15.12.2015 | KPMG Law Insights

Investment Law – Investment | Law | Compact – Issue 12/2015

Dear Readers,

A year ago, we launched our monthly newsletter Investment | Recht | Kompakt . We hope to have provided you with useful information and contributions this year. By the way: We are always happy to receive feedback on our newsletter!

Looking back, it was a year of many regulatory measures. However, 2016 will in all likelihood be no different from the previous year in this respect. Already in the next few months, a lot of work awaits the UCITS capital management companies, as UCITS V must be implemented by March 2016. In addition, the implementation of MiFID2 will still involve some effort.

But first, we wish you happy holidays and a prosperous new year!

With warm regards

Henning Brockhaus

National legislation

BaFin comments on approval procedure for investment terms and conditions of UCITS

In a letter to the investment industry, BaFin has commented on the conversion procedure of the UCITS investment conditions to the KAGB as amended by the UCITS V Conversion Act (OGAW V-UmsG). The background is the very short changeover period until March 18, 2016. On this date, the adjusted UCITS investment conditions must enter into force.

Due to the tight implementation period in combination with the expected number of amendments, the legislator has provided for the transitional provision of section 355 (5) KAGB draft in the government draft of the UCITS V Conversion Act. According to this regulation, only those amendments to the investment conditions may be applied for which are mandatory for the adaptation to the requirements of the version of the KAGB applicable as of March 18, 2016.

BaFin now provides details of its administrative practice with regard to the required amendments. According to this, the investment conditions must first be coordinated electronically with the supervisory authority. Subsequently, the capital management companies must submit written applications for approval. However, these are not to be submitted until February 22, 2016. Applications received by BaFin before this date would have to receive a negative decision from the supervisory authority, because otherwise they would be considered approved after four weeks (approval fiction, Section 163 (2) sentence 5 KAGB), but there is no legal basis for an approval of UCITS V investment conditions until March 18, 2016.

By this date, the sales prospectuses and key investor information of all UCITS must then also be revised and subsequently submitted to BaFin.

We will be happy to support and advise you on any implementation measures that may arise. Feel free to contact us.

European legislation

EU Parliament and EU Commission Consider Postponement of MiFID2

European legislators are considering postponing the planned start date of January 3, 2017 for the introduction of MiFID2 and MiFIR. The main reason for this is the costly implementation of IT infrastructure.

However, no final decision has been made yet. Please contact us if you have any questions. We will also keep you up to date here.


Update of the Q&A catalog on the application of the AIFMD

On December 2, 2015, ESMA amended its Q&A catalog on the application of the AIFM Directive to include additional questions and answers on reporting.

You can find the updated Q&A catalog here.

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Henning Brockhaus


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