AIFM Developments in Germany

Transcription

1 December 2012 AIFM Developments in Germany Amended Draft of the Act on the Transposition of the AIFM Directive with significant modifications to the German Capital Investment Code (Kapitalanlagegesetzbuch) as compared to the original discussion draft Executive Summary > The substantive concept of funds is restricted > A category of semi-professional investors is introduced > The concept of open-ended real estate funds is retained > Investment opportunities with respect to closedended retail funds are extended > Outsourcing to non-licensed companies in the AIF-related field is possible, provided that the BaFin (German Federal Financial Supervisory Authority) approves > Depositary functions are now open to what the Transposition Act calls trustees (Treuhänder) > Transitional provisions are significantly adjusted I. Introduction The transposition of the Directive on Alternative Investment Fund Managers (AIFM Directive, Directive 2011/61/EU) in Germany is becoming more and more palpable. Subsequent to the discussion draft by the Bundesfinanzministerium (German Federal Ministry of Finance) of 20 July 2012 pertaining to the AIFM Transposition Act ( AIFM-UmsG ), the first significant modifications of the forthcoming government cabinet bill regarding the AIFM Transposition Act as well as the proposition for a new German Capital Investment Code (Kapitalanlagegesetz) ( KAGB-E ) incorporated therein have emerged at the beginning of November. Our newsletter provides you with a brief update of the recent developments. The publication of the corresponding government draft on the website of the Bundesfinanzministerium (German Federal Ministry of Finance) is to be expected before Christmas. Following this, the earliest available press reports indicate that the readings in the Bundestag (the Parliament of Germany) are to take place in a very speedy manner. II. Outline: the KAGB-E s structure The government draft is supposed to address the industry s essential issues based on the opinions which were submitted by the corresponding associations in response to the discussion draft, in particular with the following results: Open-ended real estate funds shall be maintained, both as retail funds and as specialised funds (Spezialfonds); With respect to specialised funds, another, newly defined category of investors is permitted alongside the professional investors, called semi-professional investors ; The maximum permissible leverage as to closed-end retail funds used to be 30%, and is now increased to 60%; It is to be expected that the originally intended ban on the creation of new funds will be dispensed with as of the effective date of the Code; Alongside custodian banks, other trustees (Treuhänder), or institutions like attorneys-atlaw, or notaries, that are subject to special legal provisions or to professional codes of conduct, may be appointed as depositaries for certain closed-ended AIFs; Outsourcing of the portfolio management and/or the risk management with regard to AIFs to non-licensed companies may only be effected upon approval by the BaFin (German Federal Financial Supervisory Authority), how- 1

2 AIFM Developments in Germany ever, this is now possible with respect to retail AIFs, too; Besides the legal forms of an AG (Aktiengesellschaft, stock corporation) or a GmbH (Gesellschaft mit beschränkter Haftung, limited liability company), an external AIFM (Kapitalverwaltungsgesellschaft) may also take the legal form of a GmbH & Co KG (limited partnership with a limited liability company as the general partner); Important changes pertain to the transitional provisions; with respect to the assertion of the grandfathering provision regarding the management of closed-ended funds, the factor which shall from now on be the only relevant one is whether the fund is fully invested. Consequently, an admission of further investors after the effective date remains possible. In all other respects, the structures of the German Capital Investment Code which were already contained in the discussion draft shall continue to apply, i.e.: As is generally known, only the ESMA i.e. the securities commitee which is entrusted with the consolidation of the AIFM Directive is left to be counted on, at a European level, to provide a proposal for a more precise definition, construction and if applicable restriction of this basically very broad scope of application of the AIFM Directive and, consequently, of the German Code; ESMA is in charge of drafting the key concepts (key concepts of the AIFM Directive and types of AIFM, ESMA/2012/117) for the various types of AIFM as proposals for the Commission; they are intended to ultimately serve as an aid in construing the statutory elements of the provisions. Distinction from operating companies outside the financial sector The German legislature has addressed the current discussion about the (very broad) scope of application of the Code within the scope which it was granted by the framework of European law by virtue of the Directive by adding the additonal element and which is not an operating company outside the financial sector in Section 1 Subsection 1 KAGB-E, thus further conceptually restricting the elements constituting a fund itself. the fund typology consisting of the distinction between opend-ended and closed-ended funds and/or between specialised and retail funds is maintained; the AIFM may be organized as either an internal or external AIFM; notification obligation when marketing AIFs; in future, there will be no private placement anymore. The significant modifications, in detail, are: III. Scope of Application Restriction of the Substantive Concept of Funds Broad Scope of Application of the AIFM Directive Pursuant to the AIFM Directive, an alternative investment fund is defined as collective investment undertakings which raise capital from a number of investors, with a view to investing it in accordance with a defined investment policy for the benefit of those investors. According to the Code s explanatory memorandum, the addition of this further element is supposed to exclude manufacturing companies and operating companies outside the financial sector from the KAGB s scope of application; in the Code s explanatory memorandum as to Section 1 Subsection 1 KAGB-E, the legislature clarifies additionally that, in this respect, the investment strategy which is inherent to and determined for a fund (including clearly defined investment criteria) has to be distinguished from the merely general business strategy of an operative company. By using this distinction, the legislature does indeed initially address the points of criticism of some industry representatives; however, it continues to remain imprecise as to the details (e.g. with respect to the provision of examples), with the result that 2

