Special provisions for cooperation in the cross-border management and cross-border marketing of AIFs

(1) Where the Federal Institute establishes that an EU AIF management company or a foreign AIF management company that manages or markets AIFs domestically, or that has notified a withdrawal from marketing, infringes one of the provisions the compliance with which the Federal Institute is required to monitor, it calls upon the EU AIF management company or foreign AIF management company concerned to end the infringement. The Federal Institute informs the competent authorities of the home member state of the EU AIF management company or the reference member state of the foreign AIF management company accordingly.
(2) Where the EU AIF management company or the foreign AIF management company refuses to provide the Federal Institute with the information necessary for it to perform its tasks, or fails to take the necessary steps to end the infringement under subsection (1), the Federal Institute informs the competent authorities of the home member state or the reference member state of this.
(3) Where the Federal Institute receives a communication from a competent authority of a host member state that an AIF capital management company or a foreign AIF management company whose reference member state is the Federal Republic of Germany is refusing to provide the information necessary for the competent authority of the host member state to perform its tasks, 1. it takes, without delay, all suitable measures to ensure that the AIF capital management company or the foreign AIF management company concerned, whose reference member state is the Federal Republic of Germany, provides the information required by the competent authorities of its host member state under Article 45(3) of Directive 2011/61/EU, or ends the infringement under Article 45(4) of Directive 2011/61/EU, and 2. it requests the competent authorities concerned in third countries, without delay, to transmit the necessary information. The nature of the measures under point 1 must be communicated to the competent authorities of the host member state of the AIF capital management company or the foreign AIF management company whose reference member state is the Federal Republic of Germany.
(4) Where the EU AIF management company or the foreign AIF management company continues to refuse to provide the information demanded by the Federal Institute under section 5(8), or continues to infringe the provisions named in subsection (1), 1. although a measure under Article 45(5), second sentence, of Directive 2011/61/EU has been taken by the competent authorities of its home member state or reference member state, or 2. because a measure under point 1 proves insufficient, or 3. because a measure under point 1 is not available in the member state of the European Union or contracting state of the Agreement on the European Economic Area in question, the Federal Institute may, after informing the competent authorities of the home member state of the EU AIF management company or the reference member state of the foreign AIF management company, take suitable measures, including the measures under sections 5, 40 to 42, 339, and 340, to punish the infringements or to prevent further infringements. Insofar as necessary, it may also prohibit this EU AIF management company or foreign AIF management company from conducting new business domestically. Where the EU AIF management company or the foreign AIF management company manages AIFs domestically, the Federal Institute may require the management to be discontinued.
(5) Where the Federal Institute has sufficient grounds for suspecting an infringement by an EU AIF management company or a foreign AIF management company of the obligations under this Act, it communicates its findings to the competent authority of the home member state of the EU AIF management company or the reference member state of the foreign AIF management company. Where the Federal Institute has received a communication under the first sentence from another competent authority, 1. it takes suitable measures, and 2. it requests information, where appropriate, from competent authorities in third countries.
(6) Where the EU AIF management company or a foreign AIF management company continues to act in a manner that is clearly detrimental to the interests of the investors of the AIF concerned, to financial stability, or to the integrity of the market in the Federal Republic of Germany, 1. although a measure under Article 45(7) of Directive 2011/61/EU has been taken by the competent authorities of its home member state or reference member state, 2. because a measure under point 1 proves insufficient, or 3. because the home member state of the AIF management company does not act in good time, the Federal Institute may, after informing the competent authorities of the home member state of the EU AIF management company or the reference member state of the foreign AIF management company, take all necessary measures to protect the investors of the AIF concerned, financial stability, and the integrity of the market in the Federal Republic of Germany; it also has the option of prohibiting the EU AIF management company or the foreign AIF management company from further marketing units of the AIF concerned domestically.
(7) The procedure under subsections (5) and (6) is further applied where the Federal Institute has clear and demonstrable grounds for objecting to the authorisation of a foreign AIF management company by the reference member state.
(8) Where there is no agreement between the Federal Institute and the competent authorities concerned regarding a measure taken by the Federal Institute or a competent authority under subsections (1) to (7), the Federal Institute may request the assistance of the European Securities and Markets Authority in accordance with Article 19 of Regulation (EU) No 1095/2010.
