Permissibility of the marketing of EU AIF or foreign AIF to retail investors

(1) The marketing of EU AIF and foreign AIF to retail investors within the scope of this Act by an EU AIF management company or a foreign AIF management company is permissible only where 1. the AIF and its management company are subject, in the State of their common seat, to effective public supervision for the protection of investors; 2. the competent supervisory authorities of the State of seat are prepared for cooperation with the Federal Institute that is satisfactory according to the Federal Institute's experience, correspondingly to sections 9 and 10; 3. the AIF management company, and the management of the notified AIF by it, satisfy the requirements of Directive 2011/61/EU; 4. the foreign AIF management company designates to the Federal Institute a domestic credit institution or a reliable, professionally suitable person with seat or residence within the scope of this Act as a representative, sufficiently equipped to perform the compliance function correspondingly to section 57(3), fourth sentence; 5. a depositary secures the assets of the AIF in a manner comparable to the provisions of sections 80 to 90; 6. a facility under section 306a is provided; 7. the investment conditions, the articles of association, or the partnership agreement a) for open-ended AIF, have the minimum content under section 162 and, where applicable, aa) for AIF comparable to Other Investment Funds, the particulars under section 224(2), bb) for AIF comparable to funds of hedge funds, the particulars under section 229, cc) for AIF comparable to real estate collective investment funds, the particulars under section 256(2), dd) for AIF comparable to infrastructure collective investment funds, the particulars under section 260d(2), b) for closed-ended AIF, have the minimum content under section 266, c) contain provisions that ensure, for open-ended AIF, compliance with the provisions of sections 192 to 213, or sections 218, 219, or sections 220, 221, 222, or section 225, or sections 230 to 246, 252 to 254, 258 to 260, and, for closed-ended AIF, compliance with the provisions of sections 261 to 265, d) provide that the assets belonging to the AIF may not be pledged or otherwise encumbered, transferred by way of security, or assigned by way of security, unless loans are raised for the AIF having regard to the requirements under sections 199, 221(6), and section 254, option rights are granted to a third party, or repurchase transactions under section 203 or financial futures contracts, forward foreign exchange contracts, swaps, or similar transactions under section 197 are concluded, e) for open-ended AIF, with the exception of open-ended real estate investment funds or open-ended infrastructure investment funds, provide that investors may generally demand payment of the portion of assets attributable to the unit or share on a daily basis, unless they provide, for AIF comparable to Other Investment Funds, provisions corresponding to section 223(1), for AIF comparable to Other Investment Funds with investment options corresponding to section 222(1), provisions corresponding to section 223(2), or, for AIF comparable to funds of hedge funds, provisions corresponding to section 227, f) for investment funds comparable to real estate collective investment funds, provide for a rule corresponding to sections 255 and 257, g) for closed-ended AIF, provide that investors may demand payment of the portion of assets attributable to the unit or share at least at the end of the term, h) contain provisions ensuring that the valuation of the AIF takes place, for open-ended AIF, in a manner corresponding to sections 168 to 170, 216, and 217, for AIF comparable to real estate collective investment funds or infrastructure collective investment funds, having regard to the special rules in sections 248 to 251, and, for closed-ended AIF, in a manner corresponding to sections 271 and 272, i) provide that advance charging of costs under section 304 is restricted, and that the particulars under section 101(2), point 4, must be made in the annual report and, where applicable, in the half-yearly reports, j) for investment funds comparable to infrastructure collective investment funds, provide for a rule corresponding to section 260c, section 260a in conjunction with sections 255 and 257; 8. the duties named in section 297(2) to (6), (8), and (9), in sections 299 to 301, section 303(1) and (3), and in section 318, to inform the person interested in acquiring a unit or share or the investor, are properly satisfied.
(2) Where the notified AIF is a foreign AIF managed by a foreign AIF management company, marketing is permissible only where the following additional requirements are also satisfied: 1. appropriate cooperation arrangements exist between the Federal Institute and the authorities responsible for supervision in the third country in which the foreign AIF and the foreign AIF management company have their seat; the arrangements must a) serve to monitor systemic risks, b) be consistent with international standards and with Articles 113 to 115 of Delegated Regulation (EU) No 231/2013, and c) ensure an effective exchange of information enabling the Federal Institute to perform its tasks set out in section 5. 2. The home State of the notified AIF is not on the list of non-cooperative countries and territories drawn up by the Financial Action Task Force. 3. The home State of the notified AIF has signed an agreement with the Federal Republic of Germany that fully complies with the standards under Article 26 of the OECD Model Tax Convention on Income and on Capital, and ensures effective exchange of information in tax matters, where applicable including multilateral tax agreements.
(3) Where the notified AIF is a feeder AIF, at least the following requirements, in addition to the requirements of subsection (1) and, where applicable, subsection (2), must be satisfied with regard to the feeder AIF: 1. the master AIF and its management company must have the same home State as the feeder AIF and its management company, 2. the investment conditions, the articles of association, or the partnership agreement of the master AIF must contain provisions ensuring compliance with the provisions of sections 220, 221, and 222, or sections 261 to 265, 3. the master AIF and its management company must satisfy the conditions of sections 317 to 319 and have successfully completed the notification procedure under section 320, 4. the investment conditions or the articles of association of the feeder AIF must contain a designation of the master AIF in whose units or shares at least 85 percent of the value of the feeder AIF is invested, and must ensure that investors are protected in a manner comparable to the provisions of this Act relating to master-feeder structures in the field of retail investment funds, 5. the agreements provided for in section 175 or section 272d have been concluded.
(4) Where an EU AIF management company markets units in an EU AIF investing predominantly in shares of a particular undertaking, within the scope of this Act, only to the employees of that undertaking or of undertakings connected with it, in the course of employee participation schemes or employee savings plans, subsection (1) applies with the proviso that points 1, 7, and 8 do not apply, and the requirements of the EU AIF's home Member State relating to the marketing of such AIF to retail investors apply instead.