As of 1 January 2023 the Dutch light-touch regime for Dutch AIFMs further to article 3(2) AIFMD will also be available for EU AIFMs, thereby allowing these AIFMs to register with the AFM and market their AIFs to professional investors in the Netherlands.
The scope of the AIFMD does not include AIFMs with AUM below € 100 million or, in case of closed-end funds without leverage at fund level, € 500 million. This is also referred to as the AIFMD light-touch regime as it only requires registration with the AFM, rather than full licensing. At the time of introduction of the AIFMD regime in the Netherlands it was decided that this exception would only apply to AIFMs resident in the Netherlands. As a result, smaller EU AIFMs without a license in their home jurisdiction were not able to make use of this exception when marketing AIFs to Dutch investors, and as a result no level playing field existed.
The change that is coming into effect as of 1 January 2023 makes it possible for unlicensed, smaller EU AIFMs to also use the existing exception for Dutch AIFMs to the extent they are marketing and offering AIFs to professional investors only.
It must be noted that the Dutch exception also allows for marketing and offering to fewer than 150 investors or for a minimum investment of € 100,000. These options will not be available to EU AIFMs. In addition, Dutch law provides for marketing and offering to retail investors if additional requirements are met. Also this option is not available to EU AIFMs. In both cases the reason is that the AIFMD is limited to professional investors only. Finally, the exception for EU AIFMs relates to marketing and offering only; managing of Dutch AIFs remains subject to licensing.
As with the existing exception for Dutch AIFMs, the anticipated use of the exception must be notified to the AFM in advance by means of a registration form including basic details on the AIFM and the AIF(s) involved. In addition, certain basic financial details must be reported to the AFM on a periodical (annual) basis. As marketing and offering is limited to professional investors, the (funny) Dutch warning on no supervision being exercised, is not necessary to be included.
As this new exception is ony available to EU AIFMs, non-EU AIFMs cannot use this exception. However, non-EU AIFMs may use the existing exception from the Dutch licensing requirement which requires that they only market and offer to professional investors in the Netherlands, there is a cooperation agreement between the supervisory authority in their home jurisdiction and the AFM, and prior registration with the AFM is made. Almost 50 cooperation agreements have been concluded by the AFM with supervisory authorities in basically all major jusidictions worldwide. Also this registration is done by a simple form with basic details on the AIFM and the AIF(s) invovled. It however also requires a confirmation of supervision by the supervisory authority in the home jurisdiction or a registration in a relevant register.
As a result, the exceptions for EU AIFMs and non-EU AIFMs have now largely been aligned, thereby allowing both EU AIFMs and non-EU AIFMs to market and offer AIFs to professional investors in the Netherlands.
As indicated above, no particular action is required unless marketing and offering of AIFs in the Netherlands is aimed for by EU AIFMs. In that case, a prior registration must be made with the AFM and marketing and offering must be limited to professional investors. For non-EU AIFMs basically the same applies, albeit that the registration form also requires proof of supervision in the home jurisdiction.