SMP

Marketing

The Belgian Law of 19 April 2014 (the Belgian AIFM Law) allows to market interests in the AIF under the National Private Placement Regime in Belgium after the AIFM has notified the Belgian Financial Services and Market Authority (the FSMA) of such intention (and the FSMA has subsequently approved the notification).

The AIFM Law defines "marketing" in the same way as does the AIFMD, namely as a direct or indirect offering or placement at the initiative of the AIFM or on behalf of the AIFM of units or shares of an AIF it manages to or with investors domiciled or with a registered office in the EEA.

Under Belgian law, the existence of an "offer" generally requires (i) that the most important features of the offer are being described and (ii) that the price of the offer is determined or can be determined. In this context "Price" refers to a pecuniary contractual obligation, rather than to a specific amount of money of the investor.

Marketing is subject to notification of the FSMA as already stated above.
Pursuant to the Belgian AIFM Law, the notification must contain:

  • a notification letter that contains a scheme of operations (i.e. a summary of the investment objective and strategy; closed-end or open-end; e.g. a PPM) and names the AIF involved and where it is established;
  • proof of the fact that the AIFM has been registered in its home country, in compliance with article 3(3) of Directive 2011/61/EU (the AIFM Directive/AIFMD)
  • the AIF's articles of association (or similar documentation, e.g. limited partnership agreement); and
  • a description of the AIF or any other information also provided to the investors (e.g. the PPM).

For the purposes of this questionnaire, Belgian counsel has assumed that the interests in the AIF will only be offered to professional investors. To indicate to the FSMA that the offer of interests will not constitute a public offer, the following wording should be included in the notification letter: "The interests in the AIF will only be offered to professional investors within the meaning of Article 3, 30° of the Belgian AIFM Law and will therefore not constitute a public offer".

The sub-threshold EEA AIFMs may start marketing EU AIFs' interests upon notification (i.e. no need to wait for approval by FSMA, which may however be obtained upon request).
No fees are charged for the filing of the notification.

The German sub-threshold AIFM is obliged to update, if necessary, all of the information submitted in the course of the marketing notification to permanently keep its dossier up to date. Besides that, the German sub-threshold has no obligation to fulfil ongoing reporting requirements. No fees should be paid.

Pre-Marketing

A German sub-threshold AIFM may, prior to marketing the AIF in Belgium, conduct market sounding activities / pre-marketing to gauge investor interest among potential investors in Belgium.

To date the FSMA has not issued any official guidance on what can be considered "pre-marketing" for the purposes of the AIFM Law (i.e. investor communications that do not trigger the (notification and reporting) requirements under such law).

Based on principles regarding "pre-marketing" that apply in relation to the offering of securities in general (such as offerings under the Prospectus Law) and based on the assumption that the investors towards whom the pre-marketing activities are conducted, qualify as professional investors within the meaning of the AIFMD, the following activities qualify as pre-marketing activities:

  • A fund manager sending a communication to investors in its current fund informing them, as part of a general update on that fund, of its intention to raise a successor fund without referencing a specific fund product;
  • A fund manager providing general information on a fund manager's business (i.e. strategy, team and track record), without referencing a specific fund product;
  • A fund manager providing general information on a fund manager's business without referencing a specific fund product (i.e. strategy, team and track record);

For the sake of completeness, please note that having informal meetings with investors could potentially trigger the applicability of the Royal Decree of 30 November 1939 which prohibits canvassing and hawking in relation to securities. In order to qualify an act as prohibited canvassing or hawking, the Royal Decree, however, requires that the seller "goes to" the investor. Therefore, meetings with investors convened in e.g. the hired space of a hotel should normally not be considered to constitute canvassing, because the participants came to see the speaker and not vice versa. More prudence should, however, be taken into account in relation to meetings at the offices of (potential) investors. The Royal Decree of 30 November 1939 authorizes canvassing, if targeted at licensed financial intermediaries, i.e. credit institutions and investment firms. However, this exception does not include all categories of investors that can be qualified as professional investors within the meaning of the AIFMD. In any case, it is recommended to cautiously engage in pre-marketing activities, because of the difficulty to draw the line between what is pre-marketing and what is effective marketing.

In principle, individuals who, at their request, are treated as professional clients within the meaning of MiFID (and thus qualify as professional investors for the purposes of the AIFMD) can still qualify as consumers (i.e. natural persons who act for a purpose outside their professional activities), yet there is no legal certainty in this respect. "Advertisements" directed towards consumers fall within the scope of Book VI of the Belgian Code of economic law which provides certain rules that have to be respected regarding, inter alia, disclosure of information, distance contracts, combined offers, prohibited contractual clauses and unfair market practices.

Advertisements are all communications that directly or indirectly have as their purpose the promotion of the sale of products. Please note that almost any breach of the rules contained in Book VI can give rise to a criminal penalty (to be imposed by a court).

  • a fund manager providing a presentation that does not leave room for the possibility to identify a specific fund. Local counsel recommends (by way of the insertion of a disclaimer) that all provided documentations, such as a presentation, clearly indicate that such documentations do not constitute an offer to buy or sell or a solicitation of an offer to buy or sell any interests in the fund;
  • Providing teaser documents (that do not give an indication of the price and contain insufficient information to take an investment decision) should be permitted as "pre-marketing" and is unlikely to trigger any license requirements. A fund manager providing a private placement memorandum or similar formal offering document however is likely to constitute marketing. Note that no formal guidance is issued by the FSMA in this respect.

Reverse Solicitation

In legal writing, it has been argued that this concept is implicitly embedded in the definition of marketing (see above, the opposite of "at the initiative of the AIFM"). The Belgian FSMA has not issued any further guidance on what exactly constitutes "reverse solicitation" under the AIFM law. However, in our experience, the Belgian FSMA tends to take a rather conservative approach vis-à-vis the concept of "reverse solicitation". If the German sub-threshold AIFM would, for example, operate through an internet platform that would contain references to Belgium, such as the mentioning of a Belgian contact/telephone number or the use of scroll-down menu through which Belgium can be selected as the relevant country (see also the criteria used in the "Pammer-Alpenhof" ECJ Case), this may be considered to constitute a solicitation or a marketing effort targeting Belgian territory (in which case the German sub-threshold AIFM would no longer be able to rely on "reverse solicitation"). In case such internet platform would be used, we would therefore strongly recommend inserting a disclaimer thereon, indicating that the website/investment services/products are not targeted to retail or elected professional clients in Belgium.


Important Note

The information in our toolbox provides managers of private equity or venture capital funds with an initial overview of certain framework conditions in the respective country. It does not provide advice on the law of any country, neither does it substitute such advice. The above information reflects the legal situation as of February 10, 2020. Before marketing a fund into the respective country, it is at all times necessary to seek expert advice. Our team is happy to assist you with all questions at any time.

In collaboration with: Loyens & Loeff