Guidance Notice on Marketing Pursuant to Section 329 of the Investment Code (KAGB)

This translation is furnished for information purposes only.
The original German text is binding in all respects.
Frankfurt am Main, 11.12.2024
Guidance Notice for notifications concerning the marketing of units or shares in a domestic special feeder AIF or EU feeder AIF which is managed by an EU AIF management company or a German AIF management company and whose master AIF is not an EU AIF or domestic AIF which is managed by an EU AIF management company or a German AIF management company or in foreign AIF to professional or semi-professional investors in the Federal Republic of Germany in accordance with section 329 of the German Investment Code (Kapitalanlagegesetzbuch – KAGB) Version dated: December 2024 Tabel of contents
I. Preliminary remark:........................................................................................................................................................ 2
II. General remarks regarding notification procedure .......................................................................................... 3
1. Notification letters ........................................................................................................................................................... 3
2. Submission of notification/documents/fees ........................................................................................................... 3
3. Updating of documents and change notices ......................................................................................................... 6
4. De-notification of marketing of units or shares of a feeder AIF or foreign AIF ........................................ 6
5. Obligation in accordance with section 259b(3) in conjunction with section 329(2) sentence 3
no. 2 ...................................................................................................................................................................................... 7
III. Content of the notification in accordance with section 329 ......................................................................... 8
1. Information ........................................................................................................................................................................ 8
2. Documentation ................................................................................................................................................................. 9
3. Additional requirements in relation to the master AIF and its management company as of the
notification of a feeder AIF

• Information and
• documentation............................................................................................................................................................. 12

I. Preliminary remark:
This Guidance Notice sets out the basic features of the notification procedure in accord-ance with section 329 of the KAGB and explains the conditions for marketing units or shares in a domestic special feeder AIF or EU feeder AIF which is managed by an EU AIF management company or a German AIF management company and whose master AIF is not an EU AIF or domestic AIF which is managed by an EU AIF management company or a German AIF management company or in foreign AIF to professional or semi-professional investors in the Federal Republic of Germany. The marketing of units or shares in the above-mentioned types of AIF to professional or semi￾professional investors in the Federal Republic of Germany is governed by the provi-sions of the KAGB. Under section 329 (2) sentence 1 of the KAGB1 , the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin) must be notified of the envisaged marketing of these units and shares. BaFin reviews whether the information and documentation transmitted are complete, sec-tion 329 (4) sentence 2 in conjunction with section 321 (2) sentence 1. If the notification is incomplete, BaFin will request the missing information and documentation to be pro-vided within 20 working days in accordance with section 329 (4) sentence 2 in conjunc-tion with
section 321 (2) sentence 2 in the form of a supplementary notification. The sup-plementary
notification must be submitted to BaFin within six months from submission of the notification or the last supplementary notification under section 329 (4) sentence 2 in conjunction with
section 321 (2) sentence 3; otherwise, commencement of marketing is prohibited (section 329
(4) sentence 2 in conjunction with section 321 (2) sentence 5). A new notification may be made at any time under section 329 (4) sentence 2 in conjunc-tion with section 321 (2) sentence 6. BaFin will provide notification within 30 working days of receipt of the full notification documents under section 329 (4) sentence 2 in conjunction with section 321 (3) sentence 1 as to whether marketing of the AIF indicated in the notifi-cation letter may commence in the Federal Republic of Germany. In the event that the notified AIF is a feeder AIF whose master AIF is not managed by a foreign AIF manage-ment company, the time limit under section 329 (4) sentence 2 no. 1 is two months. If the notified AIF is a feeder AIF whose master AIF is managed by a foreign management company, the time limit pursuant to section 329 (4) sentence 2 no. 2 will be extended to five months. BaFin may prohibit commencement of marketing within the time limits specified in sec-tion 329 (4) sentence 2 in conjunction with section 321 (3) if the AIF management com-pany or the management of the notified AIF by the AIF management company violates the provisions of the KAGB or Directive 2011/61/EU, section 329 (4) sentence 2 in con-junction with section 321 (3) sentence 2. If BaFin raises such objections within the time limits specified in section 329 (4) sentence 2 in conjunction with section 321 (3), the time limit will be interrupted and will resume upon submission of the amended information and documentation. If the objections have been removed and BaFin notifies this fact to the AIF management company, marketing of the notified AIF in the Federal Republic of Germany may be commenced as of the date of such notification. 1 Where the terms “section” or “sections” in the following are used without specific reference to legislation, these shall refer to sections of the KAGB.

