1. EEA AIFMs
AIFMs authorised in their EEA home State may exercise passport rights for the marketing of EEA based AIFs to professional investors in Denmark under the passporting regime provided for by the AIFMD.
Regardless of whether an existing passport to conduct management business under another single market directive (such as UCITS) is held, EEA AIFMs are required to make a separate notification to their home State competent authority if they intend to market an EEA AIF on a passported basis. The home State competent authority will send the management passport notification to the Danish Financial Supervisory Authority (“FSA”) on behalf of the EEA AIFM.
An EEA AIFM wishing to market an EEA AIF to retail (as well as professional) investors in Denmark may do so provided that their home State competent authority has (i) submitted a passport notification to the FSA to market the AIF to professional investors and (ii) submitted a separate application to the FSA in accordance with Executive Order No. 797 of 26 June 2014 on Marketing to Retail Investors, together with a number of other documents and information, including the constitutional documents for the AIF, the Private Placement Memorandum, the Subscription Agreement, Key Investor Information Documents, Annual Report and the name of the appointed depository.
2. Third country AIFMs
AIFMs based in Non-EEA jurisdictions wishing to market Non-EEA AIFs to professional investors in Denmark will be required to apply to the FSA for a marketing permission in accordance with Executive Order No. 798 of 26 June 2014 on Marketing of Non-EEA AIFs to Professional Investors. Denmark has chosen to ‘gold-plate’ the AIFMD Article 42 regime by requiring the appointment of a depository to carry out the ‘depo-light’ functions, and the provision of a reciprocity statement by the AIF’s home State regulator or, if unavailable due the characteristics of the AIF, by a qualified lawyer.
Likewise, Non-EEA AIFMs wishing to market EEA AIFs to professional investors in Denmark will be required to apply to the FSA for a marketing permission in accordance with Executive Order No. 799 of 26 June 2014 on Marketing of EEA AIFs to Professional Investors, and provide various information and documentation (as under the Article 42 regime), including documentation evidencing that the AIFM is permitted to manage the AIF. A depository would need to be appointed; however, there is no requirement for a reciprocity statement.
A Non-EEA AIFM may market EEA and / or Non-EEA AIFs to retail investors in Denmark if the AIFM has obtained permission to market the AIF to professional investors in Denmark and has applied to the FSA for a marketing permission in accordance with Executive Order No. 797 of 26 June 2014 on Marketing to Retail Investors, and has provided various information and documentation (as under the Article 42 regime) including, in respect of Non-EEA AIFs, documentation from the supervisory authority in the AIF’s home State evidencing that the AIF is subject to supervision. A depository would also need to be appointed.
There is no fee payable for the application or registration itself, but the AIFM is subject to an annual fee of approximately DKK 5,100 (in 2018) per fund or per compartment thereof. The fee is subject to annual adjustments.