(1) A person who intends to conduct banking business or provide financial services domestically on a commercial basis, or on a scale requiring a commercially organised business operation, requires the written or electronic licence of the supervisory authority; the Federal Institute must apply section 37(4) of the Administrative Procedure Act. Insofar as this business is covered by a licence under section 15 of the Securities Institutions Act, the licensing requirement under the first sentence gives way to it, and the undertaking is not deemed an institution within the meaning of this Act until the day on which 1. the monthly average of the undertaking's total assets, calculated over a period of twelve consecutive months, exceeds EUR 30 billion and it conducts underwriting business, proprietary trading, or dealing on own account, or 2. the average of the total assets, calculated over twelve consecutive months, is below EUR 30 billion, but the undertaking belongs to a group in which the consolidated total assets of all group undertakings established in the European Union, including their branches and subsidiaries established in third countries, that individually also have total assets of less than EUR 30 billion and conduct underwriting business, proprietary trading, or dealing on own account, equal or exceed EUR 30 billion; both are calculated as an average over twelve consecutive months. Where applicable, the application for a licence under the first sentence must be made without delay. Where the undertaking was licensed to operate under section 15 of the Securities Institutions Act at the point in time when it, or the group, exceeds the threshold determined in the second sentence, it may continue its securities business within the scope of that licence until the supervisory authority has made a final decision on the licence application or the application under subsection (1g). The applicant must enclose the following with its licence application: 1. suitable evidence of the funds necessary to conduct the business; 2. particulars of the managers; 3. the particulars necessary to assess the reliability of the applicant and of the persons designated in section 1(2), first sentence; 4. the particulars necessary to assess the professional qualification, required to manage the institution, of the owners and of the persons designated in section 1(2), first sentence; 4a. the particulars necessary to assess whether the managers have sufficient time available to perform their duties; 5. a viable business plan; the business plan must show: a) the type of business planned, b) the institution's organisational structure, stating the parent undertakings, financial holding companies, and mixed financial holding companies within the group, and c) the particulars necessary to assess the institution's proper business organisation under section 25a(1), including the planned internal control procedures; 6. insofar as significant holdings are held in the institution: a) particulars of the holders of significant holdings, b) the amount of these holdings, c) the particulars necessary to assess the reliability of these holders, or of their legal representatives or partners with unlimited liability, d) insofar as these holders are required to draw up annual financial statements: the annual financial statements for the last three financial years, together with audit reports from independent auditors, where such reports are required to be prepared, and e) insofar as these holders belong to a group: particulars of the group structure and, where such financial statements are required to be drawn up, the consolidated group financial statements for the last three financial years, together with audit reports from independent auditors, where such reports are required to be prepared; 6a. insofar as no significant holdings are held in the institution, the 20 largest shareholders at most; 7. particulars of the facts indicating a close link between the institution and other natural persons or other undertakings; 8. particulars of the members of the administrative or supervisory body, together with the facts necessary to assess their reliability and expertise, and particulars necessary to assess whether they can devote sufficient time to performing their duties. The information to be enclosed under the fifth sentence is to be determined in further detail by statutory instrument under section 24(4). The duties under the fifth sentence, point 6, letters d and e, do not apply to financial services institutions. In the licensing procedure, the supervisory authority appropriately takes into account the particulars already available on the basis of an existing licence under the Securities Institutions Act.
