12.08.2015 | KPMG Law Insights

Investment Law – Investment | Law | Compact – Issue 8/2015

Dear Readers,

The draft bill of the UCITS V Implementation Act is currently on the table.

The implementation period is very short. By March 18, 2016, the new regulations conditioned by UCITS V must come into force.

Until then, there is still a lot of work to be done by the market participants and the supervisory authority. This is because the investment conditions of all mutual funds must be adapted to the new requirements and approved by BaFin.

Meanwhile, Brussels continues to work on the delegated acts (Level 2) of the MiFID2 financial markets directive. In parallel, many market participants in this country are currently planning MiFID2/MiFIR implementation projects or have already started preliminary studies and gap analyses.

And rightly so, because there is less than a year and a half until the start date for MiFID2/MiFIR.

We are happy to support you!

With warm regards

Henning Brockhaus

National legislation

High time pressure due to short implementation period for UCITS V

By March 18, 2016, the member states of the European Union must have transposed the revised UCITS V Directive into national law. To this end, the German legislator published the draft bill for a UCITS V implementation act at the beginning of July (see our July issue), which will amend the KAGB in particular.

Also by March 18, 2016, revised investment conditions of all UCITS must come into force, which means an immense amount of work for capital management companies and supervision. Deducting the four-week approval period of BaFin pursuant to Section 163 KAGB, the amendments must be submitted to BaFin no later than the 7th calendar week of 2016. In addition, all sales brochures must be adjusted accordingly.

As a result of the short implementation period, BaFin has agreed to coordinate the new model investment conditions with BVI already on the basis of the draft bill. More time is provided for public AIFs: By September 18, 2016, these are to be adapted to the revised KAGB.

KPMG Law will be happy to assist you in adapting the investment conditions and sales prospectuses.


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

ESMA has again published an updated set of Q&A on the application of the AIFM Directive on July 21, 2015.

This includes updated and new Q&A on reporting to national authorities and calculating the total value of the AIFM’s managed assets.

ESMA’s amended Q&A can be found here.


ESMA consults on guidelines on remuneration rules under UCITS V and AIFMD

ESMA published a consultation paper on the implementation of the remuneration rules of the UCITS V Directive on July 23, 2015. The guidelines are based on the already prepared guidelines on remuneration under the AIFM Directive and also take into account the specific requirements of the UCITS V Directive.

The aim of the guidelines is the uniform application of the compensation rules in the member states. They are intended to provide guidance on issues of proportionality, control of remuneration, risk strategy and disclosure.

ESMA intends to publish the guidelines and a Final Report before the implementation deadline of the UCITS V Directive on March 18, 2016.

ESMA’s consultation can be found here.


ESMA launches consultation on ELTIF Regulation

ESMA published a consultation paper (Draft regulatory technical standards under the ELTIF Regulation) on the ELTIF Regulation on July 31, 2015. The ELTIF Regulation already entered into force in June 2015 and contains regulations on so-called European Long-Term Investment Funds (ELTIFs). The special feature of ELTIFs is that at least 70 percent of the investment assets must be invested in specific portfolio companies or in financial instruments or similar assets related to them.

Under the ELTIF Regulation, ESMA is required to develop regulatory technical standards to specify the rules of the ELTIF Regulation. The consultation paper now submitted contains draft regulatory standards on the following topics:

  • Use of derivatives for hedging purposes;
  • reasonable term of an ELTIF;
  • Establish criteria for evaluating the market for potential buyers of assets held in the ELTIF at the end of the fund’s life;
  • Establish criteria for the valuation of assets to be sold at the end of the fund’s life;
  • Establish general definitions, methods of calculation, and methods of presentation of costs; and
  • Details of available facilities for retail investors.

Comments on the consultation paper can be submitted to ESMA until October 14, 2015.

ESMA’s consultation paper can be found here.


BaFin publishes sample letter for notifications according to § 53 KAGB

On August 5, 2015, BaFin published a model letter for notifications pursuant to Section 53 KAGB.

Pursuant to Section 53 KAGB, an AIF management company must notify BaFin if it intends to manage EU AIFs, i.e. AIFs from other EU member states, for the first time or to provide other service or ancillary services.

After examination, BaFin forwards this notification to the competent authority of the respective EU member state. The model letter applies both to the provision of the above activities by way of cross-border service provision and through a branch.

You can find the sample letter here.

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Henning Brockhaus


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