I am happy to announce that the 5th revised edition of Banking Business in Germany is now available. You can order it at „Fachverlag Moderne Wirtschaft“ (34,50 EUR). It is also available as an E-Book at ciando (28,50 EUR).
Banking Business in Germany, new 5th revised edition
“Banking Business in Germany” is again a joint project of the Association of Foreign Banks in Germany and PwC.
From the Preface, written by Thomas Schäfer, Minister of Finance of the State of Hessen:
Now in its fifth edition, „Banking Business in Germany“ presents the legal and economic frameworks for the banking sector in Germany.
With the European Central Bank and the Bundesbank located here, Frankfurt is a leading location for international monetary and currency policy. And since the Single Supervisory Mechanism (SSM) has been placed under the auspices of the European Central Bank in November 2014, the financial centre of Frankfurt as a whole has become even more valuable and attractive for foreign institutions. And so, together with the European Insurance and Occupational Pensions Authority (EIOPA) and the European Systemic Risk Board (ESRB), Frankfurt is not only the centre of European monetary policy, but has also become a centre for regulatory authorities and supervisory agencies that can boast a competitive regulatory environment.
Over the last few years, the main objective of regulatory efforts at international, European and national level has been the rebuilding of trust in the financial markets. The creation of a Capital Markets Union and the implementation of new European requirements for financial market products are just two of the changes we will have to adapt to. I believe that Frankfurt should contribute towards achieving a change of direction: after years with a focus on regulation, it is now time for the simplification and optimisation of framework conditions. If these challenges can be actively addressed, I am confident that Frankfurt will be able to successfully defend its market position among the competition provided by global financial centres.
We welcome all financial institutions coming to Germany and contributing to this financial market, thereby enabling customers to choose from a diverse range of financial products.
I hope you will enjoy reading this publication and I cordially welcome you to Germany.
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.
Depending on whether a fund is classified as open ended or closed, different rules apply. This is in particular decisive for the question whether the management of funds preexisting to the entry into force of the KAGB requires a license according to the KAGB and thus whether the respective manager of an AIF shall submit an application for a license.
ESMA set the frequency of redemption opportunities as a criterion for the distinction between open ended and closed AIFs. An annual redemption frequency should lead to a classification as open-ended AIFs. An AIF should be deemed closed if the redemption possibility is provided less than once annually.
The application of this criterion was rejected by the European Commission; hence ESMA has developed a new proposal (2013/ESMA/1119), which provides that any possibility of redemption of the investor prior to the liquidation of the AIF leads to a classification as open-ended AIF. In addition, ESMA proposes to apply the currently applicable Member States’ law for the transitional provisions. This solution would provide legal certainty for those managers of AIFs that operate without a license on the basis of preexisting investment management contracts.
It remains to be seen how the European Commission will react on this new proposal.
In the near future, collective investment models that do not fall under the UCITS Directive, will be regulated indirectly by the AIFMD. The AIFMD regulates fund managers directly, and thus indirectly also their products, and will be applied from 22 July 2013. In the future, it will apply basically to so-called “alternative” fund managers, such as managers of closed end funds, private equity or non-UCITS investment funds, and on account of European provisions a license will be required.
The German implementation is currently in preparation. According to reports, the current investment law is turned upside down and will be transformed in a so called “Capital Investment Code”. The release of the draft is expected daily.
On 20 October 2011, a draft of the revised Markets in Financial Instruments Directive (MiFID) flanked by the draft of a new Market in Financial Instruments regulation (MiFIR) was published by the EU Commission. The two drafts are hereinafter referred to collectively as "MiFID II". The revision of the existing MiFID is part of reforms designed after the financial crisis to create a safer and sounder financial system.
MiFID II is expected to expand the existing licensing obligation to a larger number of enterprises.
The MiFID II draft plans an extension of the definition of "financial instrument". Under MiFID II, emission certificates will be classified as financial instruments. In addition, any forward contracts on commodities that are traded on organized trading systems, will qualify as financial instruments. The trading of financial instruments, especially for a third party, can trigger a license requirement.
MiFID II aims to ensure that the entire organized trading takes place on regulated market places. Existing commercial systems that are currently not regulated are then expected to be subject to a license requirement.
MiFID II will also restrict the existing exemptions. Currently, commodity dealers use often the so called "commodities dealer exemption", which exempts particular the "Back to back" trading from the license requirement. This exemption will probably be abolished. The so-called "ancillary exception", which can also be used by commodities traders will be redesigned.
It is likely that some market participants, who were not previously covered by a license requirement under MiFID, will face a licensing obligation under MiFID II. Thus there is for commodity dealers in larger scale than before the risk of being subject to licensing requirements.
Companies that could be subject to a license requirement pursuant to MiFID II must face this challenge in time and analyze appropriate solutions. There are different ways to structure the activity carried out so that they still could operate without a license. If a company decides to file a license application, the entire business of the legal entity has to meet the regulatory requirements under the Banking Act, the Securities Trading Act and other regulations, so that in this respect new structures within the company or the group may be necessary.