8 juillet 2025 Investment Funds

Marketing – Private Placement

Overview and Article 42 interactive map

When implementing AIFMD into national law, each EU Member State was entitled to decide whether or not to implement the National Private Placement Regimes (NPPR) contained in AIFMD (Articles 36 and 42). As such, some EU Member States have implemented marketing regimes as envisaged under Articles 36 and 42, others have implemented a modified version of the regimes (e.g. imposing stricter requirements on AIFMs), and others have elected not to implement these provisions at all. AIFMs intending to market on the basis of these regimes should therefore be aware that: (i) they are not available in all EU Member States; (ii) where they are available, the legislation implementing private placement differs in each applicable EU Member State and therefore the process for complying with these regimes will differ on a case-by-case basis; (iii) each EU Member State may charge upfront and ongoing fees for marketing in their state; and (iv) the NPPRs may cease to be available in future.

Please click here to view a map providing a high-level overview of the Article 42 regimes available across the EEA.

Non-EU AIFM marketing non-EU AIFs to professional investors - Article 42 requirements

A non-EU AIFM may market a non-EU AIF to EU professional investors under Member States’ NPPRs. However:

  • the non-EU AIFM must comply with the disclosure and reporting obligations, and the requirements on portfolio company disclosure and asset stripping;
  • there must be co-operation agreements in place between the relevant regulators (i.e. between the relevant EU Member State regulator(s) where the marketing is to take place and the regulator of the non-EU AIFM and (if different) the regulator of the non-EU AIF); and
  • the non-EU AIFM and non-EU AIF must not be established in a country designated as non-cooperative by FATF.

Member States may also impose stricter marketing requirements on the non-EU AIFM.

A table showing which regulators have entered into co-operation agreements (or “MoUs”) can be found in this collection of documents on ESMA’s website, and a list of non-cooperative countries by FATF can be found here. 

Non-EU AIFM marketing EU AIFs to professional investors – Article 42 requirements

The requirements under AIFMD are the same as for a non-EU AIFM marketing a non-EU AIF (see above).

EU AIFM marketing Non-EU AIFs to professional investors – Article 36 requirements

An EU AIFM can market non-EU AIFs to professional investors under Member States’ NPPR. The EU AIFM must comply with all of the provisions in AIFMD except for the depositary requirements. However, the EU AIFM will be responsible for ensuring that an entity is in place to perform certain duties of a depositary, as set out in AIFMD. Additionally, there must be co-operation agreements in place and the non-EU AIF must not be established in a jurisdiction that is designated as non-cooperative by FATF.

Member States may also impose stricter marketing requirements on the EU AIFM.

A table showing which regulators have entered into co-operation agreements (or “MoUs”) can be found in this collection of documents on ESMA’s website, and a list of non-cooperative countries by FATF can be found here.

AIFMD II

The above requirement for non-EU AIFMs and non-EU AIFs that wish to access the EU market to not be established in countries which are FATF non-cooperative countries or territories will be replaced with a requirement to be established in countries which are not identified as high-risk third countries under EU anti-money laundering legislation (Directive (EU) 2015/849).

In addition, AIFMD II will also require that third countries where a non-EU AIFM and/or non-EU AIF are established must:

  • have signed an agreement with each relevant Member State (eg. where marketing will take place and, if relevant, also with an EU AIFM’s home Member State), that fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters including any multilateral agreements; and 
  • not be on the EU’s Annex I list (i.e. the “blacklist”) of non-cooperative jurisdictions for tax purposes.

CBDF application to private placement

Although the CBDF rules explicitly only apply to marketing AIFs under a passport, a recital in the CBDF Directive notes that national rules cannot in any way disadvantage EU AIFMs vis-à-vis non-EU AIFMs. Therefore, some EU Member States may apply similar pre-marketing and related rules under their NPPRs. See the “Marketing – Passport" page for more information on CBDF, and our Article 42 map for more information on which Member States apply the CBDF pre-marketing rules. 

Articles 42 and 36 in the UK

It is no longer possible for EU AIFMs to passport their funds to market to professional investors in the UK. Therefore, subject to any temporary permissions, Article 42 as it is implemented in the UK (Regulation 59 of the UK Regulations) is the main route for EU AIFMs (and other Non-UK AIFMs) to market EU and non-EU AIFs in the UK. Similar requirements apply for marketing under Article 42 in the UK as are noted above for Article 42 in the EU.

Applications must be made by the relevant AIFM via FCA Connect. The notification must include a declaration from the AIFM that the management of the AIF complies with the relevant conditions in the UK Regulations. The relevant AIFM is technically permitted to start marketing under the UK private placement regime as soon as it has submitted the relevant marketing notification to the FCA.

Article 36 as it is implemented in the UK (Regulation 57 of the UK Regulations) also no longer applies to EU AIFMs, although does still apply to UK and Gibraltar AIFMs marketing non-UK AIFs in the UK. Similar requirements apply for marketing under Article 36 in the UK as are noted above for Article 36 in the EU. AIFMs marketing under Article 36 should also apply via FCA Connect – this process will usually be completed whilst on-boarding the relevant AIF for management by UK AIFMs.

The relevant FCA webpage on NPPR in the UK is available here.

AIFMs are required to notify the FCA of any changes to the information previously submitted to the FCA in respect of the marketing of AIFs under the private placement regimes. Please click here for further information on material change notifications.

Withdrawal of national private placement regimes?

The text of AIFMD envisages that NPPR could be phased out in the future, and ESMA is expected to undertake a review three years after any legislation being adopted by the European Commission to extend the marketing passport to third countries. ESMA would ultimately issue technical guidance advising whether or not the private placement regime should be terminated. However, as of June 2024, and despite the publication of AIFMD II, the European Commission has not yet taken the necessary steps to extend the AIFMD passport to third countries.

If passporting is made available to non-EU AIFMs and AIFs, certain countries may no longer offer the private placement regime before any EU measures on private placement take effect. For example, legislation in connection with Germany’s implementation of AIFMD would abolish Germany’s private placement regime where the marketing passport is extended to third countries.

See the “Marketing – Passport”  page for more information.