The conduct of certain banking and financial services related activities within Germany requires a banking licence pursuant to Section 32 of the Gesetz über das Kreditwesen – „KWG" (German Banking Act).
1. BANKING LICENCE REQUIREMENT
The KWG provides three categories of institutions, i. e. credit institutions, financial services institutions and financial enterprises for which different licence requirements apply.
1.1 Credit Institutions
Credit institutions are enterprises which conduct banking business commercially or on a scale which requires a commercially organised business undertaking.
(a) Banking Business
Banking business is defined conclusively in Section 1, para. 1 KWG by a list of twelve types of business that are deemed to constitute banking business, such as the acceptance of funds (deposit business), the granting of loans (lending business), and the purchase and sale of financial instruments (principal broking services). For a complete list of the twelve banking business branches as listed in Section 1, para. 1 KWG, please see Annex A.
The commercial conduct of banking business requires a written licence. The conduct qualifies as commercial if the banking business is aimed to be conducted for a certain length of time and for profit realisation. The business volume, however, does not influence the licence requirement, so that even the „small" banks need a licence.
Section 2 KWG lists certain entities which do not fall within the scope of the credit institution definition; for example, enterprises which conduct banking business solely with their parent or with their subsidiaries or affiliated enterprises. These entities do not require a bank licence for the conduct of banking business.
(b) Full Scale Licence and Limited Licence
The application for a bank licence may be limited to certain types of banking business. Such limited licences can be granted in cases of specialised credit institutions. If a credit institution does not intend to conduct any deposit or lending business it may limit its application accordingly. A bank licence granted upon such a limited application is a limited licence as opposed to an unlimited, full scale licence. In cases where deposit or lending business is not covered by the licence, the initial capital requirement falls below the five million Euro required for a full scale licence. A limitation of the bank licence may also be undertaken by the responsible supervisory body (please see Section 2 below) for the reasons of (partial) refusal as listed in Section 33, para. 1 KWG.
In addition, there are specialised banking institutions which are subject to specific laws and which require specific licences such as mortgage banks (Hypothekenbanken) and building and saving societies (Bausparkassen). However, the rules applicable to these specialised institutions is beyond the scape of this memorandum.
1.2 Financial Service Institutions
Financial service institutions are enterprises which provide financial services commercially or on a scale which requires a commercially organised business undertaking but which are not credit institutions. Financial services are defined conclusively in Section 1, para.1a KWG and comprise, for example, investment broking, the purchase and sale of financial instruments for others (contract broking) and portfolio management. For a complete list of the listed financial services please see Annex B.
The commercial conduct of financial services requires a written licence. The licence may be limited to certain financial services (see Section 1.1(b) above)
Enterprises conducting banking business or providing financial services are referred to in this memorandum as „institutions".
1.3 Financial Enterprises
Financial enterprises are enterprises which are not institutions but which conduct banking related business as listed in Section 1, para. 3 - 3e KWG, such as factoring, leasing and investment advice. For a complete list please see Annex C.
As financial enterprises neither conduct banking business nor provide financial services, they do not require a licence pursuant to Section 32 KWG.
2. SUPERVISORY BODY
The supervisory body responsible for the grant of bank licences is the Bundesanstalt für Finanzdienstleistungsaufsicht – „BaFin" (Federal Financial Supervisory Authority). The application must be filed in writing and be accompanied by documentation necessary to demonstrate that the requirements for a licence are fulfilled.
3. CONDITIONS TO GRANT A LICENCE
Below we have laid out a summary of the conditions for the grant of a banking licence pursuant to Sections 32 and 33 KWG. There are special rules for the opening of branch offices of foreign institutions which are beyond the scope of this memorandum.
3.1 Legal Form of Entity
A credit institution can be operated in any legal form available under German law, except for the form of a sole proprietorship (Einzelkaufmann), under Section 2a, para. 1 KWG. Financial service institutions can be operated in any legal form available under German Law.
