06.09.2018 | KPMG Law Insights

Alternative Investments Legal | Issue 08/2018

Dear Readers,

After the warm and sunny days of the past weeks, the weather is slowly and gradually adjusting to somewhat cooler temperatures. This brings a little more movement into the weather kitchen – in the area of alternative investments there was anyway. The most important news, we would like to present to you in this issue.

Among other things, ESMA has updated the question and answer catalog on the AIFMD. ESMA has published a letter to EIOPA regarding EIOPA’s questions on the AIF definition and leverage.

There are also recent developments in connection with the UK’s Brexit preparations and the impact on regulated companies in the event of a hard “no deal” Brexit. You will find a corresponding compilation in this issue.

We wish you an insightful reading and remain

With best regards
Dr. Ulrich Keunecke


Publication of updated question/answer catalog on AIFMD

ESMA updated on July 23, 2018 the catalog of questions and answers on the application of the Alternative Investment Fund Managers Directive (AIFMD). The Q&A contains a new question and answer related to the obligations of National Supervisory Authorities in case of opening a branch of a KVG in another member state.

The Q&A documents are intended to promote common supervisory approaches and practices in the application of the AIFMD and its implementing measures. ESMA reviews the Q&A documents regularly and updates as needed.

Related links
The catalogs can be viewed here (in English).


Expansion of the investment fund database

BaFin will expand the investment fund database on its website. In addition to the public investment funds authorized for distribution, all other active investment funds launched in Germany will also be displayed there in the future, including special AIFs (alternative investment funds) and investment funds that are not authorized for distribution. This facilitates the assignment of the unique company identifier, the Legal Entity Identifier (LEI), as the LEI-issuing companies will be able to access the investment fund database in the future. The change will be implemented no earlier than October 1, 2018.

Further links
For more information, please see a recent BaFin announcement at this link.


Associations call for rapid PRIIPs review

In press releases dated July 27, 2018, the German banking industry, together with the German fund association BVI and the German Derivatives Association (DDV), appealed to the EU Commission to improve the PRIIPs Regulation and present a draft law before the end of 2018.
According to the EU regulation, the review is to be carried out by the end of 2018.
With their appeal, the associations want to ensure that improvements to the product information sheets for packaged retail and investment products (PRIIPs) are tackled before the elections at European level and could come into force before 2020.

Related links
The DK press report can be viewed here and the BVI press report here.

British HM Treasury

Notification procedure in the event of a hard Brexit

As part of its Brexit preparations, the U.K. submitted draft regulations on July 24, 2018, in the event of a hard “no deal” Brexit scenario. The Prudential Regulation Authority (PRA) and the Financial Conduct Authority (FCA) should be able to act in the case on the basis of a “temporary permissions regime” (TPR). Regulated entities wishing to take advantage of the TPR must go through a notification process in the window from January 2019 to the day before Brexit.

Related links
The draft can be viewed here (in English).


Response letters to AIFMD questions on the part of EIOPA

ESMA published a letter to EIOPA on July 25, 2018, answering various questions regarding the AIFMD).
ESMA answers EIOPA’s questions in section 11.5.2. its second recommendation to the European Commission on certain points of the Delegated Regulation on Solvency II (EIOPA-BoS-18/075). In this context, EIOPA addressed several questions to ESMA regarding the AIF definition and the calculation of leverage under the Alternative Investment Fund Managers Directive (AIFMD) and its implementing measures.

Related links
The letter can be viewed here (in English).


Final Draft Technical Standards on Securitization and in the Context of PSD2

EBA made the following three Final Draft Technical Standards available on its website on July 31, 2018:

  • Final Report: Draft Regulatory Technical Standards on cooperation between competent authorities in home and host Member States in the supervision of payment institutions operating on a cross-border basis under Article 29(6) of PSD2
  • EBA Final Draft Regulatory Technical Standards on the homogeneity of the underlying exposures in securitisation under Articles 20(14) and 24(21) of Regulation (EU) No 2017/2402 laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation
  • EBA Final Draft Regulatory Technical Standards specifying the requirements for originators, sponsors and original lenders relating to risk retention pursuant to Article 6(7) of Regulation (EU) 2017/2402

Related links
You can read the EBA’s July 31, 2017 press releases with the further links to the RTS on the EBA’s website at the following link.

Insurance Europe

Opinion on the proposal for a regulation of the EU Commission on an “InvestEU program

Insurance Europe published its response to the European Commission’s consultation on its proposed investEU program on August 13, 2018, which aims to bring together different EU financial instruments and expand the Investment Plan for Europe.

Related links
The answer can be viewed here (in English).


Further interpretative letter on the InvStG

On August 28, 2018, the German Federal Ministry of Finance (BMF) published further questions of interpretation regarding the German Investment Tax Act as amended on January 1, 2018 (InvStG 2018) as an association letter.
It concerns questions of interpretation regarding sections 35 and 48 InvStG 2018. Questions on attribution according to Section 35 InvStG (Section 35: Distributed Income and Distribution Sequence) and on the determination of the fund equity gain according to Section 48 InvStG 2018 (Section 48: Fund Equity Gain, Fund Agreement Gain, Fund Partial Exemption Gain) are answered, each with examples.

Related links
The interpretation letter can be found on the BAI website at this link.

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Dr. Ulrich Keunecke

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