31.07.2015 | KPMG Law Insights

Alternative Investments Legal – Alternative Investments Legal | Issue 6/2015

Dear Readers,

having already consulted in the spring of this year on whether infrastructure investments constitute a separate risk class, EIOPA has now put the preconditions of this risk class out for consultation in a paper. ESMA has issued its recommendations regarding the extension of the AIFMD passport to third country AIFMs/AIFs. Furthermore, the regulatory valuation process is consulted for qualifying investments.

At European level, a compromise was reached on the future Securities Financing Regulation. In addition, IOSCO is reviewing the international standards on costs and fees for funds published in 2004.

At the national level, a draft bill on the UCITS-V Implementation Act has been published, which also entails important changes for AIFs. BaFin has again posted an update on AIFMD reporting and the circular on valuer requirements on its website.

With best regards

Dr. Ulrich Keunecke


Securities Financing Ordinance and KVG obligations

On June 17, 2015, the EU Council and the EU Parliament reached a compromise on the regulation on reporting and transparency obligations for securities financing transactions as part of the trilogue talks. In the future, KVGs will have to make information on securities financing transactions transparent to the respective supervisory authority of the member state. ESMA will draft regulatory technical standards (RTS) for this purpose.

The EU Parliament and the EU Council still have to adopt the texts in their first reading.

Related links

The press release of the European Council can be found here.

BaFin circular on the appointment of external valuers

Following the conclusion of the consultation process, BaFin published Circular 07/2015 on requirements for the appointment of external valuers for real estate and real estate companies on July 29, 2015 (see also KPMG AIL Newsletter 3/2015).

The circular specifies the requirements for the appointment of external valuers and the evidence to be provided to BaFin. It is to be expected that BaFin will also use the main features of its administrative practice arising from this circular for assets outside the real estate sector.

Related links

The circular can be found here.

EIOPA consults on requirements for a separate risk category for infrastructure assets

EIOPA published a consultation paper on the identification and calibration of risk categories for infrastructure investments on July 2, 2015. It consults on these items, among others:

  • Proposals of a definition of infrastructure investments as well as criteria for classification into the new risk class;
  • Analysis of whether an expansion of risk management is required;
  • Identify potential barriers to investment.

The deadline for comments is August 9, 2015.

Related links

The consultation paper is available for you here.

ESAs publish consultation paper on qualifying holdings

The European Supervisory Authorities (ESAs) ESMA, EBA and EIOPA launched a consultation on the supervisory assessment of acquired qualifying holdings on July 3, 2015. The drafted guidelines define a uniform and transparent supervisory assessment process for the acquisition or increase of qualifying holdings in financial institutions by natural persons or legal entities. One of the aims is to harmonize supervisory practice in this area within the EU.

Comments can be submitted until October 2, 2015.

Related links

The consultation paper is available here.

ESMA recommendation on the extension of the AIFMD passport to third countries published

On July 30, 2015, ESMA published its recommendation on the possible extension of the AIFMD passport to non-EU AIFMs and AIFs that are currently still subject to the respective national private placement regimes (NPPRs). The AIFMD passport is currently only available for EU AIFMs/AIFs.

Taking into account certain selection criteria, ESMA considered six jurisdictions for the passport expansion. Only Guernsey and Jersey were not found to have any obstacles. Switzerland is expected to remove the currently identified obstacles by means of the corresponding legislative projects. In the case of Hong Kong, Singapore and the USA, there are still reservations due to regulatory aspects, among other things.

The EU institutions involved in the process (Commission, Parliament, Council) may now wait before introducing the EU passport for non-EU AIFMs/AIFs.

Related links

The ESMA recommendation and opinion can be found here.

IOSCO consults on regulatory standards for mutual fund costs

Back in June 2015, IOSCO published a consultation paper to discuss the international regulatory principles for fees and other costs of investment funds. In the current consultation, particular attention is being paid to requirements for the collection and disclosure of performance fees, the disclosure of transaction costs and the permissibility of inducements from transaction executions.

Submissions to IOSCO can be made until September 23, 2015.

Related links

You can access the consultation paper here.

Draft bill on the UCITS-V Implementation Act published

On July 3, 2015, the Federal Ministry of Finance published a draft bill on the UCITS-V Implementation Act. The amendments to the KAGB go beyond the exclusive implementation of the underlying directive, so that the amendments also have an impact on AIFs. Planned activities include the following:

  • Introduction of loan-issuing closed-end funds;
  • Limitation of loan acquisition by open-end special funds to 50% of fund assets;
  • The prolongation and restructuring of unsecuritized loan receivables held in the fund are not banking transactions.In addition, the requirements of the UCITS Directive are also to apply to the area of AIFs, insofar as objectively justified.

On July 7, BaFin added another annex to its “Information Sheet on Reporting Obligations of AIF Management Companies”. Under Annex 6 is an annotated version of a “small” AIF XML message according to Art. 3 para. 3 d) and 24 par. 1 AIFMD available online.

Related links

You can view the fact sheet as well as the attachment here.


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Dr. Ulrich Keunecke

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