Guidance Notice on Cooperation Agreements between BaFin and Third Country Authorities under the AIFM Directive

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This Guidance Notice is addressed to foreign AIFMs, domestic management companies ( Kapitalverwaltungsgesellschaften ) and investment companies: the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin ) would like to inform you that its cooperation with supervisory authorities of third countries (non-member countries of the EU or the EEA ) shall be subject to bilateral Memoranda of Understanding ( MoU s) upon entry into force of the German Investment Code ( Kapitalanlagegesetzbuch – KAGB ), which transposes Directive 2011/61/EU ( AIFM Directive) into German law. Such MoU s are one of the prerequisites for conducting cross-border business with third countries.

10.02.2014

BaFin has already entered into
MoU s with supervisory authorities of the following third countries (as per 10 December 2015):

Australia (ASIC)
Bermuda (BMA)
Canada (
AMF
)
Canada (OSC)
Canada (ASC)
Canada (BCSC)
Canada (OSFI)
Cayman Islands (CIMA)
Guernsey (GFSC)
Hong Kong (SFC)
Hong Kong (HKMA)
India (SEBI)
Japan (JFSA)
Japan (METI)
Japan (MAFF)
Jersey (
JFSC
)
Republic of Korea (FSS)
Republic of Korea (FSC)
Singapore (MAS)
Switzerland (FINMA)
USA
(
SEC
)
USA
(
CFTC
)
USA
(FED/CC)

If you are planning to enter into transactions involving third countries that are not listed above, BaFin recommends the following:

Outsourcing of risk or portfolio management to a third country (section 36 (1) no. 4 of the KAGB )

If you are a domestic management company or an investment company, please contact the BaFin employee responsible for your company prior to any outsourcing activities.

Management of foreign
AIFs that are neither marketed in the member states of the European Union nor in the signatories to the Agreement on the European Economic Area by a domestic AIF management company ( AIF -Kapitalverwaltungsgesellschaft) authorised under the Investment Code (section 55 of the KAGB ).

If you are a domestic management company or an investment company, please contact the BaFin employee responsible for your company prior to accepting any mandates.

Marketing of
AIFs in a third country

Depending on the legal situation in the respective third country, a Memorandum of Understanding between the third country's supervisory authority and BaFin may be required. Therefore, please inform yourself about the legal situation in the respective third country beforehand. Should a Memorandum of Understanding be required, please contact BaFin .

Marketing of domestic special feeder
AIFs or
EU feeder
AIFs whose master
AIF is no
EU

AIF or domestic
AIF managed by an
EU

AIF management company or a domestic
AIF management company or marketing of foreign AIFs by an EU

AIF management company or a domestic
AIF management company to semi-professional and professional investors in Germany (section 329 of the KAGB ) Marketing of foreign AIFs or EU

AIFs by a foreign
AIF management company to semi-professional and professional investors (section 330 (1) no. 3a of the KAGB ) Marketing of foreign AIFs to retail investors (section 317 (2) of the KAGB )

If in one of the three cases listed above no MoU has been concluded with the competent foreign supervisory authority, please enter into contact with the competent foreign supervisory authority. The supervisory authority should then contact BaFin directly to prepare a Memorandum of Understanding under the AIFM Directive.

BaFin intends to sign MoUs under the
AIFM
Directive with the competent authority of a third country only if business relations with the respective third country that are relevant under the AIFM Directive exist or if establishing such business relations is at least planned. BaFin strongly recommends entering into contact with the respective foreign supervisory authority and/or BaFin beforehand in order to avoid any delay in the realisation of the planned third country transactions which could arise if an MoU were to be negotiated later on.

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