Permissibility of the management of domestic special AIF and EU AIF, and of the distribution of AIF under sections 325, 326, 333, or 334, by non-EU AIF management companies

(1) A non-EU AIF management company for which the Federal Republic of Germany is the Member State of reference under section 56, and which intends to manage domestic special AIF or EU AIF, or to distribute AIF managed by it under Article 39 or 40 of Directive 2011/61/EU in the Member States of the European Union or the contracting states of the Agreement on the European Economic Area, requires authorisation from the Federal Institute. The Federal Institute has, in relation to non-EU AIF management companies for which the Federal Republic of Germany is the Member State of reference under section 56, the powers that are available to it under this Act in relation to AIF capital management companies. Non-EU AIF management companies to which the Federal Institute has granted authorisation under section 58 are subject to the supervision of the Federal Institute under this Act.
(2) A non-EU AIF management company intending to obtain authorisation under subsection (1) is obliged to comply with the same provisions of this Act as AIF capital management companies managing special AIF, with the exception of sections 53, 54, 321, 323, 331, and 331a. Insofar as compliance with one of the provisions of this Act named in the first sentence is incompatible with compliance with the legal provisions of the third country to which the non-EU AIF management company, or the non-EU AIF distributed in the Member States of the European Union or the contracting states of the Agreement on the European Economic Area, is subject, the non-EU AIF management company is not obliged to comply with the provisions of this Act, where it can demonstrate that 1. it is not possible to combine compliance with the provisions of this Act with compliance with a mandatory legal provision to which the non-EU AIF management company, or the non-EU AIF distributed in the Member States of the European Union or the contracting states of the Agreement on the European Economic Area, is subject, 2. the legal provisions of the third country to which the non-EU AIF management company or the non-EU AIF is subject contain an equivalent provision having the same regulatory purpose and the same level of protection for the investors of the AIF concerned, and 3. the non-EU AIF management company or the non-EU AIF complies with the equivalent provision named in point 2.
(3) A non-EU AIF management company intending to obtain authorisation under subsection (1) must have a legal representative with its seat in the Federal Republic of Germany. The legal representative is the point of contact for the non-EU AIF management company in the Member States of the European Union or the contracting states of the Agreement on the European Economic Area. All correspondence between the competent authorities and the non-EU AIF management company, and between the EU investors of the AIF concerned and the non-EU AIF management company, under Directive 2011/61/EU takes place through this legal representative. The legal representative performs, jointly with the non-EU AIF management company, the compliance function in relation to the management and distribution activities carried out by the non-EU AIF management company under Directive 2011/61/EU.