AIFM passporting in Portugal

The Asset Management Regulation (“AMR”) (approved by the Decree-Law 27/2023, of 28 April) implements the AIFMD. 

1. EEA AIFMs 

AIFMs duly authorised by their national regulators are entitled to manage and/or market their AIFs in Portugal either by establishing a branch or under the freedom to provide services. For either case the Portuguese Securities Market Commission (hereafter “CMVM”) shall receive in advance a communication from the home Member State competent authority of the AIFM. 

1.1 Establishing a branch 

The notification referred to in the paragraph above should include: 

  1. Address of the future Portuguese branch; 
  2. Business plan, which shall mention: (i) the activities to be exercised; (ii) corporate structure of the branch; (iii) identification of the AIFs to be managed in Portugal; 
  3. Identity and contact details of the branch management officer; 
  4. Certificate issued by the Member State competent authority attesting that the AIFM is authorized. 

1.2 Freedom to provide services 

The notification referred to in the paragraph above should include: 

  1. Business plan, which shall mention: (i) activities to be exercised; and (ii) the identification of the AIFs to be managed in Portugal; and 
  2. Certificate issued by the Member State competent authority attesting that the AIFM is authorized. 

2. Third country AIFMs 

An AIFM established in a third country is subject to prior authorization from CMVM to develop the following activities in Portugal: 

  1. manage Portuguese AIFs without marketing them; 
  2. marketing EEA AIFs and third country AIFs, exclusively with professional investors, provided that Portugal is the member state where most of those AIFs are marketed; 
  3. manage one or more EEA AIF, provided that most of the AIFs are incorporated in Portugal or the majority of the assets are managed in Portugal; 
  4. marketing a single EEA AIF or a single third country AIF, provided that Portugal is the member state of such AIF or the only member state where such marketing is envisaged; 
  5. marketing a single EEA AIF or a single third country AIF in several member states, provided that Portugal is the member state of the AIF or one the member states whereby the AIF will be marketed; 
  6. marketing of several EEA AIFs, provided that Portugal is the member state of the AIF or the member state where the majority of such marketing is envisaged to take place. 

The authorization application shall be accompanied by the information and documentation set forth in the Asset Management Regulation.  

3. Pre marketing of EEA AIFs in Portugal 

EEA AIFMs may commence pre-marketing AIFs to potential professional investors in Portugal, provided that CMVM receives a pre-marketing notification letter 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. 

4. Marketing of AIFs in Portugal 

AIFs either from an EEA country or from a third country can be marketed in Portugal as follows: 

  1. EEA AIFs can be marketed by Portuguese AIFMs or third country AIFMs authorized in Portugal; 
  2. EEA AIFs can be marketed by an EEA AIFM or by a third country AIFM authorized in a member state provided that some information is previously made available to CMVM; 
  3. Third country AIF can be marketed by a Portuguese AIFM provided some cooperation mechanisms between the relevant competent authorities are applied; 
  4. Third Country AIFs can be marketed by an EEA AIF provided some information is previously made available to CMVM. 

As general rule, the marketing of EEA AIFs or third country AIFs shall be exclusively marketed to professional investors. However, the Asset Management Regulation allows the marketing to non-professional investors provided that the EEA AIFM has the necessary means in Portugal to (i) process the subscription, payment, repurchase and redemption of units and (ii) provide certain information to investor, such as annual report, key information document and any other information that could be deemed relevant.

Information to be previously provided to CMVM includes, without limitation, (i) identification of the AIFs, (ii) constitutional documents of the AIFs, (iii) identification of the custodian entity, (iv) description of the AIF, (v) information legally required to be made available to investors. Information to investor shall make available to Portuguese investors, in Portuguese or other language used in the financial field. 

5. Fees 

CMVM does not charge fees in relation to the procedure described above. The only cost that may arise is if the AIFs are managed by a management entity registered with CMVM – in which case a monthly fee of EUR 125 is due.