Banking and Capital Markets
We advise and represent financial institutions and other market players in matters involving finance law, investment law, investment products law, and banking and insurance supervision.
Our finance law practice focuses on the structuring, documentation and support of real estate acquisition and project finance, as well as the issuance of corporate promissory note loans (“Unternehmenschuldscheindarlehen”), bonds under the German Bond Act (“Schuldverschreibungsgesetz”) and in particular 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“ and “m:access“).
We advise on the establishment, management and marketing of investment funds under the German Investment Code (“Kapitalanlagegesetzbuch”, KAGB), including the representation in the authorization/registration process of alternative investment fund managers (AIFM) before the Federal Financial Supervisory Authority (“Bundesanstalt für Finanzdienstleistungsaufsicht”, BaFin) and advise on ongoing compliance requirements under the KAGB. This includes:
- 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
Our practice also advises on the regulatory requirements for current and planned banking business and financial services, as well as the marketing of financial instruments and investment products, for instance:
- Licensing requirements pursuant to Sec. 32 German Banking Act (“Kreditwesengesetz”)
- Legal issues relating to securities trading under the German Securities Trading Act (“Wertpapierhandelsgesetz”), for instance insider dealing regulations (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 advise on 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 issuances (German Insurance Supervisory Act in conjunction with investment regulations such as “Anlageverordnung”). The latter task is de facto inevitable for almost every issuance of corporate promissory note loans (“Unternehmenschuldscheindarlehen”) in order to optimize the placement of loan receivables with institutional investors from the outset. Experience shows that only in exceptional cases will domestic insurers include such loans in their free assets, for which the above restrictive regulatory rules do not apply.
We represent banks and financial services providers in defending against liability claims of investors in court and out of court (e.g. actions for bad investment advice and prospectus liability claims).