The large commercial banks are usually run in the form of (publicly traded) corporations (Aktiengesellschaft - AG), smaller banks in the form of limited liability companies (Gesellschaft mit beschränkter Haftung – GmbH). Partnerships (offene Handelsgesellschaft – oHG), limited partnerships (Kommanditgesellschaft – KG) or limited partnerships with a GmbH as sole general partner (GmbH & Co. KG) would also be admissible. The forms AG, GmbH and GmbH & Co. KG have the advantage that the shareholders or limited partners, as the case may be, are generally not personally liable for the debt of the entity.
3.2 Holder of the Licence
Depending on the legal form of the entity, the holder of the licence is either a legal entity or a natural person.
In the case of a partnership (OHG) or a limited partnership (KG), it is generally acknowledged that the licence is held by the personally liable partners. This means that each personally liable partner requires a licence. Every new personally liable partner entering the partnership has to obtain his/her own licence. Partners who are not personally liable, such as limited partners or silent partners, do not require a licence.
In the case of corporations (AG, GmbH) the licence is held by the legal entity. A change in the shareholders therefore does not affect the licence. In the case of a limited partnership with a GmbH as sole general partner (GmbH & Co. KG), the licence is held by the GmbH, being the sole liable partner.
Owing to its personal character, the licence cannot be transferred by way of singular or universal succession. This implies that a new licence is required in the event of a change in the legal form, for example in the case of a merger or transformation from a partnership into a corporation. A new licence is also required for any other transfer of banking or financial services business to a legal entity or natural person that does not already have a licence.
3.3 Initial Capital
The initial capital requirement depends on the nature of the planned business.
Nature of Business
Initial Capital Requirement
Deposit-taking credit institutions
€ 5 million
Institutions conducting e-money business
€ 1 million
Financial services providers and securities trading banks which are involved in trading for their own accounts
Financial services providers which are not involved in trading for their own account
Investment brokers, contract brokers, portfolio managers (without authorisation to obtain ownership or possession of funds or securities of customers and which are not involved in trading for own accounts)
No explicit requirements
Independent from the initial capital requirement, credit institutions conducting deposit business or investment fund business, and financial service institutions providing financial services as listed in Section 1, para. 1a, nos. 1 - 4 KWG (investment broking, contract broking, portfolio management or own-account trading) are obliged to secure the deposits. In fulfillment of this obligation such institutions must join one of the organisations set up by various groups of German banks in order to provide security for the investors in case of a member institution’s insolvency (Einlagensicherungsfonds), pursuant to Section 32, para. 3 and para. 3a KWG and Section 2 of the law relating to the securing of deposits and the compensation of investors (Einlagensicherungs- und Anlegerentschädigungsgesetz). For private commercial banks the organisation would be the Entschädigungseinrichtung deutscher Banken GmbH (EdB).
Generally speaking, each institution needs to appoint at least two senior managers (Geschäftsleiter). The members of the future management of an institution have to be trustworthy and must prove their professional qualification.
Trustworthiness must be demonstrated not only in relation to the management but also with respect to holders of a qualified participating interest and further, in case of an incorporation, a legal representative or, in the case of a partnership, a general partner. For practical purposes, trustworthiness is assumed unless negative facts are established. BaFin reviews submitted references, relies on its former experience with the person in question in its function as manager of another institution and checks criminal records.
Professional qualification in this context means the theoretical and practical knowledge of the business concerned, as well as managerial experience. The extent of the professional qualification required therefore depends on the business for which the licence is to be granted. A person is deemed to have the professional qualifications necessary for managing an institution if he/she can demonstrate three years’ managerial experience at an institution of comparable size and type of business. The experience is considered to have been managerial if the person worked in the management or at an immediate sub-level to the management. As a general rule, senior managers are expected to have sufficient experience in particular in the lending business. Finally, the professional qualification is assessed from case to case on the basis of the particularities of the respective institutions.
