19.09.2017 | KPMG Law Insights

Investment | Law | Compact – Issue 9/2017

Dear Readers,

There are just under three months left to implement the new MiFID2/MiFIR requirements. Currently, some market participants, including asset managers and capital management companies (KVGs), are still dealing with multiple and difficult individual issues. In particular, the implementation en detail still reveals one or two legal uncertainties and difficulties of interpretation. ESMA’s ever-growing catalog of questions and answers only helps to a limited extent.

We are happy to provide you with advice and support and let you benefit from our experience in accompanying various market participants in MiFID2 implementation projects.

In addition, the investment tax reform is currently tying up a lot of resources at KVGs. Almost all investment fund terms and conditions must be adjusted and – in the case of the special fund – coordinated with investors.

We will be happy to assist you in amending the fund contract documents. Contact us.

With warm regards

Henning Brockhaus

National legislation

New Remuneration Ordinance for Institutions published in the Federal Law Gazette

The Ordinance Amending the Remuneration Ordinance for Institutions (IVV) has been published in the Federal Law Gazette and has been in force since August 4, 2017.

With the current revision of the regulation, the requirements of the EBA guidelines have been incorporated into national law. BaFin presents the most important changes of the revision on its homepage.

You can find the amendment to the Remuneration Ordinance for Institutions here.

European supervision

ESAs publish further Q&A on PRIIPs.

The European Supervisory Authorities (ESAs) have supplemented theirs with further questions and answers. The new content covers, among other things, the topics of market risk indicator and credit risk assessment.

The ESAs clarify that even if prices are available daily, there is no minimum frequency requirement for recalculating the market risk indicator.

With regard to the calculation of the credit risk, it is stated that a look-through of the risks of a target fund only has to take place if the target fund represents a volume of at least 10% of the value of the fund of funds.

You can find the revised Q&A catalog here.

National supervision

BaFin comments on the use of leverage in special funds

BaFin has commented on the question of when a special fund with fixed investment conditions pursuant to section 284 KAGB is to be classified as a special hedge fund pursuant to section 283 KAGB.

This is the case if the special AIF explicitly provides for leverage according to its investment conditions or the information document (Section 307 KAGB), which is not limited to a leverage of 3 or less according to the commitment method.

Although BaFin states that this administrative interpretation is not applicable for the purposes of Sec. 3 para. 2 sentence 2 no. 2a) of the German Banking Act (KWG) applies. However, this statement is also likely to be of interest with regard to the classification according to the fund types of the KAGB. In order not to have to classify a special fund as a hedge fund pursuant to Section 284 KAGB, KVGs should ensure that the fund documents explicitly limit the leverage to 3 or less.

European supervision

ESMA updates Q&A catalog on MiFID2

The European Securities and Markets Authority (ESMA) published its updated Questions and Answers (Q&As) related to the implementation of MiFID2 and MiFIR on September 12, 2017.

For more information, please visit ESMA’s website. The revised Q&A can be found here.

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Henning Brockhaus


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