3 AIFM - Developments in Germany the issue of the scope of application will, in practice, still continue to be subject to a decision on a case-by-case basis. At least, however, operating companies with a plurality of investors e.g., real estate special purpose companies, joint ventures, and also real estate companies which are listed on the stock exchange, as well as REITs, for which generating profit for the company s own benefit comes first, while no precise investment guidelines are determined about this for a (third-party) manager, are now enabled to quote the Code s explanatory memorandum in favour of the opinion that the KAGB is not applicable; however, in such context, the other circumstances of the individual case (e.g., whether the investment, or the financing, is of equity nature or of debt nature as well as a time limit which is typical within the context of an investment strategy including an exit strategy) will always have to be taken into account. IV. The semi-professional investor The legislature has accomodated another major concern of the industry by admitting another type of investor to specialised AIFs, called the semiprofessional investor. Previously: privileged retail investors only admitted to closed-ended retail funds without risk diversification (previously: single asset funds) Previously, a watering down of the otherwise strict separation between funds for all types of investors, including retail investors (retail AIFs), and funds which are open to investments by professional investors only (specialised AIFs), was provided for by the discussion draft merely with respect to a single item in the Code: the closedended funds without risk diversification (previously: single-asset retail funds) within the meaning of Section 226 Subsection 2 KAGB-E are intended to also remain open to specially qualified retail investors that are equipped not only with a minimum investment account (currently reduced to only 20,000 Euro, from previously 50,000 Euro), but also with certain qualitative characteristics and knowledge; in this respect, the term semi-professional investor has occasionally been used already before. Creation of a new semi-professional type of investor with general access to specialiced AIFs With the semi-professional investor, the forthcoming draft of the German federal government may now create a new type of investor, beyond the range of funds without risk diversification. In terms of the right of general participation in specialised AIFs, this type of investor is treated as equal to professional investors, thus being exempt from many investment restrictions which pertain to retail AIFs, provided that he invests in a specialised AIF. Besides this, the type called the qualified retail investor (including the special qualification characteristics specified in Section 226 Subsection 2 KAGB-E) shall continue to exist with respect to the scope of closed-ended retail funds without risk diversification (Section 226 Subsection 2 KAGB-E). A qualification as semi-professional investor requires that the following criteria are met on the part of the investor and the AIFM: The investor is obliged aa) to undertake to invest not less than 200,000 Euro and bb) to state in writing, in a separate document from the contract that is concluded for the commitment to invest, that he is aware of the risks associated with the envisaged commitment. The AIFM is obliged cc) to assess the investor s expertise, experience and knowledge, without making the initial assumption that the investor does indeed have the market knowledge and experience equivalent to such investors as described in Annex II Section I of the Directive 2004/39/EC, dd) to be sufficiently convinced upon taking into account the nature of the intended obligation or investment that the investor is capable of making his own investment decisions and understands the risks involved, and that such obligation is adequate for the respective investor and 3

