1. Regulatory Framework and Directives

The overarching regulatory framework for cross-border distribution of funds is Regulation (EU) 2019/1156, which aims to facilitate this activity. This regulation mandates ESMA to publish up-to-date information on national laws, marketing requirements, and applicable fees.

Key Directives forming the basis of national regulations include:

UCITS Directive (2009/65/EC): Coordinates laws, regulations, and administrative provisions related to UCITS. Austria’s Investment Fund Act 2011 (InvFG 2011) is explicitly based on this directive, defining the management of investment funds as a banking transaction.
AIFM Directive (2011/61/EU): Regulates Alternative Investment Fund Managers (AIFMs) and divides investment funds into UCITS and AIFs. The Alternative Investment Fund Managers Act (AIFMG) in Austria, for example, is based on this directive.
Commission Regulation (EU) No 584/2010: Implements the UCITS Directive regarding the form and content of notification letters and the use of electronic communication between competent authorities. Croatia and Slovakia explicitly refer to this in their UCITS marketing requirements.
Regulation (EU) 2019/1156: Specifies requirements for marketing communications and ex-ante verification by competent authorities. France, Portugal, and Malta specifically reference this regulation for both UCITS and AIFs, emphasizing the need for communications to be “accurate, clear and not misleading.”
PRIIPs Regulation (EU) No 1286/2014: Addresses key information documents for packaged retail and insurance-based investment products, mentioned by Finland and Slovakia in their UCITS and AIF marketing requirements.

2. Marketing Requirements: General Principles

Across all reviewed countries, several common themes emerge regarding marketing requirements for both UCITS and AIFs:

2.1. Notification Procedures (Passporting)

Mandatory for Cross-Border Marketing: Nearly all Member States require a formal notification procedure for UCITS and AIFs established in one Member State to market their units in another. This “passporting” mechanism is fundamental to cross-border distribution.
UCITS: The home Member State’s competent authority typically forwards a notification letter and supporting documents (prospectus, articles of incorporation, KIID, latest reports) to the host Member State’s authority. Marketing can generally commence once the home authority confirms transmission. Bulgaria states, “After the competent authority of the UCITS home Member State has forwarded to the Bulgarian Financial Supervision Commission (FSC) all documents… the UCITS has the right to market its units on the territory of the Republic of Bulgaria.”
AIFs: Similar notification procedures apply, often involving the AIFM’s home competent authority attesting to its authorization and forwarding documentation to the host state.
No Prior Authorization (Common for Professional Investors): For EU AIFMs marketing to professional investors, prior authorization from the host Member State’s authority is often not required, with the notification being sufficient. Belgium states for “EU AIFs managed by an EU AIFM: application of AIFM notification procedure (Art. 32 of the AIFMD). Prior authorization from the FSMA is not required.”
Direct Notification: Finland, for registered EEA AIFMs marketing to professional investors, requires a written notification to the FIN-FSA directly.

2.2. Marketing Communications

Clear, Fair, and Not Misleading: This is a universal principle. Marketing communications “must be clearly identifiable as such, be accurate, clear and not misleading” (France, Portugal, Malta, Germany, Romania). Germany explicitly states that “No approval has to be obtained before publication” for marketing communications, and Germany has “not employed the option given by Article 7 of Regulation (EU) 2019/1156” (which allows for ex-ante verification).
Ex-Ante vs. Ex-Post Verification:Several countries (e.g., Czech Republic, Bulgaria, Croatia, Ireland, Romania, Slovakia) state that their authorities do not require prior approval or verification of marketing communications. The Czech National Bank “does not check, approve or give consent to their use before the start of marketing.”
However, others, like Belgium, France, and Portugal, have a risk-based approach or ex-ante supervision for certain types of offers or complex AIFs. Belgium requires that “Advertisements relating to a public offer of units of UCITS… may be published only after having been approved by the FSMA.” France notes a “non-systematic pre-review of marketing documents with a sample-based post-review.”
Malta explicitly states that the Authority “carries out an ex-post review of marketing communications” and they are “not subject to prior notification and approval.”
Disclosure of Risks and Rewards: Malta highlights the requirement for AIFMs to ensure marketing communications “describe the risks and rewards of purchasing units or shares of an AIF in an equally prominent manner.”
Availability of Documents: Marketing materials often need to mention that the prospectus and Key Investor Information Document (KIID) are available to investors (France, Portugal).

2.3. Language Requirements

Local Language for KIID: The Key Investor Information Document (KIID) almost universally needs to be translated into the local language of the host Member State (e.g., Bulgarian for Bulgaria, Dutch for the Netherlands, Lithuanian for Lithuania).
Optional for Other Documents: Other information and documents may often be provided in English or another agreed-upon language, but local translation may be required upon investor request (Bulgaria, Latvia). Lithuania requires facilities for tasks to be provided in “Lithuanian or English.”

