Authorisation to conduct business

(1) The conduct of business by a capital management company requires the authorisation of the Federal Institute. The Federal Institute may limit the authorisation to the management of certain types of investment fund. The Federal Institute may attach ancillary provisions to the authorisation. An authorisation under the first sentence is also required where, in the course of a conversion under section 305, section 320, or section 333 of the Conversion Act, a legal person that conducts business requiring authorisation under the first sentence transfers its statutory seat from abroad to domestic territory.
(2) External UCITS capital management companies may, in addition to the collective asset management of UCITS, provide the following services and ancillary services:
1. the management of individual portfolios invested in financial instruments within the meaning of section 1(11) of the Banking Act for others, on a discretionary basis, including the portfolio management of third-party investment funds (financial portfolio management),
2. investment advice within the meaning of section 2(8), first sentence, point 10, of the Securities Trading Act,
3. the safekeeping and administration of units in domestic investment funds, EU investment funds, or foreign AIFs for others,
4. the marketing and pre-marketing of units or shares in third-party investment funds,
5. insofar as the external UCITS capital management company has additionally been granted authorisation as an external AIF capital management company, the management of AIFs and the services and ancillary services under subsection (3),
6. the conclusion of retirement provision contracts under section 1(1) of the Retirement Provision Contracts Certification Act, and of contracts for building up a person's own funded retirement provision within the meaning of section 10(1), point 2, letter b, of the Income Tax Act,
7. the giving of an undertaking to the investor that, on redemption of units, on termination of the management of assets within the meaning of point 1, and on termination of the safekeeping and administration of units within the meaning of point 3, at least a specified or determinable amount will be paid to the investor (minimum payment undertaking),
8. the arranging of transactions for the acquisition and disposal of financial instruments (investment broking),
9. the administration of benchmarks under Regulation (EU) 2016/1011,
10. any other function or activity that the external UCITS capital management company already performs in respect of a UCITS that it manages under the provisions of this Act, or in respect of services that it provides under this sentence, provided that a potential conflict of interest arising from the performance of that function or activity for other parties is appropriately resolved. Insofar as the authorisation covers financial portfolio management or investment advice, an external UCITS capital management company is not authorised to obtain ownership of, or possession of, clients' funds or securities.
(3) External AIF capital management companies may, in addition to the collective asset management of AIFs, provide the following services and ancillary services:
1. the management of individual portfolios not invested in financial instruments within the meaning of section 1(11) of the Banking Act for others, on a discretionary basis, and investment advice (individual portfolio management and investment advice),
2. the management of individual portfolios invested in financial instruments within the meaning of section 1(11) of the Banking Act for others, on a discretionary basis, including the portfolio management of third-party investment funds (financial portfolio management),
3. investment advice within the meaning of section 2(8), first sentence, point 10, of the Securities Trading Act,
4. the safekeeping and administration of units in domestic investment funds, EU investment funds, or foreign AIFs for others,
5. the arranging of transactions for the acquisition and disposal of financial instruments (investment broking),
6. the marketing and pre-marketing of units or shares in third-party investment funds,
7. insofar as the external AIF capital management company has additionally been granted authorisation as an external UCITS capital management company, the management of UCITS and the services and ancillary services under subsection (2),
8. the conclusion of retirement provision contracts under section 1(1) of the Retirement Provision Contracts Certification Act, and of contracts for building up a person's own funded retirement provision within the meaning of section 10(1), point 2, letter b, of the Income Tax Act,
9. the administration of benchmarks under Regulation (EU) 2016/1011,
10. credit servicing under section 2(3) of the Credit Secondary Markets Act,
11. any other function or activity that the external AIF capital management company already performs in respect of an AIF that it manages under the provisions of this Act, or in respect of services that it provides under this sentence, provided that a potential conflict of interest arising from the performance of that function or activity for other parties is appropriately resolved. Insofar as the authorisation covers financial portfolio management, investment advice, or investment broking, an external AIF capital management company is not authorised to obtain ownership of, or possession of, clients' funds or securities.
(3a) External capital management companies may, in addition to the collective asset management of investment funds, also provide crypto-asset services under Article 60(5) of Regulation (EU) 2023/1114.
(4) External UCITS capital management companies and external AIF capital management companies may not provide exclusively the services and ancillary services named in subsection (2), first sentence, points 1 to 4, and in subsection (3), first sentence, points 1 to 6, without also providing collective asset management. External UCITS capital management companies and external AIF capital management companies may not administer benchmarks under Regulation (EU) 2016/1011 that are used in the investment funds they manage.
(5) The articles of association or the partnership agreement of the external UCITS capital management company must provide that, apart from the transactions necessary for the investment of its own assets, only the transactions and activities named in subsection (2) are carried on. The articles of association or the partnership agreement of the external AIF capital management company must provide that, apart from the transactions necessary for the investment of its own assets, only the transactions and activities named in subsection (3) are carried on.
(6) External capital management companies may hold participations in undertakings where the business purpose of the undertaking is, by law or under its articles of association, directed essentially at the transactions that the external capital management company is itself permitted to conduct, and where liability of the external capital management company arising from the participation is limited by the legal form of the undertaking.
(7) Internally managed UCITS capital management companies may not carry on any activity other than the management of their own UCITS; internally managed AIF capital management companies may not carry on any activity other than the management of their own AIF.
(8) UCITS capital management companies may not, for the account of the UCITS, grant loans or enter into obligations under a suretyship or guarantee contract.
(9) AIF capital management companies may, within the framework of collective asset management, grant loans, where the granting of the loan
1. is effected by a special AIF,
2. is effected under section 221(1), point 4, and (5), first sentence, section 222(1), fifth sentence, and (4), section 240, or section 261(1), points 8 and 10, or
3. is permitted under Regulation (EU) No 345/2013, Regulation (EU) No 346/2013, Regulation (EU) 2015/760, or section 3(2) in conjunction with section 4(7) of the Act on Business Participation Companies. A change to the loan terms following the granting of a loan does not constitute the granting of a loan; subsection (3), first sentence, point 10, remains unaffected.
(9a) AIF capital management companies may, within the framework of collective asset management for development promotion funds under section 292a(2), assume suretyships, guarantees, and other warranties for others.
(10) External capital management companies may grant loans for their own account to their parent, subsidiary, and sister undertakings.