4 AIFM Developments in Germany ee) to confirm in writing that it has performed the assessment described in letter cc) and that the requirements described in letter dd) are met. The requirements in letters bb) through ee) are similar to those of the suitability test which are already known from the MiFID Directive. A high networth retail investor is normally capable of meeting these requirements, in the case that he intends to be categorized as a semi-professional investor. Conclusion and new strategies In future, this will presumably result in the emergence of four investor categories: the retail investor (entitled to invest in retail funds); the professional investor (entitled to invest also in specialised AIFs, provided that he fulfills the criteria of professional investors within the meaning of Annex II of the MiFID Directive); Small AIFMs (thresholds of 100 million Euro with leverage, or 500 million Euro without leverage) which, in case they are restricted to the management of specialised AIF and thus merely have to comply with registration and reporting obligations pursuant to Section 44 KAGB-E, benefit from this modification, because from now on, AIFs with semiprofessional investment profiles may be categorized under the derogation category; The narrow definition of marketing (as compared to the one pertaining to retail clients) now applies to semi-professional investors as well; Generally, specialised AIF with semiprofessional investors are not per se automatically entitled to make use of the European passport (strictly domestic system). However, German legislature acknowledges the EU pass of EU AIFMs and/or EU AIFs with respect to the territory of the Federal Republic of Germany also with respect to specialised funds with a semi-professional investment profile (however, within the meaning of the German KAGB-E). Therefore, especially the threshold-related derogations provided for in Section 44 KAGB-E will prove to be of greater practical relevance for domestic AIF. the semi-professional investor (entitled to invest also in specialised AIFs, provided that he fulfills the criteria of semi-professional investors pursuant to KAGB-E, please confer Section 1 Subsection 19 no. 29 KAGB-E); the qualified retail investor (entitled to invest also in closed-ended retail funds without risk diversification, provided that he fulfills the criteria pursuant to Section 226 Subsection 2 KAGB-E). Beyond this, the introduction of the new category of the semi-professional investor entails the following far-reaching consequences: High net-worth individuals and other typical specialised-fund investors (as, for example, family offices, foundations, et al.) are now enabled to invest in specialised funds, provided that they fulfill the criteria of the semiprofessional investor; V. Improved flexibility with respect to closed-ended retail funds Presumably, the investment opportunities in closedended retail funds are to be significantly extended: Extension of permissible asset classes While the original discussion draft was based on a restricted, enumerative checklist of asset classes, it is now intended that, besides a narrowed-down ckecklist, a new investment class called real assets shall be introduced, which shall leave room for interpreation. From now on, the opportunity may arise to invest directly in holdings in private equity companies, or venture capital companies; while according to the original draft, this was only possible by virtue of a fund-of-funds structure. 4

