Finally! The long-awaited French “marketing  instruction” for alternative investment funds (AIFs)  (AMF Instruction 2014-03) was issued by the  French Monetary and Financial Authority (AMF) on  June 30th, along with an AMF Guide explaining the  French marketing regime for all types of funds.

Not only does the Instruction clarify the marketing  rules for EU funds and managers intending to use a  “marketing passport” under the AIFM Directive, but  we also now have quite a bit more clarity as to how  a third country “AIF” / third country  “AIFM” could  obtain approval to market in France, despite the EU  marketing passport not being available for such  entities until at least 2015.

The Guide makes clear that such marketing in  France – which is limited to professional investors  only -- would be “without passport”, i.e. subject only  to French national rules, pending ESMA’s guidance  in 2015 as to extending the AIFMD passports to  third country funds/managers.

Under  Section III of the Instruction,  non-EU fund managers can request authorization  to market  EU/non-EU funds in France, subject to the following  conditions (which happen to be  identical to those  laid out in the Directive):

  • naming a depositary pursuant to the “depositarylite” regime set out in Article L.214-248 of the French Monetary and Financial Code, 
  • having a cooperation agreement in place  between  the foreign  home state and France, and
  • ensuring that the foreign home state is not on  the list of FATF blacklisted countries.

The Instruction’s Annex 3 (which constitutes the  request for authorization) goes on to require that  the manager applying for authorization certify and  provide proof that it meets the various substantive  requirements incumbent on European AIFMs  (capital requirements, risk and liquidity  management, evaluation, delegation rules,  remuneration rules, reporting requirements…), along with a panoply of documents relating to the 

AIF to be marketed.  A 2000€ fee must also be paid  to the AMF.

Once filed, the AMF has two months to respond  (though, if past experience holds, additional  documents may be requested which could extend  this deadline).