Marketing
AIFM marketing requirements and marketing communications
On 3 July 2023, the ESMA published a report on the marketing requirements and marketing communications under the Regulation (EU) 2019/1156 of 20 June 2019 on cross-border distribution of funds (CBDF), at the attention to the European Parliament, the EU Council and the European Commission (the “Report”). The report focuses mainly on the national laws, regulations and administrative provisions governing marketing requirements for UCITS and AIFs in all the EU member states. This Report is based on the answers given by the NCAs to two questionnaires issued by ESMA.
Overall, the Report emphasised that the transposition of the Directive (EU) 2019/1160 of the European Parliament and of the Council of 20 June 2019 on cross-border distribution of collective investment undertakings and the entry into force of ESMA's guidelines seem to have achieved harmonisation of the rules, even though there were national differences.
The Report states that very few NCAs have carried out ex ante verifications of marketing communications, although an increasing number have carried out ex post verifications.
The Report also mentioned that NCAs of some jurisdictions required the AIFM to obtain a prior authorisation for the marketing of an EU AIF, or non-EU AIF managed by an EU AIFM and EU AIF managed by a non-EU AIFM, as the AIFMD grants the EU member states the right to impose stricter marketing rules within their jurisdiction.
Moreover, the Report highlights that few NCAs required the AIFM to obtain their prior approval for the marketing of AIFs to retail investors, which is the case in Luxembourg.
For the distribution of open-ended AIFs and closed-ended AIFs, the Luxembourg legislator has already specified requirements which mainly concerned (i) specific supervision of foreign open-ended AIFs in their home Member States; (ii) prior authorisation for marketing of foreign AIFs to retail investors; (iii) specific rules on redemption frequency for both open-ended and closed-ended AIFs.
As regards de-notification procedure, this had been largely implemented in the national rules. Nonetheless, several NCAs added furthers conditions, notably the publication of the cessation of marketing in an official gazette or the de-registration of entities marketing AIFs by the entity appointed for representing the AIF before the NCA.
The ESMA will submit to the European Parliament, the EU Council and the European Commission a revised version of the report in a couple of years' time.