.37.1G
  1. (1)

    1Part 6 (Marketing) of the AIFMD UK regulation contains restrictions on an AIFM or an investment firm marketing an AIF. Such a person may not market an AIF in the UK unless the relevant conditions set out in the AIFMD UK regulation are met.

  2. (2)

    The purpose of this section is to give guidance on:

    1. (a)

      the restrictions on an AIFM or investment firm marketing an AIF (PERG 8.37.2 G and PERG 8.37.3 G);

    2. (b)

      the circumstances in which an AIFM or an investment firm markets an AIF (PERG 8.37.4 G to PERG 8.37.10 G);

    3. (c)

      the exemptions from the marketing restrictions (PERG 8.37.11 G and PERG 8.37.12 G);

    4. (d)

      the penalties for breach of the marketing restrictions (PERG 8.37.13 G);

    5. (e)

      the application of the financial promotion and scheme promotion restrictions (PERG 8.37.14 G); and

    6. (f)

      the interaction between the marketing of an AIF and the prospectus directive (see PERG 8.37.15 G).

    This section is not intended to have a more general application and, therefore, where guidance is given this should be interpreted as being limited to the marketing of AIF under the AIFMD UK regulation.

  3. (3)

    No guidance has been provided by the European Commission or ESMA on the meaning of marketing in AIFMD and, therefore, this guidance is subject to any future clarification from these (or other) European bodies. This means that other EEA States may take a different view on the meaning of marketing in AIFMD.

  4. (4)

    References to regulations in this section are to regulations of the AIFMD UK regulation.

Restrictions on an AIFM marketing an AIF

PERG 8.37.2G

Regulations 49 and 50 place restrictions on an AIFM marketing an AIF. These regulations provide that the following types of AIFM may not market the following types of an AIF in the UK unless the conditions summarised below are met.

  1. (1)

    The conditions that need to be met vary depending on whether the AIF falls within regulation 57(1) or not. An AIF falls within this regulation if it is:

    1. (a)

      a feeder AIF that is a UK AIF or an EEA AIF, the master AIF of which is managed by a non-EEA AIFM or is a non-EEA AIF; or

    2. (b)

      a non-EEA AIF.

    Such AIFs are not entitled to benefit from the marketing passport under AIFMD and are subject to the national private placement provisions in respect of their marketing.

  2. (2)

    Regulation 49 (Marketing by full scope EEA AIFMs of certain AIFs) provides that a full-scope EEA AIFM may not market an AIF that does not fall within regulation 57(1) in the UK unless:

    1. (a)

      when marketing to a professional client, the FCA has received a regulator’s notice regarding the marketing of the AIF, in accordance with Schedule 3 to the Act (EEA passport rights); or

    2. (b)

      when marketing to a retail client:

      1. (i)

        the FCA has received a regulator's notice regarding the marketing of the AIF, in accordance with Schedule 3 to the Act; or

      2. (ii)

        the FCA has approved the marketing, in accordance with regulation 54 (FCA approval for marketing) (see FUND 3.12 (Marketing in the home Member State of the AIFM)) and has not suspended or revoked that approval.

  3. (3)

    Regulation 50 (Marketing by AIFMs of other AIFs) provides that:

    1. (a)

      a full-scope UK AIFM may not market an AIF that does not fall within regulation 57(1) in the UK unless the FCA has approved the marketing in accordance with regulation 54; and

    2. (b)

      the following types of AIFM may not market the following types of AIF unless the AIFM has complied with the national private placement provisions set out in chapter 3 (National private placement) of Part 6 of the AIFMD UK regulation (see FUND 10.5 (National private placement)):

      1. (i)

        a full-scope UK AIFM of an AIF falling within regulation 57(1);

      2. (ii)

        a full-scope EEA AIFM of an AIF falling within regulation 57(1); and

      3. (iii)

        a non-EEA AIFM (ie a small non-EEA AIFM or an above-threshold non-EEA AIFM) of a UK AIF, an EEA AIF or a non-EEA AIF.

Restrictions on an investment firm marketing an AIF

PERG 8.37.3G

Regulation 51 (Marketing of AIFs by investment firms) places a restriction on an investment firm marketing an AIF. This provides that where regulation 49 or 50 requires a condition to be met before an AIFM may market an AIF, an investment firm may not market that AIF unless that condition is met. However, as explained in PERG 8.37.4G (1)(b), an investment firm only markets an AIF if it does so at the initiative of, or on behalf or, the AIFM of that AIF.

