AIFM passporting in Denmark

1. EEA AIFMs 

AIFMs authorised in their EEA home State may exercise passport rights for the marketing of EEA based AIFs to professional investors in Denmark under the passporting regime provided for by the AIFMD. 

Regardless of whether an existing passport to conduct 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 they intend to market an EEA AIF on a passported basis. The home State competent authority will send the management passport notification to the Danish Financial Supervisory Authority (“FSA”) on behalf of the EEA AIFM. 

An EEA AIFM wishing to market an EEA AIF to retail (as well as professional) investors in Denmark may do so provided that their home State competent authority has (i) submitted a passport notification to the FSA to market the AIF to professional investors and (ii) submitted a separate application to the FSA in accordance with Executive Order No. 1553 of 19 December 2022 on Marketing to Retail Investors (as amended), together with a number of other documents and information, including the constitutional documents for the AIF, the Private Placement Memorandum, the Subscription Agreement, the PRIIPs KID, Annual Report and the name of the appointed depository. Please note that it is a requirement that the PRIIPs KID is available in Danish.  

2. Third country AIFMs 

AIFMs based in Non-EEA jurisdictions wishing to market Non-EEA AIFs to professional investors in Denmark will be required to apply to the FSA for a marketing permission in accordance with Executive Order No. 1504 of 19 October 2020 on Marketing of Non-EEA AIFs to Professional Investors. Denmark has chosen to ‘goldplate’ the AIFMD Article 42 regime by requiring (i) the appointment of a depository to carry out the ‘depolight’ functions, (ii) the provision of a reciprocity statement by the AIF’s home State competent authority or, by a qualified lawyer, and (iii) by requiring documentation from the relevant authorities in the home country of the AIF and AIFM that evidences that the AIF and AIFM are covered by a corporation agreement (MoU) between the Danish FSA and the relevant authorities in their respective home country. 

Likewise, Non-EEA AIFMs wishing to market EEA AIFs to professional investors in Denmark will be required to apply to the FSA for a marketing permission in accordance with Executive Order No. 799 of 26 June 2014 on Marketing of EEA AIFs to Professional Investors, and provide various information and documentation (as under the Article 42 regime), including documentation evidencing that the AIFM is permitted to manage the AIF. A depository would need to be appointed; however, there is no requirement for a reciprocity statement. 

A Non-EEA AIFM may market EEA and / or Non-EEA AIFs to retail investors in Denmark if the AIFM has obtained permission to market the AIF to professional investors in Denmark and has applied to and obtained from the FSA a marketing permission in accordance with Executive Order No. 1553 of 19 December 2022 on Marketing to Retail Investors, and has provided various information and documentation (as under the Article 42 regime) including, in respect of Non-EEA AIFs and Non-EEA AIFMs a requirement to provide documentation from the relevant authorities in the home country of the AIF and AIFM that evidences that the Non-EEA AIF and Non-EEA AIFM are covered by a corporation agreement (MoU) between the Danish FSA and the relevant authorities in their respective home country. A depository would also need to be appointed. 

3. Pre-marketing 

The pre-marketing definition of the AIFMD has been closely implemented into the Danish AIFM Act section 3(1)(55). 

Pursuant to the Danish AIFM Act 88 a (implementing the AIFMD article 30a) an EEA AIFM may commence pre-marketing except where the information presented to potential professional investors: 

(a) is sufficient to allow investors to commit to acquiring units or shares of a particular AIF; 

(b) amounts to subscription forms or similar documents whether in a draft or a final form; or 

(c) amounts to constitutional documents, a prospectus or offering documents of a not-yet-established AIF in a final form. 

Where a draft prospectus or offering documents are provided, they must not contain information sufficient to allow investors to take an investment decision and must clearly state that: 

(i) they do not constitute an offer or an invitation to subscribe to units or shares of an AIF; and 

(ii) the information presented therein should not be relied upon because it is incomplete and may be subject to change. 

EEA AIFMs must ensure that investors do not acquire units or shares in an AIF through pre-marketing and that investors contacted as part of pre-marketing may only acquire units or shares in that AIF through the applicable marketing procedures pursuant to the AIFMD. 

Any subscription by professional investors, within 18 months of the EEA AIFM having begun pre-marketing, is considered the result of marketing and is subject to the applicable marketing procedure pursuant to the AIFMD, if investors subscribe units or shares: 

  1. of an AIF referred to in the information provided in the context of pre-marketing, or 
  2. of an AIF established as a result of the pre-marketing,  

Further, the Danish AIFM Act implements the notification procedure for pre-marketing pursuant to the AIFMD article 30a.  

Pursuant to the AIFMD article 30a an EEA AIFM must send, within two weeks of it having begun pre-marketing, an informal letter, in paper form or by electronic means, to the competent authorities of its home Member State. That letter must specify the Member States in which and the periods during which the pre-marketing is taking or has taken place, a brief description of the pre-marketing including information on the investment strategies presented and, where relevant, a list of the AIFs and compartments of AIFs which are or were the subject of pre-marketing.  

The competent authorities of the home Member State of the EEA AIFM must promptly inform the competent authorities of the Member States in which the EEA AIFM is or was engaged in pre-marketing. 

The Danish FSA has in its Q&A on, inter alia, AIFMs and UCITS stated that the pre-marketing regime is not available for non-EEA AIFMs. This means that no pre-marketing may be conducted by non-EEA AIFMs in Denmark.  

4. Fees 

There is no fee payable for the application or registration itself. However, there is an annual fee payable, where the basic amount will depend on what type of marketing license the AIFM has and whether the AIFM markets shares/units of Non-EEA AIFs or EEA AIFs. The annual fees will be in the range of DKK 4,100 to DKK 8,000 and is subject to annual adjustments.