Prohibition of marketing

(1) Insofar as section 11 does not apply, the Federal Institute is empowered, with regard to AIF, to take all measures appropriate and necessary to protect investors, including a prohibition of the marketing of units or shares in these investment funds, where 1. a notification required under this Act for the intended marketing of units or shares in an AIF has not been made properly, or marketing has commenced before the corresponding communication from the Federal Institute, 2. the precautions required under section 295(1), third sentence, are not suitable to effectively prevent marketing to retail investors, or the corresponding precautions are not complied with, 3. a condition for the permissibility of marketing under this Act does not exist or has ceased to exist, or the duties assumed towards the Federal Institute under section 320(1), second sentence, point 7, section 329(2), third sentence, points 2 or 3, section 330(2), third sentence, point 2, or section 330a(2), second sentence, points 2 and 3, are not complied with despite a warning, 4. the AIF management company, a representative appointed by it, or a person involved in marketing, materially infringes section 302(2) and (3), Article 4(1) to (4) of Regulation (EU) 2019/1156, or orders under section 302(4), and the infringements are not brought to an end despite a warning by the Federal Institute, 5. the information and publication duties under section 307(1) or (2), first sentence, or under section 308, or section 297(2) to (6), (8), or (9), sections 299 to 301, section 303(1) or (3), or section 318, are not properly satisfied, 6. other provisions of this Act are infringed, 7. in the case of the marketing of an AIF to retail investors, a claim of an investor established against the AIF management company or the marketing company by a final judgment or court settlement has not been satisfied, 8. there has been a material infringement of the investment conditions, the articles of association, or the partnership agreement in the marketing to retail investors, 9. the manner of marketing infringes other provisions of German law, 10. costs incurred by the Federal Institute in the course of its duty to publish the legal representative under section 319(3) are not reimbursed despite a warning, or a fee payable for the examination of particulars and documents prescribed under section 320(1), second sentence, point 7, section 329(2), third sentence, point 2, or section 330(2), third sentence, point 2, is not paid despite a warning, 11. marketing continues after the date of revocation contrary to a notification of revocation of marketing under section 295a(4), or the duties under section 295b(2) and (3) are not complied with.
(2) For AIF with sub-funds, the Federal Institute may also prohibit the marketing of units or shares in sub-funds that may be marketed within the scope of this Act under sections 316, 320, 329, or 330 to one, several, or all investor categories within the meaning of section 1(19), points 31 to 33, where further units or shares of sub-funds of the same AIF are marketed within the scope of this Act to one, several, or all investor categories within the meaning of section 1(19), points 31 to 33, to which they may not be marketed within the scope of this Act, or may not be marketed to that investor category.
(3) The Federal Institute publishes a prohibition of marketing in the Federal Gazette where marketing has already taken place. Where costs are incurred by the Federal Institute as a result of the publication under the first sentence, these must be reimbursed to it by the AIF management company.
(4) Where the Federal Institute has prohibited, under subsection (1), points 2, 5, and 7 to 10, or subsection (2), the further marketing within the scope of this Act of an AIF subject to a notification duty under sections 316, 320, 329, or 330, the AIF management company may notify its intention to market the units or shares of that AIF within the scope of this Act again only one year after the prohibition.