The circumstances in which an AIFM or an investment firm markets an AIF

PERG 8.37.4G
  1. (1)

    Regulation 45 (References in this part to an AIFM or an investment firm marketing an AIF) provides that:

    1. (a)

      an AIFM markets an AIF when the AIFM makes a direct or indirect offering or placement of units or shares of an AIF managed by it to an investor domiciled or with a registered office in an EEA State, or when another person makes such an offering or placement at the initiative of, or on behalf of, the AIFM; and

    2. (b)

      an investment firm markets an AIF when it makes a direct or indirect offering or placement of units or shares of the AIF to an investor domiciled or with a registered office in an EEA State at the initiative of, or on behalf of, the AIFM of that AIF.

  2. (2)

    Marketing, therefore, has a specific meaning in the context of the AIFMD UK regulation which is, in some respects, different from the ordinary meaning of the term.

The meaning of an offering or placement

PERG 8.37.5G
  1. (1)

    The terms 'offering' or 'placement' are not defined in the AIFMD UK regulation but, in our view, an offering or placement takes place for the purposes of the AIFMD UK regulation when a person seeks to raise capital by making a unit of share of anAIF available for purchase by a potential investor. This includes situations which constitute a contractual offer that can be accepted by a potential investor in order to make the investment and form a binding contract, and situations which constitute an invitation to the investor to make an offer to subscribe for the investment.

  2. (2)

    An 'offering' includes situations where the units or shares of an AIF are made available to the general public and a 'placement' includes situations where the units or shares of an AIF are only made available to a more limited group of potential investors.

  3. (3)

    However, an 'offering' or 'placement' does not include secondary trading in the units or shares of an AIF, because this does not relate to the capital raising in that AIF, except in situations where there is an indirect offering or placement (see PERG 8.37.7 G). Similarly, the listing of the units or shares of an AIF on the official list maintained by the FCA in accordance with section 74(1) of the Act will not in and of itself constitute an offering or placement, although it may be accompanied by such an offering or placement.

Communications with investors in relation to draft documentation

PERG 8.37.6G
  1. (1)

    Under article 31 AIFMD, an AIFM is required to submit the documentation and information in Annex III to AIFMD with its application for permission to market an AIF managed by it and to notify their competent authority of any material changes to this documentation and information. Therefore, the prescribed documentation and information should be in materially final form before the AIFM may apply for permission to market an AIF. Any communications relating to this draft documentation do not, in our view, fall within the meaning of an 'offer' or 'placement' for the purposes of AIFMD, as the AIFM cannot apply for permission to market the AIF at this point. For example, a promotional presentation or a pathfinder version of the private placement memorandum would not constitute an offer or placement, provided such documents cannot be used by a potential investor to make an investment in the AIF. However, a unit or share of the AIF should not be made available for purchase as part of the capital raising of the AIF on the basis of draft documentation in order to circumvent the marketing restriction.

  2. (2)

    In our view, the position for draft documentation set out in (1) should apply to marketing under article 32 of AIFMD and the national private placement provisions. However, as there is no European guidance on the meaning of marketing, other EEA States may take a different view.

  3. (3)

    Regard should be had to national law in relation to a communication which does not amount to an offering or a placement. In the UK, consideration needs to be given to whether such a communication is a financial promotion (see PERG 8.37.14 G). If a UK AIFM is marketing in another EEA State using the marketing passport in article 32 AIFMD, regard should be had to the national law of that EEA State, as the arrangements for marketing are a matter for the Host State in accordance with article 32(5) of AIFMD (unless the communication is an information society service in which case regard should be had to the law of the country of origin).

The meaning of indirect offering or placement

PERG 8.37.7G
  1. (1)

    Marketing may take place by a direct or indirect offering or placement of units or shares of an AIF. The reference to indirect offering or placement would include situations where an AIFM distributes units or shares of an AIF through a chain of intermediaries.

