GERMANY Law and Practice Contributed by: Amos Veith, Jens Steinmüller, Ronald Buge and Stephan Schade, POELLATH
Rules of Conduct Ordinance and the Mediation Ordinance). This set of laws is supplemented by self-reg - ulatory standards, mainly the Rules of Good Conduct issued by the German Investment Funds Association and the Association’s sample investment guidelines. As described in 2.3.1 Regulatory Regime , a full fund management licence opens the door for a manager to market funds to retail investors. 3.3.2 Requirements for Non-Local Service Providers See 2.3.2 Requirements for Non-Local Service Providers . 3.3.3 Local Regulatory Requirements for Non- Local Managers The management of a retail AIF is not permitted for non-local managers. For UCITS, management by non-local UCITS managers is possible via the cross-border pass - port under the UCITS Directive. 3.3.4 Regulatory Approval Process The licensing procedure can take from six to 12 months, or sometimes longer. 3.3.5 Rules Concerning Pre-Marketing of Retail Funds The rules concerning pre-marketing only apply to AIFs, as noted in 2.3.5 Rules Concerning Pre- Marketing of Alternative Funds . 3.3.6 Rules Concerning Marketing of Retail Funds Retail funds can be marketed only by the follow - ing three categories of “marketers”.
• The fund manager itself can always market its “own” funds and, if fully licensed (ie, not only registered as a sub-threshold manager), may also market investment funds of other managers. • MiFID firms are entitled to market investment funds (provided they have a MiFID licence or passport for investment advice and the trans - mission or receipt of orders). • Firms or individuals with a financial interme - diary licence under the German Commerce Act (GewO) may also market retail funds. The financial intermediary licence is a non-MiFID licence and is based on the optional exemp - tion from MiFID II stipulated in Article 3 of MiFID II. However, since 2 August 2021, these firms or individuals may no longer engage in pre-marketing on behalf of a manager. If the retail fund is marketed by the fund man - ager itself, the fund manager must make the fund documents and the latest semi-annual and annual fund reports available to the prospective investor. In addition, certain ongoing publication requirements apply (such as the publication of fund documents and fund reports on the man - ager’s website). For MiFID firms, Germany considers the pro - spective investor as the regulatory client of the MiFID firm. Accordingly, MiFID firms have to adhere to the MiFID II rules of good conduct towards the prospective investor (requiring items such as suitability or appropriateness checks). This applies in a broadly similar fashion to the above-mentioned GewO firms. The MiFID appli - cation further means that marketing materials provided by the fund manager must comply with the MiFID II requirements on marketing materials (eg, with regard to past or simulated performance). As mentioned in 2.3.6 Rules Con- cerning Marketing of Alternative Funds , man-
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