Information on data processing and an explanation of your rights regarding the assessment of directors or holders of major participating interests under the KAGB can be found on the BaFin website by using the following link:
https://www.bafin.de/ref/19591714
The right to make changes and amendments to this Guidance Notice – in particular also on short notice – is reserved. II.General remarks regarding notification procedure This chapter of the Guidance Notice deals with the information and documentation which as a rule are required for notifications in accordance with section 329. This does not ex-clude the possibility of additional information being provided by the AIF management company or of further information and documentation being requested by BaFin.

1. Notification letters
   The notification must clearly state the full name of the sender and their function at the AIFM. Notification letters must be written in the German language. The notification must be signed at the end in the name of the AIF management company by its authorised repre-sentatives stating the place and date of execution, with the names of the undersigned to be repeated in typescript. If the notification is submitted not by the AIF management company but by an authorised agent, a power of attorney evidencing the authorisation of the notifier to notify BaFin of the marketing intention and to make and receive all decla-rations required in this connection must be submitted. It must be stated whether and, if applicable, to what extent the authorised agent, whose name and position must be identi-fied (i.e. at least a natural person), is authorised to make confirmations on behalf of the AIF management company. In particular, it must be stated whether the authorised agent is entitled to perform self-certifications. The power of attorney must be signed by the management vested with power of representation, with the names and titles of the un-dersigned being identified.
2. Submission of notification/documents/fees
   With effect from 01 April 2023, the notification can be submitted exclusively electronically by encrypted e-mail or by downloading it via BaFin’s reporting and publishing platform (Melde￾und Veröffentlichungsplattform – MVP-Portal) (section 7b (1) and 2 of the KAGB). The individual information must be identified according to the numbering and relevant key words of this Guidance Notice. Where individual items are not relevant, these shall nevertheless be included in the notification and identified by the words “not applicable”. The same applies where certain information in this Guidance Notice is stated to be not required in certain cases. In cases of doubt, a brief statement of grounds shall be provided together with the respective

items. The documents to be submitted will be identified on the top right-hand corner by the appropriate number of the Guidance Notice. If the information on one item is identical to the information on another item, a reference to this fact may be provided. The same applies with regard to the documents to be attached. In the case of self-managing AIF, the information and documentation required below with reference to the AIF management company apply analogously to the AIF itself. Likewise, obligations imposed by the Guidance Notice and/or the KAGB shall be incumbent on the AIF itself in the absence of any external AIF management company. The documents must be submitted in the most recent version in each case. Foreign-language documents must be submitted in the form of a German translation or in the English language. Where reference is made in the documents to be submitted to foreign legal provisions, these must be submitted upon request. Notifications in accordance with section 329 of the KAGB can be submitted via the MVP-Portal. This requires the notifier to have previously registered. Additional information is available under the following link: https://www.bafin.de/ref/19592042 However, notifications can also still be submitted to BaFin using encrypted e-mails. As from 01 April 2023, notifications and other documents may no longer be submitted as hard copies. Notifications that are submitted electronically by e-mail must be sent in encrypted form to the secureWA5@bafin.de mailbox. Please note the following when submitting items electronically:

