At present, foreign alternative investment fund (AIF) management companies intending to distribute shares or units in foreign AIF or EU-AIF managed by them to professional and semi-professional investors within the Federal Republic of Germany have to comply with the notification procedure pursuant to section 330 of the German Capital Investment Code (Kapitalanlagegesetzbuch – KAGB). The German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin) has now elaborated on the requirements under this notification procedure in a Guidance Notice, which is available for download here.
In its Guidance Notice, the BaFin, among other things, sets out information regarding the submission of notifications, the time limits for the assessment of notifications, the content of the notification letter and the supporting documents to be submitted with the notification letter. In addition thereto, particularities of notifications regarding umbrella funds as well as additional requirements, which apply to notifications regarding feeder AIF and to notifications in case of an intended distribution to semi-professional clients, are addressed.
Clarification and further specification of the duties of the depositary or, respectively, other entities that perform the depositary duties pursuant to article 21 sub-sections 7 – 9 of the Alternative Investment Fund Managers Directive (AIFMD) or of the details of the contractual relationship between the management company and these entities (“depo-lite”) are, however, not addressed in the Guidance Notice.
In its Guidance Notice, the BaFin states, among other things, that the notification letter may be either in German or in English. The BaFin also emphasises that the duties of the management company (e.g. to submit to the BaFin the annual report of the notified AIF within 6 months as of the end of each business year, at the latest, to notify the BaFin of any material changes, to provide information on its business activities upon the BaFin's request and to comply with certain reporting and information requirements) are to be complied with until all investors in the respective AIF, who are resident in Germany, have ended their investments.
It is also worth noting that the notification procedure pursuant to section 330 KAGB is only to be complied with until such date as is specified in the delegated act of the European Commission to be issued in accordance with article 66 sub-section 3 and article 67 sub-section 6 of the AIFMD. This means that the notification procedure pursuant to section 330 KAGB will no longer apply with the entry into force of the harmonised European passport regime for non-EU AIF management companies pursuant to the AIFMD.