Domestic branches and cross-border provision of services by EU UCITS management companies

(1) An EU UCITS management company may, without authorisation from the Federal Institute, provide, through a domestic branch or by way of the cross-border provision of services within Germany, the collective asset management of domestic UCITS, and services and ancillary services under section 20(2), point 1, 2, 3, or 4, where the competent authorities of the EU UCITS management company's home Member State
1. have covered, by its authorisation, the activities intended within Germany, and
2. have transmitted to the Federal Institute a notification letter under Article 1 or 2 of Delegated Regulation (EU) 2024/911, in each case in conjunction with Annexes III and VII of Implementing Regulation (EU) 2024/910, and certificates under Annex IV of Implementing Regulation (EU) 2024/910. Where an EU UCITS management company intends to distribute the units of an EU UCITS managed by it within Germany, without establishing a domestic branch or providing, by way of the cross-border provision of services, activities beyond this distribution, this distribution is subject only to sections 293, 294, 295a, 295b, 297, 298, 301 to 306a, and 309 to 311. Section 53 of the Banking Act does not apply in the case of the first sentence.
(2) The Federal Institute must, within two months of receipt of the notification under subsection (1), first sentence, inform an EU UCITS management company intending to establish a branch within Germany of the following:
1. the reports to the Federal Institute prescribed for its planned activities, and
2. the provisions applicable under subsection (4), first sentence. Upon receipt of the Federal Institute's communication, but no later than upon the expiry of the period named in the first sentence, the branch may be established and may commence its activity. Where the circumstances that the EU UCITS management company notified to the competent authority of its home Member State, correspondingly to Article 17(2)(b) to (d) of Directive 2009/65/EC, change, the EU UCITS management company must notify the Federal Institute of this at least one month before the changes take effect. Section 35(3) and (5) of the Securities Trading Act, and sections 293, 294, and 309 to 311, remain unaffected.
(3) The Federal Institute must, within one month of receipt of the notification under subsection (1), first sentence, inform an EU UCITS management company intending to become active within Germany by way of the cross-border provision of services of the following:
1. the reports to the Federal Institute prescribed for its planned activities, and
2. the provisions applicable under subsection (4), third sentence. The EU UCITS management company may commence its activity immediately after the Federal Institute has been informed by the competent authorities of the EU UCITS management company's home Member State. Where the circumstances that the EU UCITS management company notified to the competent authority of its home Member State, correspondingly to Article 18(1)(b) of Directive 2009/65/EC, change, the EU UCITS management company must notify the Federal Institute of this before the changes take effect. Section 35(3) and (5) of the Securities Trading Act, and sections 293, 294, and 309 to 311, remain unaffected.
(4) Section 3(1), (4), and (5), sections 14, 26(2) — also in conjunction with a statutory instrument under section 26(8) — and section 27(1) — also in conjunction with a statutory instrument under section 27(6) —, sections 33, 34(3), point 8, and sections 293, 294, 295(1) to (5) and (8), sections 297, 301 to 306, 306b, and 312 to 313a of this Act apply to the branches within the meaning of subsection (1), first sentence. Insofar as these branches provide services and ancillary services within the meaning of section 20(2), point 1, 2, 3, or 4, sections 63 to 68, 70, 82(1) to (9) and (13), and section 83 of the Securities Trading Act, and section 18 of the Act on the Deutsche Bundesbank, additionally apply correspondingly, with the proviso that several establishments of the same EU UCITS management company are treated as one branch. Insofar as these branches provide services and ancillary services within the meaning of section 20(2), point 1, 2, 3, or 4, a suitable auditor must examine, at least once a year, whether they comply with the provisions of the Securities Trading Act named in the second sentence; section 38(4), third to fifth sentence, and (5), applies correspondingly. Sections 14, 293, 294, 295(1) to (5) and (8), sections 297, 301 to 306, 306b, and 312 to 313a of this Act apply correspondingly to the activities carried on by way of the cross-border provision of services under subsection (1), first sentence.
(5) Where an EU UCITS management company does not comply with its obligations under subsection (4) and section 52(4), the Federal Institute requests it to remedy the deficiency within a specified period. Where the EU UCITS management company does not comply with the request, the Federal Institute informs the competent authorities of the EU UCITS management company's home Member State. Where the home Member State does not take any measures, or the measures prove insufficient, the Federal Institute may
1. after informing the competent authorities of the EU UCITS management company's home Member State, itself take the necessary measures and, if necessary, prohibit the conduct of new business within Germany, and
2. inform the European Securities and Markets Authority, where the competent authority of the EU UCITS management company's home Member State has, in the Federal Institute's view, not acted appropriately.
(6) In urgent cases, the Federal Institute may take the necessary measures before initiating the procedure provided for in subsection (5). It must inform the European Commission and the competent authorities of the EU UCITS management company's home Member State of this without delay. The Federal Institute must amend or annul the measures where the European Commission so decides after hearing the competent authorities of the EU UCITS management company's home Member State and the Federal Institute.
(7) The competent authorities of the EU UCITS management company's home Member State may, after previously informing the Federal Institute, themselves or through their agents examine, at the branch, the information necessary for the supervisory monitoring of the branch. At the request of the competent authorities of the EU UCITS management company's home Member State, the Federal Institute must
1. verify the accuracy of the data transmitted by the EU UCITS management company to the competent authorities of the EU UCITS management company's home Member State for supervisory purposes, or
2. permit the requesting authority, an auditor, or an expert to verify this data. The Federal Institute may, in the exercise of its due discretion, proceed correspondingly towards supervisory authorities in third countries where reciprocity is ensured. Section 5(2) of the Administrative Procedure Act, concerning the limits of administrative assistance, applies correspondingly. The EU UCITS management companies within the meaning of subsection (1), first sentence, must permit the examination.
(8) Sections 24c and 25h to 25m of the Banking Act, and section 93(7) and (8) in conjunction with section 93b of the Fiscal Code, apply correspondingly to the branches within the meaning of subsection (1), first sentence.