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22.01.2016 | KPMG Law Insights

Alternative Investments Legal – Alternative Investments Legal | Issue 1/2016

Dear Readers,

The new year is starting with a large number of regulatory innovations.

BaFin has published a fact sheet on managing directors in accordance with the KWG, ZAG and KAGB, which explains the professional and personal requirements for managing directors.

Just in time for the launch of Solvency II, BaFin has also published a large number of interpretative letters on Solvency II and an overview of the applicable regulations.

The EU Commission has asked ESMA to consider the following jurisdictions for a possible extension of the AIFMD passport to non-EU AIFMs and AIFs currently still subject to the respective national private placement regimes by 30.06.2016: USA, Hong Kong and Singapore, Japan, Isle of Man, Cayman Islands, Bermuda and Australia.

We wish you a good and successful year 2016!

With best regards

Dr. Ulrich Keunecke

KVGen

BaFin publishes information sheet on managing directors pursuant to the German Banking Act (KWG), the German Securities Supervision Act (ZAG) and the German Investment Code (KAGB)

On January 4, 2016, BaFin published an “Instruction Sheet on Business Managers pursuant to the German Banking Act (KWG), the German Securities Supervision Act (ZAG) and the German Capital Investment Act (KAGB)”. The fact sheet explains the professional and personal requirements for persons appointed as managing directors under the respective supervisory laws. It provides an overview of the related notification requirements, including the documents that must be submitted. The fact sheet is dedicated in detail to the extended requirements for business managers resulting from the amendments to the German Banking Act (Kreditwesengesetz). For the first time, the requirements for managing directors within the scope of the German Investment Code (Kapitalanlagegesetzbuch) are also the subject of the information sheet. In addition to the fact sheet, BaFin provides a number of forms and checklists on its homepage that are to be used immediately to facilitate the filing of notifications.

Related links

The fact sheet and forms can be found at this link.

AIF

Draft Investment Tax Reform Act

On December 18, 2015, the German Federal Ministry of Finance published a draft bill for an investment tax reform act (Investmentsteuerreformgesetz – InvStRefG).

The bill proposes to introduce a new taxation system for mutual investment funds, which is to be much simpler, easier to administer and more structurally sound. For special investment funds, the previous semi-transparent taxation system is to be continued in principle.

In order to prevent arrangements to avoid dividend taxation (so-called cum/cum transactions), the draft law makes the creditability of capital gains tax levied on dividends dependent on the taxpayer holding the share for a minimum period of time and thereby bearing a minimum economic risk.

Related links

You can access the draft bill here.

KVGen

First Financial Market Amendment Act passed

On 6 January 2016, the German Federal Cabinet adopted the First Financial Market Amendment Act (“FimanoG“). The Act serves to implement the Market Abuse Directive (“MAD“), the Market Abuse Regulation (“MAR“), the EU Regulation on Central Securities Depositories (“CSDRegulation”) as well as the EU Regulation on Key Information Documents for Packaged Retail Investment Products and Insurance Products (“PRIIP Regulation“).

In the course of this implementation, the WpHG, KWG, KAGB, VAG, GewO and other laws will be amended. Among other things, uniform requirements are to apply in the future throughout Europe to the information that must be provided to retail investors when selling “packaged” investment products.

Related links

You can find the adopted draft here.

Insurer

BaFin info page on Solvency II

After several years of preparation, Solvency II came into force on January 1, 2016. The new risk-based European supervisory standard was introduced in Germany through the amendment of the Insurance Supervision Act (VAG). BaFin has compiled an overview of the legal basis of Solvency II and the underlying legislative process on a website. In addition, you can find out more about the delegated act, the technical standards and the EIOPA guidelines on Solvency II here.

Related links

You can find the page at this link.

Insurer

BaFin publishes further interpretative decisions on Solvency II

The German Federal Financial Supervisory Authority (BaFin) published the following interpretative decisions in connection with Solvency II on December 21, 2015:

  • Capital requirements and governance system
  • Interpretative decision on the examination of professional competence and reliability
  • Interpretative Decision on the Prudent Person Principle
  • Interpretative Decision on Internal Controls and Internal Audit in Insurance Companies
  • Interpretative decision on risk management in insurance companies
  • Interpretative decision on outsourcing in insurance companies
  • Interpretative decision on general governance requirements for insurance companies.

Related links

The letters can be found on BaFin’s website at the following link.

European Market Surveillance

ESMA publishes letter from the EU Commission on the AIFMD Passport

ESMA has published the EU Commission’s response letter of 17.12.2015 to its recommendation regarding the application of the AIFM passport to non-EU AIFMs and the application of national private placement regimes (“NPPR”).

As reported in our July newsletter, the ESMA recommendation refers to a possible extension of the AIFMD passport to non-EU AIFMs and AIFs that are currently still subject to the respective national private placement regimes. The AIFMD passport is currently only available for EU AIFMs/AIFs.

The EU Commission has now asked ESMA to consider the following jurisdictions for passport expansion by June 30, 2016: USA, Hong Kong and Singapore, Japan, Isle of Man, Cayman Islands, Bermuda and Australia. Furthermore, the EU Commission agrees with ESMA’s proposal to issue a further opinion once the AIFM Directive is fully implemented. ESMA had complained that it was not possible to issue a final opinion and recommendation by July 2015 – as envisaged by the AIFMD – due to delays in the introduction and implementation of the directive.

Related links

You can find more information here.

AIF

Criticism of planned UCITS-V implementation with regard to the granting of money loans

In a letter dated December 11, 2015 to the Finance Committee of the German Bundestag, the Association of Foreign Banks (“VAB”) criticized the planned implementation of the UCITS-V Directive. Based on the second half of the sentence in § 20 para. 9 sentence 2 KAGB-E that special AIFs should not have the option of prolongation and restructuring when granting money loans – unlike closed-end special AIFs. This different treatment was not objectively comprehensible.

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Contact

Dr. Ulrich Keunecke

Partner
Leiter Sector Legal FS Insurance

THE SQUAIRE Am Flughafen
60549 Frankfurt am Main

tel: +49 69 951195-075
ukeunecke@kpmg-law.com

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