Germany: Implementing MiFID II In Germany: Second Time Around

Last Updated: 3 January 2017
Article by Till Christopher Otto
Most Popular Article in Germany, January 2017

Summary

The Markets in Financial Instruments Directive II (MiFID II) and the Markets in Financial Instruments Regulation (MiFIR) were adopted in May 2014. They were originally to come into force on 3 January 2017. The start date was postponed by a year, to 3 January 2018, after European legislators acknowledged that the industry needed more time to prepare itself for the new regime.

After one false start, the German Federal Ministry of Finance is once again implementing the provisions of MiFID II and accompanying MiFIR.

The new laws will result in significant changes for investment firms, credit institutions and other companies that provide financial services to clients within Germany.

Implementation

The proposed Second Law for the Amendment of Financial Market Regulations Based on European Legislative Acts (2.FiMaNoG) will adapt German law to the new European regulatory framework.

Key facts

2.FiMaNoG will introduce new and more onerous obligations for relevant market participants in relation to:

  • the manufacture of new financial products
  • product distribution
  • internal governance and management procedures
  • over-the-counter trading
  • reporting obligations.

The creation of new financial products (manufacture) and the sale of those products (distribution) are regulated activities. Product governance and more rigorous internal governance requirements have in particular been the subject of much debate and controversy amongst German market participants, so we will comment briefly on these below.

Product manufacture

2.FiMaNoG will implement the MiFID II provisions relating to the manufacture of new financial products by amending Sec. 11 of the Investment Services Rules of Conduct Regulation (WpDVerOV-Draft).

Under MiFID II, investment firms which manufacture financial instruments for sale to clients will have to execute a 'product approval process' for each financial instrument (Article 16(3), 24(2)).

As part of this process, under Article 16(3)(3), the manufacturer is required to identify a 'target market of end clients within the relevant category of clients for each financial instrument and...ensure that all relevant risks to such identified target markets are assessed and that the intended distribution strategy is consistent with the identified target market'.

Consequently, a manufacturer will be obliged to identify a group of potential clients and ensure the product 'fits'. An example of a product that would not meet a client's needs would be one that carries a high risk offered to clients searching for an investment for their personal retirement scheme.

Manufacturers will also be required to have suitable remuneration policies. For example, employees participating in the creation of new products should not be financially incentivised to create unsuitable, overly-complex products.

ESMA released a consultation paper on 5 October 2016 that contains further suggested specifications on identifying target markets. It is expected that the German authorities will comply with any guidelines prepared by ESMA.

Product distribution

2.FiMaNoG will implement the MiFID II provisions relating to the distribution of financial products by amending Sec. 12 of WpDVerOV-Draft.

Under MiFID II, investment firms which offer and/or recommend financial instruments will be obliged to implement their own product governance processes (Article 10).

One of the essential goals of the product governance process as it relates to distributors is to make sure that financial instruments will only be distributed to such clients that 'fit' the target market of the financial instrument. It will be the responsibility of the distributor to specify the target market for the financial instruments he intends to distribute. As noted above, ESMA is currently consulting on draft guidelines which will spell out the methodology for identifying target markets.

Particular challenges arise when an investment firm is a distributor as well as a manufacturer of certain financial products. MiFID II and implementing legislation in Germany stipulate that investment firms implement measures to properly manage conflicts of interest. In this case, the firm would have to ensure that employees distributing its own financial instruments are not incentivised to recommend these in preference to more appropriate third party products.

Internal governance

The implementation of MiFID II will bring increased responsibilities in relation to a firm's internal management. The increased compliance burden – more time and expense for investment firms – is not proving popular with the industry.

Proposed amendments to Sec. 70 German Securities Trading Act (WpHG) will redefine the duties of an investment firm's management in line with the Directive.

Particular management responsibilities in the spotlight are the regulation, implementation and supervision of:

  • the internal organisation of the investment firm
  • training requirements which relate to required employee knowledge
  • the remuneration policy of the investment firm.

Implications for investment firms

Investment firms that offer their services in Germany will have to significantly adapt their internal organisation as well as their processes to comply with the future requirements of MiFID II and MIFIR. For those who are still working on introducing new or vastly modified systems to ensure compliance, the deadline of 3 January 2018 is approaching all too quickly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.