Grant of authorisation for a non-EU AIF management company

(1) Where a non-EU AIF management company 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, and designates the Federal Republic of Germany as its Member State of reference, it must submit an application to the Federal Institute for the grant of authorisation.
(2) After receipt of an application for the grant of authorisation under subsection (1), the Federal Institute assesses whether the non-EU AIF management company's decision as to its Member State of reference complies with the criteria under section 56. Where this is not the case, it refuses the non-EU AIF management company's application for the grant of authorisation, stating the reasons for the refusal. Where the criteria under section 56 have been complied with, the Federal Institute carries out the procedure under subsections (3) to (6).
(3) Where the Federal Institute is of the opinion that a non-EU AIF management company's decision as to its Member State of reference complies with the criteria under Article 37(4) of Directive 2011/61/EU, it informs the European Securities and Markets Authority of this fact and requests it to issue a recommendation on its assessment. In its communication to the European Securities and Markets Authority, the Federal Institute submits to the European Securities and Markets Authority the non-EU AIF management company's reasoning for its decision as to the Member State of reference, and information on the non-EU AIF management company's distribution strategy.
(4) Within one month of receipt of the communication under subsection (3), the European Securities and Markets Authority issues a recommendation, addressed to the Federal Institute, on its assessment as to the Member State of reference according to the criteria named in Article 37(4) of Directive 2011/61/EU. While the European Securities and Markets Authority is reviewing the Federal Institute's assessment under Article 37(5), third subparagraph, of Directive 2011/61/EU, the period under section 22(2), first or second sentence, is suspended.
(5) Where the Federal Institute proposes, contrary to the recommendation of the European Securities and Markets Authority under subsection (4), to grant the authorisation as Member State of reference, it informs the European Securities and Markets Authority of this, stating its reasons.
(6) Where the Federal Institute proposes, contrary to the recommendation of the European Securities and Markets Authority under subsection (4), to grant the authorisation as Member State of reference, and the non-EU AIF management company intends to distribute units of AIF managed by it in Member States of the European Union or contracting states of the Agreement on the European Economic Area other than the Federal Republic of Germany, the Federal Institute also informs the competent authorities of the Member States of the European Union and the contracting states of the Agreement on the European Economic Area concerned of this, stating its reasons. Where applicable, the Federal Institute also informs the competent authorities of the home Member States of the AIF managed by the non-EU AIF management company of this, stating its reasons.
(7) Without prejudice to subsection (9), the Federal Institute grants the authorisation only once the following additional conditions have been satisfied: 1. the Federal Republic of Germany is designated as the Member State of reference by the non-EU AIF management company in accordance with the criteria under section 56 and is confirmed by the disclosure of the distribution strategy, and the procedure under subsections (3) to (6) has been carried out by the Federal Institute; 2. the non-EU AIF management company has appointed a legal representative with its seat in the Federal Republic of Germany; 3. the legal representative is, together with the non-EU AIF management company, the point of contact of the non-EU AIF management company for the investors of the AIF concerned, for the European Securities and Markets Authority, and for the competent authorities in respect of the activities for which the non-EU AIF management company holds authorisation in the Member States of the European Union or the contracting states of the Agreement on the European Economic Area, and is at least adequately equipped to be able to perform the compliance function under Directive 2011/61/EU; 4. suitable cooperation arrangements exist between the Federal Institute, the competent authorities of the home Member State of the EU AIF concerned, and the supervisory authorities of the third country in which the non-EU AIF management company has its registered seat, such that at least an efficient exchange of information is ensured that enables the competent authorities to perform their tasks under Directive 2011/61/EU; 5. the third country in which the non-EU AIF management company has its seat is not classified as a high-risk third country under Article 9(2) of Directive (EU) 2015/849; 6. the third country in which the non-EU AIF management company has its registered seat has signed an agreement with the Federal Republic of Germany that fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including, where applicable, multilateral tax agreements, and this third country is not listed in Annex I to the Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes; 7. the laws, regulations, and administrative provisions of a third country applicable to non-EU AIF management companies, or the limits on the supervisory and investigative powers of that third country's supervisory authorities, do not prevent the competent authorities from effectively performing their supervisory functions under Directive 2011/61/EU.
(8) The cooperation arrangements named in subsection (7), point 4, are given concrete form by Articles 113 to 115 of Delegated Regulation (EU) No 231/2013, and by the guidelines of the European Securities and Markets Authority.
(9) Authorisation by the Federal Institute is granted in accordance with the provisions of this Act applicable to the authorisation of AIF capital management companies. These apply correspondingly, subject to the following criteria: 1. the particulars under section 22(1), points 1 to 9, are supplemented by the following particulars and documents: a) a statement of reasons by the non-EU AIF management company for its assessment as to the Member State of reference in accordance with the criteria under Article 37(4) of Directive 2011/61/EU, together with particulars of the distribution strategy; b) a list of the provisions of Directive 2011/61/EU with which it is impossible for the non-EU AIF management company to comply, because compliance by the non-EU AIF management company is, under section 57(2), second sentence, incompatible with compliance with a mandatory legal provision 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; c) evidence in text form, on the basis of the regulatory technical standards developed by the European Securities and Markets Authority under Article 37(23)(b) of Directive 2011/61/EU, that the relevant legal provisions of the third country contain provisions that are equivalent to the provisions that cannot be complied with, pursue the same regulatory purpose, and offer investors of the AIF concerned the same level of protection, and that the non-EU AIF management company complies with these equivalent provisions; this evidence in text form is substantiated by a legal opinion on the existence of the relevant incompatible mandatory provision in the law of the third country, which also contains a description of the regulatory purpose and of the features of investor protection sought to be achieved by the provision, and d) the name of the non-EU AIF management company's legal representative and the place where it has its seat; 2. the particulars under section 22(1), points 10 to 14, may be limited to the domestic special AIF or EU AIF that the non-EU AIF management company intends to manage, and to the AIF managed by the non-EU AIF management company that it intends to distribute with a passport in the Member States of the European Union or the contracting states of the Agreement on the European Economic Area; 3. section 23, point 7, does not apply; 4. an application for authorisation is deemed complete where, in addition to the particulars and references named in section 22(3), the particulars under point 1 have been submitted; 5. the Federal Institute limits the authorisation, in relation to the management of domestic AIF, to the management of domestic special AIF; in relation to the management of EU AIF, the Federal Institute may limit the authorisation to the management of particular types of EU AIF and to special EU AIF.
(10) Section 39 applies correspondingly to the lapse or revocation of the authorisation of a non-EU AIF management company.
(11) Non-EU AIF management companies to which the Federal Institute has granted authorisation under the provisions of this Act must comply correspondingly with the provisions applicable to AIF capital management companies managing special AIF, save as otherwise follows from this Act.
(12) Where a third country in which the non-EU AIF management company has its seat is, in accordance with subsection (7), point 5, classified as a high-risk third country under Article 9(2) of Directive (EU) 2015/849, or is, in accordance with subsection (7), point 6, included in Annex I to the Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes after the authorisation of the non-EU AIF management company, the non-EU AIF management company must, within a reasonable period, take the necessary measures to remedy the situation in relation to the AIF managed by it, having due regard to the interests of investors. This period is no more than two years.