NETHERLANDS Law and Practice Contributed by: Vilmar Feenstra, Robert Veenhoven, Joyce Kerkvliet and Sebastiaan Verkerk, Loyens & Loeff N.V.
• providing a conduit company. Non-local service providers located in another EEA member state are prohibited from providing trust services in the Netherlands, unless a trust office licence has been obtained. Non-local ser - vice providers located outside the EEA cannot apply for such a licence, and thus are prohibited from offering trust services in the Netherlands. With respect to custody services, a licence pur - suant to the second Markets in Financial Instru - ments Directive (2014/65/EU, MiFID II) may be required. 2.3.3 Local Regulatory Requirements for Non- Local Managers An AIFM authorised in another EEA member state in accordance with Article 6 sub-paragraph 1 of the AIFMD may manage a Dutch AIF in the Netherlands on a cross-border basis with a passport, provided that the procedure of Article 33 of the AIFMD is followed, which, in summary, entails certain documentation and information being provided to the home member state regu - lator of the AIFM and notification to the AFM that the AIFM intends to manage a Dutch AIF. An AIFM within the EEA that is not authorised in another EEA member state is not allowed to manage Dutch AIFs on a cross-border basis. The small managers regime as set out under 2.1.2 Common Process for Setting Up Invest- ment Funds is, pursuant to a recent change in Dutch law, available to “small” EEA AIFMs. As such, an EEA sub-threshold AIFM is allowed to manage a Dutch AIF, provided it complies with the conditions as set forth in the Registration regime for “small managers” as set out above and interests in the AIF are only marketed to pro - fessional investors.
A non-EEA AIFM may manage a Dutch AIF on a cross-border basis if such AIFM complies with the conditions of the Dutch NPPR. These conditions entail, in summary, certain reporting, disclosure and transparency requirements relat - ing to the annual report, disclosures to inves - tors (both initially and on an ongoing basis), reporting obligations to regulatory authorities and, where relevant, transparency and asset- stripping requirements relating to investments in portfolio companies, and where co-operation arrangements are in place between the supervi - sory authority of the non-EEA country where the AIFM is established and the AFM. In addition, a notification should be filed with the AFM, including an attestation of the home country supervisor of the non-EEA AIFM. Fur - thermore, the non-EEA country where the AIFM is established should not be listed as a non- cooperative country for the purposes of the Financial Action Task Force (FATF). Finally, pur - suant to the Dutch NPPR, units in the relevant AIFs may only be offered to “qualified investors”, within the meaning of the AFS. 2.3.4 Regulatory Approval Process See 2.1.2 Common Process for Setting Up Investment Funds . 2.3.5 Rules Concerning Pre-Marketing of Alternative Funds See 2.1.2 Common Process for Setting Up Investment Funds . 2.3.6 Rules Concerning Marketing of Alternative Funds See 2.1.2 Common Process for Setting Up Investment Funds . The regulatory regimes set out therein also apply if an AIF is marketed in the Netherlands. As a result, a Dutch AIFM should make use of the fully licensed regime or,
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