Since the implementation of the AIFM-Directive into the German Capital Investment Code (Kapitalanlagesetzbuch, "KAGB"), the marketing of funds (AIFs) by third country managers to professional and semi-professional investors in Germany requires marketing approval by the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht "BaFin") pursuant to § 330 KAGB. We have informed about the necessary details in previous Client Alerts.
BaFin this week released on its website a Guidance Notice regarding the marketing of AIF by third country managers to professional and semi-professional investors ( link).
The Guidance Notice addresses the requirements of BaFin for the necessary notification procedure. The Guidance Notice in essence reflects the legal requirements as well as BaFin's recent administrative practice. This practice includes, among others, the submission of various information and documents relating to the third country manager and the AIF to be notified as well as to the depositary "light".
Unfortunately, in the Guidance Notice BaFin also foresees a new requirement: BaFin requires a confirmation by the third country manager to the effect that
- the third country manager and the AIF are registered or authorized with the respective supervisory authority of their respective home state (indicating the respective registration number/ID) and
- the supervisory authority of the respective home state has information and inspection rights towards the AIF and third country manager.
With this requirement, BaFin has gone beyond the legal requirements (and its recent administrative practive).
We therefore view this requirement as problematic and will seek the necessary dialogue with BaFin on a short-term basis.
We will inform you promptly should any changes occur to the Guidance Notice or the administrative practices of BaFin.
For questions, please do not hesitate to contact one of the authors.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.