AIFM passporting in Belgium

1. EEA AIFMs

AIFMs authorised in their EEA home State may exercise passport rights for management and marketing in Belgium in relation to most types of AIF, on a services and / or branch basis. In order to do so, the Belgian law on AIFs sets out several conditions to be fulfilled.

Regardless of whether an existing passport to do management business under another single market directive (such as UCITS) is held, EEA AIFMs are required to make a separate notification to their home State competent authority if intending to manage or market an EEA AIF on a passported basis. The home State competent authority will send the management passport notification to the Belgian Financial Services and Markets Authority (“BFSMA”) on behalf of the EEA AIFM.

Please note that in the case of a public offer of the AIF’s units in Belgium, registration of the AIF with the BFSMA and approval of a prospectus will be required.

2. Pre-Marketing

EEA AIFMs may commence pre-marketing of EEA AIFs which are not yet established or established but not yet compliant with the applicable marketing procedures, to potential professional investors in Belgium, provided that the FSMA receives a pre-marketing notification letter from the AIFM within two weeks of starting such pre-marketing activity. 

The information provided to potential professional investors within the context of the pre-marketing activity should not enable such investors to commit to acquiring units or shares of the pre marketed AIF or amount to a subscription form or similar document, whether in draft or final form. 

For a period of 18 months after the start of the pre-marketing of the AIF, the AIFM may not rely on reverse solicitation in the jurisdiction where the pre-marketing has been notified.

Pre-marketing by non-EEA AIFMs or of non-EEA AIFs is not permitted.

3. Third country AIFMs

AIFMs based in non-EEA (third country) jurisdictions wishing to market EEA and / or Non-EEA AIFs in the UK will be required to comply with the National Private Placement Regime, as well as the financial promotion rules.

4. Fees

To date, no application fee for outward or inward AIFMD passport notifications has been announced by the BFSMA. However, each and all financial institutions subject to prudential supervision in Belgium (including AIFs and AIFMs acting through a Belgian branch) have to pay a variable fee and / or a fixed fee to the BFSMA annually. In this respect, AIFMs have to pay a variable fee 1 Each year, a global contribution budget for the operating expenses of the BFSMA is fixed (about EUR 77,19m in 2018) and each different category of financial institutions has to participate in a fixed proportion to this budget. The category encompassing the AIFMs has to contribute with a 2.49% proportion of the global contribution budget. The 2.49% contribution is itself divided between the financial institutions of that category on the basis of criteria such as their regulatory capital, revenues, and balance sheet.  and AIFs have to pay an annual fee between EUR 434 and EUR 4,329. 2 Calculated in proportion to the amount of assets under management in the previous year.

5. Marketing to retail clients

Marketing to retail clients resident in Belgium of AIFs of any type or nature without local prospectus can only be made under the National Private Placement Regime, i.e.:

  • offerings to fewer than 150 natural or legal persons, other than professional investors; and/or;
  • offerings which need at least EUR 100,000 per investor and per security, other than collective investment funds with a variable number of participation rights; and/or
  • offerings which need at least EUR 250,000 per investor and per category of a collective investment funds with a variable number of participation rights;

Any other offer of AIFs in Belgium would be regarded as a public offer and will require that a prospectus is approved in advance by the Belgian regulator.

A summary of the Belgian private placement regime can be found at the CMS Brief Guide to Private Placement of Funds.