  2. (2)

    For example, if the units or shares of an AIF are temporarily purchased by a third party (eg, an underwriter or placement agent) with the objective of distributing them to a wider investor base, this could be an indirect offering or placement when those units or shares are made available for purchase by investors, if the third party is acting at the initiative of, or on behalf of, the AIFM.

The meaning of a unit or share of an AIF

PERG 8.37.8G

The terms 'unit' and 'share' in the AIFMD UK regulation are generic and can be interpreted as encompassing all forms of equity of, or other rights in, an AIF. As such, the terms are not limited to AIFs which are structured as companies or unitised funds and may include other forms of collective investment undertakings, such as partnerships or non-unitised trusts.

The meaning of investor

PERG 8.37.9G
  1. (1)

    The reference to 'investor' in the AIFMD UK regulation should be regarded as a reference to the person who will make the decision to invest in the AIF. Where that person acts on its own behalf and subscribes directly to an AIF, the investor should be considered to be the person who subscribes to the unit or share of the AIF.

  2. (2)

    However, where that person engages another person to subscribe to the AIF on its behalf, including, for example, where:

    1. (a)

      a nominee company will subscribe as bare trustee for an underlying beneficiary; or

    2. (b)

      a custodian will subscribe on behalf of an underlying investor,

    the AIFM or investment firm that is marketing the AIF should ‘look through’ the subscriber to find the underlying investor who will make the decision to invest in the AIF and that person should be regarded as the investor.

  3. (3)

    Where a discretionary manager subscribes, or arranges for another person to subscribe, on behalf of an underlying investor to the AIF and the discretionary manager makes the decision to invest in the AIF on that investor’s behalf without reference to the investor, it is not necessary to ‘look through’ the structure and the discretionary manager should be considered to be the investor for the purposes of the AIFMD UK regulation.

Territorial scope of the marketing restrictions

PERG 8.37.10G
  1. (1)

    The restrictions on the marketing of an AIF in regulations 49 to 51 only apply to marketing that takes place in the UK. In addition, under regulation 45, an AIFM or an investment firm only markets an AIF if the investor is domiciled in an EEA State or has its registered office in an EEA State.

  2. (2)

    Under regulation 2(2)(a) (Interpretation), the reference to ‘domicile’ should be construed in line with its meaning in AIFMD, ie its meaning under EU law. This may be different to the domicile of an investor for tax purposes.

Marketing at the initiative of the investor

PERG 8.37.11G
  1. (1)

    Regulation 47 (Marketing at the initiative of the investor) states that regulations 49 to 51 do not apply to an offering or placement of units or shares of an AIF to an investor made at the initiative of that investor.

  2. (2)

    A confirmation from the investor that the offering or placement of units of shares of the AIF was made at its initiative, should normally be sufficient to demonstrate that this is the case, provided this is obtained before the offer or placement takes place. However, AIFMs and investment firms should not be able to rely upon such confirmation if this has been obtained to circumvent the requirements of AIFMD.

Marketing under the designation “EuSEF” and “EuVECA”

PERG 8.37.12G

Regulation 48 (Marketing under the designation "EuSEF" and "EuVECA") provides that regulations 49 to 51 do not apply to the marketing of an AIF under the designation "EuSEF" and "EuVECA". To be designated as such the AIFM of the AIF is required to apply for registration of the AIF with its Home State under the EuSEF regulation or the EuVECA regulation (and in the UK make a notification under regulation 14 (Notification of new funds under the EuSEF Regulation or the EuVECA Regulation)). Where the AIFM is established in the UK, it must also register as a small registered UK AIFM under regulation 10. The AIFM of an AIF is then entitled to market the AIF to professional clients and certain categories of retail clients (see article 6 of the EuSEF regulation and article 6 the EuVECA regulation) under those regulations.

Contravention of the marketing restrictions

PERG 8.37.13G

An AIFM or an investment firm that acts in contravention of the marketing restrictions in regulations 49 to 51, or an AIFM that acts in contravention of a provision of the EuSEF regulation or the EuVECA regulation, is deemed to have been carrying out "unlawful marketing" under regulations 52 and 53. The consequences of carrying out unlawful marketing vary, depending on whether the AIFM or investment firm concerned is an authorised person or an unauthorised person.

