Banking and Finance Law
The finance law service portfolio comprises, inter alia, the structuring, documentation and support of real estate, acquisition and project finance transactions as well as the issuance of corporate Schuldschein loans (“Schuldscheindarlehen”), bonds under the German Bond Act (“Schuldverschreibungsgesetz”) and in partcular so-called SME bonds (“Mittelstandsanleihen”) with a subsequent listing in regulated unofficial markets (“Freiverkehr”) of German stock exchanges (e.g. „bondm“, „Entry/Prime Standard Bonds“ und „m:access“). Financing solutions that involve unit-linked life insurances (“fondsgebundene Lebensversicherungen“) are also to be mentioned in this respect.
Legal consultancy will be offered as to the establishment, management and marketing of investment funds under the new German Investment Code (“Kapitalanlagegesetzbuch”, KAGB), including the representation of clients in the authorization/registration process of alternative investment funds managers (AIFM) before the Federal Financial Supervisory Authority (“Bundesanstalt für Finanzdienstleistungsaufsicht”, BaFin) and scrutiny of certain issues relating to the ongoing requirements of the KAGB.
The following list of services contains some examples:
- Establishment and documentation (i.e. memorandum/articles of association) of domestic closed-ended real estate funds (e.g. Special-AIF)
- Examination of the licensing requirements for AIFM to obtain authorization from BaFin
- Preparation and drawing up of sales prospectuses, investment conditions and key investor information
- Appointment of the depositary or trustee (depositary agreement)
- Outsourcing of AIFM tasks
- Representation of AIFM clients in the authorization process before BaFin
- Legal assessment regarding the ongoing requirements of the KAGB in conjunction with AIFM-Directive and Level II-Regulation (EU) 231/2013 for investments of AIFM (e.g. leverage, eligible assets, issuer and investment limits)
- Examination and performance of specific obligations under the KAGB on behalf of AIFM (e.g. notification and disclosure obligations in case of acquiring control pursuant to sec. 289 et seq. KAGB)
Investment Products Law
Legal consultancy regarding issues within the scope of the new German Investment Products Act (“Vermögensanlagengesetz”) represents another subject of our finance law practice. In this regard, our law firm handles, inter alia, the conception and documentation of investment products (e.g. issue of profit-sharing rights, “Genussrechte”), including the drawing up of the sales prospectus and investment product leaflet (“Vermögensanlagen-Informationsblatt”).
Banking Supervisory Law and Financial Regulation
In addition, the banking law group will also advice on the regulatory requirements for current and intended banking business and financial services as well as the marketing of financial instruments and investment products, e.g.:
- Licensing requirements pursuant to sec. 32 German Banking Act (“Kreditwesengesetz”)
- Legal issues relating to the securities trading law under the German Securities Trading Act (“Wertpapierhandelsgesetz”) such as the insider dealing regulation (e.g. prohibition of insider trading and ad-hoc notification requirement), notification and disclosure requirements regarding voting rights, market manipulation and inducements
- Licensing requirements for financial investments intermediaries (“Finanzanlagenvermittler”) pursuant to sec. 34f German Trade Regulation Act (“Gewerbeordnung”)
- Requirements of the European Market Infrastructure Regulation (EMIR) and regulatory/implementing technical standards (RTS/ITS) for the OTC-trading of derivatives (e.g. reporting, risk mitigation, exchange of collateral and CCP-clearing)
Insurance Supervisory Law
We are available to scrutinize the regulatory requirements for intended or realized investments of insurance companies and pension funds (e.g. investment of restricted assets in corporate loans and real estate) and likewise include those considerations in the design of borrowings or issues (sec. 54 German Insurance Supervisory Act in conjunction with investment regulations such as “Anlageverordnung”).
The latter task is de facto inevitable for almost every issue of corporate Schuldschein loans (“Schuldscheindarlehen”) in order to optimize the placement of loan receivables with institutional investors from the outset. Experience shows that only in exceptional cases domestic insurance undertakings will include corporate Schuldschein loans in their free assets for which the above restrictive regulatory rules do not apply.
We conduct litigation representing banks and financial services providers against liability lawsuits of investors in court and out of court (e.g. actions for bad investment advice and prospectus liability claims).