AIFM passporting in Romania

Since April 2015 when the Law 74 / 2015 regarding managers of alternative investment funds was enacted, which, together with the RFSA Regulation 10 / 2015, ensured the near-complete implementation of the Alternative Investment Fund Managers Directive (“AIFMD”), the Romanian legislator has enacted Law no. 243/2019 regarding alternative investment funds, as well as Law no. 237/2022 which amends and supplements Law 74/2015.

Under the Law 74/2015, EEA AIFMs authorised in their home State may market EEA and Non-EEA AIFs in Romania, on a freedom of services and / or branch basis. EEA AIFMs shall be entitled to market EEA AIFs provided that a notification is submitted to the RFSA by the competent authority in their home State, together with a statement that EEA AIFM in question is authorized to manage EEA AIF based on a particular investment strategy. Subsequently, EEA AIFM may begin the activity once it is registered in the registry kept by the RFSA. 

The RFSA Regulation 10 / 2015 provides that, when advertising EEA AIFs to retail investors, EEA AIFMs are required to:

• follow the notification procedure outlined above;
• comply with the publicity and transparency requirements applicable to publicly distributed Non-UCITS; and
• be authorised to perform investment consulting services.

Non-EEA AIFMs, which have been authorised in another EEA state of reference, are entitled to the same passporting rights as EEA AIFMs.

The non-EEA AIFM for which Romania is the state of reference must have been granted authorisation by the RFSA and must appoint a legal representative in Romania. 

Marketing in Romania of Non-EEA AIFs managed by Non-EEA AIFMs are subject to cooperation agreements between the RFSA and the competent authorities in the home state.

There are no fees applicable when passporting under the freedom to provide services. Certain fees ranging from approximately EUR 1,000 to EUR 4,000 per year are currently established by way of secondary legislation (the RFSA Regulation 16/2014 regarding the revenues of the RFSA) for the supervision exercised by the RFSA in relation to the distribution of AIFs by EEA AIFMs. Additional fees may be established, potentially by way of secondary legislation.

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 professional investors in Romania, provided that the EEA AIFM sent a 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 RFSA. 

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. 

Any subscription by professional investors, within 18 months of the AIFM having begun pre-marketing, to units or shares of a AIF referred to in the information provided in the context of pre-marketing, or of a AIF established as a result of the pre-marketing, shall be considered to be the result of marketing and shall be subject to the applicable notification procedures referred to in Point 1 above “EEA AIFMs”.