(1a) A person who intends, in addition to a licence under subsection (1) and to conducting banking business or providing financial services within the meaning of section 1(1a), second sentence, points 1 to 5 and 11, also to deal on own account, also requires the Federal Institute's written or electronic licence for this. This applies irrespective of the existence of a licence under subsection (1), and of the conduct of banking business or the provision of financial services within the meaning of section 1(1a), second sentence, points 1 to 5 and 11, also where the undertaking deals on own account as a member or participant of a regulated market or of a multilateral trading facility, or with direct electronic access to a trading venue, or with commodity derivatives, emission allowances, or derivatives on emission allowances. The Federal Institute's written or electronic licence is not required in the cases under the second sentence where 1. dealing on own account is conducted by an undertaking that does not conduct banking business or provide financial services, a) as a member or participant of a regulated market or of a multilateral trading facility, or b) with direct electronic access to a trading venue, in order to objectively measurably reduce the risks arising from the business activity or from the liquidity and financial management of the undertaking or of the group to which the undertaking belongs, 2. dealing on own account with emission allowances is conducted by an operator within the meaning of section 3, point 4, of the Greenhouse Gas Emissions Trading Act that does not conduct banking business or provide financial services within the meaning of section 1(1a), second sentence, points 1 to 4, 3. dealing on own account is conducted exclusively with commodity derivatives, emission allowances, and derivatives on emission allowances, and a) the undertaking is not part of a group whose main activity is conducting banking business or providing financial services within the meaning of section 1(1a), second sentence, points 1 to 4, b) in each of these cases, dealing on own account constitutes, both on an individual basis and on a basis aggregated at group level, an activity ancillary to the main activity; the criteria for when an ancillary activity exists are determined in a delegated act of the Commission adopted on the basis of Article 2(4) and Article 89 of Directive 2014/65/EU, c) the undertaking communicates to the Federal Institute, on request, the circumstances on the basis of which it has concluded that its activity constitutes an activity ancillary to its main activity, d) (repealed) 4. dealing on own account as a member of an exchange or a participant of a trading venue is conducted by an undertaking established in a third country; this applies until a decision by the European Securities and Markets Authority on the entry of the undertaking in the register under Article 48 of Regulation (EU) No 600/2014. The Federal Institute's written or electronic licence is also required where an institution that has been granted a licence under section 32(1), first sentence, distributes its own financial instruments, insofar as this is not already subject to a licensing requirement as conducting banking business, or as providing a financial service under subsection (1), first sentence, or as dealing on own account under the first sentence. An undertaking that requires the Federal Institute's written or electronic licence under the second sentence is deemed a financial services institution. Subsection (1), first sentence, second half-sentence, and subsections (2), (4), and (5), and sections 33 to 38, apply correspondingly.
(1b) The licence for restricted custody business within the meaning of section 1(1a), second sentence, point 12, may be granted only where a licence to provide at least one financial service within the meaning of section 1(1a), second sentence, points 1 to 4, or to conduct banking business within the meaning of section 1(1), second sentence, exists or is granted at the same time; on the expiry or revocation of that licence, the licence for restricted custody business also expires.
(1c) Central securities depositories authorised under Article 16(1) of Regulation (EU) No 909/2014 do not require a licence under subsection (1), first sentence, to provide core services within the meaning of Section A of the Annex to Regulation (EU) No 909/2014 and non-banking-type ancillary services within the meaning of Section B of the Annex to Regulation (EU) No 909/2014, and to conduct banking business and provide financial services that are also investment services within the meaning of section 2(8) of the Securities Trading Act, insofar as the conduct of this banking business or the provision of these financial services is covered by the authorisation under Article 16(1) of Regulation (EU) No 909/2014. The first sentence applies correspondingly to dealing on own account.
(1d) Central securities depositories within the meaning of Article 54(3) of Regulation (EU) No 909/2014 that hold a licence under subsection (1), first sentence, to conduct banking business under section 1(1), second sentence, points 1 and 2, do not require a further licence under subsection (1), first sentence, to conduct banking business or provide financial services to provide banking-type ancillary services within the meaning of Section C of the Annex to Regulation (EU) No 909/2014, insofar as the provision of the banking-type ancillary services is covered by the approval under Article 54(2) of Regulation (EU) No 909/2014.
(1e) Designated credit institutions within the meaning of Article 54(4), or central securities depositories within the meaning of Article 54(2a), first subparagraph, letter b, of Regulation (EU) No 909/2014, that hold a licence under subsection (1), first sentence, to conduct banking business under section 1(1), second sentence, points 1 and 2, do not require a further licence under subsection (1), first sentence, to conduct banking business or provide financial services to provide banking-type ancillary services within the meaning of Section C of the Annex to Regulation (EU) No 909/2014, insofar as the provision of the banking-type ancillary services is covered by the approval under Article 54(2) of Regulation (EU) No 909/2014.
(1f) CRR credit institutions with their statutory seat in Germany may, as part of a mandate as depositary under section 68(1) in conjunction with (2) of the Capital Investment Code, or section 80(1) in conjunction with (2), point 1, of the Capital Investment Code, for units or shares in investment funds, maintain the crypto securities register under section 1(1a), second sentence, point 8, without an additional licence.
(1g) An undertaking with its registered office in a third country does not require a written licence under subsection (1) to conduct proprietary trading within the meaning of section 1(1a), second sentence, point 4, letter a, where it conducts proprietary trading as a member of an exchange or as a participant of a trading venue; this applies until a decision by the European Securities and Markets Authority on the entry of the undertaking in the register under Article 48 of Regulation (EU) No 600/2014.