A fee must be paid to submit a notification. In the case of an umbrella scheme, the notification and fee obligation shall extend to each investment compartment. If the documents to be attached to the individual notifications are identical, they need only be submitted with one notification; in all other respects, reference is to be made to the notification to which the relevant document is attached. If reference is made to documents that were submitted in an earlier notification procedure, the relevant investment fund must be identified by name. References are possible only when the documents are up-to-date. If the marketing of units of several AIFs or investment compartments is to be notified, a separate notification must be made for each AIF and a separate fee must be paid for each. As from 01 October 2021, a fee of EUR 1,641 per AIF/investment compartment must be paid. Information on submitting notifications by e-mail/download:
a) E-mail notifications must be encrypted. BaFin’s e-mail encryption programme (SEPPmail) uses certificates to ensure that e-mails are encrypted and decrypted. All BaFin’s public keys can be accessed in a directory available on the following webpage:
https://secmail.bafin.de/web.app Alternatively, you can request the responsible BaFin administrator’s certificate by sending an e-mail with the hashtag #getcertificate to their e￾mail. b) E-mails including all attachments may not exceed 20 MB in size; attachments may be packed in a zip file. If necessary, the contents must be split up across multiple e-mails; this must be indicated in the subject line (see e)). It is recommended that you give advance warning by e-mail before submitting large volumes of data. Equally, the technical arrangements for downloading information or documents relating to notifications should be clarified. Additional information on electronic transfers and e-mail transmission can be submitted in advance to the mailbox given above or clarified with the administrator responsible. c) E-mails that exceed the data volume given above will not be delivered to BaFin even if the sender receives a confirmation of dispatch suggesting the contrary. BaFin will not be made aware of such e-mails and cannot process them. The sender shall be responsible for all associated consequences. d) The permissible file formats for attachments/downloads are .pdf, .doc and .docx. e) The subject line for the e-mail must include the following:

• the eight-digit BaFin ID (70XXXXXX);
• the name of the AIFM;
• and a sequential number if the notification is transmitted using multiple e-mails (see
  b) above).

The legal basis for the charging of fees results from section 1 no. 18 in conjunction with section 2(1) of the Special Fee Ordinance of the Federal Ministry of Finance in respect of Financial Services Fees Regulation - FinDAGebV and No. 15.1.9.4, 2nd indent of the list of fees in this regulation. The fee must be transferred stating the following reference “BaFin, … (name of AIF to which the notification refers), Notification Fee, section 329 KAGB” to the following account:
Recipient: Bundeskasse
Deutsche Bundesbank, Saarbrücken branch
IBAN: DE 81 5900 0000 0059 0010 20
BIC code: MARK DEF 1590
The name of the AIF must be stated in full in each case unless full reproduction of such name is not possible due to technical restrictions, e.g. limited number of characters in the reference line in the bank transfer form. When making a transfer it must be ensured that the fee is credited in full and not reduced by banking fees or other charges.
3. Updating of documents and change notices
BaFin must be kept informed of all material changes in those circumstances stated with the marketing notification or forming the basis for the certificate issued by the competent authority in accordance with section 329 (2) sentence 3 nos. 1 and 2. Proof must be furnished for such change information. The amendment notice shall be communicated in the same form as the notification.
4. De-notification of marketing of units or shares of a feeder AIF or
foreign AIF
De-notification of the marketing of units or shares of an AIF that is marketed in accordance with section 329 shall be based on section 295a. The de-notification shall be communicated in the same form as the notification. The marketing of AIFs or investment compartments (in the case of an umbrella scheme) that have already been authorised for marketing can be de-notified with effect from a certain date (de-notification date) subject to the following conditions:
The de-notification of marketing shall be communicated to BaFin in accordance with section 295a (4) and compliance with the conditions set out in section 295a (1) shall be demonstrated in this notification.

