What counts as marketing
Under the AIFM law, marketing is any direct or indirect offering or placement of units or shares of an AIF, at the initiative of the AIFM or on its behalf, to investors domiciled or with a registered office in the EU (Article 1(9), mirroring AIFMD Article 4(1)(x)). What counts is whose initiative it is — not whether the investor subscribes, and not whether a placement agent or an affiliate does the talking. The CSSF does not treat as marketing draft documents that cannot be used to subscribe, discretionary portfolio mandates, investment advice or a fund of funds' own investment decisions (CSSF FAQ on the AIFM law, Q21.B, Q21.M–O).
The investor's category decides what is allowed. A professional investor is a professional client, or one who may on request be treated as such, under Annex II of MiFID II (Article 1(53)); everyone else is a retail investor. SIFs, SICARs and RAIFs are reserved to well-informed investors: institutional or professional investors, or any other investor who confirms the status in writing and invests at least EUR 100,000 or is assessed by a bank, an investment firm, a management company or an authorised AIFM (SIF, SICAR and RAIF laws, Article 2, as amended in 2023). That national category does not travel: the AIFMD passport covers professional investors only.
The AIFMD marketing passport
An authorised EU AIFM may market the EU AIFs it manages to professional investors throughout the EU with one notification per fund. The CSSF receives the file, checks it and, within 20 working days of a complete file, either allows marketing in Luxembourg or transmits the file to the host authorities; marketing may start on the date the CSSF notifies the manager (AIFM law Articles 29–30; AIFMD Articles 31–32). Material changes are notified one month before a planned change or immediately after an unplanned one. Notifications run through the CSSF's eDesk, and the CSSF charges no fee for them.
Three points are often missed. A RAIF or an unregulated SCSp needs a notification even to be marketed in Luxembourg; a UCI Part II fund, a SIF or a SICAR does not, because the CSSF already supervises it (Article 29(1)). The passport is reserved to authorised AIFMs: a registered sub-threshold manager has none and relies on the EuVECA or EuSEF label or on national rules. And the host State keeps its say over the marketing arrangements and may charge fees; national authorities and ESMA publish each country's rules and fees (AIFMD Article 32(5); Regulation (EU) 2019/1156, Articles 5, 6, 10 and 11).
The UCITS passport
A UCITS is built for distribution to the public across the EU. The management company or self-managed SICAV sends the CSSF a notification letter with the prospectus, the fund rules or articles, the latest reports and the key information document; the CSSF transmits the complete file within ten working days, and the UCITS may access the host market from the date the CSSF notifies the transmission (UCI law Article 54; UCITS Directive Article 93). The host State may not impose additional requirements or procedures (Directive Article 91(2)).
In each host State the UCITS provides facilities for retail investors — processing subscriptions and redemptions, information, complaints — without a physical presence or a local third party (UCI law Article 53; Directive Article 92). Since 1 January 2023 the PRIIPs key information document has taken the place of the UCITS key investor information. Changes to the marketing arrangements or share classes are notified to the home and host authorities at least one month in advance.
Pre-marketing
Since August 2021 an authorised EU AIFM may test investor appetite before a fund is established or notified: information on investment strategies or ideas given to potential professional investors, without subscription forms (draft or final) and without final constitutive or offering documents (AIFM law Articles 1(58-1) and 28-1; AIFMD Articles 4(1)(aea) and 30a). Draft documents must state that they are not an offer and may change. Within two weeks of starting, the AIFM sends the CSSF an informal letter through eDesk naming the Member States, the periods, the strategies and the funds. Only investment firms, credit institutions, UCITS management companies, AIFMs and tied agents may pre-market on its behalf, and the pre-marketing must be documented.
The consequence is the 18-month rule: any subscription by professional investors within 18 months of the start of pre-marketing, into the fund pre-marketed or one resulting from it, counts as marketing and needs the passport notification first — in the CSSF's reading including subscriptions made at the investor's own initiative. Under EU law pre-marketing is not open to registered sub-threshold managers or to non-EU managers (ESMA Q&A on the AIFMD); EuVECA and EuSEF managers may pre-market under their own regulations, and the CSSF applies the same conditions to non-EU managers pre-marketing in Luxembourg.
Reverse solicitation
An investor who approaches a manager on its own initiative, without any prior solicitation, is not being marketed to. The AIFMD recognises this only in a recital (recital 70) and contains no definition. The CSSF accepts it where the investor came on its own initiative and nobody solicited it; the burden of proof lies on the AIFM, for example through a written confirmation from the investor, and presenting documents at the manager's initiative ends the argument (CSSF FAQ on the AIFM law, Q21.C, Q21.J–L). It must never be used to circumvent the AIFMD.
In practice it is a narrow door. Pre-marketing closes it for 18 months. General clauses or click-through confirmations do not prove the investor's initiative, and contacts through affiliates or introducers count as solicitation (ESMA statement on reverse solicitation, 13 January 2021). Member States still read the concept differently. We treat reverse solicitation as a record to keep for genuinely unsolicited requests, not as a distribution strategy.
National private placement
Where no passport is available — a non-EU manager, a non-EU fund or a registered sub-threshold manager — each country's national private placement regime (NPPR) applies, and each country may set stricter rules (AIFMD Articles 36(2), 42(2)). Since 16 April 2026 a non-EU manager or fund qualifies only if its country is not on the EU list of high-risk third countries for money laundering, has signed a tax-information agreement under Article 26 of the OECD Model Tax Convention with the Member State concerned and is not on Annex I of the EU list of non-cooperative tax jurisdictions; transparency reporting and cooperation arrangements apply as before (AIFMD Articles 36 and 42 as amended by Directive (EU) 2024/927). The third-country passport foreseen in the AIFMD has never been activated.