  1. (1)

    If the AIFM or investment firm is an unauthorised person, regulation 52 (Contravention by an unauthorised person) provides that:

    1. (a)

      section 25 of the Act (contravention of section 21) applies to the unlawful marketing as it applies to the contravention of section 21(1) of the Act (although under regulation 52(3) the reference in section 25(1)(a) to imprisonment for a term not exceeding six months is to be read as a reference to imprisonment for a term not exceeding three months);

    2. (b)

      section 168 of the Act (appointment of persons to carry out investigations in particular cases) applies as if the reference at section 168(2)(c) to a contravention of section 21 of the Act included reference to unlawful marketing; and

    3. (c)

      section 30 of the Act (enforceability of agreements resulting from unlawful communications) applies in relation to:

      1. (i)

        controlled agreements entered into in consequence of unlawful marketing, as it applies in relation to controlled agreements entered into in consequence of an unlawful communication; and

      2. (ii)

        the exercise of rights conferred by a controlled investment in consequence of unlawful marketing, as it applies in relation to the exercise of such rights in consequence of an unlawful communication.

  2. (2)

    If the AIFM or investment firm is an authorised person, regulation 53 (Contravention by an authorised person) provides that:

    1. (a)

      unlawful marketing is actionable at the suit of a private person who suffers loss as a result of such marketing, subject to the defences and other incidents applying to actions for breach of statutory duty; and

    2. (b)

      section 168 of the Act (appointment of persons to carry out investigations in particular cases) applies as if the reference at section 168(2)(c) to a contravention of section 238 of the Act included reference to unlawful marketing.

Application of the financial promotion and scheme promotion restrictions

PERG 8.37.14G
  1. (1)

    Regulation 46 (Application of the financial promotion and scheme promotion restrictions) provides that where a person may market an AIF under regulation 49, 50 or 51:

    1. (a)

      to the extent that such marketing falls within section 21(1) (restrictions on financial promotion) or 238(1) (restrictions on promotion) of the Act, the person may market the AIF to a retail client only if the person does so without breaching the restriction in that section; and

    2. (b)

      to the extent that any activity falling within section 21(1) or 238(1) of the Act does not amount to marketing by an AIFM or an investment firm for the purposes of Part 6 of the AIFMD UK regulations, the restriction in that section applies to the person.

  2. (2)

    The effect of the provision referred to at (1)(a) is to require an AIFM or an investment firm that markets an AIF to a retail client to comply with the financial promotion and scheme promotion restrictions in relation to that marketing. The provision referred to at (b) is designed to clarify that the financial promotion and scheme promotion restrictions continue to apply to communications by an AIFM or an investment firm that do not constitute marketing.

  3. (3)

    In addition, the AIFMD UK regulation has made amendments to article 29 (Communications required or authorised by enactments) of the Financial Promotion Order and article 16 (Communications required or authorised by enactments) of the Financial Services and Markets Act 2000 (Promotion of Collective Investment Schemes) (Exemptions) Order 2001 (SI 2001/2157). The effect of which is to exempt communications to professional clients which are approved by the FCA under regulation 49 or 50 of the AIFMD UK regulation from the financial promotion and scheme promotion restrictions.

  4. (4)

    There is likely to be a considerable overlap between marketing and financial promotion, and in the case of marketing to retail clients, this can only be done if a financial promotion can be made to that investor, but the two concepts are not the same. In particular, it is possible for a person to make a financial promotion without marketing an AIF. For example, an AIFM that makes a communication in relation to an AIF would be making a financial promotion if that communication was a significant step in the chain of events leading to an agreement to engage in investment activity (see PERG 8.4.7 G (Inducements)), but would not be marketing an AIF if this communication was in relation to draft documentation (see PERG 8.37.6 G).

The interaction between marketing and the prospectus directive

PERG 8.37.15G
  1. (1)

    The prospectus directive has not been amended by AIFMD and closed-ended AIFs that are making an offer of securities to the public as defined in the prospectus directive need to comply with the requirements under both Directives.

  2. (2)

    However, where the AIF is required to publish a prospectus under section 85 of the Act or the equivalent provision implementing article 3 of the Prospectus Directive in the AIF's Home State, only information referred to in FUND 3.2.2 R and FUND 3.2.3 R that is additional to that contained in the prospectus needs to be disclosed, either separately or as additional information in the prospectus.