Compliance with the conditions set out in section 295a (1) sentence 3 no. 1 shall be demonstrated by stating in the notification how (directly or via what financial intermediaries, where appropriate) and as from what date the blanket offer was publicly available for at least 30 working days and was addressed individually to those investors whose identity was known. A copy of the blanket offer shall be submitted together with the notification. “Publicly available” shall be deemed in particular to include publication of the blanket offer in a business or daily newspaper with a sufficiently large circulation or in the manner set out in the AIF’s fund rules, articles of association or partnership agreement, including the electronic information media specified in these, if appropriate; this obligation to demonstrate compliance does not apply in the case of closed-ended AIFs or of AIFs that are regulated under Regulation (EU) 2015/760. Compliance with the conditions set out in section 295a (1) sentence 3 no. 2 shall be demonstrated by stating in the notification the generally available medium (including electronic means) customarily used for marketing AIFs and suitable for typical AIF investors that was used to communicate the intention to de-notify marketing, and the date of such communication. “Generally available” shall be deemed in particular to include publication of the intended de-notification in a business or daily newspaper with a sufficiently large circulation or in the manner set out in the AIF’s fund rules, articles of association or partnership agreement, including the electronic information media specified these, if appropriate. Compliance with the condition set out in section 295a (1) sentence 3 no. 3 can be demonstrated by the AIFM making a binding self-declaration in the notification letter that any new or additional direct or indirect offer or placement of the units or shares of the AIF or investment compartment concerned shall be terminated at the latest on the de-notification date. The AIFM may no longer market the units or shares concerned as of the de-notification date. The AIFM may not engage in premarketing of the AIF or investment compartment that is affected by the de-notification of marketing, or of comparable investment strategies or investment concepts, for a period of 36 months as from the de-notification date. Your attention is drawn to the prohibition on marketing in accordance with section 314 (1) no. 11 and section 314 (2) in conjunction with section 295a (2) and (4).
5. De-notification of marketing of units or shares of a feeder AIF or
foreign AIFObligation in accordance with section 259b (3) in conjunction with section 329 (2) sentence 3 no. 2 Under section 295b (3), it must be noted that the obligation to update documents and the obligations set out in the declaration in accordance with section 329 (2) sentence 3 no. 2 do not end when marketing has been de-notified in the Federal Republic of Germany. The AIF management company is released from this obligation only when all investors residing and/or domiciled in the Federal Republic of Germany have ended their investment in the AIF. This being the case, BaFin must be informed by way of an amendment notice as soon as there are no longer any investors residing and/or domiciled in the Federal Republic of Germany who are invested in the AIF.

Your attention is drawn to the prohibition on marketing in accordance with section 314 (1) no. 11 and section 314 (2) in conjunction with section 295b (3).
III. Content of the notification in accordance with
section 329

1. Information
   1.1 All material information regarding the management company of the notified
   AIF and its corporate bodies a) Name or company name, legal form, registered office, address, contact/contact person with telephone number, fax number and e-mail address b) Names of the directors c) Name of the country under whose laws the AIF management company was established d) Name, registered office and address of the governmental authority to whose supervision the AIF management company is subject
   1.2 Information regarding the AIF
   a) Name of the AIF b) ISIN c) Registered office of the AIF d) Name of the country under whose laws it was established e) Legal form of the AIF f) Date of launch g) Open-ended or closed-ended AIF h) AIF type (hedge fund, private equity, fund of funds, etc.)
   1.3 All material information relating to the depositary of the notified AIF or the
   agents performing the tasks in accordance with Articles 21(7) to (9) of Directive 2011/61/EU a) Name or company name, legal form, registered office and address b) Principal activity c) Name of the country under whose laws it was established

d) Date of assumption of function
1.4 Description of the notified AIF and all information available to the investors
regarding the notified AIF
1.5 Information regarding the precautions taken to prevent units or shares of the
notified AIF from being marketed to private investors, and/or – if the notification does not cover marketing to these – semi-professional investors It must be stated in particular whether  the AIF management company has taken internal precautions to ensure that units or shares in the notified AIF are neither offered to nor placed with the aforementioned investor groups and  if marketing is also carried out online – separate sales portals exist for the respective investor groups which are password protected and if the AIF management company relies on independent companies for the provision of investment services for the notified AIF – the marketing agreements contain an obligation forbidding units or shares of the AIF that is notified for marketing from being offered to or placed with private investors, and/or – if the notification does not cover marketing to these – semi-professional investors and requiring the aforementioned separate, password-protected sales portals to be established. The prospectus and all other information documents, including marketing materials, must include a notice in accordance with section 293 (1) sentence 2 no. 3 in prominent print.
1.6 Statement as to whether marketing is performed through a branch of the AIF
management company in the Federal Republic of Germany and, if so, statement of the German address from which documents can be requested and the names and contact details of the directors of the branch (cf. Section 54 (2) nos. 2 and 3 of the KAGB).
2. Documentation
2.1 In case of notification by an EU AIF management company:
Certification by the competent authority of the home Member State, in a language commonly used in the international financial world, that the EU AIF management company and the management of the AIF comply with Directive 2011/61/EU, that the EU AIF management company has permission to manage AIF with a specific investment strategy (exceptionally, a printout of an official up-to-date register on the website of the

