AIFM passporting in Netherlands

AIFMs who are authorised in their EEA home State that has implemented the AIFMD may exercise passport rights for management and marketing of AIFs to professional investors (professionele beleggers) in the Netherlands on a services and / or branch basis.

To obtain a passport, the EEA AIFM must notify its home State competent authority, which will then send the passport notification to the Netherlands Authority for the Financial Markets (Autoriteit Financiële Markten) (“AFM”). Once the EEA AIFM has received the notification from its home State competent authority that it has sent the passport notification to the AFM, the EEA AIFM can manage a Dutch AIF and / or offer units in an EEA AIF that it manages in the Netherlands.

In the event that an EEA AIFM manages a Dutch AIF and / or offers units in an EEA AIF that it manages in the Netherlands through a Dutch branch, it must comply with certain Dutch law provisions regarding conduct supervision.

It is also possible for EEA AIFMs to manage a Dutch AIF that offers units to non-professional investors (niet-professionele beleggers) in the Netherlands and / or offer units in an EEA AIF that it manages to non-professional investors in the Netherlands by means of its passport. The EEA AIFM should notify the AFM of its intention to perform the aforementioned services. If an EEA AIFM offers units in an AIF to non-professional investors in the Netherlands, the Dutch ‘top-up’ rules will apply, which are rules concerning the business operations, the information to investors and supervisory authorities, the powers of supervisory authorities, the depository and the proper treatment of investors. The Dutch ‘top-up’ rules do not apply to an AIFM that offers units to non-professional investors in the Netherlands if the units have a nominal value of at least EUR 100,000 or can only be acquired for an equivalent value of at least EUR 100,000 per investor.

Non-EEA AIFMs that wish to offer units in an AIF in the Netherlands and / or manage a Dutch AIF may make use of the Dutch third country regime. Reference is made to the ‘CMS Guide to Private Placement of Funds’.

The AFM does not charge any fees for outward or inward AIFMD passport notifications, nor does it charge any periodic fees for EEA AIFMs that passport into the Netherlands. However, it may be that the AFM will charge fees for passport notifications in the future. In the event that a passported EEA AIFM establishes a branch in the Netherlands, the AFM will charge fees for the supervision of the applicable provisions regarding conduct supervision under Dutch law, such as for the suitability and integrity test of the daily policymakers or co-policymakers of the EEA AIFM, if applicable.

EEA AIFMs engaging in premarketing activities in the Netherlands need submit a premarketing notification form to their competent regulator prior to engaging in premarketing activities. In the Netherlands the AFM is the competent authority for premarketing notifications.