NETHERLANDS Law and Practice Contributed by: Vilmar Feenstra, Robert Veenhoven, Joyce Kerkvliet and Sebastiaan Verkerk, Loyens & Loeff N.V.
2.1.3 Limited Liability The Dutch legal forms commonly used for investment fund formations are a CV, a Coop, an FGR and/or a BV. All these forms provide for the limited liability of investors. Typically, upon the request of investors, legal opinions are given in this respect, subject to the customary assump - tions and qualifications. The Netherlands, furthermore, provides for two specific tax fund regimes that may be used for specific strategies: • the exempted investment institution ( vri- jgestelde beleggingsinstelling , or VBI); and • the fiscal investment institution ( fiscale beleg - gingsinstelling , or FBI) – note, however, that for direct real estate investments this regime is expected to be abolished in 2025. CV A CV is a limited partnership for the purpose of a durable co-operation between one or more managing (or general) partners, each with unlim - ited liability, and one or more limited partners ( commanditaire or stille vennoten ) who are not liable towards third parties for the obligations of the CV in excess of the amount they have contributed or have agreed to contribute to the CV, unless the names of the limited partners (or characteristic elements of their names) are used in the name of the CV, or the limited partners engage in any act of management or control ( daden van beheer ) or are involved in any activi - ties of the CV (even by virtue of a power of attor - ney – volmacht ). However, a limited partner may be held liable for obligations of the CV if: • such limited partner has committed a tort ( onrechtmatige daad ); • such limited partner qualifies as a policy - maker ( beleidsbepaler ) or a co-policymaker
An EU sub-threshold AIFM is, pursuant to a recent change in Dutch law, allowed to manage a Dutch AIF provided it complies with the condi - tions as set forth in the Registration regime for “small managers” as set out above and inter - ests in the AIF are only marketed to professional investors. Non-EU AIFM A non-EU AIFM that intends to manage a Dutch AIF needs to comply with the Dutch implemen - tation of the national private placement regime of Article 42 of the AIFMD (NPPR). A number of conditions apply in order to make use of the Dutch NPPR, such as: • that interests in the AIF can only be marketed to professional investors; • a memorandum of understanding is entered into between the competent supervisory authority of the non-EU AIFM and the AFM, and the third country in which the non-EU AIFM and/or non-EU AIF is established should not be listed as a non-cooperative country for the purposes of the Financial Action Task Force (FATF); • the AFM is notified by the non-EU AIFM through a notification form including an attes - tation of the competent supervisory authority of the non-EU AIFM; and • certain transparency rules of the AIFMD are complied with, as set out in Articles 22, 23, 24 and 26–30 of the AIFMD. A non-EU AIFM can also pre-market an AIF in the Netherlands to professional investors, pro - vided it made a notification to the AFM and the conditions set forth in Article 30a of the AIFMD, as implemented in the Netherlands, are met.
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