On 30 April 2013 the Finnish Ministry of Finance published its first draft of a new legislation implementing the EU Alternative Investment Fund Managers (AIFM) Directive. The Ministry of Finance has requested comments to the proposed legislation before a hearing to be held on 24 May 2013.
According to the draft law the private place placement regime with respect to marketing of non-EEA AIFs managed by non-EEA AIFMs to professional clients would continue, but would be subject to certain offering rules (including the requirement to provide all material information relating to the fund), reporting obligations and obligations in relation to financial statements and audit of the financial statements. Marketing would also be subject to the existence of agreements on exchange of information between the Finnish Financial Supervisory Authority and the regulator supervising the foreign AIFM and, with the same substance as the OECD model tax convention, between Finland and the home jurisdiction of the AIF. The marketing of non-EEA AIFs managed by EEA AIFMs would in addition require that the EEA AIFM provides certain information, such as information on the custodian, to the Finnish Financial Supervisory Authority before it commences the marketing of the non-EEA AIF.
The draft law does still leave some important questions open with regard to e.g. whether the private placement regime would continue to be available also for an EU AIFM that will be subject to a licence requirement, but has not yet applied for or obtained a licence (and accordingly will not yet benefit from the AIFM marketing passport).
The draft law also includes an explicit non-solicitation exception according to which nothing shall prevent an investor from making investments in domestic or international AIFs that the investor itself has selected. Thus, if an investor contacts an AIFM upon its own, unsolicited initiative, no regulatory obligations will be triggered. It is also expressly stated that in such cases the AIFM may report to the investor without any specific restrictions.