15.06.2015 | KPMG Law Insights

Investment Law – Investment | Law | Compact – Issue 6/2015

Dear Readers,

The parliamentary summer recess is slowly coming into view in Berlin and Brussels.

Before that, however, we are expecting the draft of the UCITS V Implementation Act in the next few days, which is also intended to put BaFin’s recently changed administrative practice on loan funds on a legal footing.

There is then not much time left for the implementation of UCITS V. In March 2016, the amended UCITS Directive must be transposed into national law in the member states.

In addition to UCITS V, things are now getting concrete with the new European Long Term Investment Funds (ELTIF): The ELTIF Regulation has been published and is applicable as of December 2015.

With warm regards

Henning Brockhaus


ESMA publishes updated Q&A catalog on the application of the AIFM Directive

ESMA provided an updated set of Q&A on the applicability of the AIFM Directive on May 12, 2015.

The amendments mainly concern issues related to information in notifications to national authorities. In addition, ESMA takes up the topic of leverage valuation. In this context, the Authority explains in more detail, for example, the issue of calculating exposure under the commitment method.

ESMA’s Q&A can be found here.


ELTIF Regulation published in the EU Official Journal

In our May issue, we reported that the Regulation on European Long Term Investment Funds (ELTIF Regulation) had been adopted by the Council of the European Union.

On May 19, 2015, the ELTIF Regulation was now published in the Official Journal of the EU. The Regulation shall enter into force on the twentieth day following its publication in the Official Journal of the EU and shall apply from 9 December 2015. It then applies directly in Germany and does not have to be transposed into national law.

The aim of the regulation is to make more capital available for long-term investment in the European economy. Among other things, an ELTIF may grant loans to companies for this purpose under certain conditions.

We would be happy to advise you on ELTIF design options and resulting business opportunities.

You can find the ELTIF regulation here.


BaFin postpones deadline for AIFMD reporting

BaFin has again postponed the submission deadline for the AIFMD reporting.

In its leaflet on the reporting obligations of AIF management companies dated March 5, 2015, BaFin had most recently indicated a period of mid to late May 2015 for the submission of the first report.

As the technical problems with the connection of BaFin’s system to ESMA’s systems have not yet been solved, the start of AIFMD reporting has to be postponed again. BaFin will make the systems available in the short term as soon as the obstacles have been removed.

For reasons of legal and planning certainty, BaFin has announced that it will refrain from requesting reports that are already due before August 1, 2015, irrespective of whether the system goes live earlier.


ESMA publishes opinion on impact of EMIR on UCITS

On May 22, 2015, ESMA published an Opinion on the impact of the European Market Infrastructure Regulation (EMIR) on UCITS investment assets.

In the Opinion, ESMA suggests amending the UCITS Directive’s rules on counterparty risk to better reflect clearing obligations for individual categories of OTC derivatives under EMIR.

In this context, ESMA proposes to abandon the differentiation between OTC derivatives and exchange-traded derivatives (ETDs) in the context of risk assessment and to differentiate instead between “cleared” and “non-cleared” OTC derivatives. A further differentiation could be made on the basis of the segregation models, as the counterparty default risk may present itself differently depending on the model.


Bundesrat approves Small Investor Protection Act

After the Bundestag passed the Small Investor Protection Act on April 23, 2015 – as reported in our May issue – the Bundesrat also approved the law on June 12, 2015. The Small Investor Protection Act shall enter into force in substantial parts on the day following its promulgation. However, some parts of the law will not go into effect until January 1, 2016, or January 3, 2017. This applies in particular to those provisions that were anticipated by MiFID 2 / MiFIR.

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Henning Brockhaus


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