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 (Bundesanstaltfür Finanzdienstleistungsaufsicht
"BaFin") pursuant to § 330 KAGB. We
have informed about the necessary details in previous Client
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 (
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
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
the supervisory authority of the respective home state has
information and inspection rights towards the AIF and third country
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
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.
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Under Regulation (EU) No. 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories ("EMIR")...
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