28.04.2017 | KPMG Law Insights

Alternative Investments Legal – Alternative Investments Legal | Issue 4/2017

Dear Readers,

As is well known, everything is new in May – but already in the past weeks there were numerous news around the topic of alternative investments, which we would like to present to you in this issue.

Among other things, BaFin has published its new circular on video identification. ESMA has commented on whether the AIF marketing passport may only be used for marketing to professional investors as defined in the AIFMD or also applies to marketing to, for example, semi-professional investors.

There are also current developments in connection with MiFID II. You will find a corresponding compilation in this issue.

We wish you an insightful reading and remain

With best regards

Dr. Ulrich Keunecke


BaFin Circular 3/2017 (GW) – Video identification procedure published

On April 10, 2017, BaFin published a new circular on the requirements for the use of video identification procedures (Circular 3/2017 (GW) on the requirements for the use of video identification procedures). The publication was preceded by intensive preparatory work and discussions involving authorities and companies.

The video identification procedure can now be used by all obligated parties under the Money Laundering Act (GwG) that are under the supervision of BaFin. As recently as June 2016, BaFin had stipulated in Circular 4/2016 that video identification procedures should be used exclusively by credit institutions as defined in Section 1 (1) of the German Banking Act. 1 KWG may be carried out. This was initially suspended and has now been finally superseded by the publication of the new Circular 3/2017.

Video identification is provided only for natural persons. The identification of legal entities or partnerships by means of video identification, on the other hand, is not possible. However, the video identification procedure can be used for the proof of identity of a legal representative or proxy, if required.

The circular will come into force on June 15, 2017.

Related links

The BaFin circular 3/2017 can be downloaded here can be accessed here.


Updated Q&A on the application of the AIFMD published

ESMA has updated the Questions and answers document “on the application of the Alternative Investment Fund Managers Directive (AIFMD)”. ESMA clarifies in connection with the marketing of units or shares of EU AIFs in Member States other than the home Member State of the AIFM pursuant to Art. 32 AIFMD that the AIF marketing passport may only be used for marketing to professional investors as defined in the AIFMD. An application to other categories of investors provided for in individual member states, such as “qualifying investor”, “well-informed investor”, or semi-professional investor is not possible.

Related links

The updated Q&A document can be here here.

EU Commission, ESMA and German Bundestag

Current developments in connection with MiFID II

In connection with MiFID II, there were several innovations at the end of March / beginning of April 2017:

  • On March 30, 2017, the German Bundestag passed the Second Financial Market Amendment Act (2. FiMaNoG) in its second and third readings. Compared to the version of the government draft of December 21, 2016, there are only minor changes.
  • In the EU Official Journal L 87 of March 31, 2017, the final implementing rules for MiFID II and MiFiR – 28 Delegated Regulations and one Delegated Directive supplementing MiFID II – have been published.
  • On April 4, 2017, ESMA published the updated Q&A document on the implementation of investor protection rules under MiFID II / MiFIR. This was supplemented by 10 additional questions and answers in the areas of “Best execution” and “Inducements”.
  • On April 5, 2017, ESMA added a total of 22 additional questions and answers to the Q&As on the implementation of MiFID II requirements on market structure topics and 7 additional questions and answers on transparency topics.

Finally, the final report “Guidelines on the calibration of circuit breakers and the publication and reporting of trading halts under MiFID II” was also published by ESMA on April 6, 2017.

Related links

The recommended resolution for the 2nd FiMaNoG can be found
, the EU Official Journal L 87 can be found
, the updated Q&A document on investor protection can be found
, the Q&A document on market structure issues can be found
, the Q&A document on transparency issues can be found
and the final ESMA report of April 6 can be found here available here.


German translation of the Joint Guidelines on Risk-Based Supervision under the 4th EU Money Laundering Directive

European supervisors have provided translations of the “Joint Guidelines on the Characteristics of a Risk-Based Supervisory Approach to Combating Money Laundering and Terrorist Financing and on the Measures to be Taken in Risk-Sensitive Supervision” in all official EU languages.

Related links

The German version of the guidelines can be here can be viewed here.


Consultation on Guidelines on the Prevention of Money Laundering and Terrorist Financing in Electronic Payment Transactions

The joint committee of the three European supervisory authorities EBA, ESMA and EIOPA has opened a consultation on guidelines for payment service providers with regard to arrangements for the prevention of money laundering and terrorist financing in electronic payment transactions. The consultation period ends on June 5, 2017.

Related links

For more details on the consultation, please refer to the EBA’s website at this


Consultation on the Guidelines for the Underwriting Mechanism of Credit Ratings under the Regulation for Credit Rating Agencies

ESMA issues revised “Guidelines on the application of the endorsement regime under the CRA (Credit Rating Agencies) Regulation” for consultation. The endorsement regime under the CRA regulation allows the ratings of a third-country credit rating agency, endorsed by an EU credit rating agency, to be used for supervisory purposes.

The consultation paper provides a number of changes and clarifications to the current Guidelines. The consultation period ends on July 3, 2017.

Related links

Further details can be found on ESMA’s website at this

Insurance Europe

Statement on PRIIPs

On April 10, 2017, Insurance Europe published a statement on the revised “Regulatory Technical Standards (RTS) for the Packaged Retail Investment and Insurance Products (PRIIPs) Regulation.”

In the Association’s view, there is still a need for clarification with regard to the Level 3 measures, in particular with regard to credit risks and concerning transitional arrangements.

Related links

The statement can be here available here.

EU Commission

PRIIPs Level 2 Regulation published in the EU Official Journal

In the last issue of this newsletter, we already reported on the enactment of the new PRIIPs Level 2 Regulation. On April 12, 2017, Delegated Regulation (EU) 2017/653 on key information documents for PRIIPs has now been published in the EU Official Journal L 100. It specifies the content and presentation of the basic information sheet and contains a sample template.

The Delegated Regulation will apply from January 1, 2018.

Related links

The EU Official Journal L 100 can be
, the latest issue of the newsletter can be here can be viewed here.

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Dr. Ulrich Keunecke

Leiter Sector Legal FS Insurance

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10557 Berlin

tel: +49 30 530199 200

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