5 AIFM - Developments in Germany Increasing of the permissible debt ratio Moreover, the restriction of the permissible borrowing which amounted to 30% of the value of the closed-ended retail AIF (according to the prior version of the discussion draft) is to be increased to 60%. The permissible limit as to the foreign exchange risk, however, shall remain unchanged at 30% of the value of the closed-ended retail AIF. Principle of risk diversification Even though the European legislature regulates exclusively the manager by virtue of the Directive, and, in principle, does not stipulate any product regulation for alternative investments funds, German legislature does provide further productrelated requirements with respect to certain AIF types, in particular the compliance with the principle of risk diversification. However, for the field of closed-ended retail AIFs, it shall be additionally possible to offer those funds without adhering to the principle of risk diversification; this investment opportunity shall, however, exclusively be possible for qualified retail investors within the meaning of Section 226 Subsection 2 KAGB-E (with a minimum investment of 20,000 Euro). This new regulation is not only supposed to decrease the limit of 50,000 Euro which was originally intended in the discussion draft; but rather, the regulation now applies to all closed-ended retail AIFs which do not (or cannot) comply with the principle of risk diversification, and no longer applies merely to single asset funds (as before). Moreover, the principle of risk diversification is put in concrete terms. It is deemed to be complied with in the event that there is an investment in not less than three real assets, whose shares are essentially equally distributed, or if, from an economic point of view, the diversification of the default risk is guaranteed due to the pattern of use of the real asset or the real assets. Lastly, the internal evaluation is now also possible in the context of closed-ended retail funds as opposed to the original discussion draft. VI. Open-ended real estate funds As for open-ended AIFs, the open-ended real estate funds (offene Immobilienfonds) will continue to exist, namely, both in the form of the specialised fund as well as in the form of the retail fund. Irrespective of individual modifications, the essential previously existing regulations of the German Investment Act (Investmentgesetz) regarding open-ended real estate funds were adopted. However, there are some new regulations with respect to the issuance and redemption of shares, in order to accomodate the requirements for products with illiquid assets. A new feature is the minimum retention period of two years regardless of the amount of the share. Moreover, the redemption of shares is now only possible but once a year, while the interval between two redemption dates has to amount to exactly one year. The issuance of shares is now detached from the redemption and may be effected respectively after 3 months. However, an issuance date must be in accordance with the redemption date. Specialised funds may deviate from corresponding regulations. Instead of the hitherto existing committees of experts (Sachverständigenausschüsse), external evaluators are intended to be responsible for the evaluation of the special assets real estate. The evaluation has to take place within 3 months before such issuance date. Outsourcing to non-licensed companies The possibility of outsourcing functions of portfolio management and risk management shall from now on also exist, in exceptional cases, with respect to non-licensed companies, however only upon approval by BaFin (German Federal Financial Supervisory Authority). The approval is only granted, though, when the external AIFM is incapable of complying with the prevailing statutory requirement to choose a licensed insourcer. 5

6 AIFM - Developments in Germany VII. Depositary Permission of trustees ( Treuhänder ) The legislature now does after all permit an alternative depositary for the management of closed-ended AIFs as an alternative to credit institutions and certain financial service providers: By virtue of the new provisions (Section 76 Subsection 3 and Subsection 4 KAGB-E), closed-ended AIFs are permitted to deploy in lieu of a deposit bank or a financial service provider that is endowed with the authorisation as to restricted custody business (which will be acquirable in the future, please confer Section 1 Subsection 1a Sentence 2 No. 12 KWG-E (Kreditwesengesetz-Entwurf, Draft of the German Banking Act)) alternatively another institution as trustee ( Treuhänder ), which exercises the functions of a depositary for the asset management company. For the position of such trustees within the meaning of the Directive, only such institutions shall be suitable that are, within the context of their business or professional activity, subject to mandatory professional registration recognised by law, or to legal or regulatory provisions, or rules of professional conduct, and which provide sufficient financial and professional guarantees for the tasks the law requires from the depositaries. However, for such a trustee to be used, it is a precondition that the fund does not permit redemption of shares within 5 years after the initial investments are made and that the fund usually does not invest in financial instruments which have to be held in depositaries, or in participations in companies with the intention to obtain control of the companies. The extension of the list of institutions which are suitable to be a depositary serves the purpose of accomodating the current practice of certain kinds of closed-ended funds. Law firms which were previously deployed with the supervision of funds may therefore presumably still be entrusted with the exercise of these functions, provided that they meet the requirements as to financial and professional guarantees; the same applies to notaries and registrars. The issue of sufficient financial and professional guarantees will have to be resolved on a case-by-case basis, in particular considering the size of the respective institution and of existing liability insurances. Consequently, we are of the opinion that the offhanded assumption that all professionally organized institutions are suitable per se is not justified. Restricted prohibition of outsourcing The prohibition of outsourcing beyond depositary functions, which was set forth in the discussion draft for UCITS and AIF depositaries, is presumably intended to extend to merely those functions which are explicity defined for depositaries in the Directive, and not to any and all conceivable outsourcing measures which do not pertain to the mandatory duty as such. What is remarkable here is that the (assumedly) new provision of Section 69 Subsection 4 KAGB-E (UCITS) and of Section 78 Subsection 4 KAGB-E (AIF) contains a slightly modified, but most significant new phrasing. It will now presumably be phrased: Except for the depositary functions pursuant to Section 68/ Section 77, the depositary may not outsource the tasks set forth in this subsection. This outsourcing restriction, which is tailored to the defined tasks, is also in accordance with an interpretation in a manner consistent with Community law of the phrasing of Article 21 Subsection 11 of the AIFM Directive, which likewise focuses on the functions of the depositary pursuant to Article 21. And even the most recent, second draft of a EU- Level II-Regulation, as submitted at the beginning of October to the 27 commissioners for the purpose of approval on the part of the EU Commission, does not state anything contradictory. On this basis, it is to be assumed that a practiceoriented outsourcing practice as to the depositary functions can be developed. VIII. Abolition of the ban on the creation of new funds Even if AIFM which were doing business already before 22 July 2013 have not yet obtained an authorisation pursuant to Sections 20 and 22 KAGB-E, they are entitled to create new AIFs after 22 July However, the provisions of the KAGB-E (with the exception of the requirements of the AIFM authorisation) shall already apply to the creation of new AIF. Furthermore, the AIFM must at least have already filed completely by 21 July 2014 (at the lat- 6

