RAIF marketing and distribution – Do not forget CSSF notifications to be made by Luxembourg AIFMs (by an AIFM itself or a third person authorized to act on its behalf) to ensure EU passport marketing of RAIFs to professional investors.
Although RAIFs are not supervised by the Commission de Surveillance du Secteur Financier Luxembourg (CSSF), it is mandatory to notify the CSSF to benefit from the EU marketing passport.
Any material change to the content already communicated to the CSSF needs to be notified to the CSSF at least one month before implementing the planned change, or immediately after an unplanned changed has occurred. Otherwise, the CSSF is empowered pursuant to the Luxembourg AIFM Law of12 July 2013, as amended, to take all measures, including if necessary, the express prohibition of marketing of the AIF (i.e., the RAIF).
Pursuant to Article 106 of Regulation 231/2013 (Level 2), changes are material if there is a substantial likelihood that a reasonable investor, becoming aware of such information, would reconsider its investment in the AIF, including because such information could impact an investor’s ability to exercise its rights in relation to its investment, or otherwise prejudice the interests of one or more investors in the AIF.
No need for notifications by AIFs on the creation of certain new AIF share classes – According to ESMA Q&A on the application of the AIFMD, updated on 4 December 2019, and question 6, last updated on 16 November 2016, of Section II, ESMA confirmed that the creation of a share class to be marketed cross-border within an already notified sub-fund, does not constitute a material change of the notification.