Licence for the provision of investment services and ancillary investment services

(1) A person who intends to provide, domestically, investment services within the meaning of section 2(2), first sentence, nos. 1 to 10, the ancillary investment services under section 2(3), nos. 1, 2 and 4, or ancillary business within the meaning of section 2(4), without exceeding the threshold specified in section 32(1), second sentence of the Banking Act, requires a written licence from the Bundesanstalt; the Bundesanstalt must apply section 37(4) of the Administrative Procedure Act.
(2) A licence for the ancillary investment services under section 2(3), nos. 1 or 2, or for an ancillary business within the meaning of section 2(4), may be granted only where a licence to provide at least one investment service exists or is granted at the same time; on the lapse or revocation of the licence for investment services, the licence for the ancillary investment service or the ancillary business also automatically lapses.
(3) A person who, in addition to providing investment services, also intends to purchase and sell financial instruments for their own account, without this constituting dealing on own account (own-account business), also requires a licence from the Bundesanstalt for this.
(4) A licence to carry on own-account business is also required, independently of a licence under subsection (1), by a person who carries on own-account business as a member or participant in a regulated market or a multilateral trading facility, or with direct electronic access to a trading venue, or in commodity derivatives, emission allowances or derivatives on emission allowances. A person who requires a written licence from the Bundesanstalt under the first sentence is deemed a securities institution.
(5) A licence from the Bundesanstalt is not required in the cases under subsection (4) where
1. the own-account business, as a member or participant in a regulated market or a multilateral trading facility, or with direct electronic access to a trading venue, is carried on by an undertaking that provides no investment services, in order to reduce, in an objectively measurable way, risks arising from the business activity or the liquidity and financial management of the undertaking or of the group to which the undertaking belongs;
2. the own-account business in emission allowances is carried on by an operator within the meaning of section 3, no. 4 of the Greenhouse Gas Emissions Trading Act that provides no investment services; or
3. the own-account business is carried on exclusively in commodity derivatives, emission allowances and derivatives on emission allowances, and
a) the undertaking is not part of a group whose main business consists in providing investment services;
b) the investment service constitutes, 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;
c) 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;
4. the own-account business, as a member of an exchange or participant in a trading venue, is carried on by an undertaking having its seat in a third country; this applies until a decision of the European Securities and Markets Authority on entry of the undertaking in the register under Article 48 of Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 (OJ L 173, 12.6.2014, p. 84; L 6, 10.1.2015, p. 6; L 270, 15.10.2015, p. 4; L 278, 27.10.2017, p. 54), as last amended by Regulation (EU) 2019/2033 (OJ L 314, 5.12.2019, p. 314). More detailed provisions on the time, content and form of the notification under the first sentence, no. 3, letter c), and on the administration of the relevant public register, may be made by statutory instrument under section 14(3); in particular, the undertaking may be granted write access to the page of the register established for that undertaking. Where write access is granted, the undertaking is responsible for the accuracy and currency of the page.
(5a) An undertaking having its seat in a third country does not require a written licence under subsection (1) to carry on dealing on own account within the meaning of section 2(2), no. 10, letter a), where it carries on dealing on own account as a member of an exchange or as a participant in a trading venue; this applies until a decision of the European Securities and Markets Authority on entry of the undertaking in the register under Article 48 of Regulation (EU) No 600/2014.
(6) A licence from the Bundesanstalt is also required where a securities institution granted a licence under subsection (1) distributes its own financial instruments, insofar as this is not already subject to a licence requirement as the provision of an investment service or the conduct of own-account business under subsection (3). Subsection (1), first half-sentence applies correspondingly.
(7) A licence under subsection (1), (3) or (4) may not be combined with a licence under section 32 of the Banking Act, section 10(1) or section 11(1) of the Payment Services Supervision Act, section 8 of the Insurance Supervision Act or section 20 of the Capital Investment Code, or with a registration under section 34(1) of the Payment Services Supervision Act. For securities institutions, the licence requirement under section 32 of the Banking Act is superseded by the licence under this Act. In derogation from the first sentence, a licence under subsection (1) may be combined with a licence under section 11 of the Payment Services Supervision Act, where the securities institution is permitted, under Article 60(3) of Regulation (EU) 2023/1114, to offer crypto-asset services.
(8) A licence may be granted subject to conditions that must remain within the scope of the purpose pursued by this Act.
(9) A licence under subsection (1) may be restricted to individual investment services, or restricted in substance so that the securities institution is not authorised to acquire ownership or possession of customers' funds or securities.
(10) Subsections (1) to (9) also apply where, in the course of a transformation under section 305, section 320 or section 333 of the Transformation Act, a legal person carrying on business subject to a licence requirement under subsections (1) to (4) or (6) transfers its legal seat from abroad to domestic territory.