AIFM passporting in Estonia

Estonia has fully implemented AIFMD with a new Investment Funds Act taking effect on 10 January 2017.

AIFMs who are authorised in their EEA home State may exercise passport rights for management and marketing in Estonia on a cross-border or branch basis. In order to offer an alternative fund, a fund manager need not have a permanent seat or place of business in Estonia or appoint a third party as a representative. The requirements for passporting are stipulated in the Investment Funds Act.

An EEA AIFM can manage an AIF established in Estonia on a cross-border basis by submitting relevant documents to the Estonian Financial Supervision Authority (the “EFSA”) through the competent authority of its home State. Similarly, in order to establish a branch for managing an AIF in Estonia, an EEA AIFM must submit relevant documents to the EFSA via its home State competent authority. In both cases the EEA AIFM may commence management of an AIF once the EFSA has received proper information from the home State competent authority.

Marketing of an EEA AIF in Estonia is possible through the private placement regime. In order to do this the EEA AIFM must make a notification to the EFSA through its home State competent regulator. After the EFSA has received the proper information, the EEA AIFM may commence marketing.

Marketing of a Non-EEA AIF by an EEA AIFM is possible if the AIF is not marketed in any other EEA State and if the AIF is marketed through a private placement. Submitting a notification with relevant documents to the EFSA is required. The EFSA will notify the EEA AIFM within 30 business days after it has received the relevant documents if the EEA AIFM is allowed to commence marketing in Estonia.

Additionally, we would like to note that Estonia has implemented Article 43 of the AIFMD into the local law, which allows public placement of an EEA AIF in Estonia if the public placement of the EEA AIF is also permitted in the home State of the AIF. An AIFM must submit to the EFSA in either Estonian or English language (i) statement of the home State authority that the operation of the AIF and the AIFMD complies with the requirements established in the home State, and the public offer thereof is permitted and (ii) public offer prospectus. A public offer of a fund may be commenced after receipt of consent of the EFSA and which will be given within six months after receipt of respective application but at the latest two months after receipt of all the required data and documents. Estonian regulation regarding public placement applies. 

Estonia has implemented Article 42 of AIFMD, allowing marketing of a Non-EEA AIF by a Non-EEA AIFM provided that the AIF is not marketed in any other EEA countries and the marketing is done in the course of a private placement. A notification is to be submitted to the EFSA who will inform the Non-EEA AIFM within 30 business days after the receipt of the respective documents whether it is allowed to start marketing. Public placement is also available to the Non-EEA AIFM; the relevant provisions of the Investment Funds Act apply.

In addition, Non-EEA AIFMs wishing to market or manage AIFs in Estonia need to comply with local management and placement regimes (i.e. private and public placement).

An AIF can be marketed in EEA Member States to professional investors and an AIFM must ensure the documentation of pre-marketing. In the course of pre-marketing it is prohibited to submit to professional investors: 1) information and documents which are so detailed that decisions on the acquisition of units or shares can be made on the basis of them; 2) documents or drafts which allow the subscription of units or shares and 3) the articles of association, partnership agreement, fund rules or prospectus of the fund, which has not yet been established or founded, in the final form thereof. If any such drafts or documents are submitted then it must be clearly indicated that it does not constitute as an offer or an invitation to subscribe for the units or shares and that the provided information is not conclusive. 

An AIFM must ensure that a professional investor does not acquire the units or shares in the course of pre-marketing. If within 18 months of the pre-marketing of an AIF a professional investor subscribes for the units or shares that are referred to in the information provided in the pre-marketing then the procedure for notifying of the commencement of the offer of an AIF provided for in the IFA will be applied.

An AIFM must submit to the EFSA a notice of pre-marketing in a form reproducible in writing within two weeks after the commencement of pre-marketing. The notice must include: 1) the period of pre-marketing; 2) an overview of the investment strategy and 3) a list of pre-marketed AIFs or their sub-funds.

A fund of another EEA member state may also be pre-marketed in Estonia provided that the pre-marketing complies with the requirements in IFA and that the AIFM informs the EFSA via its home State competent authority within two weeks as of the commencement of pre-marketing. The EFSA may request additional information from the home State authority. 

No fees are payable for the AIFMD notifications by EEA AIFMs and Non-EEA AIFMs (this applies to both management and marketing in the course of private placement). A processing fee of EUR 600 is paid upon application for the registration of public placement (applies to both EEA and Non-EEA AIFMs). EEA AIFMs are required to pay periodic supervision fees (i) in proportion of the share of assets of the AIF managed by its branch in Estonia or (ii) in proportion of the share of assets of the Estonian AIF managed on a cross-border basis.

In addition, certain processing and supervision fees are applicable to marketing or managing funds outside the AIFMD passport.