NETHERLANDS Law and Practice Contributed by: Vilmar Feenstra, Robert Veenhoven, Joyce Kerkvliet and Sebastiaan Verkerk, Loyens & Loeff N.V.
Both the tax opaque FGR and the NV BMVK are suitable for the setting up of (semi) open-end and closed-end funds, as well as for umbrella funds. Both the participations in the FGR and the shares in the NV BMVK can be listed on a stock exchange. 3.1.2 Common Process for Setting Up Investment Funds Retail investment funds (or their fund manag - ers) have to be authorised on the basis of either the Dutch implementation of the AIFMD and the AIFMD retail top-up regime, or the Dutch imple - mentation of UCITS. AIFMD See 2.1.2 Common Process for Setting Up Investment Funds regarding the registration and/or approval requirements for AIFMs and AIFs pursuant to the Dutch implementation of the AIFMD. As the authorisation pursuant to the AIFMD is, in principle, limited to professional investors, managers who intend to offer inter - est in the AIF they manage to non-professional investors (retail) in the Netherlands should com - ply with the so-called Dutch retail top-up regime. The licence for these authorised AIFMs should specifically include the retail top-up. The authorised AIFM with a retail top-up will have to meet all requirements that apply for author - ised AIFMs under the fully licensed regime. In addition, the retail top-up regime, inter alia, requires the manager to comply with detailed additional compliance, information and report - ing requirements. However, the manager is not required to comply with the requirements under the retail top-up regime if interests are offered to non-professional investors for a countervalue of more than EUR100,000 per investor. However, AIFMs will have to prepare a KID (in the Dutch language) for each new AIF they are marketing,
and provide this to non-professional investors prior to investing in the AIF. In this respect, see 3.1.4 Disclosure Requirements . UCITS Pursuant to Section 2:69b of the AFS, it is pro - hibited to manage and market UCITS funds in the Netherlands without a licence from the AFM. A licence can be obtained by the UCITS fund man - ager (ManCo) or by the (self-managed) UCITS. The AFM will grant a licence upon application if the ManCo meets the licence requirements under Dutch law. The licence requirements relate to, inter alia, the suitability and trustworthiness of the board members, the operational and con - trol structure, the appointment of a depositary, solidity and minimum own funds requirements. Holders of a qualifying holding (ie, more than 10% capital or voting rights) need to obtain a declaration of no objection from the DNB. The AFM has a review period of 13 weeks for a licence application of a ManCo, and eight weeks for a licence application of a UCITS. The AFM may request additional documents or informa - tion during the application process. The review period is suspended while additional documents are being requested. A licensed ManCo can manage a new UCITS within the investment strategy covered by its licence, and can market such UCITS to retail investors if it has submitted the notification form to the AFM at least two weeks prior to the mar - keting of the respective UCITS. The following should be attached to the notification form: • a prospectus (pursuant to Section 4:49 of the AFS); and • a Key Information Document ( Essentiële- informatiedocument , or KID).
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