Obliged Entities; Authorisation to Issue Statutory Instruments

(1) Obliged entities within the meaning of this Act are, insofar as they act in pursuit of their trade or profession: 1. credit institutions under section 1(1) of the Banking Act, with the exception of the undertakings referred to in section 2(1), nos. 3 to 8 of the Banking Act, and branches of credit institutions with their registered office abroad that are located in Germany; 2. financial services institutions under section 1(1a) of the Banking Act, with the exception of the undertakings referred to in section 2(6), first sentence, nos. 3 to 10 and 12, and subsection (10) of the Banking Act, branches of financial services institutions with their registered office abroad that are located in Germany, securities institutions under section 2(1) of the Securities Institutions Act and branches of comparable undertakings with their registered office abroad that are located in Germany, as well as crypto-asset service providers and issuers of asset-referenced tokens; 3. payment institutions and e-money institutions under section 1(3) of the Payment Services Supervision Act, and branches of comparable institutions with their registered office abroad that are located in Germany; 4. agents under section 1(9) of the Payment Services Supervision Act and e-money agents under section 1(10) of the Payment Services Supervision Act, as well as payment institutions and e-money institutions with their registered office in another state party to the Agreement on the European Economic Area that are established in Germany through agents under section 1(9) of the Payment Services Supervision Act or through e-money agents under section 1(10) of the Payment Services Supervision Act; 5. self-employed traders who distribute or redeem e-money issued by a credit institution under section 1(2), first sentence, no. 2 of the Payment Services Supervision Act; 6. financial undertakings, and branches of financial undertakings with their registered office abroad that are located in Germany, insofar as they are not already covered by nos. 1 to 5, 7, 9, 10, 12 or 13; 7. insurance undertakings under Article 13, point 1 of Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 335, 17.12.2009, p. 1), and branches of such undertakings with their registered office abroad that are located in Germany, insofar as they respectively a) offer life insurance activities covered by that Directive, b) offer accident insurance with premium refund, c) grant loans within the meaning of section 1(1), second sentence, no. 2 of the Banking Act, or d) offer capitalisation products; 8. insurance intermediaries under section 59 of the Insurance Contract Act, insofar as they intermediate the activities, transactions, products or services covered by no. 7, with the exception of insurance intermediaries acting under section 34d(6) or (7), no. 1 of the Trade Regulation Act, and branches of corresponding insurance intermediaries with their registered office abroad that are located in Germany; 9. capital management companies under section 17(1) of the Capital Investment Code, branches of EU management companies and foreign AIF management companies located in Germany, and foreign AIF management companies for which the Federal Republic of Germany is the reference Member State and that are subject to the supervision of the Federal Financial Supervisory Authority under section 57(1), third sentence of the Capital Investment Code; 10. lawyers, registered legal advisers admitted to a bar, patent attorneys and notaries, insofar as they a) participate, on behalf of their client, in the planning or execution of the following transactions: aa) the buying and selling of real property or business undertakings, bb) the managing of money, securities or other assets, cc) the opening or management of bank, savings or securities accounts, dd) the procurement of funds necessary for the formation, operation or management of companies, or ee) the formation, operation or management of trust companies, companies or similar structures, b) act on behalf of, and for the account of, their client in a financial or real property transaction, c) advise their client on capital structure, industrial strategy or related questions, d) provide advice or services in connection with mergers or acquisitions, or e) provide professional assistance on tax matters; 11. legal advisers who are not members of a bar and registered persons under section 10 of the Legal Services Act, insofar as they carry on activities under no. 10, letters a) to d), with the exception of the provision of debt-collection services within the meaning of section 2(2), first sentence of the Legal Services Act; 12. public accountants, sworn auditors, tax advisers, tax agents and wage tax assistance associations; 13. providers of services to companies or trusts, or trustees, who do not belong to the professions listed in nos. 10 to 12, where they provide any of the following services for third parties: a) the formation of a legal person or a partnership, b) acting in the function of director or managing officer of a legal person or a partnership, acting in the function of a partner of a partnership, or acting in a comparable function, c) providing a registered office, business, administrative or postal address and other related services for a legal person, a partnership, or a legal arrangement under section 3(3), d) acting in the function of trustee for a legal arrangement under section 3(3), e) acting in the function of nominee shareholder for another person, unless that other person is a company listed on an organised market under section 2(11) of the Securities Trading Act that is subject to disclosure requirements consistent with Community law in respect of voting-rights interests, or subject to equivalent international standards, or f) creating for another person the ability to carry on the functions referred to in letters b), d) and e); 14. real estate agents; 15. organisers and intermediaries of gambling, unless they are a) operators of gaming machines under section 33c of the Trade Regulation Act, b) associations that carry on the business of a totalisator under section 1 of the Race Betting and Lottery Act, c) lotteries for which the organisers and intermediaries hold a gambling permit issued by the competent authority in Germany, or d) (repealed); 16. dealers in goods, art intermediaries and art storage providers, insofar as the storage takes place in a customs-free zone.
(2) The Federal Ministry of Finance may, by statutory instrument not requiring the consent of the Bundesrat, exempt from the scope of application of this Act obliged entities under subsection (1), nos. 1 to 9 and 16 that carry on financial activities not constituting money remittance business within the meaning of section 1(1), second sentence, no. 6 of the Payment Services Supervision Act only occasionally or to a very limited extent and in respect of which there is a low risk of money laundering or terrorist financing, where 1. the financial activity is limited to individual transactions that, in absolute terms, do not exceed the amount of EUR 1,000 per customer and per individual transaction, 2. the total turnover of the financial activity does not exceed 5 per cent of the total annual turnover of the obliged entity concerned, 3. the financial activity is merely an ancillary activity connected with the entity's principal activity, and 4. the financial activity is provided only to customers of the principal activity and not to the public at large. In that case the European Commission shall be notified without delay.
(3) For courts that conduct public auctions, the identification and reporting obligations referred to in Divisions 3, 5 and 6, as well as the obligation to cooperate with the Financial Intelligence Unit, apply correspondingly in the context of the compulsory auction of land, of ships entered in the register of ships, of vessels under construction entered in, or eligible for entry in, the register of vessels under construction, and of aircraft, by way of compulsory enforcement, insofar as transactions are carried out involving cash payments of at least EUR 10,000. The identification of the successful bidder should take place immediately after the award of the bid, and at the latest on payment of the cash bid; in doing so, in the case of natural persons the collection of the place of birth and nationality, and in the case of partnerships with legal capacity and legal persons the collection of the names of all members of the representative body or all statutory representatives, is not required.
(4) For authorities and for corporations and institutions under public law that conduct public auctions, the identification and reporting obligations referred to in Divisions 3, 5 and 6, as well as the obligation to cooperate with the Financial Intelligence Unit, apply correspondingly insofar as transactions are carried out involving cash payments of at least EUR 10,000. The first sentence does not apply insofar as items seized in compulsory enforcement are realised. The identification of the successful bidder should take place on the award of the bid, and at the latest on payment of the cash bid. Authorities and corporations and institutions under public law obliged under the first sentence may, in discharging their obligations under the first sentence, rely on third parties.