Change of the Member State of reference of a non-EU AIF management company

(1) The further business development of a non-EU AIF management company in the Member States of the European Union and the contracting states of the Agreement on the European Economic Area has no effect on the determination of the Member State of reference. However, where a non-EU AIF management company authorised by the Federal Institute changes its distribution strategy within two years of its initial authorisation, and this change, had the changed distribution strategy been the original distribution strategy, would have affected the determination of the Member State of reference, the non-EU AIF management company must inform the Federal Institute of this change before it is carried out, and must designate its new Member State of reference in accordance with the criteria under Article 37(4) of Directive 2011/61/EU and in line with the new strategy. The non-EU AIF management company must give reasons for its assessment by disclosing its new distribution strategy to the Federal Institute. At the same time, the non-EU AIF management company must submit particulars of its legal representative, including his or her name and the place where he or she has his or her seat. The legal representative must have his or her seat in the new Member State of reference.
(2) The Federal Institute assesses whether the determination by the non-EU AIF management company under subsection (1) is correct, and informs the European Securities and Markets Authority of this assessment. In its notification to the European Securities and Markets Authority, the Federal Institute submits the non-EU AIF management company's reasoning for its assessment as to the Member State of reference, and information on the non-EU AIF management company's new distribution strategy.
(3) After the Federal Institute has received the recommendation of the European Securities and Markets Authority on its assessment under subsection (2), it informs the non-EU AIF management company, its original legal representative, and the European Securities and Markets Authority of its decision.
(4) Where the Federal Institute agrees with the assessment made by the non-EU AIF management company, it also informs the competent authorities of the new Member State of reference of the change. The Federal Institute transmits to the competent authorities of the new Member State of reference, without delay, a copy of the non-EU AIF management company's authorisation and supervisory documents. From the time the authorisation and supervisory documents are received, the competent authorities of the new Member State of reference are responsible for the authorisation and supervision of the non-EU AIF management company.
(5) Where the Federal Institute's final decision conflicts with the recommendations of the European Securities and Markets Authority under subsection (3), the following applies: 1. the Federal Institute informs the European Securities and Markets Authority of this, stating its reasons; 2. where the non-EU AIF management company distributes 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 these other Member States of the European Union or contracting states of the Agreement on the European Economic Area 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.
(6) Where it emerges, from the actual course of the non-EU AIF management company's business development in the Member States of the European Union or the contracting states of the Agreement on the European Economic Area within two years of the grant of its authorisation, that the distribution strategy submitted by the non-EU AIF management company at the time of its authorisation has not been followed, that the non-EU AIF management company has made false statements in this regard, or that the non-EU AIF management company has not complied with subsections (1) to (5) in changing its distribution strategy, the Federal Institute requests the non-EU AIF management company to designate the Member State of reference in accordance with its actual distribution strategy. The procedure under subsections (1) to (5) applies correspondingly. Where the non-EU AIF management company does not comply with the Federal Institute's request, the Federal Institute withdraws its authorisation.
(7) Where the non-EU AIF management company changes its distribution strategy after the expiry of the period named in subsection (1), and wishes to change its Member State of reference in line with its new distribution strategy, it may submit an application to the Federal Institute for a change of its Member State of reference. The procedure under subsections (1) to (5) applies correspondingly.
(8) Where the Federal Republic of Germany is determined as the new Member State of reference under subsections (1) to (7), the authorisation of the previous Member State of reference is deemed authorisation within the meaning of section 58. Section 39 applies correspondingly.