UCITS passporting in the Netherlands

EEA Management Companies that are authorised in their home Member State to manage an EEA UCITS Scheme may exercise passporting rights for the marketing of units of an EEA UCITS Scheme constituted in another EEA Member State in the Netherlands. 

An EEA Management Company seeking to passport, without establishing a branch or performing other activities or services in the Netherlands, is required to notify its HMSA if it intends to market units of an EEA UCITS Scheme in the Netherlands. The notification shall include information on arrangements made for marketing of the units of the EEA UCITS Scheme in the Netherlands and an indication that the EEA UCITS Scheme is marketed by the EEA Management Company. The EEA Management Company must also enclose the EEA UCITS Scheme’s rules or instruments of incorporation, prospectus, KID and any annual reports or biannual accounts where applicable. 

The HMSA shall transmit the complete notification to the Netherlands’ Authority for Financial Markets (Autoriteit Financiële Markten, the “AFM”). The HMSA shall accompany the notification with an attestation that the EEA UCITS Scheme fulfils the conditions for passporting under the UCITS Directive. Once the EEA Management Company has received the notification from the HMSA that it has sent the passport notification to the AFM, the EEA Management Company is permitted to market the EEA UCITS Scheme in the Netherlands. 

An EEA Management Company should make available in the Netherlands all information which it must publish in accordance with the rules laid down in its home Member State. 

If any party other than the EEA Management Company markets the EEA UCITS Scheme in the Netherlands, it is likely that this party would be deemed to provide investment services in the Netherlands. In that event, a license to perform investment services in the Netherlands is required. Investment services include, inter alia, (i) placing financial instruments, (ii) underwriting financial instruments on a firm commitment basis, (iii) providing advice in respect of such financial instruments, and (iv) receiving orders from clients relating to financial instruments and passing on those orders. 

When an EEA Management Company markets an EEA UCITS Scheme in the Netherlands, requirements regarding conduct supervision under Dutch law apply if this involves providing or making available information other than marketing material. It concerns requirements with respect to transparency, the provision of information and due care. These requirements state, among others, that (i) provided information shall not contain any non-permissible, false or misleading information, (ii) certain documentation must include Dutch compliant disclaimers, and (iii) the commercial objective of the information made available is recognisable as such. Dutch legal advice should be sought in relation to compliance with these requirements.

Rules on the notification of changes for an EEA Management Company under Directive (EU) 2019/1160 on the distribution of funds on a cross-border basis within the EU are effective in the Netherlands.

The AFM applies a registration fee of EUR 4,400 per EEA UCITS Scheme.