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.

Explore #more

08.12.2023 | PR Publications

Payout can be risky

In the current issue of Personalwirtschaft from 30.11.2023, there is a guest article by Stefan Middendorf and Gracjan Modrzyk. Some companies are once again…

07.12.2023 | PR Publications

Institutional Money – It’s all in the mix

Institutional Money 04/2023 discusses the opportunities offered by the Neighborhood Fund. The fund is ideal for real estate investors, as it is not limited to

01.12.2023 | PR Publications

WiWo: Best of Legal Awards – Philipp Glock Leader of the Year

On Thursday evening, WirtschaftsWoche honored outstanding projects and minds from consulting firms and law firms in Düsseldorf and celebrated the second Best of Professional Night…

29.11.2023 | KPMG Law Insights

Energy transition also opens up business opportunities

The energy industry’s complex, capital-intensive transformation process offers investors and banks a great deal of potential By Lars Christian Mahler and Marc Goldberg for Börsen-Zeitung,…

29.11.2023 | KPMG Law Insights

Guest article in ZURe – AI and the legal department of tomorrow

The current issue of ZURe (p. 48 ff.) contains a guest article by KPMG Partner Sina Steidel-Küster (Regional Director Southwest, Head of Stuttgart office) and…

29.11.2023 | KPMG Law Insights, KPMG Law Insights

Key Facts about the new draft of the “Data Act

On February 23, 2022, the EU Commission presented the new draft of the so-called Data Act, the “Regulation on harmonized rules for fair access to…

21.11.2023 |

Guest article in ZURe on the implementation of CSRD reporting in SMEs

The current issue of ZURe (p. 34 ff.) contains a guest article by Lena Plato (Director Legal & Compliance, FLABEG Automotive Group GmbH), KPMG Law…

20.11.2023 | Press releases

Statement by KPMG Law experts in Handelsblatt on the topic of sustainability cooperation in antitrust law

In the Handelsblatt, KPMG Law expert Jonas Brueckner is quoted in detail on the subject of cooperation in terms of sustainability. Until this summer, there…

15.11.2023 |

Legal 500 – Country Comparative Guide Germany

Gerrit Rixen and Jonas Brueckner provide an overview of the relevant legal regulations in the area of Competition & Litigation in a practical guide on…

14.11.2023 | Press releases

Tax and Law at a glance – New issue of the digital magazine “Talk

“Talk” stands for Tax and Law Compass, because that’s what the digital magazine wants to be: a navigation aid to the legal and tax aspects…


Henning Brockhaus


THE SQUAIRE Am Flughafen
60549 Frankfurt am Main

tel: +49 69 951195061

© 2023 KPMG Law Rechtsanwaltsgesellschaft mbH, associated with KPMG AG Wirtschaftsprüfungsgesellschaft, a public limited company under German law and a member of the global KPMG organisation of independent member firms affiliated with KPMG International Limited, a Private English Company Limited by Guarantee. All rights reserved. For more details on the structure of KPMG’s global organisation, please visit

 KPMG International does not provide services to clients. No member firm is authorised to bind or contract KPMG International or any other member firm to any third party, just as KPMG International is not authorised to bind or contract any other member firm.