competent authority in the home country of the EU AIF management company may suffice by way of proof of permission to manage AIF)2 and, where applicable, of the conclusion of suitable agreements within the meaning of section 329 (1) sentence 1 no. 3 (a) on cooperation between the competent authorities in the home Member State of the EU AIF management company and the competent authorities in the third country in which the foreign AIF has its registered office. In case of marketing to professional investors only:
The certificate need not fulfil all of the requirements indicated in Article 21 of Directive 2011/61/EU. It must only fulfil the preconditions specified in Article 21 (7), (8) and (9)
2.2 In case of notification by an EU AIF management company:
Declaration that it undertakes a) to submit to BaFin the annual report of the AIF, which must satisfy the requirements of Article 22 and, if applicable, of Article 29 of Directive 2011/61/EU, no later than six months following the end of each financial year; the annual report must be issued with an auditor’s opinion b) to inform BaFin of all material changes in circumstances that have been stated with the marketing notification or forming the basis for the certificate issued by the competent authority in accordance with item 2.1. (or the register excerpt), and tofurnish proof of these changes c) to provide BaFin upon request with information regarding its business activity and to present documents
2.3 In case of a German AIF management company:
Declaration that it undertakes to notify BaFin of all material changes in circumstances that have been stated with the marketing notification and to furnish proof of these changes.
2.4 Proof of payment of the fee for notification
2.5 Programme of activity setting out the details of the notified AIF and its
registered office
2
The printout of an official, sufficiently up-to-date register with registered EU AIF management companies, published on the website of the competent authority in the home country may suffice by way of certification if this clearly and unmistakably indicates that permission has been granted to manage AIF with a specific investment strategy. In addition, the relevant link to this website must be provided in the notification letter, if this is not already provided in the printout.

2.6 Fund rules, articles of association or partnership agreement of the notified
AIF
2.7 Information in accordance with section 307 (1) for the notified AIF:
a) Description of the investment strategy and the objectives of the AIF b) Description of the type of assets in which the AIF is permitted to invest and of the techniques that it may use as well as all risks associated therewith c) Description of any investment restrictions d) Information regarding the registered office of any master AIF and the registered office of the target investment fund if the AIF is an investment fund of funds e) Description of the circumstances in which the AIF may use leverage, types and sources of leverage permitted and all associated risks, description of any restrictions on the use of leverage as well as the maximum scope of leverage which the AIF management company may use for the account of the AIF, and of the management of reuse of collateral and assets f) Description of the procedures by which the AIF may change its investment strategy or investment policy or both g) Description of the main legal implications of the contractual relationship entered into for the purpose of investment, including information on jurisdiction, on the applicable law and on whether legal instruments exist that provide for the recognition and enforcement of judgements in the territory where the AIF is established h) Identity of the AIF management company, the AIF’s depositary, auditor and any other service providers and a description of their duties and the investors’ rights i) Description of how the AIF management company is complying with the requirements of section 25 (6) or of Article 9(7) of Directive 2011/61/EU j) Description of any delegated management functions as referred to in Annex I of Directive 2011/61/EU by the AIF management company and of any safe-keeping function delegated by the depositary; the identifi cation of the authorised agent as well as a description of any conflicts of interest that may arise from such delegations k) Description of the AIF’s valuation procedure and of the pricing method ology for valuing assets, including the methods used in valuing hard-to-value assets in accordance with sections 278, 279, 286 or in accord ance with Article 19 of Directive 2011/61/EU l) Description of the AIF’s liquidity risk management, including the redemption rights both in normal and in exceptional circumstances, and the existing redemption arrangements with investors m) Description of all fees, charges and expenses and of the maximum amounts thereof which are directly or indirectly borne by investors

