From the issuers’ perspective, MAR has led to a situation in which issuers face constant legal uncertainties. This position paper identifies existing problems and proposes concrete amendments. Deutsches Aktieninstituts sees as problematic in particular the very broad and vague term of inside information, the treatment of early stages of protracted processes as inside information and the poor protection of reasonable interests in the event of delay disclosure.
The submitted ministerial draft on the European Single Electronic Format (ESEF) law is critically seen by Deutsches Aktieninstitut. The fact that annual financial statements are to be prepared in XHTML/iXBRL format is neither required by Union law nor expedient from a practical point of view. Deutsches Aktieninstitut advocates instead the implementation of a disclosure solution. With its ministerial draft, the legislator has overshoot the mark and unnecessarily burdens companies.
Deutsches Aktieninstitut participates in the evaluation of § 43 WpHG by the Federal Ministry of Finance. In its current form, the provision provides little added value for stakeholders. Deutsches Aktieninstitut supports specifications and extensions of the regulation and recommends, among other things, the reduction of the reporting period to four days and the possibility of administrative fines for infringements of notification obligations.
Deutsches Aktieninstitut repeats its fundamental opposition regarding the proposal for a real estate transfer tax released by the Federal Minstry of Finance which harms badly stock listing of companies. At least it is of utmost importance to exempt shares of stock listed companies from this proposal.
Deutsches Aktieninstitut welcomes the objective to strengthen the role of Germany as a top location for digitization and being a leader in using new technologies like blockchain. In this context, electronic securities and token regulation are important steps to increase the attractiveness of the German capital market.
Starting in 2020 listed companies will be obliged to file annual reports as an XHTML-file, in which core financial information has to be tagged in iXBRL. This is laid down in a Delegated Regulation on the EU Transparency Directive. Currently it is discussed whether the iXBRL tagging must be audited or not. From Deutsches Aktieninstitut's perspective this is neither necessary from a material perspective nor can it be derived from other EU legislation.
In its position paper as regards the MiFID II/MiFIR-consultation of the Federal Ministry of Finance Deutsches Aktieninstitut states that the respective rule design should be less bureaucratic. This holds especially true for the rules regarding derivatives used in the risk management of non-financial companies. In addition, capial markets culture should be strengthened by the clarification that all corporate bonds are out of the scope of PRIIPs. Eventually, retail investors should have the ...
Effective protection against discriminatory measures is an essential requirement for European investors to invest in Europe. Around 200 investment protection agreements between the Member States of the European Union are currently ensuring a high level of investor protection in Europe. However, due to the “Achmea” judgment of the European Court of Justice, those agreements are to be terminated until the end of 2019 following a communication of the EU Commission. Deutsches Aktieninstitut ...
Deutsches Aktieninstitut, the Association of German Chambers of Commerce and Industry (DIHK) and Verband Deutscher Treasurer composed recommendations concerning the consequences of a Brexit without withdrawal agreement on the derivate business of EU companies. These recommendations complement the position of 7th of February 2019 on the German Brexit-StBG. With Brexit, derivative business with counterparties in the United Kingdom based on EMIR and MiFID II/MiFIR will no longer be possible. The ...
Deutsches Aktieninstitut and The Association of German Chambers of Commerce and Industry (DIHK) commented on the proposal for the German Brexit-Steuerbegleitgesetz. They welcome that the provisions include a transition period for existing and directly linked business. Yet, the regulation falls short of the needs of business. In order to avoid a negative impact on the risk hedging of nonfinancial companies, the provisions should also inlcude new derivatives business. Moreover, they point out ...
Only one year before the EU Benchmark Regulation will be fully in force, there is a high level of uncertainty among non-financial companies, which financial instruments and services referencing to benchmarks will be possible as of 1 January 2020. Deutsches Aktieninstitut, thus, calls for extending transitional periods for critical, for non-critical and for non-EU benchmarks. The latter are for example used in hedging instruments for cash flows from imports and exports.
Deutsches Aktieninstitut together with BDI, BDEW, EFET, Energy UK, Eurelectric, IOGP and VCI welcomes very much the EU Commission’s Communication of 13 November 2018 on Brexit Preparedness. Especially, they appreciate that the EU Commission states that it will soon adopt temporary equivalence decisions in order to ensure that there will be no disruption in central clearing and depositaries services. This is an important measure but they wish to raise a concern that the EU Commission’s ...
Deutsches Aktieninstitut comments the ESA's consultation paper on PRIIPs and points out that corporate bonds are not in the scope of the respective EU-regulation. As there is a lasting uncertainty in the market clarification by the EU-Commission is necessary.
