External capital management companies

(1) External capital management companies may be operated only in the legal form of a stock corporation, a limited liability company, or a limited partnership in which the personally liable partner is exclusively a limited liability company.
(2) A supervisory board must also be formed where the external capital management company is operated in the legal form of a limited liability company. The external capital management company in the legal form of a limited partnership in which the personally liable partner is exclusively a limited liability company must form an advisory board. Subject to subsection (3), second sentence, the composition and the rights and duties of the supervisory board under the first sentence are governed by section 90(3) to (5), second sentence, sections 95 to 114, 116, and 118(3), section 125(3), and sections 171 and 268(2) of the Stock Corporation Act. Subject to subsection (3), second sentence, the composition and the rights and duties of the advisory board under the second sentence are governed by section 90(3) to (5), second sentence, sections 95, 100, 101, 103, 105, and 107 to 114, 116, and 118(3), section 125(3), and sections 171 and 268(2) of the Stock Corporation Act.
(3) Section 101(1), first sentence, first half-sentence, of the Stock Corporation Act applies to an external capital management company in the legal form of a stock corporation with the proviso that the general meeting must elect at least one member of the supervisory board who is independent of the shareholders, the undertakings connected with them, and the business partners of the external capital management company. Where the external capital management company is operated in the legal form of a limited liability company, or as a limited partnership in which the personally liable partner is exclusively a limited liability company, the first sentence applies correspondingly. For more detailed requirements as to the independence of a member of the supervisory board of the external UCITS capital management company from the depositary within the meaning of the first and second sentences, reference is made to Article 21, letter d, and Article 24(1), letter b, and (2), of Commission Delegated Regulation (EU) 2016/438 of 17 December 2015 supplementing Directive 2009/65/EC of the European Parliament and of the Council with regard to obligations of depositaries (OJ L 78, 24.3.2016, p. 11). Article 21, letter d, and Article 24(1), letter b, and (2), of Delegated Regulation (EU) 2016/438 apply correspondingly to external AIF capital management companies. The first, second, and fourth sentences do not apply to external capital management companies that manage exclusively special AIFs.
(4) The members of the supervisory board or of an advisory board must, by their personal character and their expertise, ensure that the interests of investors are safeguarded. The appointment of, and the departure of, members of the supervisory board or of an advisory board must be notified to the Federal Institute without delay.
(5) Subsection (4) does not apply insofar as the supervisory board members are elected as employee representatives under the provisions of the co-determination Acts.
(6) In cases where an external AIF capital management company is not able to ensure compliance with the requirements of this Act, for which the AIF or another body acting in its name is responsible, the external AIF capital management company informs the Federal Institute without delay and, where applicable, the competent authorities of the EU AIF concerned. The Federal Institute may require the external AIF capital management company to take the necessary remedial measures.
(7) Where the requirements continue not to be complied with despite the measures named in subsection (6), second sentence, the Federal Institute requires the external AIF capital management company to terminate its appointment as external AIF capital management company for that AIF, where it is a domestic AIF or an EU AIF. In this case, the AIF may no longer be marketed in the member states of the European Union and the other contracting states of the European Economic Area. The Federal Institute informs the competent authorities of the host member states of the external AIF capital management company of this without delay.