3.5 Business Plan
Further, the management has to submit a viable business plan showing the nature of the planned business, the organisational structure and the planned internal monitoring procedures of the institution. The business plan and the organisational structure have to demonstrate that the institution is in the position to fulfil the requirements of Section 25 a KWG, which are:
- Suitable arrangements for managing, monitoring and controlling risks;
- Proper business organisation, an appropriate internal control system and adequate security precautions for the deployment of electronic data processing;
- Records of executed business transactions, enabling full and continuous supervision by BaFin; and
- Appropriate safeguards suited to its respective business and customers against money laundering and against fraudulent activities to the detriment of the institution.
4. REASONS FOR REFUSAL
4.1 Enumerative List
BaFin can only refuse the grant of a licence on one of the grounds set out in Section 33 KWG. For a complete list see Annex D. In addition to the applicant not being able to show fulfilment of the requirements described above, the following reasons for refusal relate to the ownership structure and the location of the head office.
4.2 Ownership Structure; Foreign Head Office
A licence can be refused if the head office of the institution is located abroad (Section 33(1), no. 6 KWG). Further, BaFin can refuse a licence pursuant to Section 33(3) KWG if facts are known which warrant the assumption that the effective supervision of an institution is impaired because of:
- Its association with individuals or enterprises in a corporate network with inadequate commercial transparency or a structure of cross-shareholding;
- Legal or administrative provisions of a state which is not member of the European Economic Area („EEA") which are applicable to such institution; or
- The institution is a subsidiary of an institution domiciled in a non-EEA state and the head office is not effectively supervised in such state or the supervisory bodies do not sufficiently co-operate with BaFin.
Credit institutions are enterprises which conduct banking business commercially or on a scale which requires a commercially organised business undertaking. Banking business comprises:
1. The acceptance of funds from others as deposits or of other repayable funds from the public unless the claim to repayment is securitised in the form of bearer debt certificates or negotiable bonds, irrespective of whether or not interest is paid (deposit business).
2. The granting of money loans and acceptance credits (lending business).
3. The purchase of bills of exchange and cheques (discount business).
4. The purchase and sale of financial instruments in the credit institution’s own name for the account of others (principal broking services).
5. The safe custody and administration of securities for the account of others (safe custody business).
6. The business specified in Section 7(2) of the Law on Investment (Investmentgesetz) (investment business).
7. The incurrence of the obligation to acquire claims in respect of loans prior to their maturity.
8. The assumption of bonds, guarantees and other warranties on behalf of others (guarantee business).
9. The execution of cashless payment and clearing operations (giro business).
10. The purchase of financial instruments at the credit institution’s own risk for placing in the market or the assumption of equivalent guarantees (underwriting business).
11. The issuance and administration of electronic money (e-money business).
Financial services institutions are enterprises which provide financial services to others either commercially or on a scale which requires a commercially organised business undertaking, and which are not credit institutions. Financial services are:
1. The brokering of business involving the purchase and sale of financial instruments or their documentation (investment broking).
2. The purchase and sale of financial instruments in the name of and for the account of others (contract broking).
3. The administration of individual portfolios of financial instruments for others on a discriminatory basis (portfolio management).
4. The purchase and sale of financial instruments on an ownaccount basis for others (own-account trading).
5. The brokering of deposit business with enterprises domiciled outside the European Economic Area (non-EEA deposit broking).
6. The execution of payment orders (money transmission services).
7. Dealing in foreign notes and coins (foreign currency dealing).
8. The issuance or administration of credit cards and travellers’ cheques (credit card business) unless the card issuer also provides the service underlying the payment transaction.
ACTIVITIES OF FINANCIAL ENTERPRISES
Financial enterprises are enterprises which are not institutions and whose main activities comprise:
1. Acquiring participating interests;
2. Acquiring money claims against payment;
3. Concluding leasing contracts;
5. Trading in financial instruments for their own account;
6. Advising others on investing in financial instruments (investment advice);
7. Advising enterprises on their capital structure, their industrial strategy and associated issues and, in the event of corporate mergers and acquisitions, advising the enterprises or providing them with services; or
8. Arranging loans between credit institutions (money-broking business).
REASONS FOR REFUSAL
(1) The licence shall be refused if:
1. The resources needed for business operations, in particular adequate initial capital within the meaning of Section 10, para. 2a, sentence 1, numbers 1 to 7, are not available in Germany; the initial capital which must be available is as follows:
(a) In the case of investment brokers, contract brokers and portfolio managers who, in the course of providing financial services, are not authorised to obtain ownership or possession of funds or securities of customers and who do not trade in financial instruments for their own account: an amount equivalent to at least fifty thousand Euro.
