NETHERLANDS Law and Practice Contributed by: Vilmar Feenstra, Robert Veenhoven, Joyce Kerkvliet and Sebastiaan Verkerk, Loyens & Loeff N.V.
Under Dutch law, the regulatory regime and supervision with respect to externally managed AIFs concern the alternative investment fund manager (AIFM) of an AIF, rather than the AIF itself (unless the latter is managed internally). The regulatory regimes that apply to Dutch AIFMs and non-Dutch AIFMs when setting up Dutch AIFs are discussed below. Dutch AIFM The fully licensed regime Pursuant to the Dutch Act on Financial Super - vision ( Wet op het financieel toezicht , or AFS), an AIFM is prohibited from managing an AIF or marketing interests in an AIF in the Netherlands without a licence thereto from the Netherlands Authority for the Financial Markets ( Stichting Autoriteit Financiële Markten , or AFM), unless an exemption or exception applies. The AFM will grant a licence to a Dutch AIFM upon application if the AIFM meets the requirements under Dutch law implementing the Alternative Investment Fund Managers Directive (2011/61/ EC, or AIFMD). The licence requirements relate to, inter alia, the suitability and trustworthiness of the board members, the operational and con - trol structure of the AIFM, the management of potential conflicts of interest, the appointment of a depositary, and solvency and capital require - ments. The AFM has a review period of up to 26 weeks and may request additional documents or information during the application process (the review period will then be suspended). In prac - tice, therefore, the process to obtain a licence takes more time. If a Dutch AIFM holds a licence from the AFM pursuant to the AIFMD, it is, in principle, allowed to manage AIFs and to offer the interests in the AIF it manages to professional investors (within the meaning of the AFS) in the Netherlands. If the
AIFM complies with the “retail top-up regime” (as discussed in 3. Retail Funds ), the AIFM may also offer interests to non-professional investors in the Netherlands. A licensed Dutch AIFM can only manage a new AIF within the investment strategy covered by its licence and can market such AIF to professional investors if it has obtained approval thereto from the AFM. To obtain such approval, a so-called investment institution notification form should be submitted to the AFM through its digital portal, with, inter alia, the following attached: • a structure chart of the AIF and all connected entities; • the fund agreement and other contractual arrangements between the vehicle and the investors; • the prospectus in which the information required pursuant to Article 23 of the AIFMD is contained; and • a notification form containing information on the depositary. The AFM has one month to decide on the appli - cation, which can be extended by one month. If the AIF is managed or marketed to professional investors outside the Netherlands, a marketing passport needs to be obtained, pursuant to the Dutch implementation of Article 32 of the AIFMD. A Dutch-licensed AIFM can also pre-market an AIF in the Netherlands or another EU member state to professional investors, provided it made a pre-marketing notification to the AFM and the conditions set forth in Article 30a of the AIFMD, as implemented in the Netherlands, are met. Registration regime for “small managers” There is an exception from the above-mentioned licence obligation for Dutch AIFMs that can
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