Deutsches Aktieninstitut comments on the German contingency plans for financial service providers and insurance companies. We welcome that the proposal creates legal certainty for existing contracts at the time of Brexit. The delegation of regulatory power to BaFin creates flexbility. However, the transition period is too short for insurance contracts. Moreover, the contingency plans of KWG should not only cover existing but also new business. In addition, German financial service providers ...
Deutsches Aktieninstitut together with further European associations commented on the changes made to third country regimes through the investment firm review. The associations support the Commission's proposal to strengthen the equivalence determination process and the assessment criteria for third country firms likely to be of systemic importance for the EU. At the same time the cross-border access of third country firms should not be limited. They criticise especially the proposals to ...
In its proposal for a review of the EU supervisory architecture, the EU Commission significantely extends competences of the European Securities and Markets Authority (ESMA). In its position paper Deutsches Aktieninstitut compares the currently discussed EU Parliament`s draft report with the EU Commission proposal. Whilst we recognize improvements as to accountability and control of EU Supervisory Authorities by the EU legislator as well as stakeholders, the draft report ...
Regarding the consultation on the ESMA Guidelines on presentation of risk factors in the prospectus Deutsches Aktieninstitut points out the right balance between the objective of ESMA to avoid overly generic/lengthy descriptions of risk factors and flexibility for issuers in their assessment of relevant risk factors to be included in the prospectus. Proportionality and coherence are key factors for guidance on risk factors. For instance, the requirement for specificity should not result in the ...
Deutsches Aktieninstitut supports the overarching aims of Commission’s Action Plan on Sustainable Finance. However, we do see some legislative plans and practical transposition-measures as problematic. Our concerns relate among others to the composition of the ‘Technical Expert Group on Sustainable Finance’ (TEG) in which industrial companies are clearly underrepresented. In addition, we see the absence of addressing conflicts of interests between different ESG-goals as well as a certain ...
Numerous investment protection agreements with investor protection clauses and investor-state arbitration provisions provide the highest degree of legal certainty for investments. However, the latter is called into question by the judgment of the European Court of Justice in the case of Achmea of 6 March 2018 (C-284/16). In its position paper, the Deutsche Aktieninstitut addresses the European Institutions and urges them to create an EU-wide legal framework of investment protection for EU ...
Deutsches Aktieninstitut welcomes the level II Regulation draft on the SRD II which will help to further improve and harmonise information flows between companies, intermediaries and shareholders and, in turn, will ease to practice shareholders’ rights cross border within the EU. Though we basically welcome the draft, some work remains to be done. Overall, it has to be ensured that the final Regulation works together with existing company laws as well as the needs of issuers to have legal ...
Deutsches Aktieninstitut supports the aim of the European Commission to reduce administrative burden for stock listed SMEs. In its position paper on the respective consultation Deutsches Aktieninstitut stresses that capital market rules, that does not enhance investor protection, should be abandoned for every issuer irrespective of its size. In addition, to facilitate more IPOs of SMEs it is of utmost importance to raise capital of retail investors via an extension of share possession in the ...
From the point of view of Deutsches Aktieninstitut, the proposal of the EU Commission disproportionately extends the competences of the European Securities and Markets Authority (ESMA) without sufficiently addressing the issue of improving ESMA`s governance. Corporate interests also need to be more reflected in ESMA`s activities to ensure that the rules adopted are close to practice. Finally, we also see critical plans to change the financing of ESMA which would further decrease democratic ...
Starting in 2020 listed companies in Europe will have to file their yearly financial reports in the inline extrensible business reporting (iXBRL) format. This is proposed by ESMA in a draft Regulatory Technical Standard amending the EU Transparency Directive despite of negative experiences made by companies during a field test conducted over the summer 2017. We reniew our critique on iXBRL-reporting and call for a public debate on the results of test before the endorsement of the RTS.
Deutsches Aktieninstitut welcomes the suggestions made by ESMA for prospectus simplification, such as removing the auditor's report in case of profit estimates and forecasts. At the same time, however, it warns against new burdens, which ESMA's proposal contains, too. It reminds that already on Level 1 of the revised European Prospectus Regulation, new burdens had been introduced. In order to achieve the objectives to simplify prospectus, the new burdens at level 1 must be compensated on ...
On 24.9.2017 the German citizens will elect the new German Bundestag und thus predefine the forthcoming policitcal, social and economic developments. One important political topic with long-term relevance is the framework for financial and capital markets. Deutsches Aktieninstitut therefore has analysed the election programmes of several political parties (CDU/CSU, SPD, Bündnis 90/Die Grünen, FDP, Die Linke and AfD) regarding issues being relevant for capital markets. Several distinct topics ...
