we wish you a healthy and successful new year!
We are happy to accompany you also through 2017 with our monthly update on legal and regulatory topics related to asset management.
But first, back to the old year: Shortly before Christmas, the German government passed the draft of a “Second Act to Amend Financial Market Regulations Based on European Legal Acts (Second Financial Market Amendment Act – 2. FiMaNoG)”.
BaFin has also been active in recent weeks and months and has issued the new capital investment circular for consultation and published the final minimum requirements for the risk management of capital management companies (KaMaRisk).
Once again this year, we look forward to assisting you with the wide range of legal and practical topics. Feel free to contact us.
With warm regards
On December 21, 2016, the German government passed the “Draft of a Second Act to Amend Financial Market Regulations Based on European Legal Acts (Second Financial Market Amendment Act – 2. FiMaNoG)” in addition to several other legislative projects. The document was made available on the website of the Federal Ministry of Finance (BMF) shortly before Christmas.
The present government draft (RegE) follows the corresponding draft bill (RefE) of September 29, 2016 (see our issue 10/2016). While the RefE comprised 379 pages, the RegE now has 348 pages (including the explanatory memorandum in each case).
The RegE is to implement the European requirements “as far as possible 1:1”.
The following changes compared to the RefE appear worth mentioning at first glance (only concerning investor protection and without any claim to completeness):
The Bundestag and Bundesrat will deal with the RegE in the coming weeks and months. As is well known, the national legislative process must be completed by July 3, 2017.
You can find the draft of the 2nd FiMaNoG here.
We will be happy to support you in implementing the new requirements of the 2nd FiMaNoG. Contact us.
On December 21, 2016, BaFin published the draft of the long-announced new capital investment circular for consultation.
The draft is addressed only to all companies licensed to conduct primary insurance business to which the provisions for small insurance companies (Sections 212 to 217 ISA) apply, as well as to domestic pension funds and pension funds. It regulates according to § 1 para. 5 AnlV the more detailed requirements for the provisions of the Investment Ordinance of April 18, 2016 and pursuant to § 16 para. 4 PFAV the more detailed requirements for the special provisions of Chapter 4 of the Pension Fund Supervision Ordinance of April 18, 2016.
The draft is intended to replace the previously applicable Capital Investment Circular 4/2011 (VA) dated April 15, 2011. In addition, Circulars 1/2002 (VA) of April 12, 2002 (GZ: Q 4-99/02) and 7/2004 (VA) of August 20, 2004 (GZ: VA 14-O 1000-200/04) are repealed with the new capital investment circular.
An der Konsultation kann man sich bis zum 31. Januar 2017 beteiligen.
You can find the draft here.
In our December issue, we reported on the European Securities and Markets Authority’s (ESMA) November 16, 2016 update of the Q&A catalog on the AIFM Directive.
According to ESMA’s Q&A, outsourcing occurs when the manager of an alternative investment fund delegates functions listed in Annex 1 of the AIFM Directive to a third party. This would also include distribution.
BaFin has now taken a position on this vis-à-vis the fund industry. It confirmed its previous view that in the case of the distribution of investment shares by intermediaries, there is regularly no case of outsourcing.
In our November issue, we reported that BaFin had issued the circular on the minimum requirements for the risk management of capital management companies (KAMaRisk) for consultation.
On January 10, 2017, BaFin has now published the final circular, which replaces the predecessor circular, the “Circular on the Minimum Requirements for Risk Management for Investment Companies” (InvMaRisk).
Changes in content compared to the InvMaRisk relate in particular to the adjustment of supervisory practice to the Delegated Regulation to the AIFM Directive with regard to certain requirements on organization, risk management or outsourcing. Also included are minimum risk management requirements for capital management companies that grant money loans or invest in unsecuritized loan receivables for the account of the AIF.
With the exception of section 5 (item 5) on risk management when granting loans and investing in unsecuritized loan receivables, the requirements of KAMaRisk apply immediately. Section 5 shall enter into force 9 months after the publication of the circular.
You can find the KAMaRisk here.
On December 21, 2016, BaFin proposed to add clarifying information to the sales prospectuses of equity funds with regard to the use of indices or other reference values. For this purpose, it consults the draft of a corresponding pronouncement. Most recently, the Financial Supervisory Authority had investigated whether German equity funds are described in sales documents as actively managed, although they pursue a passive investment strategy (“closet index tracking”).
BaFin proposes to include the following points in the sales prospectuses:
The sales prospectuses may be amended in accordance with the above requirements as part of the next upcoming amendment; however, these must be included in the sales prospectuses no later than June 30, 2017.
The consultation period ends on January 27, 2017.
The draft and more detailed information can be found here.
We will be happy to assist you in adapting the sales brochures. Contact us.
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