AIFM passporting in Germany

1. EEA AIFMs 

German law distinguishes as to which type of investors the EU AIF shall be distributed to. 

Distribution to Semi-Professional and Professional Investors in Germany 

EU AIFs managed by EU AIFMs may be distributed in Germany by using the European marketing passport provided in the AIFMD. The passport permits distribution of the EU AIF to SemiProfessional and Professional Investors in Germany. For EU feeder AIFs the passport is only available if the master AIF is an EU AIF managed by an EU AIFM. In order to obtain such a passport for an EU AIF for Germany, its EU AIFM must notify the HMSA as to every EU AIF which it intends to distribute in Germany. The HMSA will notify the Federal Financial Supervisory Authority (“BaFin”) thereof. The requirements are laid down in the national law applicable to the EU AIFM which should be in accordance with Article 32 of the AIFMD. BaFin verifies whether (i) the notification file submitted by the HMSAis complete, (ii) the HMSA has issued a statement that the relevant EU AIFM is authorised to manage the relevant AIFs, and (iii) the documents have been submitted in German or in a language customarily used in international finance. BaFin further verifies whether the agreements with distribution partners prevent distribution to retail investors. 

Marketing in Germany may commence as soon as the HMSA have informed the EU AIFM that its notification has been transmitted to BaFin. Marketing is subject to further requirements vis-à-vis investors, in particular regarding the form of information disclosure. 

Distribution to retail investors in Germany 

An EU AIFM may also notify an EU AIF managed by it for distribution to retail investors in Germany. However, it cannot rely in this respect on the EU marketing passport. A separate marketing permission is required in order to obtain such permission, the EU AIFM must file a notification to BaFin directly indicating its intention to distribute an EU AIF to retail investors in Germany. Approval is only granted if a number of requirements specified in the German Capital Investment Code are adhered to (e.g. more detailed prospectuses, adherence to certain structural requirements, etc.). Marketing may not commence until formal approval has been obtained from BaFin. 

2. Third country AIFMs 

A Non-EU AIFM may notify EU AIFs managed by it for distribution to retail, Semi-Professional or Professional Investors in Germany. Distribution notifications must be filed to BaFin directly. BaFin will only grant its approval if certain structural and documentary requirements are fulfilled. The Non-EU AIFM must comply with to ongoing reporting obligations visàvis the investors and BaFin. Marketing cannot commence until formal approval has been obtained from BaFin. 

3. Pre-Marketing  

EU AIFMs requests their respective HMSA to submit a pre-marketing notification to BaFin. BaFin can request additional information from the HMSA. 

Non-EU AIFMs must inform BaFin about premarketing activities to Semi-Professional and Professional Investors in Germany within two weeks after the start of the first premarketing activity by using the notification letter published on the website of BaFin. 

If investors subscribe for units within a period of 18 months from the commencement of premarketing, the relevant distribution notification procedure must be completed. The same requirements apply to EU AIFM pre-marketing EU AIFs and Non-EU AIFM pre-marketing Non-EU AIFs. 

Pre-marketing vis-à-vis retail investors is not permitted. 

4. Fees 

Marketing to Semi-Professional and Professional Investors 

Fees charged for distribution permission are dependent on the statutory seat of the AIFM and AIF. BaFin charges a onetime fee for the notification by (i) an EU AIFM of EUR 466 per single EU AIF or sub-fund, and (ii) a Non-EU AIFM of EUR 1,641 per single EU AIF or sub-fund. In addition, BaFin charges EUR 113 per EU AIF or sub-fund per annum for the review of documents to be submitted annually. 

Marketing to retail investors 

BaFin charges a fee of EUR 1,641 per EU AIF or sub-fund notified to it. That fee is identical for EU AIFMs and Non-EU AIFMs. 

Note: Apart from the described marketing rules, different rules apply to (i) EU AIFM marketing Non-EU AIFs and (ii) Non-EU AIFM marketing Non-EU AIFs. These are not described herein.