AIFM passporting in Finland

The AIFMD has been implemented in Finland through the Act on Alternative Investment Fund Managers (Fi: laki vaihtoehtorahastojen hoitajista, 162 / 2014) (the “AFMA”), which entered into force on 15 March 2014. The AFMA does not impose any additional requirements on EEA AIFMs wishing to manage or market EEA AIFs to professional clients in Finland than what is required by the AIFMD. 

An EEA AIFM may manage an AIF in Finland without establishing a branch or a subsidiary directly, on a crossborder basis in accordance with the notification procedure set out in Chapter 19, section 2 of the AFMA (based on Article 33 of the AIFMD). An EEA AIFM may also establish a branch in Finland in accordance with Article 33 of the AIFMD. Furthermore, EEA AIFMs may market EEA AIFs under their management in Finland on a crossborder basis by way of the notification procedure provided for in Chapter 19, section 5 of the AFMA (based on Article 32 of the AIFMD.) 

If an EEA AIFM intends to market AIFs under its management also to nonprofessional clients in Finland, it must meet certain further requirements in its marketing, including preparing and making available a key information document (in accordance with EU Regulation 1286/2014) for the AIFs in question. The detailed requirements for marketing to non-professional clients are specified in Chapter 13 of the AFMA, in separate Decrees issued by the Ministry of Finance, as well as in Regulation (EU) 2019/1156. The requirements set out in Chapter 13 of the AFMA includes the requirements set out in Article 43a of the AIFMD as well as certain national requirements that are not directly based on the AIFMD. 

EEA AIFMs intending to market AIFs in Finland are required to make a separate passporting notification under the AFMA regardless of whether an existing passport to conduct management business under another regime (such as UCITS) is held. 

A NonEEA AIFM may market in Finland units in an AIF that is established either in an EEA State or a NonEEA State after submitting a written notification to the Finnish Financial Supervisory Authority (Finanssivalvonta) (“FINFSA”). Marketing may commence once the AIFM has received an acknowledgement thereof from the FINFSA. To receive the acknowledgement, NonEEA AIFMs must comply with the requirements set out in Chapter 20, section 3 of the AFMA (being the national private placement rules), which, to a large extent, correspond to the requirements set out in Article 42 of the AIFMD. Furthermore, for the purposes of the reporting obligations under the AIFMD, the FINFSA must be periodically provided with certain information on the AIFM and any AIF managed by it and marketed in Finland. 

Where a NonEEA AIFM markets in Finland, the AIFs can only be marketed to professional investors. 

The rules on pre-marketing set out in Directive (EU) 2019/1160 (“CBDF Directive”) have been implemented in Finland by adding new pre-marketing rules into the AFMA, meaning that the AFMA now includes separate rules for (i) so called “pre-marketing” activities (requiring the submission of a separate pre-marketing notification to the relevant authority), and (ii) actual “marketing” of funds. The definition of “pre-marketing” set out in the AFMA is largely in line with the definition set out in the CBDF Directive. 

Both EEA AIFMs and Non EEA AIFMs may commence pre marketing AIFs which are not yet established or established but not yet compliant with the applicable marketing procedures, to potential investors in Finland, provided that the FIN-FSA receives a pre marketing notification letter within two weeks of starting such pre marketing activity. That letter shall specify (1) the periods during which the pre-marketing is taking or has taken place, (2) a brief description of the pre-marketing including information on the investment strategies presented and (3), where relevant, a list of the AIFs and compartments of AIFs which are or were the subject of pre-marketing. EEA AIFMs need to send this pre marketing notification letter to their home State competent authority within two weeks of starting such pre marketing activity, which in turn is directly transmitted to the FIN-FSA. Non EEA AIFMs need to submit such letter directly to the FIN-FSA within the same time period.  

In accordance with Article 30a of the AIFMD, the information provided to potential investors within the context of the pre-marketing activity should not be sufficient to allow 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. Furthermore, with respect to not-yet-established AIFs, the information presented to potential investors may not amount to constitutional documents, a prospectus or offering documents of a not-yet-established AIF in a final form. 

It shall be noted, that if an investor within 18 months of “pre-marketing” having begun in Finland subscribes for units or shares of an AIF referred to in the information provided in the context of pre-marketing (or of an AIF established as a result of the pre-marketing), the subscription shall be considered to be a result of “marketing”, and the relevant notification procedure must be completed. Thus, effectively, 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.  

The implementation of the CBDF Directive introduced a new “de-notification process” for termination of marketing, which process shall be complied with in case the AIFM intends to terminate marketing of an AIF that has been authorised for marketing in Finland. Such de-notification process is based on Article 2(4) of the CBDF Directive (i.e. new Article 32a of the AIFMD), and it applies to AIFs marketed by EEA AIFMs as well as to AIFs marketed by Non-EEA AIFMs. 

The processing of notifications in the FINFSA is subject to fixed processing fees. The fees charged for various notifications are listed in the relevant schedule. These schedules are available on the webpage10 of the FINFSA. 

Furthermore, periodic charges are levied on EEA AIFMs who manage AIFs in Finland either through a branch or without a branch