n) Description of the way in which the AIF management company ensures a fair treatment of investors and, whenever an investor receives preferential treatment or the right to receive preferential treatment, a description (1) of that preferential treatment (2) of the type of investors who receive such preferential treatment and (3) where relevant, of their legal or economic links with the AIF or the AIF management company o) Description of the procedure and conditions for the issue and sale of units or shares p) Statement of the latest net asset value of the AIF or the latest market price of the unit or share of the AIF in accordance with sections 278 and 286 (1) or in accordance with
Article 19 of Directive 2011/61/EU
q) Information on the historical performance of the AIF, where available r) Identity of the prime broker, a description of all material arrangements of the AIF management company with its prime brokers including the statement of the way in which conflicts of interest in relation thereto are managed and the provision in the contract with the depositary on the possibility of transfer and reuse of AIF assets and information on any transfer of liability to the prime broker that may exist s) Description of how and when the information required under section 308 (4) sentence 2 in conjunction with section 300 (1) to (3) or Articles 23(4) and (5) of Directive 2011/61/EU will be disclosed t) The information set out in Article 14 (1) and (2) of Regulation (EU) 2015/2365, in Articles 6 to 9 of Regulation (EU) 2019/2088 and in Articles 5 to 7 of Regulation (EU) 2020/852 u) In the event that swing pricing has been provided for, information on the type used (full or partial swing pricing), on how this works and on the calculation of the modified net asset value.
3. Additional requirements in relation to the master AIF and its
management company as of the notification of a feeder AIF
3.1 Information
3.1.1 If the management company of the master AIF is a foreign AIF management
company:
a) Details of the directors of the AIF management company of the master AIF b) Names of the persons holding significant participating interests in the AIF management company of the master AIF and details of their respective participating interests

c) The facts which indicate close links between the AIF management company and other natural or legal persons d) Details of the remuneration policy and remuneration practice of the AIF management company of the master AIF in accordance with section 37 e) Details of outsourcing agreements in accordance with section 36 f) Details of the agreements on the commissioning of the depositary in accordance with
section 80 for the master AIF
g) All material information relating to the depositary of the master AIF or the agents performing the tasks in accordance with Articles 21(7) to (9) of Directive 2011/61/EU (1) Name or company name, legal form, registered office and address (2) Principal activity (3) Name of the country under whose laws it was established (4) Date of assumption of function
3.1.2 Details of the registered office of the master AIF and its management
company, description of the master AIF and all of the information concerning the master AIF which is available for the investors (according to No. 1.1 – 1.3)
3.1.3 Name of the depositary of the master AIF, if not already indicated under
3.1.1. (g)
3.1.4 Details of the precautions implemented in order to prevent marketing of
units or shares of the master AIF to private investors, in particular if the AIF management company makes use of independent companies for the provision of investment services for the master AIF
3.2 Documentation
3.2.1 Programme of activity setting out the details of the master AIF and its
registered office
3.2.2 Fund rules, articles of association or partnership agreement of the aster AIF
3.2.3 Information in accordance with section 307 (1) for the master AIF – see
item 2.7.
3.2.4 If the management company of the master AIF is an EU AIF management
company:

Certificate in accordance with item 2.1. which relates to the master AIF and its management company
3.2.5 In case of notification by an EU AIF management company:
Declaration that it undertakes a) to submit to BaFin the annual report of the master AIF, which must satisfy the requirements of Article 22 and, if applicable, of Article 29 of Directive 2011/61/EU, no later than six months following the end of each financial year; the annual report must be issued with an auditor’s opinion b) to inform BaFin of all material changes in circumstances that have been stated with the marketing notification or forming the basis for the certificate issued by the competent authority in accordance with item 2.1. (or the register excerpt), and to furnish proof of these changes c) to provide BaFin with information on the business activity of the AIF management company of the master AIF upon request and to submit documents
3.2.6 If the management company of the master AIF is a foreign AIF management
company:
a) Appropriate documentation of the necessary resources for the business operations of the AIF management company of the master AIF in accordance with section 25 b) b) Documents assessing the reliability and suitability of the directors of the AIF management company of the master AIF c) Programme of activity of the AIF management company of the master AIF which, in addition to the organisational structure of the AIF management company, also includes details of how the AIF management company intends to comply with ist obligations under the KAGB
3.2.7 In case of notification by a German AIF management company:
Declaration in accordance with 2.3 which also covers the master AIF and ist AIF management company