Due to the extensive rules regarding foreign / EU AIFs marketing in Poland, in our further responses we focused on the marketing of this type of entities.
[Applicable regulations]
The Polish rules and regulations regarding marketing carried out by AIF in Poland implement the provisions of Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 and are primarily set out in:
- IFA;
- Regulation of the Minister of Finance of December of 14 December 2022 on Fees to Cover the Costs of Capital Market Supervision (“FEES REG”).
- Act of 29 July 2005 on Public Offer and the Conditions for Introducing Financial Instruments to the Organized Trading System and Public Companies (“Public Offer Act”).
In addition to the above-mentioned acts, there may be other Polish legal provisions, which are not specifically dedicated to marketing of AIF in Poland, that may apply, depending on the individual case.
The applicability of any other legal requirements, should be assessed before marketing or investing in AIF. Where uncertainty exists, those marketing or investing in AIFs should obtain independent advice as to the applicable requirements to their individual situation.
[Entities allowed to market their units/shares in Poland]
We can distinguish two types of AIF in Poland, namely:
1. Domestic vehicles:
2. EU-based vehicles (“EU AIF”).
Polish regulations generally do not unconditionally allow non-EU Alternative Investment Fund Manager (“AIFM”) or non-EU AIF to operate in the territory of Poland. National private placement regime (under Article 36 and Article 42 of the Directive 2011/61/UE) wasn’t established in Poland, therefore, it is not possible for authorized EU AIFMs to market in Poland the units of AIFs from the third country they manage without a passport or for AIFMs from third countries to market in Poland units of funds they manage without a passport.
[Restrictions on marketing]
When it comes to restrictions on marketing of EU AUF, it is worth mentioning, that In the event of marketing units/shares of EU AIF in the territory of Poland, EU AIF is required e.g. to establish adequate technical and organizational solutions ensuring:
- the proper transfer, take-up and repurchase of the units/ shares of the EU AIF in the territory of Poland pursuant to the rules contained in the internal regulations of the EU AIF,
- for the investors – access to the information on the manner of acquisition, takeup or repurchase of units/ shares of the EU AIF in the territory of Poland and on the manner of making payments of the amounts related to repurchasing the units/ shares of the EU AIF,
- possibility of exercising rights related to the investment in units/ shares of the EU AIF, including lodging complaints, as well as easy access to procedures and information concerning the exercise by investors of the rights related to the investment in the units/ shares of the EU AIF, including the rights related to the measures applied in respect of examination of the complaints,
- for the investors – access to the documents and information referred to in Articles 222a, 222b and 222d of IFA in a manner enabling to learn them and to make copies thereof,
- to participants – making accessible the information concerning the obligations of the EU AIF fulfilled through the established technical and organizational solutions, on a durable information carrier,
- information exchange between the Polish Financial Supervision Authority and the EU manager.
AIF must also take into account that there are fees charged by PFSA applicable to foreign AIFs marketing their shares/units only to professional investors in Poland and to retail investors in Poland (Article 5(1) of Regulation (EU) 2019/1156 of the European Parliament and of the Council of 20 June 2019 on facilitating cross-border distribution of collective investment undertakings).
The notification of marketing the EU AIF managed by EU manager in the territory of the Poland, as well as the documents appended thereto must be drawn up in the Polish or English language or translated into the Polish or English language