No special private placement regime (or any other simplified regime) applies for marketing by sub-threshold EU AIFMs in Portugal. Marketing by sub-threshold EU AIFMs may only be conducted in case such AIFMs opt to request full authorisation under the AIFMD (i.e. authorisation to carry out activities as a AIFM above the threshold) and be subject to full compliance with the AIFMD framework, in order to benefit from the rights granted under the EU passport regime
There is no definition under the Portuguese legislation governing Undertakings for Collective Investment (the "UCI Law") for reverse solicitation / reverse enquiry. Local counsel bases his response on recital no. 70 AIFMD, on the AIFMD definition of marketing "a direct or indirect offering or placement at the initiative of the AIFM or on behalf of the AIFM of units or shares of an AIF it manages to or with investors domiciled or with a registered office in the Union" and on the definition of marketing ("comercialização") foreseen in the UCI Law.
Generally, if a Portuguese investor (without any preceding communication involving reference to a specific fund) contacts the AIFM (e.g. by telephone or e-mail or in person) and asks whether any new funds are currently being marketed and whether any information regarding such funds would be available, then the subsequent delivery of marketing materials (e.g. PowerPoint presentation, draft PPM and/or draft LPA) in principle would not be seen as marketing. Notwithstanding, it should be noted that the reverse solicitation exemption should apply only to the extent of the investor's enquiry (i.e. provision of marketing materials by the AIFM to the investor should be limited and targeted specifically at the products and services in relation to which the investor has shown its interest).
Local counsel recommends a restrictive approach when assessing the activities of entities not authorised in Portugal. Providing promotion materials or advertisements in publications in Portugal, for example, would prevent reliance upon reverse solicitation. Providing promotion materials or advertisements in other jurisdictions, although accessible to Portuguese existing or potential investors, would not prevent the rendering of non-solicited services, provided they are made in a way that is not specifically addressed to Portugal. Therefore, generally, if the AIFM would meet Portuguese investors outside of Portugal, e.g. at a conference or otherwise, and the AIFM would provide information (e.g. PowerPoint presentation, draft PPM, draft LPA) about the fund at such meeting outside of Portugal, such provision of information would neither be considered marketing for purposes of Portuguese law, nor would it prevent any subsequent reliance upon reverse solicitation, provided that the information is of general nature and not related specifically to business in Portugal.
In any case, appropriate disclaimers should be prepared and included in the relevant documentation.
Other actions, such as delivery of business cards, phone calls, emails, etc. should be assessed with caution, unless there is proven record that these contacts were made only upon specific solicitation by the investor. Nonetheless, the content of the communications should be limited to the investor's enquiry, as referred above.
As a general concern, the existence of an unsolicited approach should be assessed on a transaction-by-transaction basis and in any case, the relevant AIFM should create an audit trail (e-mail suffices) that would allow proof of the existence of a reverse enquiry by the potential investors that fall under the scope of the reverse solicitation exemption.
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. The above information reflects the legal situation as of February 10, 2020. 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.