Exemptions; authorisation to issue statutory instruments

(1) The following are not deemed investment services undertakings:
1. undertakings that provide investment services within the meaning of section 2(8), first sentence exclusively for their parent undertaking or their subsidiary or sister undertakings within the meaning of Article 4(1), points 15 and 16 of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 646/2012 (OJ L 176, 27.6.2013, p. 1) and section 1(7) of the Banking Act,
2. undertakings whose investment service for others consists exclusively in the administration of an employee-participation scheme in their own undertaking or in affiliated undertakings,
3. undertakings that provide exclusively the investment services referred to in both number 1 and number 2,
4. private and public-law insurance undertakings, insofar as they carry on the activities referred to in Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 335, 17.12.2009, p. 1; L 219, 25.7.2014, p. 66; L 108, 28.4.2015, p. 8), as last amended by Directive 2014/51/EU (OJ L 153, 22.5.2014, p. 1; L 108, 28.4.2015, p. 8),
5. the public debt management of the Federal Government or of a Land, of one of their special funds, of another Member State of the European Union or another state party to the Agreement on the European Economic Area, the Deutsche Bundesbank and other members of the European System of Central Banks, and the central banks of the other states party, as well as international financial institutions established jointly by two or more states for the purpose of mobilising funding and providing financial assistance to those states where they are experiencing or threatened by severe financing problems,
6. members of the liberal professions who provide investment services only incidentally within the meaning of Article 4 of Delegated Regulation (EU) 2017/565 and in the context of a mandate relationship as a member of a liberal profession, and who belong to a professional chamber constituted as a body governed by public law whose professional rules do not exclude the provision of investment services,
7. undertakings that, as an investment service for others, provide exclusively investment advice and investment broking between customers and
a) institutions within the meaning of the Banking Act or securities institutions within the meaning of the Securities Institutions Act,
b) institutions or financial undertakings having their seat in another state of the European Economic Area that satisfy the requirements of section 53b(1), first sentence, or (7) of the Banking Act, or securities institutions under section 73(1), first sentence, or section 74(1) of the Securities Institutions Act,
c) undertakings equated or exempted under a statutory instrument issued under section 53c of the Banking Act,
d) management companies, externally managed investment companies, EU management companies or foreign AIF management companies, or
e) offerors or issuers of investment assets within the meaning of section 1(2) of the Assets Investment Act, provided that these investment services are restricted to units or shares in domestic collective investment undertakings issued by a management company that holds an authorisation under section 7 or section 97(1) of the Investment Act as in force until 21 July 2013, that continues to exist for the period provided for in section 345(2), first sentence, (3), second sentence, in conjunction with (2), first sentence, or (4), first sentence, of the Capital Investment Code, or that holds an authorisation under sections 20 or 21, or sections 20 and 22, of the Capital Investment Code, or that are issued by an EU management company that holds an authorisation under Article 6 of Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009, p. 32; L 269, 13.10.2010, p. 27), as last amended by Directive 2014/91/EU (OJ L 257, 28.8.2014, p. 186), or under Article 6 of Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (OJ L 174, 1.7.2011, p. 1; L 115, 27.4.2012, p. 35), as last amended by Directive 2014/65/EU (OJ L 173, 12.6.2014, p. 349; L 74, 18.3.2015, p. 38), or to units or shares in EU collective investment undertakings or foreign AIFs that may be marketed under the Capital Investment Code, other than AIFs that may be marketed under section 330a of the Capital Investment Code, or to investment assets within the meaning of section 1(2) of the Assets Investment Act that are being offered to the public for the first time, and provided the undertakings are not authorised, in providing these financial services, to obtain ownership or possession of customers' funds or units, unless the undertaking applies for and is granted a corresponding authorisation under section 32(1) of the Banking Act or section 15(1) of the Securities Institutions Act; units or shares in hedge funds within the meaning of section 283 of the Capital Investment Code are not deemed units in collective investment undertakings within the meaning of this provision,
8. undertakings that carry on proprietary business or market making in commodity derivatives, emission allowances or derivatives on emission allowances, or that provide exclusively investment services within the meaning of section 2(8), no. 1 and nos. 3 to 10 to the customers and suppliers of their main business, provided that
a) these activities constitute, in each such case, both on an individual basis and on an aggregated basis at group level, an activity ancillary to the main business; the criteria for determining when an activity is ancillary are laid down in a Commission delegated act adopted on the basis of Article 2(4) and Article 89 of Directive 2014/65/EU, as amended from time to time,
b) the undertaking is not part of a group whose main business consists in the provision of investment services within the meaning of section 2(8), first sentence, no. 1, no. 2, letters b) to d), nos. 3 to 10, or second sentence, or in acting as a market maker in commodity derivatives, or in the provision of banking business within the meaning of section 1(1), second sentence of the Banking Act, c) the undertaking does not apply a high-frequency algorithmic trading technique, d) the undertaking notifies the Bundesanstalt, on request, of the circumstances on the basis of which it has concluded that its activity constitutes an activity ancillary to its main business, e) the undertaking notifies the Bundesanstalt without delay, on request, of the facts and calculation methods under Delegated Regulation (EU) 2017/592 on the basis of which it relies on the exemption,
9. undertakings that provide investment services exclusively in respect of commodity derivatives, emission allowances or derivatives on emission allowances, with the sole aim of hedging the business risks of their customers, provided that those customers
