The Executive Order provides new information and documentation requirements that will apply to AIFMs submitting an application for marketing of units in non-EU AIFs. Further, the Danish Financial Supervisory Authority will be able to extend its processing time with an additional three months if necessary based on special circumstances of the application. The Executive Order will enter into force on 1 January 2021 and apply to all applications submitted from that time. AIFMs that have already been granted an authorization to market units of an AIF do not need to submit new applications but will be able to rely on their existing notification.
EU Directive 2011/61 on Alternative Investment Fund Managers (“AIFMD”) has been implemented into Danish Consolidation Act No 1047 of 14 October 2019 (“AIFM Act”) and various executive orders issued pursuant thereto. The national notification regime under Article 42 was implemented into section 130 of the AIFM Act with further rules detailing the information and documentation required under Executive Order No 798 of 26 June 2014 on Marketing of AIFs from a Third Country in Denmark (“2014 Marketing Order”). The 2014 Marketing Order will from 1 January 2021 be replaced by Executive Order No 1504 of 19 October 2020 (“New Marketing Order”).
The New Marketing Order applies to both EU AIFMs and non-EU AIFMs intending to market units of non-EU AIFs to professional investors in Denmark. Marketing to retail investors is subject to a separate authorization regime and are thus not described further here.
A number of documentation and information requirements from the 2014 Marketing Order have been reenacted in the New Marketing Order and thus remains the same. Accordingly, the following information and documentation must still submitted when applying for authorization to market units of non-EU AIFs:
The New Marketing Order does, however, set out a number of new requirements that AIFMs intending to submit a notification should be mindful of. The new requirements are relevant to both EU AIFMs and non-EU AIFMs.
Accordingly, when an EU AIFM wishes to market units of a non-EU AIF the following new information and documentation requirements apply:
In case the AIFM is a non-EU AIFM the new information and documentation requirements applying from 1 January 2021 are the following:
Pursuant to the statement published in connection with the consultation of the New Marketing Order, the purpose of the new information and documentation requirements is to ensure that the rules under the AIFMD are implemented as close to the wording of the directive as possible. Given that the new notification requirements have only recently been adopted and do not apply until 1 January 2021 the Danish FSA has not published new notification forms yet. It is therefore unclear what the Danish FSA will require in respect of format and how applicants should meet the new documentation requirement until the Danish FSA publishes new notification forms or guidance.
Under the New Marketing Order, the Danish FSA will continue to have three months to process the application subject to submission of a complete application. Further, the Danish FSA will be able to extend the deadline with an additional three months if the Danish FSA considers it necessary based on special circumstances of the application.
The New Marketing Order establishes a grandfathering regime for AIFMs that have already obtained authorization prior to 1 January 2021. This means that AIFMs that have already been granted authorization to market units of non-EU AIFs do not need to submit a new application but can continue to market units of the AIFs to professional investors in Denmark under their existing authorization.