7 AIFM Developments in Germany est) the petition for the authorisation when doing business within the period between 22 July 2014 and 21 January IX. Other transitional provisions From the outset, the transitional provisions were decisive for the industry. Among them, there are besides the issue of the ban on the creation of new funds the following important innovations as compared with the discussion draft of 20 July 2012: Opend-ended specialised AIFs Taking into account the new investor category of semi-professional investors (please confer above), investors as to open-ended specialised funds that are neither classified as professional investors nor as semi-professional investors within the meaning of the KAGB-E, may continue to keep their shares in a fund; the classification of the AIF as specialised AIF is not affected by this. However, any new acquisition of shares by retail investors is impossible. Furthermore, such current investors are not allowed to transfer their shares to other retail investors, but only to redeem the shares, or to sell them to professional or semiprofessional investors. Specialised real estate funds (Immobilien- Sondervermögen) Section 314 Subsection 1 KAGB-E now decrees that an investor who is holding shares in an existing real estate fund (Immobilien-Sondervermögen) on 21 July 2013 may continue to take advantage of the possibility of returning, daily, 30,000 Euro per calendar half year without any minimum retention period or without any notice period. In order to supplement this, the newly phrased Section 314 KAGB-E determines: The provisions of the terms of the contract regarding the redemption of shares which are insofar applicable on 21 July 2013 have to be adopted into the new investment conditions of the real estate fund (Immobilien- Sondervermögen); Despite the option of returning fund units on every stock exchange trading day, the valuation of the real estate of the real estate fund (Immobilien-Sondervermögen) has to be effected every three months, just as before, unless significat valuation factors have changed; As to real estate funds (Immobilien- Sondervermögen) for which, due to the transitional provision in Section 314 Subsection 1 KAGB-E, the redemption of shares is possible on every stock exchange trading day, an amount of at least five per cent of the value of the fund (Sondervermögen) has to be available daily for redemptions. With respect to amounts which exceed 30,000 Euro, the notice period of twelve months and the minimum retention period of two years continue to apply. Closed-ended AIFs 1. If an AIFM exclusively manages closed-ended AIFs that do not undertake any additional activities of investment after 21 July 2013 (and which are therefore fully invested), it does not become subject to authorisation or registration and is therefore not subject to the provisions of the KAGB-E. According to the new version of the KAGB-E, it is no longer additionally required that the subscription period has also expired before 22 July In the event that the abovementioned condition is satisfied, the legal situation will remain as it currently is. This implies that, e.g, the Vermögensanlagegesetz (German Asset Investment Act) will continue to apply in its version as valid until 21 July However, as soon as an AIFM just as much as merely manages an AIF which does not meet the abovementioned requirements, the AIFM, in its entirety, will be subject to the KAGB. As to the AIFs managed by it that do not undertake any additional activities of investment after 21 July 2013, however, the KAGB s provisions which relate to funds and which are not cogently derived from the Directive 2011/61/EU do not apply in this case. 2. As to closed-ended AIFs, whose subscription period has expired before 22 July 2013, but which undertake any activities of investment after the KAGB comes into effect on 22 July 2013 (fully subscribed i.e. the credit risk has been placed with third parties but not fully invested), and to their management 7

