GERMANY Law and Practice Contributed by: Tarek Mardini, Antonia Puglisi and Enzo Biagi, POELLATH
which are “fair, clear and not misleading”. Addition - ally, marketing materials have to be labelled as such. Pre-Marketing Germany implemented the EU amendments of the AIFMD with regard to the pre-marketing and market - ing communications of collective investment funds (Directive (EU) 2019/1160) with effect from 2 August 2021. The present regime entails slightly stricter regu - lation in Germany compared to the prior regulation on pre-marketing. It should be noted that Germany extended the new EU pre-marketing regime to non- EU managers as well. As a result, non-EU managers are required to notify BaFin about their pre-marketing activities in Germany. Marketing Approval for Fund Interests A licence is generally required prior to marketing fund interests in Germany. This is either a marketing licence granted by BaFin or an AIFMD marketing passport (or, as the case may be, a EuVECA, ELTIF or EuSEF passport). German-based sub-threshold managers are an exception. They can market their funds on a private placement basis in Germany. However, sub-thresh - old managers can only approach professional inves - tors and semi-professional investors and there is no AIFMD passport available. Marketing of non-EU AIFs or EU AIFs by EU AIFMs With regard to the marketing of non-German EU AIFs by EU AIFMs, the AIFMD marketing passport is available. The AIFMD marketing passport allows for the marketing of EU AIFs to professional and semi- professional investors in Germany. BaFin charges a registration fee of EUR466. With regard to the marketing of Non-EU AIFs by EU AIFMs, these can be marketed on a private placement basis in Germany to professional and semi-profes - sional investors. BaFin charges a registration fee of EUR1,641 per AIF. It is also possible for sub-threshold EU AIFMs to market Non-EU or EU AIFs to professional and semi- professional investors in Germany, if the AIFM is reg - istered in its home country and there is marketing
reciprocity between Germany and the home coun - try of the AIFM. BaFin charges a registration fee of EUR1,641 per AIF. Marketing of non-EU AIFs or EU AIFs by non-EU AIFMs Germany allows for the marketing of non-EU and EU AIFs managed by non-EU AIFMs to professional and semi-professional investors under the German imple - mentation of Article 42 of the AIFMD. However, Ger - many has gold-plated Article 42 of the AIFMD, which still requires the appointment of a “depositary light”. Further, Germany also applies the Article 42 AIFMD regime to non-EU sub-threshold managers. Regis - tration under Article 42 of the AIFMD requires fund managers to submit an annual report and a so-called Annex IV report under the AIFMD to BaFin, as well as pay a registration fee of EUR1,641 per AIF and a cur - rent annual fee of EUR113 per AIF. Reverse Solicitation Germany recognises the reverse solicitation concept. Reverse solicitation requires that the offer or place - ment is genuinely initiated by the investor. In addition, the prospective investor must be a professional or semi-professional investor. Since the specific require - ments for reverse solicitation are not sufficiently out - lined by the legislator, BaFin is taking a rather strict position on reverse solicitation on a very limited basis. However, since the implementation of the new regime, the scope for reverse solicitation has become very limited. Any subscription made by an investor within 18 months of the commencement of pre-marketing is considered a result of pre-marketing or marketing activities in Germany. Therefore, pre-marketing activi - ties will preclude the AIFM from being able to rely on reverse solicitation for a period of 18 months. If the investor is a retail investor, the requirements on reverse solicitation are even less clear. Cases of reverse solicitation should therefore, at the very least, be well documented. 4.5 High Net Worth or Retail Investors In Germany, high net worth individuals (HNWIs) and retail investors increasingly have access to alterna - tive investment strategies, albeit within a strict regu - latory framework. Unlike purely institutional special
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