31.03.2017 | KPMG Law Insights

Alternative Investments Legal – Alternative Investments Legal | Issue 3/2017

Dear Readers,

Spring has started, the young green looks out everywhere and the regulatory world around the topic of alternative investments seems to use the growing days not only for new regulations. Nevertheless, there is news again, which we present to you in this issue.

Just in time for the end of the extended consultation period, several industry associations commented comprehensively and critically on BaFin’s draft interpretative letter on the delimitation of the tasks of capital management companies and the AIF investment companies they manage externally.

There has also been movement in PRIIPs Level 2 measures. This month, for example, the EU Commission published the revised delegated regulation supplementing the PRIIPs Regulation after the European financial supervisory authorities were unable to agree on a uniform opinion in the fall of 2016.

We wish you an insightful reading and remain

With best regards

Dr. Ulrich Keunecke

bsi & GDV

Industry associations criticize BaFin’s draft interpretative letter on KVGs and externally managed AIF investment companies

In the last issue of this newsletter, we already reported on the interpretative letter put out for consultation by BaFin, which differentiates the tasks of a KVG from those of the AIF investment companies managed externally by it. On March 3, 2017, several associations commented on this draft and voiced strong criticism in some cases.

The bsi is of the opinion that BaFin’s “quasi-equal treatment” of AIF investment companies and special funds leads to a large number of legally extremely problematic conclusions. In addition, there was no sound legal basis for the BaFin’s finding that the KVG had to enter into almost all contracts with third parties in its own name in order to fulfill its collective asset management tasks. Likewise, the legal position of the AIF investment companies would be weakened in the event of defaults. As a further point of criticism, the bsi states that the allocation of responsibilities to the KVG would misjudge the duties of the bodies of the AIF investment companies. The consequence is liability and possibly even criminal liability risks. In addition, the bsi points out the necessity of a grandfathering for existing AIF investment companies in the event of adherence to the previous draft.

GDV also believes that there is still a need for discussion and adjustment on several points. Among other things, it is not clear whether BaFin also regards the distribution of investment fund units as an original task of the KVG, so that a commissioning of another company in this respect would have to be treated as outsourcing. BaFin’s comparison of AIF investment companies and investment funds is also viewed critically. Due to their own legal personality and the resulting rights and obligations, AIF investment companies differed considerably from investment funds, which had not been sufficiently taken into account by BaFin.

Related links

The statement of the bsi can be viewed here, the statement of the GDV can be viewed here.


Amended MaComp published

Last November, it was already reported in this newsletter that BaFin had put amended MaComp out for consultation. On March 8, 2017, the amended circular on the minimum requirements for the compliance function and the other behavioral, organizational and transparency obligations pursuant to sections 31 et seq. German Securities Trading Act (WpHG) for securities services companies (MaComp) was published.

BaFin has supplemented section BT 3.2. This now imposes specific labeling obligations on securities services companies for information that they receive from third parties and merely pass on to custody account customers on the basis of their obligation in No. 16 of the Special Conditions for Securities Transactions. At the same time, BT 3.2 clarifies that investment firms are not responsible in these cases for ensuring that the information forwarded is honest, unambiguous and not misleading (Section 31 (2) WpHG and Section 4 WpDVerOV).

On the other hand, the BT 5 section was partially repealed. The background to this is that paragraphs 1 to 4 of the old Section 34b of the German Securities Trading Act (WpHG) were repealed as a result of the First Financial Market Amendment Act (FiMaNoG). Its regulatory content now derives directly from Art. 20 of the European Market Abuse Regulation (MAR).

Related links

The adapted MaComp and further information can be viewed here.

EU Commission

New PRIIPs Level 2 Regulation issued

After the European Supervisory Authorities (ESAs) were unable to agree on a unified position on the European Commission’s proposed amendments to the Delegated Regulation supplementing the PRIIPs Regulation in December 2016, the EU Commission published the revised Delegated Regulation on March 8, 2017. Changes concern in particular:

  • PRIIPs with different investment options (multi-option PRIIPs),
  • Performance scenarios,
  • Warnings and
  • The presentation of administrative costs related to biometric components of insurance investment products.

Unless the Council of the European Union or the European Parliament registers an objection within the next three months, the act will become final 20 days after publication in the EU Official Journal. The revised delegated regulation will then be directly applicable in all member states as of January 1, 2018.

Related links

The revised Delegated Regulation supplementing the PRIIPs Regulation can be found here, the related annexes can be found here, and the January 2017 newsletter can be found here.


Remuneration Ordinance for Institutions Comes into Force Later

BaFin announces that for editorial and technical reasons the issuance of the Amendment Ordinance to the Remuneration Ordinance for Institutions (InstitutsVergV) will again be postponed. Instead of coming into force at the beginning of the year as originally planned, it is now not expected to come into force until the second quarter of 2017. BaFin is endeavoring to keep the delay to a minimum and also to publish the associated interpretative guidance as simultaneously as possible.

EU Commission

Consultation on the activities of the European supervisory authorities

The EU Commission has launched a consultation on the work of the European Supervisory Authorities EBA, EIOPA and ESMA to gather views regarding possible changes to the current framework of their operational activities.

The aim of the consultation after six years of supervisory activity is to get a picture of the quality of the work and to identify possible areas where the effectiveness and efficiency of supervision can be further increased and improved. Participation is possible until May 16, 2017.

Related links

The questionnaire and further information can be found here (in English).

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