Notification duty of a foreign AIF management company on the intended marketing, to semi-professional and professional investors domestically, of foreign AIF or EU AIF managed by it

(1) The marketing of units or shares in foreign AIF or EU AIF managed by a foreign AIF management company to professional or semi-professional investors within the scope of this Act is permissible where
1. in the case of marketing to professional investors,
a) the foreign AIF management company, and the management of the AIF by the foreign AIF management company, satisfy the requirements of section 35 and, where applicable, sections 287 to 292,
b) the foreign AIF management company has designated one or more bodies that perform the tasks under Article 21(7) to (9) of Directive 2011/61/EU, the foreign AIF management company does not perform these tasks itself, and it has notified this body or these bodies to the Federal Institute, and
c) the duties provided for in section 307(1) and (2), first sentence, and section 308, to inform the person interested in acquiring a unit or share or the investor, are properly satisfied;
2. in the case of marketing to semi-professional investors, the foreign AIF management company, and the management of the AIF by it, comply with the requirements of Directive 2011/61/EU as transposed in this Act;
3. in the case of marketing to semi-professional investors or professional investors,
a) appropriate cooperation arrangements exist between the Federal Institute and the competent authorities of the third country in which the foreign AIF management company has its seat, and, where applicable, the competent authorities of the third country in which the foreign AIF has its seat, and the competent authorities of the EU AIF's home Member State; the arrangements must aa) serve to monitor systemic risks, bb) be consistent with international standards and with Articles 113 to 115 of Delegated Regulation (EU) No 231/2013, and cc) ensure an efficient exchange of information enabling the Federal Institute to perform its tasks laid down in Directive 2011/61/EU;
b) neither the third country in which the foreign AIF management company has its seat, nor the third country in which the foreign AIF has its seat, is classified as a high-risk third country under Article 9(2) of Directive (EU) 2015/849;
c) the third country in which the foreign AIF management company has its seat, and the third country in which the foreign AIF has its seat, have signed an agreement with the Federal Republic of Germany that fully complies with the standards of 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, and these third countries are not listed in Annex I to the Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes;
d) the precautions under section 321(1), second sentence, point 7, are suitable to prevent marketing to retail investors. Where the notified AIF is a feeder AIF, the requirements of subsection (1), first sentence, points 1 or 2, and 3, must additionally be satisfied correspondingly by the master AIF and its management company.
(2) Where a foreign AIF management company intends to market units or shares in foreign AIF or EU AIF managed by it to semi-professional or professional investors within the scope of this Act, it must notify the Federal Institute of this. Section 321(1), second sentence, applies correspondingly. In addition, the following documents and particulars must be enclosed with the notification:
1. all material particulars of
a) the management company of the notified AIF and its governing bodies, and
b) the depositary or the bodies under subsection (1), first sentence, point 1, letter b, including the particulars corresponding to section 22(1), point 13;
2. a declaration by the foreign AIF management company that it undertakes to
a) submit to the Federal Institute the annual report of the AIF, which must satisfy the requirements of Article 22 and, where applicable, Article 29 of Directive 2011/61/EU, no later than six months after the end of every financial year; the annual report must bear the certification of an auditor;
b) inform the Federal Institute of all material changes to circumstances stated in the marketing notification, and to substantiate the changed particulars;
c) provide the Federal Institute, on request, with information on its business activities and to submit documents, and to satisfy, towards the Federal Institute, the reporting and information duties arising from subsection (1), first sentence, point 1 or 2;
3. in the case of marketing to semi-professional investors, additionally the particulars and documents corresponding to section 22(1), points 1 to 9, relating to the foreign AIF management company;
4. evidence of payment of the fee for the notification.
(3) Where the notified AIF is a feeder AIF,
1. the notification must additionally be accompanied, in relation to the master AIF and its management company, by particulars and documents
a) corresponding to subsection (2), third sentence, point 1, and corresponding to section 321(1), second sentence, and
b) in the case of marketing to semi-professional investors, aa) corresponding to subsection (2), third sentence, point 3, relating to the foreign AIF management company, where the master AIF is managed by a foreign AIF management company, or bb) a certificate from the competent authority of its home Member State, in a language customary in the international financial world, that the EU AIF management company, and the management of the master AIF by it, comply with Directive 2011/61/EU, where the master AIF is managed by an EU AIF management company, and
2. the declaration under subsection (2), third sentence, point 2, must also extend to the master AIF and its management company.
(4) Foreign-language documents must be submitted in German translation or in English. Section 316(2) and (3) applies correspondingly, with the proviso that "AIF capital management company" is replaced by "foreign AIF management company", and that the period named in section 316(3), first sentence, is
1. in the case of marketing to professional investors,
a) two months, where the notified AIF is not a feeder AIF,
b) where the notified AIF is a feeder AIF, aa) three months, where its master AIF is not managed by a foreign AIF management company, bb) four months, where its master AIF is managed by a foreign AIF management company,
2. in the case of marketing to semi-professional investors,
a) four months, where the notified AIF is not a feeder AIF,
b) where the notified AIF is a feeder AIF, aa) five months, where its master AIF is not managed by a foreign AIF management company, bb) eight months, where its master AIF is managed by a foreign AIF management company.
(5) Where the notifying foreign AIF management company has already notified an AIF for marketing to semi-professional investors within the scope of this Act under subsection (2), first sentence, the Federal Institute does not, on the notification of a further AIF of the same type, re-examine whether the conditions of subsection (1), first sentence, point 2, are satisfied, with the exception of Articles 22 and 23 of Directive 2011/61/EU, where the notifying AIF management company confirms in the notification letter that no changes have occurred with regard to the particulars made under subsection (2), third sentence, points 1 and 3, since the last notification. In this case, the particulars named in subsection (2), third sentence, points 1 and 3, are not required, and the periods named in subsection (4), second sentence, point 2, for marketing to semi-professional investors are each shortened by two months.