Appointment

(1) The AIF capital management company must ensure that a depositary within the meaning of subsection (2), or, where the requirements of subsections (3) and (4) are satisfied, a depositary within the meaning of subsection (3), is appointed for every AIF managed by it; section 55 remains unaffected. The appointment of the depositary must be agreed in an agreement concluded in text form. The agreement governs, among other things, the exchange of information considered necessary to enable the depositary to perform its duties for the AIF for which it has been appointed as depositary, in accordance with the provisions of this Act and the other relevant laws, regulations, and administrative provisions.
(2) The depositary is
1. a credit institution within the meaning of Article 4(1), point 1, of Regulation (EU) No 575/2013, having its registered seat in the European Union or in another contracting state of the Agreement on the European Economic Area, and authorised under section 32 of the Banking Act or under the provisions applicable in the EU AIF's home Member State implementing Directive 2013/36/EU; a branch of a CRR credit institution within the meaning of section 53b(1), first sentence, of the Banking Act, located within the territorial scope of this Act, may also be appointed as depositary for domestic AIF;
2. an investment firm within the meaning of Article 4(1), point 2, of Regulation (EU) No 575/2013, having its registered seat in the European Union or in another contracting state of the Agreement on the European Economic Area, to which the own funds requirements under Article 92 of Regulation (EU) No 575/2013, including the capital requirements for operational risks, apply, which is authorised under the provisions implementing Directive 2014/65/EU, and which also provides the ancillary services of custody and administration of financial instruments for the account of clients under Annex I, Section B, point 1, of Directive 2014/65/EU; such investment firms must, in every case, have own funds that are not less than the amount of initial capital named in Article 28(2) of Directive 2013/36/EU; or
3. another category of institution that is subject to supervision and ongoing monitoring, and that, on 21 July 2011, fell under one of the categories of institutions determined by the Member States of the European Union or the other contracting states of the Agreement on the European Economic Area under Article 23(3) of Directive 2009/65/EC, from which a depositary may be chosen.
(3) By way of derogation from subsection (2), the depositary for closed-ended AIF may, instead of the institutions named in section 80(2), points 1 to 3, also be a trustee who performs the tasks of a depositary in the course of his or her professional or business activity, where
1. redemption rights cannot be exercised in respect of the closed-ended AIF within five years of the first investments being made,
2. the closed-ended AIF, in line with its main investment strategy, generally
a) does not invest in assets that must be held in custody under section 81(1), point 1, or
b) invests in issuers or non-listed companies in order possibly to obtain control over such companies under section 261(7), sections 287, 288. With regard to the professional or business activity, the trustee must be subject to
1. legally recognised mandatory professional registration, or
2. laws, regulations, or professional rules that can provide sufficient financial and professional guarantees to enable it to effectively perform the relevant tasks of a depositary and to fulfil the obligations inherent in those functions. The sufficient financial and professional guarantee must be ensured on an ongoing basis. The trustee must notify the Federal Institute without delay of changes affecting its financial and professional guarantees. Where the trustee takes out insurance for the purpose of the financial guarantee, the insurance undertaking must be obliged, in the insurance contract, to notify the Federal Institute without delay, via an electronic communication procedure made available by it, of the commencement and the termination or cancellation of the insurance contract, and of circumstances impairing the prescribed insurance cover.
(4) The trustee within the meaning of subsection (3) must be named to the Federal Institute before appointment. Where the Federal Institute has concerns about the appointment, it may require that a different trustee be named within a reasonable period. Where this does not occur, or where the Federal Institute also has concerns about the appointment of the newly proposed trustee, the AIF capital management company must appoint a depositary within the meaning of subsection (2).
(5) Without prejudice to subsection (6), third sentence, the depositary for non-EU AIF may also be a credit institution or an undertaking comparable to the undertakings named in subsection (2), first sentence, points 1 and 2, provided that the conditions of subsection (8), first sentence, point 2, are complied with.
