LUXEMBOURG Law and Practice Contributed by: Evelyn Maher, Gaston Aguirre Draghi and Djelloul Mansour, BSP
2.3.7 Marketing of Alternative Funds SIFs, SICARs and RAIFs are reserved for and can only be marketed to well-informed inves - tors in Luxembourg. Well-informed investors are institutional investors, professional investors or any other investors who meet the following con - ditions: • they have confirmed in writing that they adhere to the status of well-informed investor; and • they invest a minimum of EUR100,000, or have been the subject of an assessment made by an entity such as a bank, manage - ment company or AIFM certifying their exper - tise, experience and knowledge in adequately apprising an investment in a fund. Part II UCIs can be marketed to any type of investors (both retail and well-informed inves - tors). In addition to the foregoing restrictions, EEA AIFs managed by an authorised AIFM can be marketed to professional investors in Luxem - bourg pursuant to Article 32 of the AIFMD. As previously discussed, in certain circumstanc - es authorised AIFMs may market non-Luxem - bourg AIFs to retail investors in Luxembourg. EuVECAs and EUSEFs, governed by Regula - tion (EU) No 345/2013 and Regulation (EU) No 346/2013, respectively, can be marketed to pro - fessional investors and other investors, provided that each investor (noting that such funds could take one of the available forms of fund in Lux - embourg like SICAR or SIF): • commits to investing a minimum of EUR100,000; and
The AIFM must ensure that professional inves - tors do not acquire units or shares in an AIF through pre-marketing, and that investors con - tacted as part of pre-marketing may only acquire units or shares in that AIF after the formal mar - keting notification. Any subscription by professional investors, within 18 months of the AIFM having begun pre- marketing, to units or shares of an AIF referred to in the information provided in the context of pre- marketing, or of an AIF established as a result of the pre-marketing, shall be considered to be the result of marketing and shall be subject to the applicable notification procedures (see 2.3.8 Marketing Authorisation/Notification Process ). 2.3.6 Rules Concerning Marketing of Alternative Funds AIFMs marketing AIFs in Luxembourg must comply with the provisions of the AIFMD. Where another firm is marketing in Luxembourg, it could be considered to be carrying out an activity of the financial sector and should thus be licensed or otherwise authorised to do so pursuant to the Law of 5 April 1993 on the financial sector. Firms from other EU member states with the appropriate licence pursuant to the Markets in Financial Instruments Directive (MiFID) would be authorised to carry out distribution activities in Luxembourg. All marketing communications will need to com - ply with the requirements of Article 4 of Regula - tion 2019/1156 on facilitating cross-border dis - tribution of collective investment undertakings. CSSF Circular 22/795 stipulates that Luxem - bourg AIFMs must provide the CSSF with infor - mation regarding marketing communications, and the CSSF will conduct testing to verify their compliance with the applicable requirements under Article 4.
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