a) are exclusively local electricity undertakings within the meaning of Article 2, point 35 of Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ L 211, 14.8.2009, p. 55), or natural gas undertakings within the meaning of Article 2, point 1 of Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (OJ L 211, 14.8.2009, p. 94),
b) together hold 100 percent of the capital or voting rights of the undertakings concerned and jointly control them, and
c) would be exempted under number 8 if they provided the relevant investment services themselves,
10. undertakings that provide investment services exclusively in respect of emission allowances or derivatives on emission allowances, with the sole aim of hedging the business risks of their customers, provided that those customers
a) are exclusively installation operators within the meaning of section 3, no. 2 of the Greenhouse Gas Emissions Trading Act,
b) together hold 100 percent of the capital or voting rights of the undertakings concerned and jointly control them, and
c) would be exempted under number 8 if they provided the relevant investment services themselves,
11. undertakings that carry on exclusively proprietary business in financial instruments other than commodity derivatives, emission allowances or derivatives on emission allowances, and that provide no other investment services, including no other investment activities, in financial instruments other than commodity derivatives, emission allowances or derivatives on emission allowances, unless
a) they are market makers,
b) they are a member or participant of a regulated market or a multilateral trading facility, other than non-financial entities that execute transactions on a trading venue for the purpose of liquidity management or that objectively measurably reduce risks directly relating to the commercial activity or the liquidity and financial management of those non-financial entities or their groups,
c) they apply a high-frequency algorithmic trading technique, or
d) they carry on proprietary business when executing client orders,
12. undertakings that provide, as an investment service, exclusively investment advice in the course of another professional activity, without receiving specific remuneration for the investment advice,
13. exchange operators or operators of regulated markets that, in addition to operating a multilateral or organised trading facility, provide no other investment services within the meaning of section 2(8), first sentence,
14. undertakings that carry on placement business exclusively for offerors or issuers of investment assets within the meaning of section 1(2) of the Assets Investment Act,
15. operators within the meaning of section 3, no. 4 of the Greenhouse Gas Emissions Trading Act, where, in trading in emission allowances, they
a) carry on exclusively proprietary business,
b) carry on no investment broking and no contract broking,
c) apply no high-frequency algorithmic trading technique, and
d) provide no other investment services,
16. transmission system operators within the meaning of Article 2, point 4 of Directive 2009/72/EC or Article 2, point 4 of Directive 2009/73/EC, where they perform their tasks under those Directives, under Regulation (EC) No 714/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the network for cross-border exchanges in electricity and repealing Regulation (EC) No 1228/2003 (OJ L 211, 14.8.2009, p. 15), as last amended by Regulation (EU) No 543/2013 (OJ L 163, 15.6.2013, p. 1), under Regulation (EC) No 715/2009 of the European Parliament and of the Council of 13 July 2009 on conditions for access to the natural gas transmission networks and repealing Regulation (EC) No 1775/2005 (OJ L 211, 14.8.2009, p. 36; L 229, 1.9.2009, p. 29; L 309, 24.11.2009, p. 87), as last amended by Decision (EU) 2015/715 (OJ L 114, 5.5.2015, p. 9), or under network codes or guidelines adopted under those Regulations, persons acting in their name as service providers to perform the tasks of a transmission system operator under those legislative acts and under network codes or guidelines adopted under those Regulations, and operators or administrators of an energy balancing system, a pipeline network, or a system for balancing the supply and use of energy in performing such tasks, provided they provide the investment service in relation to commodity derivatives connected with that activity and provided they operate neither a secondary market nor a platform for the secondary trading of financial transmission rights,
17. central securities depositories within the meaning of Article 2(1), point 1 of Regulation (EU) No 909/2014, insofar as they provide the services referred to in Sections A and B of the Annex to that Regulation,
18. management companies, EU management companies and externally managed investment companies, provided they provide only collective portfolio management, or provide, in addition to collective portfolio management, exclusively the services or ancillary services listed in section 20(2) and (3) of the Capital Investment Code, and
19. crowdfunding service providers within the meaning of Article 2(1), letter
e) of Regulation (EU) 2020/1503, insofar as they provide crowdfunding services within the meaning of Article 2(1), letter a) of Regulation (EU) 2020/1503. Undertakings satisfying the conditions of the first sentence, numbers 9 and 10, must notify this to the Bundesanstalt annually.
(2) An undertaking that, as a tied agent within the meaning of section 2(10), first sentence of the Banking Act or section 3(2), first sentence of the Securities Institutions Act, provides, as an investment service, only investment broking, the placement of financial instruments without a firm underwriting commitment, or investment advice, is not deemed an investment services undertaking. Its activity is attributed to the institution or undertaking for whose account, and under whose liability, it carries on its activity.
(3) For undertakings that are members or participants of regulated markets or multilateral trading facilities and that make use of the exemption under subsection (1), number 4, 8 or 15, sections 77, 78 and 80(2) and (3) apply correspondingly. For undertakings that make use of an exemption under subsection (1), number 9 or 10, sections 63 to 83 and 85 to 92, and Article 26 of Regulation (EU) No 600/2014, apply correspondingly.
(4) The Federal Ministry of Finance may, by statutory instrument, adopt further provisions on the time, content and form of the notification under subsection (1), second sentence, and on the keeping of a public register of the notifying undertakings. The Federal Ministry of Finance may transfer this authorisation, by statutory instrument, to the Bundesanstalt.