2.4. Investor Facilities and Contact Points

Facilitating Investor Actions: UCITS and AIFMs are generally required to provide facilities for investors in the host country to process subscription, repurchase, and redemption orders, handle payments, provide information, and address complaints. France “recommends that a foreign UCITS… appoint a correspondent established in France.” Lithuania specifies these tasks and requires them to be performed “by the UCITS itself or its management company, by a third party… or by both.”
Contact Point for Authorities: Entities often need to serve as a contact point for communication with the host Member State’s competent authority.

3. Specific Requirements for AIFs

AIFs often have more varied and stringent requirements, particularly concerning retail investors and non-EU entities.

3.1. Marketing to Retail vs. Professional Investors

Stricter Rules for Retail: Marketing AIFs to retail investors generally involves more conditions and often requires explicit prior authorization from the host Member State’s competent authority.
Austria: “registered AIFMs are not permitted to market any AIFs to retail investors.”
Belgium: Public offers of AIFs to retail investors require registration on a list drawn up by the FSMA and adherence to specific conditions. Prior authorization from the FSMA is required for public offers.
Bulgaria: Marketing to retail investors is “allowed only in accordance with the rules for national investment funds (NIFs).”
Croatia: “only certain types of AIFs can be market to retail investors in the Republic of Croatia and they are prescribed in Ordinance on Types of AIFs.” Prior authorization from Hanfa is required for EU AIFMs marketing to retail investors.
Finland: If EEA AIFMs intend to market to non-professional investors, they must observe additional provisions and submit notification directly to FIN-FSA. Authorised EEA-AIFMs marketing to retail investors require a “letter of approval from the FIN-FSA.”
Ireland: An AIF seeking to market to retail investors “must make application to the Central Bank in writing and marketing… may not take place until the AIF has received a letter of approval.”
Lithuania: Marketing to retail investors requires “an authorisation from the Bank of Lithuania,” subject to conditions such as compliance with national AIF requirements and the KIID being in Lithuanian.
Portugal: Marketing of non-EU AIFs and EU AIFs to retail investors is “subject to prior authorization from CMVM.”
Germany: Distinguishes between professional, retail, and “semi-professional” investors for AIFs, with specific publication obligations for retail investors. Semi-professional investors require a commitment of at least EUR 200,000 and assessment of knowledge and experience.
Professional Investors: Marketing to professional investors is generally facilitated by the passporting notification, often without prior authorization from the host state.

3.2. Pre-Marketing (AIFs)

Specific Regulations for Pre-Marketing: Several countries (e.g., Lithuania, the Netherlands, Spain) have specific rules for pre-marketing of AIFs to professional investors. This is a relatively newer concept aimed at allowing managers to gauge investor interest before formal marketing.
Conditions and Restrictions: Pre-marketing typically cannot involve information sufficient for investors to commit to acquiring units, or final constitutional documents. It must clearly state that it is not an offer.
Lithuania: Pre-marketing cannot be sufficient “to allow investors to commit to acquiring units or shares” or “amounts to subscription forms… or similar documents whether in a draft or a final form.” Draft documents must explicitly state they are not an offer and are incomplete.
Notification of Pre-Marketing: AIFMs usually need to send an informal letter to their home Member State’s competent authority specifying the states and periods of pre-marketing. This information is then shared with relevant host authorities.
“Marketing Trap”: A subscription by professional investors within a specified period (e.g., 18 months in Lithuania and the Netherlands) from the start of pre-marketing is considered a result of marketing and triggers full notification procedures.
Third-Party Pre-Marketing: If third parties engage in pre-marketing on behalf of an AIFM, they must typically be authorized financial intermediaries and adhere to the same requirements (e.g., Lithuania, the Netherlands).
Documentation: Pre-marketing activities must be “adequately documented in a written form” (Lithuania).

3.3. Non-EU AIFs and AIFMs

Stricter Requirements: Marketing non-EU AIFs or AIFs managed by non-EU AIFMs generally involves more significant scrutiny and often requires prior authorization.
Belgium: “Non-EU AIFs managed by an EU AIFM” or “Non-EU AIFs managed by non-EU AIFM” require “Prior authorization from the FSMA.”
Poland: “Polish regulations do not allow non-EU AIFM or non-EU AIF to operate in the territory of the Republic of Poland.”
Germany: Notification procedures differentiate between EU AIFMs and foreign AIFMs, with foreign AIFMs often needing to file documents required for an AIFM application.
Portugal: Marketing of non-EU AIFs to professional investors and all non-EU AIFs to retail investors is “subject to prior authorization from CMVM.”

3.4. De-notification (Termination of Marketing)

Formal Procedure: A formal process is in place for fund managers to cease marketing units in a host Member State. This generally involves notifying the home Member State’s competent authority, which then informs the host state.
Investor Protection Measures: Conditions for de-notification often include:
A public “blanket offer” to repurchase or redeem units held by investors in the host state, free of charges, for a specified period (e.g., 30 working days in Lithuania).
Public announcement of the intention to terminate marketing.
Modification or termination of contractual arrangements with intermediaries to prevent new offerings.
Pre-marketing Restrictions Post-De-notification: Lithuania imposes a 36-month ban on pre-marketing for the de-notified AIF or similar strategies in the Republic of Lithuania. The Netherlands has a similar 36-month restriction.

