ESMA updates its Q&As on the application of AIFMD

On 26 May 2023, ESMA published an update to its Q&As on the Application of the AIFMD containing one new Q&A (Section XVII – Marketing) that asks whether non-EU AIFMs are allowed to carry on pre-marketing activities under Article 30a of the Directive.

The answer confirms that Article 30a does not cover pre-marketing activities by non-EU AIFMs and highlights that non-EU AIFMs are not allowed to carry out pre-marketing activities pursuant to the AIFMD. However, national laws, regulations and administrative provisions may allow non-EU AIFMs to carry-out pre-marketing activities at national level and where this is the case, non-EU AIFMs do not benefit from a passport allowing them to carry out these activities in other Member States.

ESMA reiterates that such national laws, regulations and administrative provisions should not disadvantage EU AIFMs vis-à-vis non-EU AIFMs.