German markets for IPOs are less developed compared to other countries. In order to improve this situation the regulatory and fiscal framework should be adjusted. The paper describes five measures with a focus on the equity culture in Germany which should be implemented with priority.
Deutsches Aktieninstitut urges the EU Commission to reflect consequently the needs of companies seeking capital market finance and using derivates for risk management purposes in the Capital Markets Union. The current direction of the Capital Market Union still fails to meet this objective. This position paper has been contributed to the mid term review of the Capital Market Union project.
In its position paper Deutsches Aktieninstitut asks the European Commission to include emloyee share ownership as a further action point in the Capital Markets Union project. It is necessary to scrutinise existing European legislation posing obstacles for the implementation of employee share plans and to abandon bureacracy and facilitate cross-border implementation of employee share plans across Europe.
With regard to the second capital market amendment law Deutsches Aktieninstitut emphasizes not to go beyond the existing European legal provisions, e.g. in the field of the key information document (KID) which have not to be prepared for shares according to the Europen legislation. The same is true for sanctions where the German legislator tends to go beyond the European minimum harmonisation.
With regard to the second capital market law amendment das Deutsche Aktieninstitut emphasizes not to go beyond the existing European legal provisions, hence this is imperative for a successful implementation of miscellaneous legal acts associated with this law amendment. Furthermore, das Deutsche Aktieninstitut advocates a more transparent and causation-related pay-as-you-go financing of the National Competent Authority of Germany (BaFin).
The competence and responsibility enlargement of the German Federal Financial Supervisory Authority (BaFin) shall not result in additional unfounded financial burdens for the issuers. From Deutsches Aktieninstitut's point of view the cost structure of the BaFin must be more transparent and have to build upon activity-based costing structure.
In a proposal for a supervisory guideline ESMA is currently about to narrow down the right to delay the publication of inside information of listed companies. This is notin line with the text of the Market Abuse Regulation. Even worse, the ESMA proposal would de facto eliminate the possibility of a delay for a number of situations that currently constitute "a legitimate interest" in two tier board system. This position paper summarizes the concerns of the German listed companies.
EBA consults whether banks should face additional own funds requirements for the so called CVA-risks resulting from derivative positions with non-financial companies (NFCs). The position paper shows that the EBA proposal would erode the exemption for exactly these risks granted by the Capital Requirements Regulation. If the EBA proposal for a supervisory guideline became effective the legislator's will would be countervailed and risk management of NFCs would become more costly.
We offer a lot evidence of rules inconsistent with other provisions or rules running counter to overarching principles. Among others the increased level of bureaucracy is contradictory to the idea of facilitating the capital market finance and therefore against the Capital Market Union. To avoid such inconsistent regulation, the EU regulators should conduct a meaningful and convincing impact assessment in advance of every new rule. To solve the problem of inconsistent level 1- ...
The transposition of the amended EU Transparency Directive into German law still needs some improvement. In particular, the regime of major holdings notifications should be me made more efficient and risks for issuers resulting from incorrect notifications should be reduced. These are the requests of Deutsches Aktieninstitut laid down in this position paper for the German parliamentary debate.
Regarding the consultation of the Prospectus Directive, Deutsches Aktieninstitut recommends to facilitate the prospectus regime, especially with regard to prospectuses concerning so called secondary issuances. In our view, in the case of secondary issuances it is not necessary to mention in a prospectus what has already been published due to obligations of other provisions such as the Transparency Directive and is therefore accessible for anyone.
In its comments Deutsches Aktieninstitut supports the European Commission’s initiative on building a Capital Markets Union. Further to the steps proposed by the Commission the demand-side of capital markets should, however, be addressed more precisely. This applies especially to the aspect of corporate finance. In addition, a cumulative impact-assessment of the regulatory initiatives launched in the aftermath of the financial crisis is necessary in order to identify and remove barriers for ...
The position paper of Deutsches Aktieninstitut, BDI and DIHK on ESMA's consultation "Call for Evidence" regarding the rating market aks for an appropriate framework that should not impede corporate financing by bonds. This applies especially for the external rotation of rating agencies and the issuer pays model.
This comment summarises Deutsches Aktieninstitut's position on the national implemention of the revised EU Transparency Directive. From Deutsches Aktieninstitut's point of view the possibility to suspend voting rights in case of false notifications of major holdings deserves close attention. The German legislator currently does not fully uses the options granted by the Transparency Directive and thus creates additional risks for the general meetings of listed companies.
