8 juli 2025 Investment Funds

Marketing – Passport

Marketing and passporting by EU AIFM of EU AIFs to Professional Investors – Article 32

As per AIFMD, managing an EU AIF and marketing an EU AIF to professional investors is permitted if the EU AIFM is authorised under AIFMD and the relevant regulator has given its approval. An EU AIFM may also benefit from an EU marketing passport in respect of EU AIFs that are marketed to professional investors, provided that certain conditions are met (see below for more information). 

For the purposes of AIFMD, the term “professional investor” is defined as any investor that is considered as, or may be treated as, a professional client under MiFID II.

When marketing under the “passport” regime, an EU AIFM must submit a notification to its home regulator with respect to the AIF it wishes to market. This notification must include: (i) the AIF rules, (ii) the identification of the depositary, (iii) information on the AIF which is available to investors (see “Pre-Contractual Disclosures to Investors” in the “Disclosure and Reporting to Investors” page for more information), and (iv) where relevant, information on arrangements to prevent the AIF from being marketed to retail investors. If the AIFM also wishes to market the AIF in other EU Member States, it must submit the identity of those Member States in the notification at this stage.

Within 20 working days of receipt of the above notification, the home regulator must inform the EU AIFM whether it may start marketing activities to professional investors in the relevant Member States. The home regulator may only prevent such marketing if information provided in the notification demonstrates that the EU AIFM’s management will not be in accordance with AIFMD.

Where the EU AIFM wishes to market in other Member States, the home regulator must transmit the notification documentation to the regulator of the relevant Member State within 20 working days. Upon transmission, the home regulator shall notify the EU AIFM ‘without delay’ of such transmission and the EU AIFM may market to professional investors from the date of notification in the relevant Member State.

If there is any material change to any of the information provided by the EU AIFM, the EU AIFM must give prior written notice of such change to its home regulator. See the “Material Change Notifications” page for more information.

Where the EU AIF is a feeder, the right to market under a passport only applies if the master is also an EU AIF managed by an EU AIFM.

CBDF

In 2019, the EU introduced the CBDF package. The background and reasons for introducing these reforms is discussed on the “Marketing and Pre-Marketing – Introduction” page.

Pre-marketing

One of the changes made by CBDF was the introduction of a new harmonised pre-marketing regime into AIFMD. The pre-marketing rules were required to be implemented in EU Member States by 2 August 2021.

The CBDF Directive inserted a new Article 30a into AIFMD that sets out certain conditions on any pre-marketing by an EU AIFM marketing under a passport. This includes an obligation to notify the relevant competent authority via an informal letter within two weeks of the EU AIFM having begun pre-marketing activities. Any information presented to those potential professional investors must not be sufficient to allow them to commit to acquiring units or shares in a particular AIF. The aim is that any information or documentation provided must make it clear that it is subject to change and not yet in final form or amount to subscription forms or similar documents.

Denotification of marketing

A new formalised procedure for denotifying marketing in EU Member States also came into force on 2 August 2021. AIFMs are able to discontinue marketing a fund in a particular Member State provided that certain conditions are fulfilled and a denotification filing is made with its home state regulator.

The conditions are (i) making a blanket offer to repurchase or redeem units held by investors in the relevant Member State (free of any charges or deductions) which is publicly available for at least 30 working days and is addressed individually to all investors in that Member State whose identity is known (this condition does not apply to closed-ended AIFs); (ii) publicising the intention to terminate marketing arrangements; and (iii) terminating or modifying any relevant contracts with financial intermediaries to ensure they do not continue to market those units.

Once an AIF is denotified from marketing, the AIFM may not then engage in pre-marketing that AIF, nor another AIF with a similar investment strategy or investment idea, in that Member State for a period of 36 months from the date of denotification.

Marketing communications

The CBDF Regulation requires EU AIFMs to ensure that all “marketing communications” addressed to investors are identifiable as such, describe the risks and rewards of purchasing units or shares in an equally prominent manner, and that all information included in marketing communications is fair, clear, and not misleading. Statements in marketing materials must not contradict or diminish the significance of information in other communications to investors (i.e. Article 23 disclosures).

