On 10 August 2015, the Luxembourg financial regulator, the CSSF, published the ninth version of its AIFMD Frequently Asked Questions (FAQ). Among other (minor) changes, new section 21 clarifies the definitions of “marketing” and “reverse solicitation” from a Luxembourg perspective. In a preliminary remark, the CSSF reiterates that there is currently no common EU-wide guidance as to marketing and reverse solicitation, and therefore positions may vary across the EU.
In the FAQ, the CSSF clarifies that the presentation by an AIFM of draft documents regarding an AIF to prospective investors should not constitute a marketing activity – this would include “inbound passporting” situations under article 29, 31, 37 or 45 of the AIFM Law. Also – with respect to a topic on which market practitioners have expressed differing views – the CSSF clarifies that “marketing” should not include secondary trading of units of an AIF, except when involving an indirect offering or placement through one or more intermediaries acting at the initiative or on behalf of the AIFM or the AIF. The FAQ further explains how marketing may be performed, clarifies that a physical presence for carrying out marketing activity in Luxembourg is not required for that purpose, and introduces and defines the term “distance marketing.”
In the FAQ, the CSSF indicates that reverse solicitation would involve providing information regarding an AIF to, and making units of the AIF available for purchase by, a potential investor upon the initiative of such investor or its agent – and in the absence of any solicitation by the AIFM, the AIF or any relevant intermediary. In the view of the CSSF, therefore, marketing would not be involved if the AIFM is able to prove that (a) the investor or its agent approached the AIFM or the AIF upon its own initiative with the intention of receiving information as to the AIF for a potential investment, and (b) neither the AIFM nor the AIF (or any of their intermediaries) had solicited the investor to invest in the relevant AIF.