Law 4099/2012 (the “Law”) implemented in Greece Directive 2009/65 of the European Parliament and of the Council on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (“UCITS Directive”). The Law is applicable only to UCITS established within the territories of the EU member states and when enacted, the Greek legislature added a provision (Article 92) which is not included in the UCITS Directive. Article 92 provides, inter alia, that any undertaking for collective investments that is seated in a Non EU member state needs to be licensed by the Hellenic Capital Market Commission (“HCMC”) before making offerings in Greece.
Moreover Law 4209/2013, which implemented in Greece AIFMD, is applicable to AIFMs (either EU or Non EU based) that manage and/or market AIFs in the EU. However, Greece opted not to implement Article 42 of Directive 2011/61 which provides the conditions for Non EU AIFMs to make offerings to professional investors within an EU member state.
In light of the above non EU funds are governed by the special provision of Article 92 of the Law.
On 15.04.2022 Directive (EU) 2019/1160 was transposed into Greek law (via amendments to Law 4209/2013) and introduced new rules relating to the cross-border marketing and distribution of collective investment undertakings within the EU (uniformity of marketing communications rules for UCITS and AIFs).
Regarding marketing of units or shares of AIFs by AIFMs to retail investors, the Law (article 41) provides that this is permitted only to AIFMSAs or other AIFMs operating in Greece (via passporting) as long as several conditions are fulfilled.
There is no specific definition of private placement under Greek law but the concept of “private placement” is determined by opposition to public offer and by referring to the exemption from the requirement to publish a prospectus under the provisions of Law 4706/2020 (“Prospectus Law”).
Private placement in Greece is a placement that:
- is addressed solely to qualified investors. As per Article 2 of Regulation 2017/1129 EU, “qualified investors” means persons or entities that are listed in points (1) to (4) of Section I of Annex II to Directive 2014/65/EU, and persons or entities who are, on request, treated as professional clients in accordance with Section II of that Annex, or recognised as eligible counterparties in accordance with Article 30 of the Directive 2014/65/EU, unless they have agreed to be treated as non professional clients in accordance with the fourth paragraph of Section I of same above Annex and/or
- is addressed to fewer than 150 natural or legal persons other than qualified investors per each EU member state; and/or
- is addressed to investors who acquire securities for a total consideration of at least EUR 100,000 per investor, for each separate offer; and/or
- refers to securities whose denomination per unit amounts to at least EUR 100,000; and/or
- refers to securities where the total consideration for the offer in the EU is less than EUR 5,000,000 calculated over period of twelve months.
If a fund meets any one (or more) of the above criteria then it is subject to private placement provisions.
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