There is no provision in the Danish AIFM Regulations which allows a non-Danish registered EU AIFM to market AIF in Denmark.
Marketing is the direct or indirect offering or placing of units or shares of an investment fund. This also applies to funds that have not yet been established. The definition of marketing requires an "active" approach, i.e. an offering of placement at the initiative of the AIFM or on behalf of the AIFM.
The Danish FSA has made the necessary preparatory changes to the Danish AIFMD Act, but has not issued the required delegated acts permitting such marketing.
A German sub-threshold AIFM may, prior to marketing the AIF in Belgium, conduct market sounding activities / pre-marketing to gauge investor interest among potential investors in Denmark.
But if there is interest, marketing is not permitted (see above).
There is, unfortunately, no clear guidance available by the Danish regulator as to the exact scope of pre-marketing. We understand that pre-marketing should not cross the line to marketing as long as no investor has been admitted to the fund and only incomplete draft fund documents are distributed or available in Denmark. The documents should clearly set out that they are only pre-liminary and in draft format and subject to change, and that the investor cannot commit.
A typical fundraising deck (information about the fund, portfolio companies in previous fund, exit scenarios, team description), short term sheet and/or general marketing material would, generally speaking, be seen as low-risk preliminary information.
However, by sending such documentation it likely impacts on the possibility of relying on reverse solicitation.
The exact scope of reverse solicitation is not clear in Denmark. As mentioned, the definition of marketing requires an "active" approach, i.e. an offering of placement at the initiative of the AIFM or on behalf of the AIFM.
Therefore, reverse solicitation can only be relied upon if the AIFM has not approached the investor in Denmark (e.g. by providing teasers and discussing the general investment strategy on its own initiative) unless the offer or placement of the specific fund has been genuinely initiated by the investor.
The AIFM may only respond to unsolicited requests. We recommend keeping evidence that the investor approached the AIFM without any prior solicitation or communication by the AIFM and ask for a written and signed confirmation by the investor to that effect. Please note that such a confirmation does not guarantee that the Danish regulator will consider the individual case to be one of reverse solicitation, as they will review the actual facts. Depending on the number of cases such confirmation is used in and in light of all circumstances, the regulator may in certain cases suspect a rather systematic approach towards reverse solicitation by the AIFM.
Where an investor approaches the AIFM with questions on a specific fund product following a previous communication with the AIFM, such previous communication would likely "taint" any reverse solicitation claims even if such previous communication involved no references to a specific fund product (e.g. name, plan to launch a new fund, intended investment strategy of new/next fund), but only references to the AIFM (e.g. team and track record).
The information in our toolbox provides managers of private equity or venture capital funds with an initial overview of certain framework conditions in the respective country. It does not provide advice on the law of any country, neither does it substitute such advice. Before marketing a fund into the respective country, it is at all times necessary to seek expert advice. Our team is happy to assist you with all questions at any time.