The Austrian Alternative Investment Fund Managers Act (Alternatives Investmentfonds Manager Gesetz “AIFMG”) allows EU AIFs and Non EU AIFs to be placed in accordance with a dedicated set of rules, which do not provide for a private placement exemption.
The AIFMG does not impose an obligation to draw up a prospectus. However, it requires the submission of comprehensive information to investors and the supervisory authorities. In addition, the Austrian Capital Market Act provides the requirements for public offerings of investments which also apply to AIFs.
A substantial part of the AIFMG contains provisions for the marketing of AIFs. The provisions set out complex rules and distinguish between (i) the place of marketing, (ii) whether the AIFM is licenced in Austria or in another EU Member State or is a Non EU AIFM, and (iii) whether the AIF is an EU AIF or a Non EU AIF. In general, an AIFM which is licenced in Austria is entitled to market EU AIFs to professional investors in Austria and in other EU Member States.
Provided that an AIFM is an EEA licenced AIFM, it is permitted to pre-marketing activities. These pre-marketing activities must be aimed to potential professional investors, and they require that the Austrian regulator is informed within two weeks after the start of the first pre-marketing activity. If investors subscribe for units within a period of 18 months from the commencement of pre-marketing, the relevant distribution notification procedure must be completed. It is not permitted to aim pre-marketing activities to private investors.
The marketing of AIFs to private investors and qualified private investors is possible only under certain conditions. A “qualified private investor” is a person who owns free deposits and securities of more than EUR 250,000, commits to invest at least EUR 10,000 into an AIF and who is in a position to make its own investment decisions and understands the risks associated with the investment, which he shall confirmed in a separate document from the investment commitment agreement.
The following AIFs are eligible for marketing to private investors and qualified private investors:
- Real Estate Funds according to the Real Estate Fund Act provided that the AIFM holds a licence pursuant to Section 1 para 1 cf 13a Austrian Banking Act (Bankwesengesetz, – “BWG”);
- Special Funds, Other Funds and Pension Investment Funds according to the Investment Fund Act (Investmentfondsgesetz “InvFG”), provided that the AIFM holds a licence pursuant to Section 1 para 1 cf 13 BWG and Section 6 para 2 InvFG.
- AIF in Real Estate provided that the AIFM holds a licence according to the AIFMG;
- Managed Futures Fund subject to the conditions of Section 48 para 7 and 8 AIFMG provided that the AIFM holds a licence according to the AIFMG;
- Private Equity Umbrella Funds according to Section 48 para 8a and 8b AIFMG provided that the AIFM holds a licence according to the AIFMG;
- AIFs investing in interests of companies according to Section 48 para 8c and 8d AIFMG provided that the AIFM holds a licence according to the AIFMG;
- Medium-Sized Financing Companies according to Section 48 para 8e and 8f AIFMG provided that the AIFM holds a licence according to the AIFMG; and
- exclusively to qualified private investors, AIFs which are authorised to be marketed to professional investors and provided that they do not employ leverage exceeding 30%.
Pursuant to Section 48 para 1a AIFMG the private investor and the qualified private investors investing in AIFs have to confirm in writing that they have sufficient knowledge about the investment and the risks contained therein, when investing in an AIF from d) to g). The AIFM needs to be sufficiently convinced that the private investor and the qualified private investor are able to assess the risk and the adequacy of the obligation related to the investment.
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