AIFM passporting in Croatia

AIFMs authorised in their EEA home State may exercise passport rights for management and marketing in Croatia in relation to those types of AIF for which they have been granted authorisation in their EEA home State. These rights may be exercised directly (i.e. on a services basis) and / or on a branch basis.

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 passport notification to the Croatian Financial Services Supervisory Agency (Hrvatska agencija za nadzor financijskih usluga) (“HANFA”) on behalf of the EEA AIFM. The EEA AIFM will be allowed to market AIFs in Croatia to professional investors 1 Professional investors are: (i) investors defined as such under Croatian Capital Market Act (clients who possess the experience, knowledge and expertise to make their own investment decisions and properly assess the risks that these incur, including for example investment companies, credit institutions, insurance companies, collective investment schemes, pension funds, etc.) or (ii) persons treated as such at their own request under prescribed conditions.  upon notification by the home State competent authority that the relevant passport notification 2 The notification needs to include a programme of operations, stating in particular the services which it intends to perform and identifying the AIFs it intends to manage. In addition, in the case of a branch passport right, the notification needs to include data on organisational structure, address of the branch and data on persons responsible for the management of the branch.  has been sent to HANFA.

In order to market AIFs to retail investors, HANFA’s authorisation is required. Documents which need to be translated into Croatian and conditions which need to be fulfilled in that regard are prescribed by the ordinance on units in AIFs (Official Gazette No. 26 /2019, 132/2020). 3 Croatian text available at:
https://narodne novine.nn.hr/clanci/sluzbeni/2019_03_26_541.html

Generally, Non-EEA AIFMs are allowed to perform their activity in Croatia on a branch basis or directly on a services basis if they have been granted authorisation by the competent authority of the Member State of reference (determined under Articles 127 to 136 of the Croatian Act on AIFs). Non-EEA AIFMs also need HANFA’s authorisation to market AIFs to retail investors. For specific rules applicable to retail investors, please see the ordinance on units in AIFs (Official Gazette no. 26 /2019, 132/2020). 4 Croatian text available at:
https://narodne-novine.nn.hr/clanci/sluzbeni/full/2021_12_144_2478.html

EEA AIFMs are authorised to conduct pre-marketing activities in Croatia, unless the information provided to professional investors:

• are sufficient for investors to commit to acquiring units of a certain AIF
• have features of forms for registration of units or similar documents, whether in draft or final form or
• have the features of a prospectus, rules, AIF’s articles of association or offer documents of an AIF that has not yet been established, in its final form.

When a draft of prospectus or offer documents are made available to potential professional investors, those documents must not contain information which would enable the potential professional investor to make an investment decision, and it must be clearly stated in them that documents do not represent an offer or an invitation to subscribe to AIF shares and that the information provided in them cannot be considered reliable because the document is not complete and is subject to change. 
All units of an existing AIF in relation to which the AIFM carried out pre-marketing activities or of an AIF that was established as a result of pre-marketing activities, and which were subscribed or acquired by professional investors within 18 months after the AIFM started with pre-marketing activities, are considered the result of trading and are subject to the notification requirements.

On behalf of AIFMs pre-marketing activities may be conducted by:

• investment firm
• credit institution
• UCITS management company
• another AIFM
• tied agent 

In the period of 36 months from the date of withdrawal of the marketing notification in the Republic of Croatia, AIFM is prohibited from conducting pre-marketing activities in relation to the shares of the AIF for which the notification was withdrawn, as well as in relation to a comparable investment strategy or idea.

1. HANFA charges fees in relation to the inward and outward AIFMD passport notifications up to the maximum amount of HRK 60,000 (approximately EUR 8,100) depending on AIFMs/AIFs in question. 5 Full guidance (in Croatian) on fee charges for AIFMD passporting can be found at:
   https://narodne novine.nn.hr/clanci/sluzbeni/2019_03_26_538.html
2. in addition, AIFMs and EEA AIFMs performing their activities in Croatia in relation to AIFs established in Croatia are obliged to pay a fee to HANFA amounting to 0.3% (per thousand) of the total assets of such AIF. 6 Full guidance (in Croatian) on fee charges can be found
   https://narodne novine.nn.hr/clanci/sluzbeni/full/2020_12_147_2881.html  The fee is payable per each AIF established in Croatia. 
3. In addition, HANFA charges fees for supervision on a monthly basis, in the overall annual amount varying from EUR 2,650 – 3,980- per AIF. In the case of an umbrella AIF, HANFA charges an additional marketing supervision fee per AIF under the umbrella.