In brief: managing non-retail pooled funds in Sweden

Non-retail pooled funds

What are the main legal vehicles used to set up a non-retail fund? How are they formed?

Different types of legal vehicles may be used for the establishment of a non-retail fund and, in general, the fund type will govern the choice of vehicle. In this context, and from a Swedish perspective, non-retail funds comprise alternative investment funds (AIFs).

Swedish private equity funds and real estate funds are primarily formed as limited partnerships and as limited liability companies. An essential difference between a retail fund and a non-retail fund is that the latter does not have to be separate from the fund manager and merely consist of the fund assets. Consequently, a non-retail fund can be a legal person with the ability to assume rights and obligations. Furthermore, a non-retail fund could be internally or externally managed. In the former case, the fund is the manager and the entity required to possess all functions necessary to be able to comply with applicable laws and regulations. It should be noted, however, that Swedish legislation does not allow for a limited liability company to have variable capital.

What are the key laws and other sets of rules that govern non-retail funds?

The sets of rules governing non-retail funds are the Alternative Investment Fund Managers Act (AIFMA) and the Swedish Financial Supervisory Authority (SFSA)’s Regulations FFFS 2013:10 regarding alternative investment fund managers.

Must non-retail funds be authorised or licensed to be established or marketed in your jurisdiction?

There is no requirement to obtain authorisation for the establishment of a non-retail fund. The activities requiring authorisation are, instead, the management and marketing of a non-retail fund. However, where the fund is internally managed, the establishment would, in practice, require authorisation. A private equity fund would, for instance, need to apply for authorisation with the SFSA upon its establishment, which may in some cases correspond to its ‘first closing’. A non-retail fund may be marketed without authorisation under certain circumstances.

Who can market non-retail funds? To whom can they be marketed?

Anyone can market a non-retail fund that has been authorised for marketing in Sweden, provided that the marketing does not go beyond the concept of ‘promotion’. The marketing entity would not need to be licensed or authorised unless the marketing activity includes offering of the funds or otherwise requires an authorisation pursuant to the Securities Markets Act (SMA) or has been passported in accordance with the Markets in Financial Instruments Directive (MiFID) II.

As a main rule, non-retail funds may only be marketed to professional investors, as defined in the SMA. However, it is possible to market certain non-retail funds that have been formed as AIFs to retail investors. In order to market a non-retail AIF to retail investors, the units or shares of the AIF have to be admitted to trading on a regulated market (ie, an exchange or a multilateral trading facility) and there must be a key investor information document available for the fund.

Further, it is possible to market AIFs formed as private equity funds to a particular category of Swedish non-professional investor. This is permitted under the prerequisites that units in the fund may not be redeemed within five years of the first investment and that the fund generally invests in issuers or non-listed companies for the purpose of acquiring control. In addition, the investor must commit to investing an amount of at least €100,000 and confirm knowledge of the risks associated with the investment in writing in a separate document from the contract to be concluded for the commitment to invest.

Do investor-protection rules restrict ownership in non-retail funds to certain classes of investor?

No. Even though a non-retail fund may only be marketed to retail investors subject to certain prerequisites, there is no prohibition on an investment being made by a retail investor on a reverse-solicitation basis.

Are there any special requirements that apply to managers or operators of non-retail funds?

Fund managers of AIFs directed at professional investors are required to establish arrangements to avoid the funds being marketed to retail investors. In general, however, there are fewer requirements imposed on managers of non-retail funds than on managers of retail funds.

What is the tax treatment of non-retail funds? Are any exemptions available?

Non-retail funds organised as undertakings for collective investment in transferable securities (UCITS) funds, special funds or limited liability companies are subject to the same tax regulations as described for retail funds. Individuals who are tax resident in Sweden and invest in non-retail funds are subject to the same tax regulations as described for individuals in retail funds. 

Must the portfolio of assets of a non-retail fund be held by a separate local custodian? What regulations are in place to protect the fund’s assets?

For each AIF, the assets must be held by a separate custodian. The custodian shall be established locally in the same jurisdiction as the AIF. The obligation to appoint a custodian is intended to provide satisfactory protection of a fund’s assets in case of insolvency proceedings involving the manager. Similar to UCITS, the management of an AIF formed as a special fund may be assumed by the custodian.

What are the main governance requirements for a non-retail fund formed in your jurisdiction?

The most prominent governance requirements include conducting operations in a professional manner so that the public’s confidence in the fund market is maintained, as well as adequate risk and liquidity management, handling of potential conflicts of interest and establishing a remuneration policy compatible with such requirements.

The authorisation process involves submission of various documents and upon authorisation being granted, the non-retail fund and the manager (as the case may be) must be registered with the SFSA. The management company of a non-retail fund must have a board of directors consisting of at least three members.

What are the periodic reporting requirements for non-retail funds?

The reporting requirements regarding non-retail funds vary depending on the fund type and the value of assets under management. In general, the manager or the fund (as the case may be) must report more frequently and in greater detail in relation to funds that are marketed to retail investors and whose asset value exceeds certain thresholds. The frequency of such reporting varies between quarterly, semi-annually and annually. Reports are submitted online using software provided by the SFSA. As from 1 August 2017, Swedish-based managers, and branches based in Sweden, are required to submit reporting in relation to their measures against money laundering and terrorism financing on an annual basis.

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