NETHERLANDS Law and Practice Contributed by: Vilmar Feenstra, Robert Veenhoven, Joyce Kerkvliet and Sebastiaan Verkerk, Loyens & Loeff N.V.
3.3.3 Local Regulatory Requirements for Non- Local Managers AIFMD EEA AIFMs with a licence and that obtained a passport pursuant to Article 32 of the AIFMD can market to retail investors in the Netherlands once they have filed a retail distribution notification form with the AFM. If retail investors can invest in the AIF marketed for less than EUR100,000, the retail top-up regime needs to be complied with. EEA sub-threshold AIFMs cannot market AIFs to retail investors in the Netherlands. Under certain circumstances, non-EEA AIFMs located in the USA, Guernsey, Hong Kong or Jersey may market AIFs to Dutch retail inves - tors pursuant to the so-called designated state regime. Otherwise, non-EEA AIFMs are not allowed to market AIFs to Dutch retail investors. UCITS A non-local EEA-authorised ManCo may man - age and market authorised UCITS funds in the Netherlands on a cross-border basis, provided that the passporting procedure (Article 91 and further of the UCITS Directive) is followed. The EEA ManCo will need to obtain separate approval from the AFM for the management of a Dutch UCITS fund in the Netherlands (pursuant to the Dutch implementation of Article 5(3) of the UCITS Directive). If a non-Dutch UCITS fund is marketed in the Netherlands, a KID will have to
UCITS If a ManCo applies for a licence from the AFM pursuant to the AFS, the AFM has a review period of 13 weeks. With respect to a licence application for a UCITS, the AFM has a review period of eight weeks. During the application process, the AFM may request additional docu - ments or information; the review period is sus - pended when the AFM is requesting additional documents. A licensed ManCo can manage a new UCITS if it has submitted the notification from the UCITS to the AFM at least two weeks prior to the marketing of the respective UCITS. 3.3.5 Rules Concerning Pre-Marketing of Retail Funds See 3.3.6 Rules Concerning Marketing of Retail Funds . 3.3.6 Rules Concerning Marketing of Retail Funds As a general rule, information provided by an AIFM or ManCo has to be accurate, clear and not misleading. Also, all information provided by the AIFM or ManCo may not be detrimental to the information to be supplied or made available pursuant to the AFS, and it should be made clear whether documents are commercial. Addition - ally, rules regarding marketing materials apply. See 3.1.4 Disclosure Requirements . In addition, the Unfair Commercial Practice Act ( Wet oneerlijke handelspraktijken , or UCPA) applies to all financial institutions that market, offer or sell products or services to consumers in the Netherlands, regardless of the authorisation, registration or exemptions that may be relied upon for Dutch financial regulatory purposes. If the AFM, as competent supervisory authority of the UCPA, deems that information provided to consumers is misleading or unfair, it may, for
be provided in the Dutch language. 3.3.4 Regulatory Approval Process AIFMD
With respect to the regulatory approval process for Dutch AIFMs under the fully licensed regime and the small managers regime, see 2.1.2 Com- mon Process for Setting Up Investment Funds .
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