Article 38 2

(a)

the criteria set out in the regulatory technical standard referred to in Article 41(2) are not met; and

(b)

the supervisor of the Member State where those agents, distributors, or other types of infrastructure, are located notifies the supervisor of the Member State where the head office of the obliged entity is located that, considering the limited infrastructure of the entity in its territory, supervision of the activities referred to in paragraph 1 is to be carried out by the supervisor of the Member State where the head office of the obliged entity is located.