Determination of the Federal Republic of Germany as the Member State of reference of a non-EU AIF management company

(1) The Federal Republic of Germany is the Member State of reference of a non-EU AIF management company
1. where it can be the Member State of reference according to the criteria named in Article 37(4) of Directive 2011/61/EU, and no other Member State of the European Union or contracting state of the Agreement on the European Economic Area comes into consideration as the Member State of reference, or
2. where, according to the criteria named in Article 37(4) of Directive 2011/61/EU, both the Federal Republic of Germany and another Member State of the European Union or another contracting state of the Agreement on the European Economic Area come into consideration as the Member State of reference, where the Federal Republic of Germany has been determined as the Member State of reference in accordance with the procedure under subsection (2), or by decision of the non-EU AIF management company under subsection (4).
(2) In cases where, under Article 37(4) of Directive 2011/61/EU, further Member States of the European Union or further contracting states of the Agreement on the European Economic Area come into consideration as the Member State of reference alongside the Federal Republic of Germany, the non-EU AIF management company must apply to the Federal Institute for it to reach agreement with the competent authorities of all the Member States of the European Union or contracting states of the Agreement on the European Economic Area that come into consideration, on the determination of the Member State of reference for the non-EU AIF management company. The Federal Institute and the other competent authorities jointly determine the Member State of reference for the non-EU AIF management company within one month of receipt of an application under the first sentence.
(3) Where the Federal Republic of Germany is determined as the Member State of reference under subsection (2), the Federal Institute informs the non-EU AIF management company of this determination without delay.
(4) Where the non-EU AIF management company is not properly informed of the decision of the competent authorities within seven days of the decision under subsection (2), second sentence, being made, or where the competent authorities concerned have not reached a decision within the one-month period named in subsection (2), second sentence, the non-EU AIF management company may itself determine its Member State of reference according to the criteria set out in Article 37(4) of Directive 2011/61/EU.
(5) The non-EU AIF management company must be able to demonstrate its intention to build up effective distribution in a particular Member State of the European Union or a particular contracting state of the Agreement on the European Economic Area, by disclosing its distribution strategy to the competent authorities of the Member State of the European Union or contracting state of the Agreement on the European Economic Area that it has designated.