ESMA has issued guidelines on these. Our client note on the guidelines is available here.

Extension of pan-European marketing passport

When enacted, AIFMD envisaged that the pan-European marketing passport could be extended at a later date to cover both EU AIFMs and non-EU AIFMs in respect of both EU AIFs and non-EU AIFs. Once the passport is extended, a non-EU AIFM will be required to be authorised by its “Member State of Reference” (see below for details). The non-EU AIFM will be required to comply with all of the provisions in AIFMD (including the depositary requirements) and certain other requirements, depending upon whether the AIF is EU or non-EU, including: co-operation arrangements, tax information sharing, and the non-EU AIF must not be established in a jurisdiction that is designated as non-cooperative by FATF.

AIFMD II

The above requirement for non-EU AIFs to not be established in countries which are FATF non-cooperative countries or territories will be replaced with a requirement to not be established in countries which are 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 AIF is established must not be on the EU’s Annex I list (ie the “blacklist”) of non-cooperative jurisdictions for tax purposes.

ESMA was required to review the marketing regimes two years after AIFMD was implemented. The process for extending the marketing passport could then be initiated upon receipt of positive advice from ESMA. ESMA reviewed the then existing marketing regimes in various jurisdictions and issued two waves of advice:

  • The first on 30 July 2015, concluding that there were no significant obstacles to extending the passport to Guernsey and Jersey, as well as to Switzerland pending certain amendments to Swiss legislation. However, at the time, ESMA recommended delaying the decision in respect of the United States, Hong Kong, and Singapore.
  • The second on 19 July 2016, concluding that there were no significant obstacles to extending the passport to Canada, Guernsey, Japan, Jersey, and Switzerland. This was also the case for Hong Kong and Singapore. ESMA also indicated that there were no significant obstacles for Australia pending certain amendments to Australian regulation. In respect of the United States, ESMA suggested extending the passport in limited circumstances, and proposed three alternatives for consideration by EU legislators. However, ESMA was not able to provide definitive advice on Bermuda, the Cayman Islands, and the Isle of Man.

As of March 2025, 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.

AIFMD also envisaged that the private placement regime could be phased out in future. ESMA is expected to undertake a review of the private placement regime three years after legislation being adopted by the European Commission to extend the marketing passport to third countries, and ESMA would ultimately issue technical guidance advising whether or not the private placement regime should be terminated.

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.

The table below shows the marketing methods currently available for the various combinations of EU / non-EU AIFMs and AIFs:

AIFM / AIF EU marketing passport currently available Private Placement Regime
EU AIFM & EU AIF (Article 32) n/a
EU AIFM & non-EU AIF X (Article 36)
Non-EU AIFM & EU AIF X (Article 42)
Non-EU AIFM & non-EU AIF X (Article 42)

If/when the passport becomes available for non-EU AIFMs, the application process is expected to be similar to the current process described above for EU AIFMs, save that the regulator of the non-EU AIFM’s "Member State of Reference" must perform the home regulator duties as described above.

The relevant EU Member State (referred to as the “Member State of Reference”) would be determined depending on a number of factors, including where the AIF in question is established and to whom the AIF will be marketed, and in more complex cases may require consultation amongst various EU Member State regulators and ESMA. A non-EU AIFM wishing to apply for a pan-European passport would need to establish a legal representative in an EU Member State to act as a contact with the relevant regulator.

How does this apply to the UK?

UK AIFMs no longer benefit from the EU marketing passport following the end of the Brexit transition period, and therefore UK AIFMs seeking to market AIFs in the EU need to do so via NPPRs (where these have been enacted in individual Member States) or pursuant to any temporary permissions that may have been implemented by Member States.

Similarly, EU AIFMs can no longer passport their AIFs for marketing into the UK, and need to do so via the UK’s NPPR. Gibraltar AIFMs continue to benefit from passporting in the UK.

See the “Marketing – Private Placement” page for more information.