Exceptions

(1) The following are not deemed securities institutions: 1. the Deutsche Bundesbank and comparable institutions in the other Member States of the European Union that are members of the European System of Central Banks; 2. international financial institutions established by two or more Member States of the European Union that serve the purpose of mobilising funding and providing financial assistance to their members that are experiencing or threatened by severe financing problems; 3. Kreditanstalt für Wiederaufbau; 4. the public debt management of the Federal Government, of one of its special funds, of a Land, of a special fund of a Land, or of another state party; 5. private and public-law insurance undertakings; 6. undertakings that provide investment services within the meaning of section 2(2) exclusively for their parent undertakings or their subsidiary or sister undertakings; 7. 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 as investment services; 8. EU management companies and foreign AIF management companies, provided they provide only collective portfolio management, or provide, in addition to collective portfolio management, exclusively the services or ancillary services listed in Article 6(3) 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) (recast) (OJ L 302, 17.11.2009, p. 32; L 269, 13.10.2010, p. 27), as last amended by Directive (EU) 2019/2162 (OJ L 328, 18.12.2019, p. 29), or in Article 6(4) 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 (EU) 2019/2034 (OJ L 314, 5.12.2019, p. 64), as investment services; 9. undertakings whose investment service for others consists exclusively in the administration of an employee-participation scheme in their own undertaking or in affiliated undertakings; 10. undertakings that provide exclusively the investment services referred to in nos. 6 and 9; 11. undertakings that, as an investment service for others, provide exclusively investment advice and investment broking between customers and a) domestic credit institutions and securities institutions, b) credit institutions, securities institutions or financial undertakings having their seat in another state party to the European Economic Area that satisfy the requirements of section 53b(1), first sentence or (7) of the Banking 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(1) of the Capital Investment Act, provided that these investment services are restricted to units or shares in domestic collective investment undertakings issued by a management company that has been granted a licence under section 7 or section 97(1) of the Investment Act as in force until 31 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 a licence under sections 20 and 21 or sections 20 and 22 of the Capital Investment Code, or that are issued by an EU management company that has been granted a licence under Article 6 of Directive 2009/65/EC or of Directive 2011/61/EU, 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 Capital 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 licence under section 15(1) or section 32(1) of the Banking 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; 12. members of the liberal professions who provide investment services within the meaning of section 2(2), nos. 3 to 10 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 financial services; 13. undertakings that, apart from investment services within the meaning of section 2(2), nos. 1 to 9 and 10, letters a) to c), provide investment services exclusively in commodity derivatives, emission allowances and derivatives on emission allowances, subject to the further conditions that a) the undertaking is not part of a group whose main business consists in providing investment services within the meaning of section 2(2), 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) this ancillary activity, insofar as the undertaking does not provide the investment service within the meaning of section 2(2), no. 10, letter a), is carried on exclusively as a service for the customers or suppliers of its main business, and 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; 14. undertakings that carry on principal broking business exclusively as a service for offerors or issuers of investment assets within the meaning of section 1(2) of the Capital Investment Act or of closed-ended AIFs within the meaning of section 1(5) of the Capital Investment Code; 15. undertakings that carry on underwriting business exclusively as the assumption of equivalent guarantees within the meaning of section 1(1), second sentence, no. 10 of the Banking Act for offerors or issuers of investment assets within the meaning of section 1(2) of the Capital Investment Act or of closed-ended AIFs within the meaning of section 1(5) of the Capital Investment Code; 16. undertakings that provide, as investment services within the meaning of section 2(2), exclusively investment advice in the course of another professional activity, without receiving specific remuneration for the investment advice; 17. 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(2); 18. undertakings that carry on placement business exclusively for offerors or issuers of investment assets within the meaning of section 1(2) of the Capital Investment Act or of closed-ended AIFs within the meaning of section 1(5) of the Capital Investment Code; 19. undertakings that, apart from financial portfolio management, provide no investment services, provided the financial portfolio management is provided exclusively and is restricted to investment assets within the meaning of section 1(2) of the Capital Investment Act or closed-ended AIFs within the meaning of section 1(5) of the Capital Investment Code; 20. insofar as they provide investment services within the meaning of section 2(2) relating to commodity derivatives, subject to the further conditions that the investment services are connected with their respective main business and that the undertakings operate neither a secondary market nor a platform for the secondary trading of financial transmission rights: a) transmission system operators within the meaning of Article 2, point 4 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; L 72, 15.3.2018, p. 42) or Article 2, point 4 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), as last amended by Directive (EU) 2019/692 (OJ L 117, 3.5.2019, p. 1), where they are performing their tasks under those Directives, under Regulation (EU) 2019/943 of the European Parliament and of the Council of 5 June 2019 on the internal market for electricity (OJ L 158, 14.6.2019, p. 54), under Regulation (EC) 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 Regulation (EU) 2019/1999 (OJ L 328, 21.12.2018, p. 1), or under network codes or guidelines adopted under those Regulations; b) persons acting in their name as service providers to perform the tasks of a transmission system operator under Regulation (EU) 2019/943, Regulation (EC) No 715/2009, or network codes or guidelines adopted under those Regulations; c) 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; 21. central securities depositories authorised under Article 16 of Regulation (EU) 909/2014, insofar as they provide investment services within the meaning of section 2(2); and 22. undertakings authorised as crowdfunding service providers under Article 12(1) of Regulation (EU) 2020/1503 and of Directive (EU) 2020/1504 of the European Parliament and of the Council of 7 October 2020 amending Directive 2014/65/EU on markets in financial instruments (OJ L 347, 20.10.2020, p. 50), as amended from time to time, insofar as, in the context of crowdfunding services within the meaning of Article 2(1), letter a) of Regulation (EU) 2020/1503, they provide investment services within the meaning of section 2(2), nos. 3, 4, 8 or 9 and no other investment services. For the bodies and undertakings referred to in the first sentence, nos. 4 and 5, the provisions of this Act apply insofar as they provide investment services that do not form part of their own proper business.
(2) An undertaking having its seat domestically that does not carry on banking business within the meaning of section 1(1), second sentence of the Banking Act, and that provides, as an investment service, only investment broking, investment advice or placement business, and does so exclusively for the account of, and under the liability of, a securities institution having its seat domestically or acting domestically under section 73(1) (tied agent), is not deemed a securities institution, provided the liable securities institution has previously notified this to the Bundesanstalt. The activity of the tied agent is attributed to the liable securities institution. Where the circumstances notified by the liable securities institution change, the new circumstances must be notified to the Bundesanstalt without delay. More detailed provisions on the content of the notifications under the first and third sentences, and the documents and evidence to be enclosed, may be made by statutory instrument under section 14(3), first sentence. The Bundesanstalt keeps a public register on its website of the tied agents notified to it under this subsection, showing the liable securities institution, the tied agents, and the dates on which the activity under the first sentence began and ended. More detailed provisions on the conditions for entry in the register, and on its content and administration, may be made by statutory instrument under section 14(3); in particular, the liable undertaking may be granted write access to the page of the register established for that undertaking, and given responsibility for the accuracy and currency of that page.