In Luxembourg, a non-EU manager may market to professional investors under Article 45 of the AIFM law after filing an information form with the CSSF, and keeps reporting while Luxembourg investors remain invested. In Germany, a registered EU sub-threshold manager may market to professional and semi-professional investors under § 330a KAGB if its home State gives German managers the same access, once BaFin has received a complete notification; a semi-professional investor commits at least EUR 200,000, signs a separate risk statement and is assessed by the manager or distributor (KAGB § 1(19) no. 33). Sponsors outside the EU often appoint a Luxembourg authorised AIFM instead, to give the fund the passport.
Retail investors
The AIFMD lets each Member State decide whether AIFs may be sold to retail investors, with stricter rules allowed — but not stricter for EU AIFs from other Member States than for domestic ones (Article 43). In Luxembourg only UCI Part II funds may be sold to any type of retail investor; SIFs, SICARs and RAIFs stay reserved to well-informed investors and other unregulated AIFs to professional investors (AIFM law Article 46; CSSF FAQ on the AIFM law, Q11.D). A foreign AIF needs a prior CSSF authorisation before it is sold to retail investors in Luxembourg (CSSF Regulation 15-03).
Three EU labels travel to retail investors with a passport. The UCITS. The ELTIF, which since 10 January 2024 may be marketed to retail investors after a suitability assessment, with no minimum investment and no 10% portfolio cap any more, a written alert where its life exceeds ten years and a two-week cancellation right (Regulation (EU) 2015/760 as amended by Regulation (EU) 2023/606, Articles 30–31). And the EuVECA and EuSEF, for investors who commit at least EUR 100,000 and confirm the risks in writing. Whenever a retail investor is involved, a PRIIPs key information document is required, and distributors apply the MiFID II target-market rules.
Marketing communications
Every marketing communication — factsheet, presentation, website, newsletter, social-media post naming a fund — must be identifiable as marketing, present risks and rewards equally prominently and be fair, clear and not misleading (Regulation (EU) 2019/1156, Article 4). For a UCITS it must also be consistent with the prospectus and the key information document, say where they can be found, link to a summary of investor rights and state that the manager may stop marketing in a country. The ESMA guidelines on marketing communications, applied by the CSSF since 2 February 2022 (Circular CSSF 22/795), set out what this means for risks, costs, past and expected performance and sustainability claims.
The CSSF does not pre-approve marketing material, but it may ask for it at any time and applies Article 4 also to purely domestic distribution and to communications addressed to professional investors (CSSF FAQ on marketing communications, Q1.6–1.7). Some host authorities ask to see communications aimed at retail investors before use (Article 7). Sustainability terms in a fund's name follow the ESMA guidelines on fund names, and the claims in the material must match the fund's SFDR disclosures — a priority of the CSSF's sustainable-finance supervision in 2026. The manager remains responsible however many distributors carry the material.
Leaving a market: de-notification
A manager may stop marketing a fund in a Member State where it was notified (AIFM law Articles 29-1 to 31-1; AIFMD Article 32a; UCI law Article 54-1; UCITS Directive Article 93a). The conditions: a blanket offer to repurchase or redeem the investors' units free of charges, made public for at least 30 working days and addressed individually to known investors — not required for closed-ended AIFs and ELTIFs; a public notice; and the end or amendment of the contracts with intermediaries. The CSSF transmits the de-notification to the host authority within 15 working days.
For an AIF, the manager may then not pre-market the same funds, or similar strategies, in that Member State for 36 months (AIFMD Article 32a(3); AIFM law Articles 29-1(4), 30-1(6)). Investors who remain keep receiving the annual report and the other required information. Planning pays: a fund notified everywhere "just in case" pays host fees in each country, and leaving an open-ended fund's market again requires a repurchase offer.
Beyond the EU: Switzerland, the UK, the US
Switzerland: offering a foreign fund to non-qualified investors requires FINMA approval (CISA Article 120(1)); offering it to high-net-worth individuals who have opted out of retail status, or to their private investment structures, requires a Swiss representative and a Swiss paying agent (Article 120(4) with Articles 121 and 123), unless the offer is made within a long-term advisory relationship (CISO Article 129a); offers only to per-se professional and institutional clients need neither. Information given at the client's own request is not an offer only if the fund was not advertised before (FinSO Article 3(6)). United Kingdom: for the UK every EEA manager is a third-country manager; an AIF is marketed under the national private placement regime after notification to the FCA (AIFM Regulations 2013, reg. 59, or reg. 58 for small managers), with annual transparency reporting; EEA UCITS are recognised under the Overseas Funds Regime (equivalence in force since 16 July 2024), and the temporary marketing permissions regime ends at the end of 2026.
United States: a non-US fund may not make a public offering in the US (Investment Company Act s 7(d)). Interests are placed privately under Regulation D — Rule 506(b) without general solicitation, Rule 506(c) with general solicitation but only to verified accredited investors — with a Form D filed within 15 days of the first sale; the fund relies on s 3(c)(1) (at most 100 beneficial owners) or s 3(c)(7) (qualified purchasers only), and offers outside the US use Regulation S. The manager checks its own status under the Advisers Act (foreign private adviser or exempt reporting adviser) and that placement agents are registered broker-dealers. We coordinate each market with local counsel.
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