Transitional provisions for open-ended AIF and AIF management companies managing open-ended AIF that were already regulated under the Investment Act

(1) An AIF capital management company that, on the entry into force of this Act, 1. holds a licence as a capital investment company under section 7(1) of the Investment Act in the version in force until 21 July 2013, or as an investment stock corporation under section 97(1) of the Investment Act in the version in force until 21 July 2013, and 2. manages domestic open-ended retail AIF that were set up before 22 July 2013 within the meaning of section 343(4) and whose investment conditions were approved under sections 43 and 43a of the Investment Act in the version in force until 21 July 2013, must adapt the investment conditions, and where applicable the articles of association, of these domestic open-ended retail AIF to the provisions of this Act; the amended investment conditions must enter into force no later than 21 July 2014. The amendments to the investment conditions necessary for the adaptation need only be approved by the Federal Institute where these amendments are not purely editorial changes made on account of the adaptation to the terminology of this Act. No amendments other than those necessary to adapt the investment conditions to the provisions of this Act may be made to the investment conditions. Only section 163(2), first to fourth and seventh to tenth sentences, and (4), first, sixth, and seventh sentences, apply to the approval of the investment conditions, with the proviso that the period named in section 163(2), first sentence, is two months from submission of the application for approval of the investment conditions. Section 163 does not apply to purely editorial amendments to investment conditions within the meaning of the second sentence; however, section 163(4), first sentence and sixth sentence, first half-sentence, applies correspondingly to the publication of the amendments and their entry into force; the editorially adapted investment conditions must be submitted to the Federal Institute. The application for approval of the amendments to the investment conditions, or, where such an application is not required under the second sentence, the editorially adapted investment conditions, may not be submitted to the Federal Institute later than the application for a licence under section 22. Where the application for approval of the amendments to the investment conditions, or, where such an application is not required under the second sentence, the editorially adapted investment conditions, is submitted before the application for a licence under section 22, the AIF capital management company must, on submission, give the Federal Institute a binding declaration that it will submit an application for a licence under sections 20 and 22 no later than 21 July 2014. The Federal Institute must be informed without delay of the point in time at which the amendments to the investment conditions enter into force. Until the amendments to the investment conditions of the managed domestic open-ended retail AIF within the meaning of the first sentence, point 2, enter into force, but no later than until 21 July 2014, the provisions of the Investment Act in the version in force until 21 July 2013 applicable to corresponding retail AIF continue to apply to these AIF. Sections 1 and 2, and the provisions of this Act concerning the applications, administrative procedures, and notices required for conversion to the new law, and the transitional provisions under this Act, remain unaffected. From the entry into force of the amended investment conditions, but no later than from 22 July 2014, the provisions of this Act apply to the domestic open-ended retail AIF.
(2) Until receipt of the application for a licence under section 22 by the Federal Institute, but no later than until the end of 21 July 2014, the provisions of the Investment Act in the version in force until 21 July 2013 continue to apply to an AIF capital management company within the meaning of subsection (1), first sentence. Subsection (1), tenth sentence, applies correspondingly. Insofar as subsection (1), ninth sentence, does not provide otherwise, this Act applies in full to the AIF capital management company within the meaning of subsection (1), first sentence, from receipt of the application for a licence under section 22, but no later than from 22 July 2014, with the proviso that, as regards the management and marketing of retail AIF within the meaning of subsection (1), first sentence, point 2, within the scope of this Act, and for as long as the application for a licence, which must be submitted by 21 July 2014, has not yet been decided, the requirement of a licence is replaced by the not yet decided complete application for a licence. Where the AIF capital management companies named in subsection (1), first sentence, have not submitted an application for a licence under section 22 by the end of 21 July 2014, section 343(5) applies.
(3) An AIF capital management company that, on the entry into force of this Act, 1. holds a licence as a capital investment company under section 7(1) of the Investment Act in the version in force until 21 July 2013, or a licence as an investment stock corporation under section 97(1) of the Investment Act in the version in force until 21 July 2013, and 2. manages domestic open-ended special AIF that were set up before 22 July 2013 within the meaning of section 343(4), must adapt the investment conditions, and where applicable the articles of association, of these domestic open-ended special AIF to the provisions of this Act no later than 21 July 2014, and submit them together with the application for a licence under section 22. Subsection (1), eighth and ninth sentences, and subsection (2), apply correspondingly.
(4) Where an AIF capital management company within the meaning of subsection (3), first sentence, satisfies the conditions of section 2(4), the provisions of the Investment Act in the version in force until 21 July 2013 continue to apply to it, and to the domestic open-ended special AIF managed by it within the meaning of subsection (3), first sentence, until receipt of the application for registration under section 44 by the Federal Institute, but no later than until 21 July 2014. The transitional provisions, the provisions on registration, and the powers of the Federal Institute under this Act remain unaffected. From receipt of the application for registration by the Federal Institute, but no later than from 22 July 2014, the provisions of this Act applicable to this AIF capital management company apply.
(5) Where an AIF capital management company within the meaning of subsection (1), first sentence, or subsection (3), first sentence, applies under section 22 for a licence to manage AIF, it need not resubmit the particulars and documents that it has already submitted with the application for a licence under section 7(1) or section 97(1) of the Investment Act in the version in force until 21 July 2013, or in the course of the conversion of its investment funds to this Act, provided these particulars and documents remain current.
