Private placement rules and law in Sweden

1. Summary of private placement provisions for fund interests (if applicable)

Sweden has implemented the AIFMD through the 2013 Swedish Act on Alternative Investment Fund Managers (Sw. Lag (2013:561) om förvaltare av alternativa investeringsfonder, the “SAIFM Act”). Generally, any placement of fund interests in Sweden requires a licence from the Swedish FSA (“SFSA”) and the provision of certain minimum information.

For both EEA AIFMs and UCITS there are passporting regimes available as provided for in the UCITS Directive and AIFMD.

Rules regarding prospectuses were earlier to be found in the Swedish Financial Instruments Trading Act (Sw. Lag (1991:980) om handel med finansiella instrument “FTA”). These rules are now however replaced by the Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC (the ''Prospectus Regulation''). According to Article 1 Section 2a) the Prospectus Regulation shall not apply to  units issued by collective investment undertakings other than the closed-end type.

UCITS Funds are regulated in the Swedish UCITS Act (Sw. Lagen (2004:46) om värdepappersfonder) (“UCITS Act”). The UCITS V Directive was implemented into Swedish law in November 2016.

“Special Funds” are a category of AIFs that must meet certain requirements (e.g. rules on diversification and redemption) in the SAIFM Act and require authorisation from the SFSA. The “Special Funds” exemption also applies to foreign equivalent funds.

Even though UCITS funds, Special Funds and foreign equivalents to Special Funds can be offered without a prospectus under the Prospectus Regulation, other information requirements apply pursuant to the UCITS Act and the SAIFM Act. As a general rule, marketing of funds in Sweden (other than under applicable passporting regimes) requires a licence from the SFSA and triggers an obligation to make certain information (e.g. description of the investment strategy and objectives, fees, risks etc.) available to investors. These rules apply even if the fund interests are offered only to qualified investors and/ or in a private placement (as defined below). AIFs that are only marketed to qualified investors are, however, not legally required to issue a Key Investor Information Document (KIID).

Swedish laws and regulations do not provide for a definition of “private placement”. However, the term “private placement” is commonly used to describe a restricted offer of securities to professional investors that is exempted from the duty to publish a prospectus. Professional Investors are, broadly speaking, professional clients who are considered to be treated as professional clients or may be treated as professional clients within the meaning of Annex II of MiFiD II.

The Swedish legislator has implemented Directive (EU) 2019/1160 of the European Parliament and of the Council of 20 June 2019 amending Directives 2009/65/EC and 2011/61/EU with regard to cross-border distribution of collective investment undertakings including rules on, e.g., pre-marketing.

A foreign EEA-based AIFM, which has been authorised in its home country in accordance with the AIFMD may without further authorisation engage in pre-marketing in Sweden of an EEA-based AIF, under the conditions as set out in the AIFMD. 

A foreign AIFM that has submitted a notification to the competent authority that it intends to cease marketing shares or units of an alternative investment fund may not, from the date of the notification, engage in pre-marketing in Sweden for a period of 36 months from the date of the notification. This prohibition applies to units and shares, as well as to similar investment strategies or investment ideas. No legislation has been introduced regarding pre-marketing by non-EEA based AIFMs or of UCITS.

2. Other forms of possible placement options for fund interests outside fund regulations

So called “reverse solicitation” is under certain circumstances not considered marketing within the meaning in the SAIFM Act. However, no express exemption or safe harbour is provided in the SAIFM Act in this respect. Rules on pre-marketing has been introduced in the SAIFM Act.

3. Consequences of non-compliance with placement regimes for fund interests

There are no explicit mandatory contractual consequences. In theory, an investor could claim compensation under general tort law if the information given was inaccurate and caused damage to the investor.

An entity that breaches the relevant rules in the UCITS Act or SAIFM Act and conducts fund operations in Sweden without a licence from the SFSA may be subject to an order by the SFSA to cease the operations.

Such order may be combined with an administrative fine. Fines are decided on a case-by-case basis. If uncertain whether the UCITS Act or the SAIFM Act applies to the activities in question, the SFSA may order the entity to submit information on the activities undertaken.

Further, the SFSA may prohibit an offer of transferable securities where the SFSA finds that the provisions of the Prospectus Regulation has been breached. A breach of the Swedish prospectus requirements may also result in an administrative fine. Neither the prospectus nor the licensing/ registration requirements are sanctioned with imprisonment. In addition to other available sanctions, the SFSA regularly publishes a so called “alert list” which contains names of companies that offer financial services and/or products without having the appropriate licence in place. This list is available on the SFSA’s website.