The third country provision according to the proposed EU Benchmark Regulation will have negative consequences for non-financial companies. As long as the home countries of the relevant benchmark providers do not enact a similar regulation it is highly likely that a number of important benchmarks will not be available anymore for European banks and thus their customers. This briefing note explains the concerns in detail and supplements a previous position of Deutsches Aktieninstitut.
ESMA consults on standards for the approval and publication of prospectuses, their advertisement and the incorporation of external information by reference. Among other issues the drafted Regulatory Technical Standards would limit the documents being able to be incorporated by reference and raise high legal burdens on the advertisement regarding the issuance of securities. Deutsches Aktieninsitut urges ESMA to stay within its mandate which does not encompass these powers.
The position paper describes the advantages of employee shareownership and proposes measures in order to enhance the attractiveness of this kind of employee financial participation. According to this tax incentives should be increased and regulatory obstacles should be abandoned.
In the political guidelines for the next EU Commission Jean-Claude Juncker pledges to create a European Capital Markets Union in order to improve the financing of the European economy and in order to further integrate capital markets. This paper lays down Deutsches Aktieninstitut’s perspective on what should be the guiding principles of a proper functioning Capital Markets Union. Our key message is that the perspective on capital markets regulation has to be changed: capital markets, if ...
The European Securities Regulator ESMA has become more and more important for issues of accouting and the enforcment of financial information. This may result in a widening of the scope of the enforcement of companies' accounts. The proposed ESMA Guidelines on enforcement of July 2013 appear to work in this direction. Deutsches Aktieninstitut's position paper raises concerns about a number of aspects of the proposal that counter the efficient German system of enforcement.
With this position paper Deutsches Aktieninstitut contributes to ESMA’s consultation on “Draft Regulatory Technical Standards on specific situations that require the publication of a supplement to the prospectus”. ESMA's proposals on supplements to prospectuses contractict the wording and the objective of the Prospectus Directive and Regulation. As a consequence, the issuance of debt securities will likely be more complicated without improving investor protection.
Deutsches Aktieninstitut supports many of the EU Commission's objectives regarding the planned harmonisation of the EU securities law, e.g. the improvement of the cross-border identification of shareholders as well as thier participation in general meetings. However, Deutsches Aktieninstituts is very concerned that as a result of the harmonisation securities law could gain priority over national corporate law. The position paper has been developed in co-operation with the associatio nof German ...
Deutsches Aktieninstitut on high frequency trading - retain the liquidity function and prevent market abuse
Deutsches Aktieninstitut recommands a legislation regarding high frequency trading which is well balanced. The rules should not deteriorate the liquidity of secondary markets and prevent market abuse of high frequency traders.
Comment of Deutsches Aktieninstitut on the government draft of the legislation for the implementation of the European Market Infrastructure Regulation (EMIR)
Deutsches Aktieninstitut on the BaFin draft circular regarding key information documents (in German)
Comment of Deutsches Aktieninstitut on the ministerial draft of the legislation for the implementation of the European Market Infrastructure Regulation (EMIR)
Position of Deutsches Aktieninstitut in regard of the government draft bill of the "Bundesschuldenwesengesetz" - here: German Bond Act (in German
Deutsches Aktieninstitut's comment on ESMA's draft technical advice on the EU short selling regulation (in German)
Comment of Deutsches Aktieninstitut on the EU regulation of the rating market
Response of Deutsches Aktieninstitut to ESMA - Retail Cascade
Listed companies observe increasing bureaucratic burden as well as decreasing legal certainty from the EU Market Abuse Regulation. In particular, regarding the obligation to publish inside information companies call for guidance. This is the key result of this study conducted by Deutsches Aktieninstitut and Hengeler Mueller. The study is based on a survey among German listed companies on their experiences two years after the Market Abuse Regulation went into ...
The third position paper of Deutsches Aktieninstitut on the exit negotiations between the European Union and the United Kingdom illustrates based on the examples customs and product authorisations as well as data protection and derivatives, what companies can do to solve the problems arising from Brexit. However, it makes also clear that companies especially in the case of a hard Brexit depend on the involvement of regulators and supervisors and cannot mitigate all problems alone. Without ...
Deutsches Aktieninstitut jointly published the results of a survey among small and mid seized listed companies and capital market experts regarding the going and being public. Apart from the necessity to invest more in shares via the pension system survey participants demand debureaucratisation of the listing process and the being public.
The current position paper of Deutsches Aktieninstitut on the exit negotiations between the European Union and the United Kingdom complements the first position paper from February 2017 and covers further relevant topics, e.g. clearing, benchmark and rating. The analyses of financial and capital market legislation and concrete examples from practice illustrate which topics deserve particular attention due to their significance for business and society in connection with the Brexit ...