(6) An AIF capital management company within the meaning of subsection (1), first sentence, may continue to market, within the scope of this Act, domestic open-ended retail AIF managed by it within the meaning of subsection (1), first sentence, point 2, after 21 July 2013, under the provisions of the Investment Act in the version in force until 21 July 2013. The marketing right under the first sentence ends 1. where the Federal Institute has prohibited marketing, 2. where the Federal Institute has refused the licence under section 23, 3. on the entry into force of the amendments to the investment conditions under subsection (1), 4. but no later than at the end of 21 July 2014. Marketing of the domestic open-ended retail AIF named in the first sentence after 21 July 2014, or, where the amendments to the investment conditions under subsection (2) enter into force earlier, after the entry into force of the amendments to the investment conditions under subsection (2), is permissible only where the AIF capital management company has successfully completed the notification procedure under section 316 by the earlier of the two points in time. Section 316(1) to (3) applies to the notification procedure within the meaning of the third sentence, with the provisos that 1. the period under section 316(3) is two months, 2. the marketing notification must be submitted together with the application for a licence under section 22, 3. for as long as the application for a licence under section 22 submitted to the Federal Institute has not yet been decided, the requirement of a licence under section 22 is replaced by the complete application for a licence submitted to the Federal Institute but not yet decided. Marketing under the provisions of this Act may only be continued after the communication under section 316(3) and after the entry into force of the amendments to the investment conditions. During the period in which the requirement of a licence under section 22 is replaced by the application for a licence submitted to the Federal Institute but not yet decided, investors must be pointed, typographically highlighted in a prominent place, in the sales prospectus and the key investor information, to the missing licence of the AIF capital management company and to the consequences of a refusal of the licence. The marketing right lapses where the licence is refused under section 23.
(7) For an AIF capital management company within the meaning of subsection (3), first sentence, and the marketing, after 21 July 2013, of domestic open-ended special AIF managed by it within the meaning of subsection (3), first sentence, point 2, within the scope of this Act to professional or semi-professional investors, subsection (6) applies correspondingly, with the proviso that section 321 replaces section 316 in each case, and domestic open-ended special AIF replaces domestic open-ended retail AIF.
(8) AIF management companies that, on the entry into force of this Act, have made a notification under section 139(1) of the Investment Act in the version in force until 21 July 2013, or under section 7(1) of the Foreign Investment Act in the version in force until 31 December 2003, and are entitled to publicly market units or shares of an AIF managed by them, and intend to continue marketing these after 21 July 2014 within the scope of this Act, must 1. transmit a notification under section 320 to the Federal Institute in respect of a) EU AIF and b) foreign AIF marketed to retail investors within the scope of this Act, 2. transmit a notification under section 329 to the Federal Institute in respect of a) foreign AIF and b) EU feeder AIF whose master AIF is not an EU AIF or a domestic AIF managed by an EU AIF management company or an AIF capital management company, and which are marketed within the scope of this Act by an AIF capital management company or an EU AIF management company to professional or semi-professional investors, 3. transmit a notification under section 323, through the competent bodies of the EU AIF management company's home Member State, in respect of a) EU AIF and b) EU feeder AIF whose master AIF is an EU AIF or a domestic AIF managed by an EU AIF management company or an AIF capital management company, and which are marketed within the scope of this Act by an EU AIF management company to professional or semi-professional investors, 4. transmit a notification under section 330 to the Federal Institute in respect of a) foreign AIF and b) EU AIF marketed within the scope of this Act by a foreign AIF management company to professional or semi-professional investors, 5. transmit a notification under section 330a to the Federal Institute in respect of AIF marketed within the scope of this Act by an EU AIF management company satisfying the conditions under Article 3(2) of Directive 2011/61/EU to professional or semi-professional investors. The AIF management company may continue to market the AIF within the meaning of the first sentence within the scope of this Act under the marketing provisions of the Investment Act in the version in force until 21 July 2013 until the conclusion of the notification procedure. The marketing right under the second sentence ends no later than on 21 July 2014. Where no further marketing of the AIF within the meaning of the first sentence is intended, section 315 applies correspondingly. A fresh marketing notification under the first sentence is possible at any time.
(9) AIF management companies that, after 21 July 2014, carry out or have carried out, in respect of their EU AIF or foreign AIF, activities that did not count as public marketing under the Investment Act in the version in force until 21 July 2013, but are to be regarded as marketing under this Act, must transmit a notification under sections 320, 323, 329, 330, or 330a, where applicable through the competent bodies of the home Member State. Subsection (8), second, third, and fifth sentences, apply correspondingly.
(10) AIF capital management companies that, on the entry into force of this Act, are entitled in another Member State of the European Union or in another State party to the Agreement on the European Economic Area to market an AIF becoming subject to the notification duty under section 331 from 22 July 2013 to professional investors, may no longer market it there after 21 July 2014, unless they have obtained a new marketing right under section 331(5), second sentence. Differing periods in the Member State of the European Union or the other State party to the Agreement on the European Economic Area in which the AIF was previously authorised for marketing to professional investors remain unaffected. The periods under section 331(3) and (4) begin to run once the Federal Institute has granted the AIF capital management company a licence under section 22 and the amendments to the investment conditions have entered into force.
(11) No fresh approval under section 69(1), first sentence, also in conjunction with section 87, is required for depositaries of domestic open-ended retail AIF where their selection has already been approved under section 21(1) of the Investment Act in the version in force until 21 July 2013.
(12) An application by an AIF capital management company for the approval of the investment conditions of an AIF by the Federal Institute under the Investment Act, received by the Federal Institute before 21 July 2013 but not yet approved by the end of 21 July 2013, is deemed an application for approval of the investment conditions under this Act submitted on 22 July 2013. Insofar as particulars or documents required under this Act are missing, the Federal Institute must request them.