Recently, the Autorité des Marchés Financiers (AMF, the French financial markets authority) updated its Position n° 2014-04, Guide to UCITS and AIF marketing regimes in France (Position). This follows recent lobbying by the newly created French task force dedicated to improving French financial market competitiveness (French Route & Opportunities Garden).

Pursuant to this update, the AMF has introduced the notion of “pre-marketing”, which relaxes the constraining marketing rules applicable to funds in France. The updated Position allows management companies (or third parties acting on their behalf) that contemplate offering a new fund, to measure interest in the fund by pre-marketing to a maximum of 50 prospective investors, provided that such investors are (i) professional investors or (ii) non-professional investors whose initial subscription is at least € 100,000. Within this framework, management companies may provide potential investors with draft by-laws, private placement memoranda, term sheets or fact sheets regarding the fund. However, the management company may not provide a subscription agreement or comparable document allowing potential investors to subscribe to such fund’s shares or units.

It should be noted that the updated Position only clarifies the distinction between pre-marketing and marketing – it does not allow management companies to ostensibly use pre-marketing in order to circumvent the marketing or passport rules, which remain stringent in France. In particular, the amendment to the Position does not create a French national private placement regime for AIFs and UCITS once they have been set up.