Uniform European Regime For Pre-Marketing And Reverse Solicitation

Author:Dr. Sebastian Käpplinger and Joel El-Qalqili, LL.M.
Profession:P+P Pollath + Partners

For the distribution of alternative investment funds, uniform European rules will soon apply in the area of so-called pre-marketing, i.e. for the distribution of information about a fund in advance of a distribution license. The rules will also affect the possibility of reverse solicitation.

It is expected that the new rules will enter into force at the European level in a timely manner.

Chronologically, the new rules will affect EuVECA and EuSEF fund managers first. For these managers, the new regime will come into effect at EU level within 20 working days of its entry into force. For all other EU fund managers the rules will need to be transposed into national law. A transposition period of two years is envisaged for this.

It is not yet clear how the new pre-marketing regime will apply with regard to non-EU fund managers.

Key Facts:

A harmonised definition of pre-marketing will be provided. The permitted information used in the field of pre-marketing will be regulated. In future, pre-marketing will require prior notification to the supervisory authority in the fund manager's home country. Pre-marketing must be adequately documented. Reverse solicitation shall generally be excluded during a period of 18 months starting from the beginning of pre-marketing. Reverse solicitation vis-à-vis investors addressed in pre-marketing should be excluded even beyond this period. We have summarized below in more detail the most important changes.

Uniform Definition of Pre-Marketing For the first time, an official definition of the term pre-marketing will be provided which will be admissible under certain conditions.

Pre-marketing is defined as the direct or indirect provision of information or communication on investment strategies or investment ideas to potential investors resident in the EU in order to test their interest in a fund which is not yet established, or which is established but not yet notified for marketing in the respective member state.

As a consequence, the current pre-marketing regime in Germany will be tightened. Currently, a fund manager only has to analyze whether it has already crossed the line between pre-marketing and marketing. If the activities do not yet qualify as marketing, a fund manager is still in the sphere of currently unregulated pre-marketing. Under the new pre-marketing regime, a fund manager must now analyze whether its activities already fall under the (new) definition of pre-marketing and - if that is the...

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