(9) At the request of the European Securities and Markets Authority under Article 47(4) of Directive 2011/61/EU, the Federal Institute takes, in accordance with subsection (10), one of the following measures: 1. prohibition of the marketing of units of AIFs managed by foreign AIF management companies, or of units of foreign AIFs managed by AIF capital management companies or EU AIF management companies, without a) an authorisation under section 57 having been granted, or b) the notification under section 320(1), section 322(2), section 324(2), section 325(1), section 326(2), section 327(1), section 328(2), section 330(2), section 332(2), section 333(1), or section 334(2) having been given. 2. restrictions on the management of an AIF by a foreign AIF management company, where a) there are excessive risk concentrations in a market on a cross-border basis, or b) a significant counterparty risk for a credit institution within the meaning of Article 4(1), point 1, of Regulation (EU) No 575/2013, or for other systemically important institutions, arises from the foreign AIF management company or the AIF. 3. a requirement that foreign AIF management companies that market the AIFs they manage within the scope of this Act, or EU AIF management companies that manage foreign AIFs, activate or deactivate the liquidity management tool named in Annex V, point 1, of Directive 2011/61/EU, in the interests of investors, in exceptional circumstances and after consulting the AIF management company, where there are risks to investor protection or financial stability that, on a reasonable and balanced assessment, make such activation or deactivation necessary.
(10) The measures under subsection (9) may be taken only where they satisfy the following conditions: 1. they effectively address the risks to the orderly functioning and integrity of the financial market, or to the stability of the whole or part of the financial system, in the European Union or in another contracting state of the Agreement on the European Economic Area, or they materially improve the ability of the Federal Institute to monitor these risks; 2. they do not carry the risk of supervisory arbitrage; 3. they do not have a disproportionate negative effect on the functioning of the financial market, including by reducing the liquidity of the markets, or do not lead, in a disproportionate manner, to uncertainty for market participants.
(11) The Federal Institute may call upon the European Securities and Markets Authority to review its decision. In this case, the procedure provided for in Article 44(1), second subparagraph, of Regulation (EU) No 1095/2010 applies.
(12) The Federal Institute informs the competent authorities of a host member state without delay of all communications received under section 35(4a) and (4b) concerning the activation or deactivation of liquidity management tools.
(13) The Federal Institute may request the competent authorities of the home member state of an AIF management company to exercise the powers laid down in Article 46(2), letter j, of Directive 2011/61/EU, stating the grounds for the request, and informs the European Securities and Markets Authority and, where there are potential risks to the stability and integrity of the financial system, the European Systemic Risk Board, of this.
(14) Where the Federal Institute does not agree to a request named in Article 50(5b) of Directive 2011/61/EU, it informs the competent authority of the host member state of the AIF management company, the European Securities and Markets Authority, and, where the European Systemic Risk Board was informed of the request under Article 50(5b) of Directive 2011/61/EU, also that body, stating the grounds for the non-agreement.
(15) Where the Federal Institute does not comply with an opinion of the European Securities and Markets Authority under Article 50(5d) of Directive 2011/61/EU, or does not intend to comply with such an opinion, it informs the European Securities and Markets Authority and the competent authorities of the host member state of the AIF management company, stating the grounds for its non-compliance or its intention not to comply.
(16) The Federal Institute may, in substantiated cases, request the competent authorities of the home member state of a UCITS to exercise, without delay, the powers under Article 98(2) of Directive 2009/65/EC, with the exception of letter j of that paragraph. The Federal Institute may, in substantiated cases, request the competent authorities of the home member state of an AIF management company to exercise, without delay, the powers under Article 46(2) of Directive 2011/61/EU, with the exception of letter j of that paragraph. In the requests under the first and second sentences, the Federal Institute must state the grounds for its request as precisely as possible, and inform the European Securities and Markets Authority and, where there are potential risks to the stability and integrity of the financial system, the European Systemic Risk Board, of the requests and the grounds.
(17) In the event that a request under Article 98(3), first subparagraph, of Directive 2009/65/EC, or under Article 50(5f), first subparagraph, of Directive 2011/61/EU, is addressed to the Federal Institute, it informs the competent authorities of the host member state of the UCITS or the AIF management company, the European Securities and Markets Authority, and, where there are potential risks to the stability and integrity of the financial system, the European Systemic Risk Board, without delay, of the powers exercised and its findings.
(18) In the event that the Federal Institute has received information under Article 50(5g), first sentence, of Directive 2011/61/EU, it takes suitable measures and informs the European Securities and Markets Authority and the competent authorities that transmitted the information of the outcome of these measures.