(1) Where an EU AIF management company or a foreign AIF management company intends to market units or shares in an EU AIF managed by it, or in a foreign AIF, to retail investors within the scope of this Act, it must notify the Federal Institute of this. The notification letter must contain the following particulars and documents, in each case in the version in force:
1. in the case of the notification by
a) an EU AIF management company or, from the date referred to in section 295(2), point 1, a foreign AIF management company, a certificate from the competent authority of its home Member State or its reference Member State, in a language customary in the international financial world, that the AIF management company, and the management of the AIF by it, comply with Directive 2011/61/EU and that the AIF management company holds a licence to manage AIF with a particular investment strategy,
b) a foreign AIF management company, before the date referred to in section 295(2), point 1, particulars and documents corresponding to section 22(1), points 1 to 9 and 13;
2. all material particulars of the AIF management company, the AIF, the representative, the depositary, and the paying agent, and the confirmations of the representative, the depositary, and the paying agent of their assumption of these functions; particulars of the depositary are required only insofar as they are not covered by the certificate under point 1, letter a;
3. the investment conditions, the articles of association, or the partnership agreement of the EU AIF or the foreign AIF, its business plan, which must also contain material particulars of its governing bodies, and the sales prospectus, the key information document under Regulation (EU) No 1286/2014, and all further information available to investors about the notified AIF, together with material particulars of the marketing companies envisaged for marketing within the scope of this Act;
4. the most recent annual report, which must satisfy the requirements of section 299(1), first sentence, point 3, and, where the reporting date of the annual report is more than eight months in the past and it is not a closed-ended AIF, also the subsequent half-yearly report, which must satisfy the requirements of section 299(1), first sentence, point 4; the annual report must bear the certification of an auditor;
5. the adopted annual balance sheet of the last financial year, together with the profit and loss statement (annual financial statements), of the management company, which must bear the certification of an auditor;
6. particulars of the arrangements for the marketing of the notified AIF;
7. the declaration of the EU AIF management company or the foreign AIF management company that it undertakes
a) to submit to the Federal Institute the annual financial statements of the management company and the annual report to be published under section 299(1), first sentence, point 3, no later than six months after the end of every financial year, and, for open-ended AIF, additionally the half-yearly report to be published under section 299(1), first sentence, point 4, no later than three months after the end of every half financial year; the annual financial statements and the annual report must bear the certification of an auditor;
b) to inform the Federal Institute of all material changes to circumstances stated in the marketing notification, or underlying the certificate of the competent authority under point 1, letter a, under subsection (4), and to substantiate the changed particulars;
c) to provide the Federal Institute, on request, with information on its business activities and to submit documents;
d) to restrict or cease the use of leverage to the extent required by the Federal Institute, on the Federal Institute's request, and
e) where it is a foreign AIF management company, to satisfy the reporting duties under section 35 towards the Federal Institute;
8. evidence of payment of the fee for the notification;
9. all material particulars and documents showing that the foreign AIF and its management company are subject, in the State in which they have their seat, to effective public supervision for the protection of investors;
10. where applicable, the agreements required under section 175 or section 272d for master-feeder structures. Foreign-language documents must be submitted together with a German translation.
(2) Section 316(2) and (3) applies correspondingly, with the proviso that "AIF capital management company" is replaced by "EU AIF management company or foreign AIF management company", and that the period named in section 316(3), first sentence, is, for the notification of
1. an EU AIF management company or, from the date referred to in section 295(2), point 1, a foreign AIF management company, three months,
2. a foreign AIF management company, before the date referred to in section 295(2), point 1, six months.
(3) Where the notifying foreign AIF management company within the meaning of subsection (1), letter b, has already notified an AIF for marketing to retail investors within the scope of this Act under subsection (1), first sentence, the Federal Institute does not, on the notification of a further AIF of the same type, re-examine whether the conditions of section 317(1), first sentence, points 1 and 3, are satisfied, where the notifying AIF management company confirms in the notification letter that no changes have occurred with regard to the requirements of section 317(1), first sentence, points 1 and 3, since the last notification. In this case, the particulars named in section 22(1), points 1 to 9, need not be submitted, and the period named in subsection (2), point 2, is three months.
(4) Section 316(4), first to third sentences, applies correspondingly, with the proviso that "AIF capital management company" is replaced by "EU AIF management company or foreign AIF management company". Where a planned change is implemented notwithstanding section 316(4), first to third sentences, or where a change triggered by an unforeseeable circumstance results in the EU AIF management company, the foreign AIF management company, or the management of the relevant AIF by the EU AIF management company or the foreign AIF management company, now infringing this Act, the Federal Institute takes all measures required, including the express prohibition of the marketing of the relevant AIF. Section 316(5) applies correspondingly.
(5) Where an EU AIF management company intends to market 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, the notification letter must, by way of derogation from subsection (1), second sentence, contain the following particulars and documents, in each case in the version in force:
1. a certificate from the competent authority of the EU AIF management company's home Member State, in a language customary in the international financial world, that the AIF management company, and the management of the AIF by it, comply with Directive 2011/61/EU;
2. the notification letter under Annex I to Implementing Regulation (EU) 2024/913;
3. the key information document under Regulation (EU) No 1286/2014;
4. a certificate from the competent authority of the EU AIF management company's home Member State that the marketing of such AIF to retail investors complies with the requirements of the home Member State.
Subdivision 2
Notification Procedure for the Marketing of AIF to Semi-Professional Investors and Professional Investors Domestically