30.09.2015 | KPMG Law Insights

Alternative Investments Legal – Alternative Investments Legal | Issue 8/2015

Dear Readers,

In September, the legislative process for the UCITS V implementation law, which has been followed with great excitement on all sides, got moving again. It contains innovations for AIFs, including with regard to the granting of shareholder loans by closed-end AIFs to special purpose vehicles.

At the beginning of the month, there were difficulties in data transmission during the start of AIFMD reporting. In the meantime, BaFin has commented on how to deal with incomplete or late reports.

Progressive fund regulation is increasingly making itself felt in the U.S. as well. Recently, the SEC proposed a set of measures that would increase regulation of asset managers.

Also: EIOPA has published a Final Report on the identification and calibration of risk categories for infrastructure investments. The establishment of a new asset class for high-quality infrastructure investments under Solvency II is recommended.

We wish you a good end of the month.

With best regards

Dr. Ulrich Keunecke

Federal Cabinet adopts UCITS V Implementation Act

On September 23, 2015, the German Federal Government adopted the draft law on the implementation of the UCITS Directive (UCITS V Implementation Act). The draft contains several changes compared to the draft bill of July 3, 2015, among others regarding the granting of shareholder loans by closed-end AIFs to special purpose vehicles. The draft has been forwarded to the Federal Council for comment, and the parliamentary procedure will begin in December.

The changes regarding the granting of shareholder loans relate to the following points:

  • The granting of shareholder loans is possible both by closed-end public AIFs and by open-end special AIFs, whereby the provisions on the granting of shareholder loans by closed-end special AIFs apply accordingly to the latter.
  • The loan amount is generally limited to 30 percent of the contributed or committed capital less costs, fees and expenses.
  • The mandatory limitation of the loan amount to the acquisition costs of the investment in the special purpose entity does not apply if the special purpose entity is either a subsidiary of the AIF or if it is a subordinated loan.
  • If loans are only taken out for the AIF up to the 30 percent limit, subordinated loans can be made above the 30 percent limit.
  • The 50 percent restriction on the acquisition of unsecuritized loan receivables by open-ended special AIFs with fixed investment conditions was lifted.
  • The conditions for granting loans to third-party contractors pursuant to. § 285 para. 2 KAGB-E (“loan funds”) have only been editorially adjusted compared to the draft bill.

According to EU requirements, the national implementation procedure must be completed by March 18, 2016.

AIFMD reporting with hurdles

At the beginning of AIFMD reporting, there are technical teething problems.

ESMA has analyzed the cause of the CAF-202 and CAF-008 error codes. The source of the error is expected to be fixed with the next release of the ESMA system. This release is expected to be available from September 18, 2015. Any files that have been rejected by ESMA under CAF-202 or CAF-008 must be re-posted to the production system.

BaFin changes reporting requirement for funds raised

Against the background of the abolition of the exemption amount regulation, BaFin has adjusted the reporting requirements for public real estate investment funds. Due to the current volume of funds, KVGs will only have to report to BaFin on a monthly basis (instead of daily) until further notice.


On September 22, 2015, the U.S. Securities and Exchange Commission (SEC) published a set of liquidity risk monitoring measures that are currently under consultation.

Accordingly, fund companies are to submit detailed plans for managing potential liquidity risks. In addition, an existing guideline on the cap on illiquid assets is to be adjusted and funds are to be allowed to use so-called “swing pricing”.

The SEC intends to stress test asset managers as well to uncover any systemic risks.

Related links

Please read the SEC’s press release dated September 22, 2015.

ESMA finalizes technical standards for MIFID II, MAR AND CSDR

The European Securities and Markets Authority (ESMA) published the final technical standards on the revised Markets in Financial Instruments Directive (MiFID II), the Market Abuse Regulation (MAR) and the Central Securities Depository Regulation (CSDR) on September 29, 2015.

In the area of MiFID II, these are some of the significant new contents:

  • Tests to determine whether speculative investment activities by so-called “non-financial” entities should be covered under MiFID II due to their size;
  • Ranges for the new EU-wide commodity derivatives restriction regimes;
  • Regulations on high-frequency trading;
  • Rules for non-discriminatory access to CCPs, trading venues and benchmarks;
  • new trading obligations for shares and derivatives traded only on regulated platforms;
  • a double volume cap mechanism to limit dark trading.

The technical standards on MAR strengthen the regulatory framework against market abuse. They contain prohibitions on insider trading and market manipulation.

The CSDR standards include organizational rules and conduct requirements for CSDs as well as a regulatory framework for settlement reporting.

The European Commission now has three months to approve the drafts.


EIOPA publishes second set of Solvency II guidelines in all official EU languages

EIOPA published the second set of Solvency II guidelines in all official EU languages on September 14, 2015. Within two months, national authorities can declare whether they will comply with these guidelines.

Related links

EIOPA’s press release can be found at this link. At this point you will find the guidelines in English with the official translations.

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Dr. Ulrich Keunecke

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