17.01.2018 | KPMG Law Insights

Investment | Law | Compact – Issue 01/2018

Dear Readers,

I wish you a happy, healthy and successful new year!

Since January 3, 2018, the requirements of the Financial Markets Directive MiFID2 are applicable. In retrospect, the postponement of one year seems short, there are still some uncertainties and not all details have been put into practice by a long shot.
ESMA continues to seek clarification on the many practical issues surrounding the interpretation of MiFID2 and its delegated acts. We report below on the permissibility of compensation for an external fund manager under the new grant rules, which is relevant to the fund industry.
Anyone wishing to apply to BaFin for a license as a securities trading company or securities trading bank will face a new application procedure as of January 3, 2018. Instead of an informal written application, forms specified by an EU regulation must be used with immediate effect.

With warm regards
Henning Brockhaus

National supervision

BaFin publishes interpretative decision on the activities of a KVG and the AIF investment company it manages externally

In our February 2017 issue, we reported on a BaFin consultation on how to allocate tasks between a capital management company (KVG) and the AIF investment company it manages externally.

On December 21, 2017, the supervisory authority has now published the corresponding interpretative letter. It has been extensively revised from the February 3, 2017 draft.

BaFin’s key messages are:

  • In principle, the external KVG is responsible for the activities to be included under the term collective asset management. With its appointment as an external KVG, it receives supervisory responsibility.
  • If the external KVG uses third parties to carry out its activities for the AIF investment company, it is generally free to decide whether it engages the third party in its own name or in the name of the AIF investment company. This does not apply if portfolio management or risk management is outsourced to a third party. Since the external KVG is responsible for these core areas of collective asset management, the transfer of these activities to a third party must be made in the name of the external KVG and not in the name of the AIF investment company.
  • Outsourcing back to the AIF investment company of the tasks assumed by the external KVG is not permitted.
  • Legal transactions which the external KVG concludes with direct reference to assets of the AIF investment company (e.g. acquisition and sale of assets) must generally be carried out – whether by the external KVG itself or by a third party delegated by it – in the name of the AIF investment company.

You can find the BaFin interpretative decision here.

European supervision

ESMA Updates Q&A on MiFID2 – Clarifications on Remuneration of External Fund Managers

On December 18, 2017, ESMA issued a newly updated and expanded version of its Q&A on MiFID2 investor protection topics (“Questions and Answers On MiFID II and MiFIR investor protection and intermediaries topics,” ESMA35-43-349).

The paper now comprises 90 pages. The latest additions concern, for example, the topics “Suitability and appropriateness” (reporting in financial portfolio management) and “Inducements”.

Regarding the latter, ESMA clarifies, among other things, that the remuneration of an external fund manager by a KVG does not constitute a benefit within the meaning of MiFID2. This also applies if the external fund manager also advises or supports investors with regard to the units of the investment fund it manages.

However, ESMA points out in this context that this only applies to constellations that do not constitute circumvention of the grant rules. The external fund manager must receive his remuneration for the actual management of the investment assets and not, for example, for a distribution service. In any case, careful conflict of interest management associated with this dual function is essential.

You can find the updated document here.

European legislation and national supervision

New regulations for applying for a license as a securities trading company or bank

Companies must comply with Delegated Regulation (EU) 20017/1943 as of January 3, 2018, when applying for authorization as an investment firm or trading bank. § Section 32 (1) sentence 2 KWG in conjunction with Section 14 AnzV is no longer applicable in this respect.

The request can no longer be made informally in writing. The prescribed forms must be used from now on.

More information can be found here, and the Delegated Regulation can be accessed here.

European legislation

EU Commission publishes specifications for ELTIF regulation

Almost two years after the applicability of the European Long-Term Investment Fund (ELTIF) Regulation and 18 months after the transmission of its first proposals, the EU Commission has published detailed rules for this investment vehicle in the form of an implementing regulation.

This enters into force 20 days after its publication in the Official Journal of the EU. It does not apply to ELTIFs that were already issued before this date until one year after the effective date.

You can find the implementing regulation here.

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Henning Brockhaus


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