(1h) The supervisory authority may, on the basis of the information received in accordance with Article 95a of Directive 2014/65/EU as amended on 28 February 2024, exempt an undertaking under subsection (1), second sentence, that has submitted a licence application under subsection (1), fifth sentence, from the requirement to apply for a licence as a credit institution, after receiving its request. After receiving a request for an exemption, the supervisory authority informs the European Banking Authority of it. The European Banking Authority issues an opinion on the request for an exemption within one month of being informed by the supervisory authority, under Article 8a(3a), second subparagraph, second sentence, of Directive 2013/36/EU as amended on 27 November 2024. The supervisory authority decides on the request for an exemption, taking into account the opinion of the European Banking Authority and at least the following elements: 1. where the undertaking is part of a group, the group's organisational structure, the booking practice prevailing in the group, and the distribution of assets among the undertakings of the group, 2. the type, scale, and complexity of the activities carried out by the undertaking in the member state in which it is established and in the European Union as a whole, and 3. the significance of the activities carried out by the undertaking in the member state in which it is established and in the European Union as a whole, and the systemic risk associated with them. Where the supervisory authority's decision deviates from the European Banking Authority's opinion, the supervisory authority states the reasons for the deviating decision. The supervisory authority communicates its decision to the undertaking concerned and to the European Banking Authority. The supervisory authority reviews its decision every three years.
(2) The Federal Institute may grant the licence subject to conditions, which must stay within the purpose pursued by this Act. It may restrict the licence to individual banking business or financial services.
(2a) The licence under section 32(1), first sentence, to conduct banking business under section 1(1), second sentence, points 4 and 10, and to provide financial services under section 1(1a), second sentence, points 1 to 4, may, except in the cases under subsection (1), second sentence, be granted only where a licence to conduct at least one other banking business exists or is granted at the same time. The first sentence does not apply where a licence for qualified crypto custody business is granted at the same time, and the banking business conducted and the financial services provided relate to units of account within the meaning of section 1(11), point 7, or cryptographic instruments within the meaning of section 1(1a), ninth and tenth sentences.
(3) Before granting the licence, the Federal Institute must hear the protection scheme that would apply to the institution.
(3a) On granting the licence, where the institution is liable to contribute under the provisions of Part Two of the Deposit Guarantee Act, or under section 8(1) of the Investor Compensation Act, the institution must be informed of the compensation scheme to which it is assigned. Where the activity of an investment services undertaking within the meaning of section 2(10) of the Securities Trading Act relates to structured deposits within the meaning of the Securities Trading Act, and the structured deposit is issued by a credit institution that is a member of a deposit guarantee scheme within the meaning of the Deposit Guarantee Act, the credit institution's deposit guarantee scheme also covers the structured deposits issued by the credit institution.
(4) The Federal Institute must publish the grant of the licence in the Federal Gazette.
(5) The Federal Institute must maintain a register of institutions on its website, in which it must enter all domestic institutions granted a licence under subsection (1), also in conjunction with section 53(1) and (2), together with the date of the grant and the scope of the licence and, where applicable, the date of the expiry or revocation of the licence. The Federal Ministry of Finance may, by statutory instrument not requiring the consent of the Bundesrat, issue further provisions on the content of the register and on institutions' duties to cooperate in maintaining the register.
(5a) (repealed)
(6) Insofar as a payment institution has been granted a licence under section 10(1), first sentence, of the Payment Services Supervision Act, or an e-money institution a licence under section 11(1), first sentence, of the Payment Services Supervision Act, and it additionally provides financial services within the meaning of section 1(1a), second sentence, point 9, this payment institution or e-money institution does not require a licence under subsection (1). The notification duty under section 14(1) must be fulfilled, and section 14(2) to (4) applied.
(7) Subsections (1), (2), first sentence, and (3) apply correspondingly to the Federal Institute's draft decision under Article 14(2) of Regulation (EU) No 1024/2013. The tasks under subsections (3a) to (5) fall to the Federal Institute, irrespective of whether the licence is granted by the European Central Bank or the Federal Institute.
(8) Subsections (1) to (7) also apply where, in the course of a conversion under section 305, section 320, or section 333 of the Transformation Act, a legal person conducting business subject to a licensing requirement under subsections (1) to (1f) transfers its registered office from abroad to Germany.