(b) In the case of other financial services institutions which do not trade in financial instruments for their own account: an amount equivalent to at least one hundred and twenty-five thousand Euro.
(c) In the case of financial services institutions which trade in financial instruments for their own account and in the case of securities trading banks: an amount equivalent to at least seven hundred and thirty thousand Euro.
(d) In the case of deposit-taking credit institutions: an amount equivalent to at least five million Euro.
(e) In the case of institutions which solely conduct e-money business: an amount equivalent to at least one million Euro.
2. Facts are known which suggest that an applicant or one of the persons specified in Section 1, para. 2, sentence 1 is not trustworthy.
3. Facts are known which warrant the assumption that the holder of a qualified participating interest or, in the case of a legal person, a legal representative or representative according to the Articles of Association or, in the case of a partnership, a general partner is not trustworthy, or for other reasons fails to satisfy the requirements set in the interests of the sound and prudent management of the institution; Section 2b (1a), sentence 1, number 1, clause 2 applies as appropriate.
4. Facts are known which suggest that the proprietor or one of the persons specified in Section 1, para. 2, sentence 1 does not have the professional qualifications necessary for managing the institution, and no other person has been designated as manager in accordance with Section 1, para. 2 sentence 2 or 3.
5. A credit institution or a financial services institution which, in the course of providing financial services, is authorised to obtain ownership or possession of funds or securities of customers, or which in accordance with a certificate from the Federal Financial Supervisory Authority pursuant to Section 4 (1), number 2 of the Act Governing the Certification of Contracts for Private Pension Plans (Gesetz über die Zertifizierung von Altersvorsorgeverträgen), is authorised to offer contracts for private pension plans, does not have at least two managers who work for the institution not merely in an honorary capacity.
6. The institution has its head office outside Germany.
7. The institution is not prepared, or not in a position to, make the organisational arrangements necessary for the proper operation of the business for which it is seeking a licence.
8. The applicant is a subsidiary of a foreign credit institution, and the competent foreign supervisory authority for this credit institution has not given its consent to the establishment of the subsidiary.
An investment broker or a contract broker who, in the course of providing financial services, is not authorised to obtain ownership or possession of funds or securities of customers, and who does not trade in financial instruments for his own account shall not be refused a licence in accordance with Sentence 1(a) if, instead of the initial capital, he can demonstrate that he has taken out appropriate insurance for the protection of customers.
(2) A prerequisite of the professional qualifications for managing an institution needed by the persons specified in subsection (1), sentence 1, number 4 is that they have adequate theoretical and practical knowledge of the business concerned, as well as managerial experience. A person shall normally be assumed to have the professional qualifications necessary for managing an institution if they can demonstrate three years’ managerial experience at an institution of comparable size and type of business.
(3) The Federal Banking Supervisory Office may refuse to grant the licence if facts are known which warrant the assumption that effective supervision of the institution is impaired. In particular, this would be the case if:
1. The institution is associated with other individuals or enterprises in a corporate network or is closely linked to such a network, which impairs effective supervision of the institution owing either to the structure of the cross-shareholdings or to inadequate commercial transparency.
2. Effective supervision of the institution is impaired by the legal or administrative provisions of a non-EEA state applicable to such individuals or enterprises.
3. The institution is a subsidiary of an institution domiciled in a non-EEA state that is not effectively supervised in the state in which it has its domicile or head office, or whose competent prudential agency is not prepared to cooperate satisfactorily with the Federal Financial Supervisory Authority.
The Federal Financial Supervisory Authority may also refuse to grant the licence if, contrary to Section 32, para. 1, sentence 2, the application does not contain adequate information or documents.
(4) The licence may not be refused for reasons other than those specified in subsections (1) and (3).
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