(6) Where the AIF capital management company manages a domestic AIF, the depositary must have its registered seat or its registered branch within the territorial scope of this Act. Where the AIF capital management company manages an EU AIF, the depositary must have its registered seat or its registered branch in the home Member State of the EU AIF, unless that home Member State has made use of the option under Article 21(5a) of Directive 2011/61/EU. For non-EU AIF, the depositary may have its registered seat or its registered branch in the third country in which the non-EU AIF has its seat, or within the territorial scope of this Act where the AIF capital management company manages a non-EU AIF, or in the Member State of reference of the non-EU AIF management company managing the non-EU AIF; section 55 remains unaffected.
(7) Where a depositary within the meaning of subsection (2), point 1, is appointed for the domestic AIF, it must be a CRR credit institution within the meaning of section 1(3d) of the Banking Act holding authorisation to conduct custody business under section 1(1), second sentence, point 5, of the Banking Act, or to provide restricted custody business under section 1(1a), second sentence, point 12, of the Banking Act. Where a depositary within the meaning of subsection (2), point 2, is appointed for the domestic AIF, it must be a financial services institution holding authorisation for restricted custody business under section 1(1a), second sentence, point 12, of the Banking Act; where the cash account listed in section 83(6), second sentence, is opened at the depositary, the depositary must be a credit institution holding authorisation to conduct deposit business under section 1(1), second sentence, point 1, of the Banking Act.
(8) Without prejudice to the requirements of subsections (2) to (5), the appointment of a depositary having its seat in a third country is subject to the following conditions:
1. cooperation and information-sharing arrangements exist between the competent authorities of the Member State of the European Union or the other contracting state of the Agreement on the European Economic Area in which the units of the non-EU AIF are to be traded, and, where these are different authorities, the authorities of the home Member State of the AIF capital management company or the EU AIF management company, and the competent authorities of the depositary;
2. the depositary is subject to effective prudential regulation, including minimum capital requirements, and to supervision, each corresponding to the legal provisions of the European Union and effectively enforced;
3. the third country in which the depositary has its seat is not classified as a high-risk third country under Article 9(2) of Directive (EU) 2015/849;
4. the Member States of the European Union or the other contracting states of the Agreement on the European Economic Area in which the units of the non-EU AIF are to be distributed, and, where different, the home Member State of the AIF capital management company or EU AIF management company, have concluded an agreement with the third country in which the depositary has its seat that fully complies with the standards of Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including 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;
5. the depositary is contractually liable to the non-EU AIF, or to the investors of the non-EU AIF, correspondingly to section 88(1) to (4), and expressly declares its willingness to comply with section 82. Where a competent authority of another Member State of the European Union or another contracting state of the Agreement on the European Economic Area does not agree with the assessment, by the competent authorities of the home Member State of the AIF capital management company or EU AIF management company, of the application of the first sentence, point 1, 3, or 5, that competent authority may bring the matter to the attention of the European Securities and Markets Authority; the latter may act within the framework of the powers conferred on it by Article 19 of Regulation (EU) No 1095/2010. By way of derogation from the introductory wording of the first sentence, the conditions of the first sentence, points 3 and 4, apply at the time the depositary is appointed. Where a third country in which a depositary has its seat is, in accordance with the first sentence, point 3, classified as a high-risk third country under Article 9(2) of Directive (EU) 2015/849, or is, in accordance with the first sentence, point 4, included in Annex I to the Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes, the AIF capital management company or the EU AIF management company must appoint a new depositary within a reasonable period, having due regard to the interests of investors. The period under the third sentence is no more than two years.
(9) At least one manager of the institution to be appointed as depositary must have the experience necessary for the depositary tasks. This institution must be willing and able to establish the organisational arrangements necessary to perform the depositary tasks. Where a natural person is appointed as trustee under subsections (3) and (4) to perform the depositary function, that person must have the experience necessary for the depositary tasks and must establish the organisational arrangements necessary to perform the depositary tasks.
(10) The details to be included in the agreement named in subsection (1), and the general criteria for assessing whether the requirements for prudential regulation and supervision in third countries under subsection (8), first sentence, point 2, correspond to the legal provisions of the European Union and are effectively enforced, are determined by Articles 83 and 84 of Delegated Regulation (EU) No 231/2013.