AIFM passporting in Austria

AIFMs authorised in their EEA home State may exercise the right to passport their national licence allowing them to manage and market units or shares of AIFs to professional investors in Austria or other EEA States on a freedom of services and / or branch basis. 

The AIFM may start marketing of units or shares of AIFs as soon as the AIFM receives confirmation from the competent authority of its home State that the documents and information pursuant to Annex 4 of the Austrian Alternative Investment Fund Managers Act (“AIFMA”) (Annex IV AIFMD) as well as the certificate of permission pursuant to Section 31 AIFMA (Art 32 para 3 AIFMD) have been submitted to the Austrian Financial Market Authority (“FMA”).

AIFMs are required to submit the aforementioned documents and information to the competent authority of their home State, who will forward them on to the FMA on their behalf.

If an EEA licensed AIFM intends to provide marketing activities for an AIF to retail investors in Austria, the AIFM must also submit a notification containing the information required under Section 49 AIFMA to the FMA. According to Section 49 AIFMA, an AIFM must be authorised to market AIFs to retail investors in its home State and needs to meet the conditions for marketing AIFs to professional investors in Austria. The type of AIF must also be an approved type of fund in order for it to be offered to retail investors. The AIFMA sets out restrictions on the type of funds which can be offered to retail investors.
The Federal Act governing pre-marketing to professional investors which shall implement the Directive (EU) 2019/1160 with regard to cross-border distribution of collective undertakings is currently under consultation and is not yet in force.

An EEA licensed AIFM must inform FMA about pre-marketing activities to potential professional investors within two weeks after the start of the first pre-marketing activity. The information provided within the context of the pre-marketing activity should not enable such investors to acquire the pre-marketed AIF or amount to a subscription form or similar document. 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.

A Non-EU AIFM may notify AIFs managed by it for distribution to Professional Investors in Austria. The Non-EU AIFM must appoint a legal representative in Austria, who will represent the AIFM in and out of court, and acts as authorised recipient and contact person of the Non-EU AIFM in Austria. Any correspondence between the FMA and fund investors, on one side, and the AIFM on the other side, shall be made via the legal representative. The legal representative, together with the Non-EU AIFM, will be responsible for the compliance regarding management and marketing activities. The Non-EU AIFM must file a distribution notification with FMA in writing if it intends to market AIFs in Austria. Such notification must contain comprehensive information about the AIFM and the relevant AIFs, as well as a confirmation by the competent authorities of the home State of the Non-EU AIFM and of the AIF, that the AIF and the Non-EU AIFM comply with all requirements of AIFMD, acts adopted on the basis of AIFMD and AIFMA.

The FMA will charge a fee of EUR 1,100 for processing the documents submitted in accordance with Annex 4 of AIFMA and the certificate of permission (as discussed in paragraph 1 above). In the case of umbrella funds, the fee will increase by EUR 220 per sub-fund, which is calculated from the second sub-fund. In addition, the FMA will charge an annual fee of EUR 600 for monitoring compliance with the obligations arising from the AIFMA. This fee will increase by EUR 200 per sub-fund which, again, is calculated from the second sub-fund.

Note: Different fees apply to (i) EU AIFM marketing Non-EU AIFs and (ii) Non-EU AIFM marketing AIFs. These are not described herein.