19.02.2018 | KPMG Law Insights

Investment | Law | Compact – Issue 02/2018

Dear Readers,

At the end of January, the new Wertpapierdienstleistungs-Prüfungsverordnung (WpDPV) was published. Among other things, it obliges the auditor in the WpHG audit to report comprehensively on the implementation of and compliance with the requirements introduced by MiFID2 and MIFIR.

The subject of the review under the WpDPV is also whether the interpretations of Union law requirements published by ESMA (e.g. through Q&A catalogs) have been implemented.

For its part, BaFin has announced “prudent supervision”; however, it expects auditors to report fully on, among other things, the implementation of and compliance with the new obligations resulting from the implementation of MiFID2 and the accompanying regulations as part of WpHG audits.

We are also pleased to be able to provide a note on our own behalf: The EU Commission has commissioned KPMG Law to prepare a comprehensive study on the achievement of the objectives of the AIFM Directive.

With warm regards,

Henning Brockhaus

European legislation

Four Delegated Regulations published to complement the Benchmark Regulation

On January 17, 2018, the EU Commission published four Delegated Regulations supplementing the Benchmark Regulation:

  • Delegated Regulation (EU) 2018/64: The Regulation sets out how to assess whether certain events in one or more Member States may have significant adverse effects on the integrity of markets, consumers, financial stability, the real economy or the financing of households and businesses.
  • Delegated Regulation (EU) 2018/65: The Regulation specifies technical elements of the definitions arising from Article 3(1) of the Regulation.
  • Delegated Regulation (EU) 2018/66: The regulation governs how the nominal value of financial instruments, the nominal value of derivatives and the net asset value of investment funds must be measured.
  • Delegated Regulation (EU) 2018/67: The regulation specifies how the effects of a discontinuation or changes to existing reference values are to be assessed and provides criteria for this.

The Delegated Regulations shall enter into force 20 days after their publication.

National legislation and national supervision

Legislator announces WpDPV – BaFin publishes explanatory notes

On January 23, 2018, the German legislature adopted the Ordinance on the Audit of Securities Services Companies pursuant to Section 89 para. 6 of the WpHG (Wertpapierdienstleistungs-Prüfungsverordnung, WpDPV) published in the Federal Law Gazette.

The WpDPV entered into force on the day following its promulgation. You can access the text of the regulation here.

BaFin published explanatory notes on this on February 1, 2018.

National supervision

BaFin publishes information sheet on the distribution of investment assets pursuant to section 329 KAGB

On January 18, 2018, BaFin published a new leaflet on the distribution of investment funds according to Section 329 KAGB.

This explains the requirements for the distribution of units or shares in

  • by an EU AIF management company or
  • domestic special feeder AIF or EU feeder AIF managed by a capital management company,

whose respective master AIF

  • no EU AIF management company or
  • managed by a capital management company is an EU AIF or a domestic AIF.

You can find the fact sheet here.

National supervision

BaFin demands complete picture for WpHG audits

BaFin expects auditors to provide a complete picture of the implementation of and compliance with the WpHG and relevant regulations as part of the WpHG audit of securities services companies. In particular, this applies to the new obligations resulting from the implementation of MiFID2 and the accompanying regulations.

The BaFin does not want auditors to conduct an “eyeball examination”; in the BaFin’s view, auditors have no special discretion to take “mitigating” or “favorable” account of the circumstances of the individual case when examining implementation and to refrain from making any findings.

However, this explicitly does not preclude “prudent supervision.” BaFin announces that it will evaluate the auditors’ findings within the scope of its legally assigned discretion.

This statement does not apply directly to capital management companies, as the audit of MiFID2-relevant ancillary services is governed by the KAPrüfbV (Section 23). However, it can be assumed that BaFin has the same expectations with regard to the corresponding audit reports of capital management companies.

European supervision

ESMA updates Q&A catalogs on EMIR and Benchmark Regulation

The European Securities and Markets Authority (ESMA) has updated its Q&A catalogs on EMIR and the Benchmark Regulation.

You can find the updated Q&A at the following links:

Q&A on practical questions regarding the European Markets Infrastructure Regulation (EMIR)

Questions and Answers (Q&As) regarding the implementation of the Benchmarks Regulation (BMR)

European legislation

KPMG Law conducts study on the AIFM Directive on behalf of the EU Commission

The EU Commission has commissioned KPMG Law Rechtsanwaltsgesellschaft mbH to prepare a comprehensive progress report on the achievement of the objectives of the “Alternative Investment Fund Managers Directive” (AIFM Directive).

The goal is to evaluate how the guideline has performed in practice. The basis for this analysis is the AIFM Directive itself. Pursuant to Art. 69, the EU Commission is called upon to review the AIFM Directive after a few years of application to determine whether it has achieved its objectives.

Within this framework, an online-based survey will be conducted in 15 selected EU Member States with market participants such as AIFMs, depositaries, investors, financial intermediaries and asset managers, in order to record the experiences made in practice with the application of the Directive.

Please contact us if you have any questions.

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Henning Brockhaus


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