8 AIFM Developments in Germany companies, Section 321 Subsection 4 KAGB-E applies, according to which only the cogent, organisational requirements pursuant to the AIFM Directive shall be applicable. With respect to the provisions regarding the prospectus and the investment information document (Vermögensanlagen-Informationsblatt), the provisions of the Vermögensanlagegesetz (German Asset Investment Act) continue to apply to such funds. With respect to this, the Code s explanatory memorandum now clarifies that the newlyphrased Section 321 Subsection 4 KAGB-W also applies to closed-ended funds whose subsription period has expired before 22 July 2013, but which continue to undertake activities of investment after 22 July 2013 and in respect of which investors resolve increases of capital after 21 July However, this requires that the investor group remains unchanged, i.e. that no new investors participate in the AIF. Opend-ended AIFs The transitional provisions for open-ended AIFs were finally put in concrete terms. Foreign AIFMs that wish to continue marketing in Germany must have successfully completed the notification procedure as prescribed by the KAGB within one year. This provision applies both to AIFMs which have filed a notification pursuant to Section 139 Subsection 1 Investmentgesetz (German Investment Act) and Section 7 Subsection 1 Auslandinvestmentgesetz (German Law on Foreign Investments) and, thus, were previously entitled to public marketing, as well as to AIFMs which due to a lack of public marketing were previously not subject to the notification obligation. X. Other sigificant modifications Another modification pertains to the external AIFM, which may not only be operated in the legal form of an Aktiengesellschaft (stock corporation) or a Gesellschaft mit beschränkter Haftung (limited liability company), but additionally in the form of a limited partnership (Kommanditgesellschaft) with a limited liability company (GmbH) as the only general partner. In providing this, the legislature intended to accommodate the practical needs of existing closed-ended AIFs. As to extenal AIFMs, investment consultancy was added as an additional type of service. Other modifications pertain to the valuation of open-ended retail funds. While the original draft had set forth that such valuation had to be effected not less than twice a month, this was now reduced to not less than once a year. However, special provisions apply to open-ended real estate funds. Marketing Marketing of existing domestic open-ended retail funds and/or specialised AIFs, which are managed by an AIFM by virtue of a authorisation pursuant to the Investmentgesetz (German Investment Act) is basically apart from grounds for termination possible until 21 July After this date, marketing remains possible even before the authorisation is obtained, provided that a marketing notification is submitted including a complete application for authorisation, even if it is not yet decided. When submitting the application for authorisation, every effort should be made to ensure that BaFin (German Federal Financial Supervisory Authority) is not given any reasons to justified supplemental claims, because this would result in the loss of the marketing right. XI. Prospects It seems as if the legislature has decided to incorporate all modifications to the discussion draft which are essential for the industry already into the forthcoming government draft; it is also for this reason that the publication of the government draft is not to be expected until December. However, this also implies that not many (further) modifications have to be expected from the subsequent legislative procedure. It is rather to be assumed that, against the background of the altogether rather short schedule for transposition, the legislative procedure will be completed in a speedy manner, whereupon there will nonetheless still be ample opportunity to eliminate remaining discrepancies and to call attention to special industryrelated matters. 8

9 AIFM Developments in Germany Editorial Office GSK PXG Banking Robert Kramer Rechtsanwalt (Attorney-at-Law) Standort München Dr. Oliver Glück Rechtsanwalt (Attorney-at-Law) Standort München 9

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