Status as a subsidiary undertaking; authorisation to issue statutory instruments

(1) Subject to subsections (2) to (4), subsidiary undertakings within the meaning of this Part are undertakings 1. that are deemed subsidiary undertakings within the meaning of section 290 of the Commercial Code, or 2. over which a controlling influence can be exercised, regardless of legal form or seat.
(2) An investment services undertaking is not deemed a subsidiary undertaking within the meaning of this Part as regards the holdings it manages in the course of an investment service under section 2(3), first sentence, no. 7, where 1. the investment services undertaking exercises the voting rights attached to the shares concerned independently of the parent undertaking, 2. the investment services undertaking a) may exercise the voting rights only on the basis of instructions given in written form or by electronic means, or b) ensures, by appropriate arrangements, that financial portfolio management is carried out independently of other services and under conditions equivalent to those 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), as amended from time to time, 3. the parent undertaking notifies the Bundesanstalt of the name of the investment services undertaking and of the authority competent for its supervision, or of the absence of such an authority, and 4. the parent undertaking declares to the Bundesanstalt that the conditions of number 1 are satisfied.
(3) Management companies within the meaning of section 17(1) of the Capital Investment Code, and EU management companies within the meaning of section 1(17) of the Capital Investment Code, are not deemed subsidiary undertakings within the meaning of this Part as regards the holdings forming part of the collective investment undertakings they manage, where 1. the management company exercises the voting rights attached to the shares concerned independently of the parent undertaking, 2. the management company manages the holdings within the meaning of sections 33 and 34 forming part of the collective investment undertaking in accordance with Directive 2009/65/EC, 3. the parent undertaking notifies the Bundesanstalt of the name of the management company and of the authority competent for its supervision, or of the absence of such an authority, and 4. the parent undertaking declares to the Bundesanstalt that the conditions of number 1 are satisfied.
(4) An undertaking having its seat in a third country that would, under section 32(1), first sentence in conjunction with section 1(1a), second sentence, no. 3 of the Banking Act, require authorisation for financial portfolio management, or a licence under section 20 or section 113 of the Capital Investment Code, if it had its seat or head office domestically, is not deemed a subsidiary undertaking within the meaning of this Part where 1. the undertaking satisfies, as regards its independence, requirements equivalent to those under subsection (2) or subsection (3), including in conjunction with a statutory instrument under subsection (6), 2. the parent undertaking notifies the Bundesanstalt of the name of that undertaking and of the authority competent for its supervision, or of the absence of such an authority, and 3. the parent undertaking declares to the Bundesanstalt that the conditions of number 1 are satisfied.
(5) By way of derogation from subsections (2) to (4), investment services undertakings and management companies are nonetheless deemed subsidiary undertakings within the meaning of this Part where 1. the parent undertaking, or another subsidiary undertaking of the parent undertaking, itself holds shares in the holding managed by the undertaking, and 2. the undertaking cannot exercise the voting rights attached to those holdings at its own discretion, but only on the basis of direct or indirect instructions given to it by the parent undertaking or by another subsidiary undertaking of the parent undertaking.
(6) The Federal Ministry of Finance is authorised, by statutory instrument not requiring the consent of the Bundesrat, to adopt further provisions on the circumstances under which, in the cases of subsections (2) to (5), independence from the parent undertaking exists.