The “Market in Financial Instruments Directive” (MiFID ) is currently being revised and will be final adopted as so-called “MiFID II” by the European Parliament later this or next month.
The definition of the term “financial instrument” is expected to be extended . For example, according to the draft, emission allowances will be classified as financial instruments . In addition, basically all physically settled commodity derivatives that are not stipulated bilaterally will be classified as financial instruments, with the exception of certain electricity, gas , coal and oil contracts.
In the course of the AIFMD’s (Directive 2011/61/EC) transposition into national law, Article 33 AIFMD has been interpreted differently. Some competent authorities were of the opinion that the provision of services and non-core services pursuant to Article 6 para. 4 AIFMD could not be part of the EU-Manager Passport. Other competent authorities, as for example the English FCA, took the position, that Article 33 AIFMD very well allows the so called passporting of MiFID services and non-core services.
Already in August 2013 Germany and Switzerland have agreed to facilitate the market access for Swiss Banks in Germany. Through an intensive cooperation with the supervisory authority between both states, the exemption process should be tightened and push on forward. The procedure releases the Swiss banks from the German licensing requirements, if they fulfill certain conditions. Swiss banks can now acquire customers in Germany without having a branch. Within the planned German-Swiss tax treaty both states have negotiated an easier market access in 2011. However, the tax treaty failed in 2012 in the German Bundesrat.
For a long time it was unclear whether the planned financial market directive “Markets in Financial Instruments Directive” (MiFID II) would cancel the facilitated market access in Germany. As the first drafts of MiFID II stipulated that banks from non-EU-countries have to establish a local branch in the state where they intend to operate. According to these plans they are allowed to offer their services only over such branch to an EU-customer. However, it won’t come this far: on 14 January 2014, representatives of the European Parliament, the Council of the Ministers and the European Commission have agreed that a branch is not necessary for market access in advising private clients.
In order to make use of the exemption process Swiss banks must fulfill some conditions. The identification of the customer must be carried out by genuinely, trustworthy third parties. Furthermore, Swiss banks have to comply with the German investor and consumer protection regulations in the case of transitional business preparations in Germany. In addition, the Federal Supervisory Authority (BaFin) may participate in audits through Swiss Financial Market Supervisory Authority FINMA in Swiss banks.
We did it again: The 4th revised edition of “Banking Business in Germany” is now available.
Also the new edition was developed in close cooperation between the Association of Foreign Banks in Germany (Verband der Auslandsbanken in Deutschland e.V.) and PwC.
The book’s subtitle tries to explain its ambition in one short sentence:
“A practical guide for foreign banks establishing a subsidiary or a branch in Germany”
True. But actually the book covers much more: It presents a current overview of the economic, regulatory, legal and tax framework that applies to credit institutions and financial service institutions in Germany.
Nearly half a year went by since the Kapitalanlagengesetzbuch (German Investment Act; “KAGB”) entered into force in July 2013. Time for a first resume of the issues which crystallised in the due course of the license procedures for Alternative Investment Fund Managers (“AIFM”) since then.
Capital requirements and regulator’s usance in this area
While most of the draft applications complied with the general capital requirements pursuant to section 25 KAGB, it was sometimes necessary to remind of existing regulator’s usance in order to avoid otherwise predictable feedback by the regulator on this issue. Occasionally applicants omitted that the volumes requested by section 25 par. 1 and 4 KAGB are minimum requirements, which can be missed, especially in case of starting losses.
Typically an administrative offence exists when a necessary reporting pursuant to the Foreign Trade and Payments Regulation (AWV) was conducted incorrectly, incompletely, not at all, or not in time.
According to the changed rules within the Foreign Trade and Payments Act (AWG), the prosecution of that administrative offence will be ceased if it is a negligent breach of law, the breach was revealed by way of self-monitoring and the responsible authority was notified. Moreover, it is necessary that adequate measures are taken to prevent a repeat failure for the same reason. Pursuant to Sect. 22 para. 4 clause 2 Foreign Trade and Payments Act a notification to the responsible authority will only be regarded as voluntary if the respective authority has not started any investigations, yet.
Due to the very positive role of development banks in regard to the cyclical stabilization and the economic growth stimulus, we see the progression to a development bank 2.0 not only in Germany, but in an international environment.
This leads to an international momentum to take the positive aspects of development banks and establish them in their own countries. The aspects of the development bank 2.0 concern the independence of the bank regarding influence from politics. We observe an increase in freedom and a change from narrow political provisions to a leadership through goals, especially in the area of foreign bank foundation:
Across industries, recent years have revealed that an efficient allocation of liquidity is essential for businesses’ economic success. By leveraging European Central Bank’s (ECB) standing facilities newly formed banks can professionalize their liquidity management, too. But, in order to utilize these facilities specific requirements have to be met.
To guarantee a successful liquidity management adequate measures have to be taken to cope with excess liquidity and liquidity demand. ECB’s standing facilities are one possible instrument to manage short-term and flexible liquidity mitigation measures. Besides marginal lending facilities standing facilities provide deposit facilities. The marginal lending facilities provide short-term “overnight”-lending to banks whereas deposit facilities offer a risk-free deposit account for excess liquidity.
There is currently an ongoing discussion about the criteria of demarcation between closed and open ended funds between the European Commission and the European Securities and Markets Authority (ESMA). The determination of these criteria is relevant not only with regard to compliance obligations of the asset management companies – in particular with respect to rules related to liquidity management-, but also with regard to the application of the transitional provisions of the KAGB.
In the future, in the course of the banking licensing procedure according to KWG (German Banking Act) it has to be proven that the prospective managers of the institution are able to commit sufficient time to perform their functions. The license application has to include information according to which BaFin (German Federal Financial Supervisory Authority) can assess whether the managers are able to commit sufficient time to perform their functions. Especially the number of further directorships of the manager has to be given, as well as the expenditure of time which has to be donated to them. This has to be set into proportion to the time required for his management function in the new established institution.