28.03.2018 | KPMG Law Insights

Alternative Investments Legal | Issue 03/2018

Dear Readers,

Easter is just around the corner and despite weather capers, spring peeks through the clouds more and more often and warms with pleasant sunshine. In keeping with this, we shed light on some March news from the alternative investments sector in our latest newsletter.

Among other things, the EU Commission has published two drafts for the cross-border marketing of investment funds in the internal market, which will be consulted by May 7, 2018 and amend provisions of the UCITS and AIFM Directives.

BaFin has published, among other things, a fact sheet on the appropriate presentation of the performance of closed-end investment funds and consults interpretation and application notes on the AMLA.

You will find a corresponding compilation in this issue.

We wish you Happy Easter,
an informative reading and remain

With best regards
Dr. Ulrich Keunecke

EU Commission

Publication of proposed directive and regulation to facilitate cross-border fund distribution

On March 12, 2018, the EU Commission published two drafts for the facilitated cross-border distribution of investment funds in the single market, which will be consulted on until May 7, 2018.

The goal is to remove regulatory barriers such as member state distribution requirements, regulatory fees, and administrative and notification requirements that pose significant obstacles to the cross-border distribution of funds. Among other things, the draft contains a definition of the term “pre-marketing” and provides regulations for it.

The new legal framework is to consist of two legislative parts, a directive and a regulation, which amend provisions of the UCITS and AIFM directives:

  • the proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Directive 2009/65/EC of the European Parliament and of the Council and Directive 2011/61/EU of the European Parliament and of the Council as regards cross-border marketing of investment funds, and
  • the proposal for a regulation thereon (“Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on facilitating cross-border distribution of collective investment funds and amending Regulations (EU) No 345/2013 and (EU) No 346/2013”).

The proposals can be viewed here and here (in English).


Fact sheet on the fair presentation of the performance of closed-end investment funds

On March 6, 2018, BaFin published a fact sheet on the fair presentation of the performance of closed-end investment funds.

The fact sheet describes the execution standard with regard to the administrative practice on the adequate presentation of the historical and future performance of closed-end investment funds in the key investor information.

The fact sheet can be viewed here.


Consultation of interpretative and application notes on the MLA

On March 15, 2018, BaFin issued interpretative and application notes pursuant to Section 51 (8) of the German Money Laundering Act (GwG) for consultation. These apply to all obligated parties under the Money Laundering Act that are under their supervision, and thus also to KVGs. In the notes, BaFin sets out its administrative practice with regard to the AMLA in the current version of June 2017. It intends to declare all previous statements on the interpretation of the law to be irrelevant with the publication of the notes.

The deadline for comments is May 11, 2018.

You can find the interpretation and application notes at this link.

EU Commission

Publication of FinTech action plan

The European Commission presented an action plan for competitive FinTechs on March 8, 2018. This plan is designed to help the financial industry make rapid progress in the use of blockchains and other IT applications, while remaining resilient to cybercrime.

The Action Plan is part of the Commission’s efforts to build a Capital Markets Union (CMU) and a true single market for consumer financial services. It is also part of its efforts to create a digital single market. The Commission’s aim is to make EU regulations more forward-looking and geared to the rapid progress of technological development.

The text on the action plan can be found here (in English) and the press release here (in English).

EU Commission

Proposed Regulation on the Regulation of European Crowdfunding Service Providers (ECSP).

The proposed regulation of March 8, 2018, aims to enable crowdfunding platforms to offer their services across the EU. This also requires an adaptation of MiFID II. The EU Commission has therefore also submitted a proposal to amend MiFID II.

The following documents have been published.

Commission proposal for a regulation on European Crowdfunding Service Providers (ECSP) for Business
Commission proposal for a directive amending MiFID 2
Impact assessment accompanying the proposals
Press release
Frequently asked questions

Financial Stability Board (FSB)

Survey on the impact of regulatory measures on infrastructure investments

On March 15, 2018, the Financial Stability Board (FSB) launched a survey on the potential impact of regulatory reforms on infrastructure financing.

The Financial Stability Board (FSB) launched a survey on March 15, 2018, on the potential effects of regulatory reforms on infrastructure financing. This survey represents a key component of the FSB’s work to assess the impact of G20 regulatory reforms on infrastructure investment. Feedback is sought from institutions and companies actively involved in infrastructure investments (e.g., as providers of capital, insurers against financial and non-financial risks, and advisors for these transactions). A final report on infrastructure investment financing is expected to be released before the next G20 summit in late November 2018.

The deadline for submitting feedback is April 6, 2018.

Feedback should be submitted by April 6, 2018.

Information on the survey can be found here (in English).

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Dr. Ulrich Keunecke

Leiter Sector Legal FS Insurance

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