In its position paper “Exit negotiations between the European Union and the United Kingdom: Minimise Brexit Risks and Strengthen the European Capital Market”, Deutsches Aktieninstitut has identified the essential issues with relevance for capital markets and which deserve particular attention due to their significance for business and society in connection with the Brexit negotiations. Furthermore it makes proposals how the negative impact of Brexit on the affected national economies can be ...
The legal obligation to provide a key information document hinders banks to recommend shares to their retail customers. This is the result of a survey conducted by the Deutsches Aktieninstitut among 1,600 German banks. The Deutsches Aktieninstitut therefore asks for a reform of the existing legislation. Instead of a key information document for every share a key information document for the asset class "shares" should be sufficient.
Kurvenlage - Semi-Annual Report of Deutsches Aktieninstitut, 1st Term 2016 (in German)
Focus: Retirement Planning
Focus: Capital Markets Union
Focus: 50 years German stock corporation law
Focus: A New Start in Brussels
Die Aufsichtspraxis hinsichtlich der Ad-hoc-Publizität muss aus Sicht des Deutschen Aktieninstituts für Emittenten besser handhabbar werden. Das ist das Kernanliegen eines Positionspapiers des Aktieninstituts zur Überarbeitung des Moduls C des BaFin-Emittentenleitfadens, das die Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin) gerade konsultiert. „Wir begrüßen den offenen und produktiven Dialog mit der BaFin und nutzen die Konsultation gerne, um gemeinsam praktikable Lösungen ...
Companies are pleading for more precise legal provisions on ad-hoc publicity and less red tape regarding insider lists and managers´ transactions. This shows the survey “Two Years of EU Market Abuse Regulation”, which has been published byDeutsches Aktieninstitut and the law firm Hengeler Mueller today.
Smaller Companies Need to Prepare Themselves Better for a Possible Takeover
How do German listed companies assess the likelihood of becoming the target of a takeover? How well prepared are they? Do they plan to buy a listed company? Answers to these questions delivers the survey “Ready for Takeover?” published today by Deutsches Aktieninstitut and White&Case.
Renowned German trade associations today have published a digital, cross sectoral “Brexit compendium”, with the aim of bundling the interests of the German economy .The position papers of participating trade associations on Brexit can be found on the respective website http://brexit-kompendium.de/en/, sorted by relevant topics. The United Kingdom’s departure from the European Union will have far-reaching consequences on the European economy and society. In this regard, the concrete impact ...
Issues regarding capital markets have in future to be placed much higher on the political agenda. Deutsches Aktieninstitut has inquired what the political parties have in mind with regard to important capital market matters and has commented these responses. Better conditions for more IPOs in Germany, the use of more shares in old age provisions and the Financial Transaction Tax are just a few of the issues we have followed up.
Deutsches Aktieninstitut calls upon political parties to show more support for important capital market issues like a share oriented old age provision and more IPOs in Germany. The responses of the political parties to the “Wahlprüfsteine” of Deutsches Aktieninstitut show that in many ways clear concepts are missing.
In its position paper “Exit negotiations between the European Union and the United Kingdom: Minimise Brexit Risks and Strengthen the European Capital Market” published today, the Deutsche Aktieninstitut submits proposals to the negotiators how the negative impact of Brexit on the affected national economies can be minimised.
You can find the Position Paper here.
At the autumn reception of Deutsches Aktieninstitut, held today in Brussels, Werner Baumann, President of Deutsches Aktieninstitut and CEO of Bayer AG, requested more support for Europe. Politics and economy had together to convince the people that the unity of Europe is in the interest and to the benefit of all its citizens.
In its latest position paper “Accepting Challenges – Moving Ahead: Deeper Integration of EU-Capital Markets despite the Brexit Vote” Deutsches Aktieninstitut is committed to ensuring, that the European Capital Markets Union is pursued dedicatedly and consequently in the interest of growth and jobs.
The University Prize of Deutsches Aktieninstitut will tonight be awarded by Prof. Dr. Bernd Rudolph, chairman of the Scientific Advisory Board, and Werner Baumann, President of the Executive Committee of Deutsches Aktieninstitut. This year the University Prize will be rewarded with a total of 20.000 Euros.
At the traditional Brussels reception of Deutsches Aktieninstitut the new EU Commissioner for Financial Stability, Lord Hill, and Markus Ferber, MEP, delivered speeches to more than 200 guests. Werner Baumann, President of Deutsches Aktieninstitut, outlined the expectations of the German economy on the European legislator and presented the latest positions paper of the institute „The Road to Growth: Setting Capital Markets Regulation Right”.
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