AIFM passporting in Poland

In March 2016 the AIFMD was implemented into Polish law and it came into force at the beginning of June that year.

Since the implementation of AIFMD in Poland, AIFMD provisions on exemptions, general arrangements for business activity, depositaries, leverage, transparency and supervision apply to certain entities.

Under Polish law several types of Polish entities can be recognized as AIFs, i.e. (a) a specialized open end investment fund (“SFIO”), (b) a closed end investment fund (“FIZ”) and (c) an alternative investment company (“ASI”), i.e. a Polish limited liability company, a Polish joint stock company or a European company; or a limited partnership or limited joint stock partnership (where the only general partner is a limited liability company, a joint stock company or a European company), if their only business activity (subject to exceptions) is the collection of assets from investors for the purpose of investing them for those investors and in accordance with their investment policy. EU and EEA AIFs (provided that the EEA AIFs, as a rule, can be marketed only if their AIFMs act in compliance with AIFMD) are also recognised under the Polish law and the rules on marketing of their shares in Poland reflect AIFMD provisions accompanied with local terms regulating the conditions of marketing.

The SFIO and the FIZ are managed by the Investment Fund Company (“TFI”), whereas the ASI is managed by the ASI Manager (“ZASI”) (hereinafter together as “AIFMs”). These entities are required to hold a permit issued by the Polish Financial Supervision Authority (“PFSA”) or to be registered in the AIFMs register depending on the value of assets under the management (except for TFIs, which are always required to hold a permit to manage the SFIO or FIZ). What is more, AIFMs can transfer the management obligations to the AFIMs from the Member State under the management agreement.

EEA AIFs can be marketed in Poland among professional and, under certain circumstances, retail investors. Marketing to retail investors is possible only with regards to the UE/EEA AIFs which obtained the authorisation referred to in Article 5(1) of Regulation (EU) 2015/760 of the European Parliament and of the Council of 29 April 2015 on European long-term investment funds. EEA AIFMs may introduce EEA AIFs managed by them to trading in Poland upon a notification served on the PFSA. This notification must be provided by the EEA AIFMs home State competent authority and it must include EEA AIF internal regulations and a letter of confirmation stating that the EEA AIFM is authorized to manage EEA AIFs.

In case marketing of the EEA AIFs shares constitutes public offering under Regulation 2017/1129, the offering document publication obligation may apply.

EEA AIFMs may commence directly or through a licensed intermediary pre-marketing of AIFs which are not yet established or established but not yet notified for marketing in accordance with the procedure described above, to potential professional investors in Poland, provided that the PFSA receives a pre-marketing notification within 2 weeks from the starting date of pre-marketing activities.

The information provided to potential professional investors as part of the pre-marketing activity cannot: (i) constitute a sufficient basis to enable potential investors to commit to the acquisition of participation rights of the EEA AIF, (ii) take the form of a subscription form for participation rights of the EEA AIF or similar documents, including their drafts, or (iii) present the final form of the articles of association or other incorporation document or prospectus, or other offer document of the EEA AIF that has not yet been established.

In cases when the approached potential investor acquires the participation rights of the EEA AIF within 18 months of the commencement of pre-marketing activities, the above-mentioned notification procedure for marketing is triggered.

Currently, Polish regulations do not allow non-EEA third country AIFMs to market its shares  in the territory of Poland.

The registry fee is EUR 300.00 for each EU AIF in case EU AIFs are marketed solely within professional investors and EUR 1,200.00 in other cases (with another EUR 1,200.00 for each consecutive sub-fund or EUR 300.00 in case of sub-funds marketed solely within professional investors, starting with a second one).

EU AIFs are obliged to cover annual supervisory fee (i.e. EUR 300 annually for each UE AIF distributed in Poland to professional clients or EUR 1,000.00 in other cases). Additionally, if UE AIF has sub-funds distributed in Poland, the fee would be raised by EUR 200.00 for each sub-fund (excluding the first one) marketed within professional clients and by EUR 500.00 in other cases.