30.10.2015 | KPMG Law Insights

Alternative Investments Legal – Alternative Investments Legal | Issue 9/2015

Dear Readers,

October again saw important innovations at both national and international level.

BaFin published the long-announced depositary circular at the beginning of October. At the European level, ESMA has been particularly busy in the past month, publishing numerous publications on various supervisory topics.

The EU Commission’s goal of laying the foundations for a common capital market by the end of its legislative term in 2019 has taken shape with the recently published action plan. The creation of a Capital Markets Union is seen as a contribution to the completion of the European Economic and Monetary Union.

With best regards

Dr. Ulrich Keunecke



BaFin publishes depositary circular

On October 7, 2015, BaFin published Circular 08/2015 (WA) on the tasks and duties of the depositary pursuant to Chapter 1 Section 3 of the KAGB. Points to highlight include these:

  • Limited look-through in the control of cash flows at the level of special-purpose entities (item 3).
  • For the control processes of the depositary required under Art. 85 et seq. Level 2 Regulation, the establishment of blocking notes on the payment accounts is not mandatory, but merely mentioned as an option (section 4.2).
  • Clarification that the rules on transactions requiring approval pursuant to sections 75 and 84 KAGB do not apply to special AIFs (clause 6).

BaFin points out that the circular is not a conclusive regulation.

Depositaries and KVGs must implement the requirements of the circular by April 4, 2016 at the latest.

Related links

You can access the circular here.


ESMA publishes guidelines on alternative performance measures

ESMA published guidelines on alternative performance measures (APMs) in German on October 5, 2015. The guidance applies to APMs disclosed on or after July 3, 2016. Competent authorities shall notify ESMA within two months of the publication of the guidelines whether they comply or intend to comply with them.

Related links

You can access the circular here.

EU Commission Presents Action Plan for Capital Markets Union

On September 30, 2015, the EU Commission adopted an action plan to create a single market for capital in Europe. It comprises six blocks of measures that are to be implemented step by step until 2018:

  • Financing innovations, start-ups and unlisted companies, overcoming information deficits for financing SMEs and promoting innovative forms of corporate financing.
  • Simplifications for companies to join the capital market and raise capital.
  • Supporting long-term investments, infrastructure and sustainability investments, in particular by creating and promoting a new asset class for infrastructure investments under Solvency II and developing the market for environmentally sustainable investments (so-called “green bonds”).
  • Promote the investment activities of retail and institutional investors.
  • Promote banking to support the economy, especially by strengthening local financing networks and building an EU securities market.
  • Simplification of cross-border investments.

Along with the Action Plan, three consultations were launched on venture capital, covered bonds, and the overall impact of financial market legislation.

Related links

Detailed information on the Capital Markets Union can be found at this link.

Click here to go directly to the action plan.

The following links provide more detailed information on the consultation procedures:

Consultation on venture capital and social entrepreneurship funds;

Consultation on covered bonds;

Exploring the EU regulatory framework for financial services.

As part of the Action Plan for a Capital Markets Union, the EU Commission has presented two legislative proposals on securitization:

  • A proposal for a regulation establishing common rules on securitizations. The regulation deals in particular with due diligence requirements, retention requirements and transparency requirements, as well as criteria for simple, transparent and standardized securitizations (“STS”);
  • a proposal to amend the Capital Requirements Regulation to make the capital requirements for a securitization position more risk-sensitive.

Related links

For more information on the EU Commission’s initiative and the above-mentioned legislative proposals, please visit this link.

EU Commission adopts delegated act with implementing provisions for Solvency II

As part of the Action Plan for a Capital Markets Union, the EU Commission adopted an amendment to the delegated acts on Solvency II on September 30, 2015.

The main component is the introduction of a new asset class for investments in infrastructure, for which the risk capital to be backed is reduced.

Investments in European long-term investment funds (ELTIFs) are now subject to the same capital rules as shares traded on regulated exchanges. This puts them on an equal footing with European venture capital funds (EuVECAs) and European social entrepreneurship funds (EuSEFs).

A transitional regime for equity investments is extended to non-exchange traded investments. This is to prevent insurers from selling long-term investments.

Related links

The amendment to the delegated regulation can be found at this link.

You can find the associated annexes here.

Frequently asked questions.


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Dr. Ulrich Keunecke

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