4. Fees and Charges

Transparency Requirement: Regulation (EU) 2019/1156 requires ESMA to publish hyperlinks to websites of competent authorities listing the fees and charges they levy for cross-border activities.
Varying Fee Structures: While some countries (e.g., Bulgaria) explicitly state “no initial or subsequent registration fees for passporting,” most jurisdictions have fee schedules, often linked to the type of fund (UCITS/AIF), the nature of the activity (notification, authorization), and sometimes annual supervision. The specific hyperlinks to these fee lists are provided for each country.
Contribution to Operating Costs: Belgium, for instance, mentions that foreign UCITS “will have to make a contribution to the operating costs of the FSMA.” France also mentions a “fixed annual fee due to the AMF.”

5. Country-Specific Highlights

Austria: Unique “special-purpose credit institutions” for investment fund management companies and real estate funds. Registered AIFMs cannot market to retail investors or engage in cross-border activities.
Belgium: Detailed rules for public offers of UCITS and AIFs, with ex-ante supervision of advertisements for public offers. Distinction in prior authorization for different AIF types and managers (EU/non-EU).
Bulgaria: No fees for passporting UCITS or AIFs. Marketing communications are not verified by the FSC. KIID must be in Bulgarian.
Croatia: No prior notification of marketing communications is required. Prior authorization from Hanfa is needed for marketing AIFs to retail investors.
Cyprus: Standard notification procedures for both UCITS and AIFs.
Czech Republic: Marketing materials are not checked or approved in advance by the CNB. General consumer protection and advertising laws apply.
Denmark: Provides detailed links for various notification and authorization requirements based on manager type (EU/non-EU) and investor type (retail).
Estonia: All marketing requirements are stipulated in §408 (UCITS) and §413 (AIFs) of the Investment Funds Act.
Finland: No prior approval of marketing communications for UCITS or AIFs, but FIN-FSA can require prior notice. Specific language requirements (Finnish, Swedish, or other approved by FIN-FSA) may apply.
France: AMF uses a risk-based approach for marketing communication review. Recommends appointing a correspondent in France to perform investor tasks and pay annual fees.
Germany: Explicitly states no prior approval for marketing communications and has not used the option for ex-ante verification. Introduces a “semi-professional” investor category for AIFs.
Ireland: No prior approval for marketing communications. AIFs marketing to retail investors require a letter of approval from the Central Bank.
Italy: Offering documents for UCITS and AIFs marketed to retail investors must be filed with CONSOB before marketing. Advertisement campaigns targeted at retail investors must be transmitted to CONSOB at the time of advertising.
Latvia: Requires local language for KIID and often for other key documents or translations. Specifies measures for accepting and processing orders, providing information, and handling complaints.
Lithuania: Detailed procedures for email notifications, maximum attachment sizes, and encryption. Extensive rules for pre-marketing and de-notification for AIFs, including a 36-month pre-marketing ban after de-notification.
Luxembourg: Provides direct links to detailed summaries of marketing requirements.
Malta: Ex-post review of marketing communications. Emphasizes AIFMs’ responsibility for compliance. Highlights ESMA Guidelines on marketing communications.
The Netherlands: KIID must be in Dutch. Ongoing reporting obligations for non-EU managers. Specific pre-marketing rules and a 36-month pre-marketing ban after de-notification for AIFs.
Poland: Strict; does not allow non-EU AIFMs or non-EU AIFs to operate. Marketing to retail investors for EU AIFs follows specific public offer regulations.
Portugal: All UCITS and AIFs must be approved by CMVM before marketing. Marketing communications are not subject to pre-approval, but CMVM can request amendments ex-post.
Romania: Marketing communications are not subject to prior authorization. AIFMs marketing to retail investors conduct annual ex-post check-ups of “target markets” and distribution channels.
Spain: Rules on marketing communications, but no prior registration. Requires appointment of a representative before the CNMV for UCITS. Prior authorization required for marketing AIFs to retail investors and for non-EU AIFs. Quarterly statistical statements are obligatory for marketing entities. Pre-marketing is allowed for FIA managers.
Slovakia: No prior approval for marketing communications. Compliance with general advertising and consumer protection laws. Authorization from NBS is needed for cross-border distribution of foreign AIFs to retail investors.
Slovenia: Marketing requirements for both UCITS and AIFs are outlined in several acts and decisions, with detailed guidance notices available.
Sweden: Provides multiple links to detailed summaries of national rules governing marketing requirements.
EFTA Countries (Iceland, Liechtenstein, Norway): Liechtenstein provides specific FMA instructions and guidelines for UCITS and AIF notification procedures, including for retail distribution of AIFs. Iceland and Norway provide hyperlinks to their respective authorities but without detailed summaries in this document.

This briefing demonstrates a strong regulatory convergence within the EU and EFTA on the principles of transparency, investor protection, and facilitated cross-border distribution, while allowing for national specificities, particularly concerning retail investor access and the stringency of marketing communication oversight. The emphasis on notification procedures and clear communication standards underscores the continued efforts to harmonize financial markets while ensuring local consumer safeguards.