Position Papers

With our position papers we engage in political debates and expert discussions regarding capital market issues - representing the interests of our members. Each year, numerous and detailed positions cover the various areas of our work: the primary market, the secondary market, the governance of listed companies and the economic education.

Below you will find our position papers which focus on European legislation - mostly in English and partially in German language. All our positions including papers with focus on national topics you will find on our German website.

Deutsche Aktieninstitut and BDI are concerned about the European Commission's proposal to grant ESMA the power for scrutiny and approval of certain prospectuses. For this reason, they approached the various MEPs together with a position paper before the vote of the EU Parliament. It outlines the importance of maintaining the competences of the National Competent Authorities in this context. Otherwise it is to be feared that via such a transferal of competences, the professional debt market in ...

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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 ...

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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 ...

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In a letter to BMF, Deutsches Aktieninstitut identifies issues, which should be considered in the upcoming national implementation of the 5th EU Anti-Money Laundering Directive. Industrial holdings should be excluded from the obliged parties under § 2 GwG. The same is true for in-house lawyers in companies. Further topics are the practical relevance of the transparency register as well as the supervisory work by the regional councils.

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Deutsches Aktieninstitut as co-signers of an association letter to EU Finance Ministers shares concerns on the broad scope of the EU Commission proposal on the introduction of a EU Digital Services Tax. Financial markets activities need to be clearly and fully exempted from scope of EU proposal. Otherwise, EU Capital Markets will be harmed and a Fincanical Transaction Tax would be intruduced "through the backdoor". 

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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 ...

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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 ...

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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 ...

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Deutsches Aktieninstitut welcomes the proposal to give companies with British legal forms the possibility to reorganize safely into a German legal form. Expanding the scope of application for cross-border mergers to allow foreign companies based in germany to merge with German private companies is very positive.However, the practical relevance of the proposal for solving Brexit problems is quite limited.

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Deutsches Aktieninstitut fears that the EU Commission’s legislative proposal on representative actions will – if adopted unchanged – create more problems than it will solve. The level of safeguards against abusive litigation remains far behind the standards adopted in the Commission’s 2013 recommendation on collective redress. Furthermore, the interaction of national and European rules on collective redress remains unclear and enhances forum shopping.

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The Prudential Requirments of Investment Firms primary objective is to cope with financial stabiliy issues. This has also been to focus of the proposal of the European Commission in late 2017. Some of the proposed amendments by Members of the European Parliament would obligate certain asset managers - among others - to inform in detail on their behaviour on general meetings and discussions with portfolio companies and to incoporate ESG aspects into their voting guidelines. We criticize these ...

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Non-financial companies use OTC derivatives to hedge against currency, interest rate and commodity price risks related to business operations. This position paper summarises why non-financial companies need derivatives that are not centrally cleared or collateralised for this purpose and underlines the necessacity of clearing exemptions. The paper is Deutsches Aktieninstitut's contribution to a consultation of the Financial Stability Board on the recent regulation of derivative markets.

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In its comments on the EU Commission’s Draft Directive, Deutsches Aktieninstitut criticizes the significant imbalances of the Commission’s proposal, which focuses exclusively and one-dimensionally on the protection of the whistleblower while failing to address the protection of legitimate company- and independent third-party interests involved. From the background, that listed companies have developed sophisticated whistleblower protection-systems catering also for the interests of the ...

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At the start of trilogues on the risk reduction package Deutsches Aktieninsitut encourages co-legislators to agree an the amendment put forward by both the European Parliament and the Council to the so-called supervisory review and evaluation process (SREP). The amendment limit the discretion of supervisory authorities to countervail exemptions from formal own funds requirements through the back door - such as the credit valuation risks (CVA risks) exemption for derivatives with ...

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In its response to the Fitness Check Public Reporting for Companies, Deutsches Aktieninstitut criticizes disproportional reporting obligations causing high compliance costs to companies without offering corresponding benefits to investors. Deutsches Aktieninstitut furthermore points at a partly wrong focus of the consultation since legislation of crucial relevance for issuers, such as the Market Abuse Regulation, is not included in the Fitness Check. You can find a letter regarding this topic ...

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Deutsches Aktieninstitut takes a position to the indicated structural changes of the German Corporate Governance Codex and makes content-related suggestions for said revision of the Codex. From the perspective of Deutsches Aktieninstitut, there is a strong case for the retention of the tried and tested fundamental structure. Furthermore, it prompts the Government Commission to take the present position of the Codex in our judicial system into account when considering potential structural ...

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Deutsches Aktieninstitut has made proposals concerning the implementation of the EU Shareholder Rights Directive upfront the draft implementing act of the Ministry of Justice in the field of corporate governance. The position recommends the Ministry to make use of the Member State options especially with regard to the non-binding say on pay vote and the approval of related party transactions (RPT) by the supervisory board instead of the general meeting. Deutsches Aktieninstitut also calls for ...

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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 ...

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Deutsches Aktieninstitut publishes its recommandations for the upcoming negotiations between the EU-Commission, the Council and the Parliament. It strictly opposes the proposal of the Parliament that ESMA should frequently review the clearing threshold in order to increase the clearing rates. However, the proposals regarding the reporting regime lead into the right direction.

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In its comments on the German Federal Government's draft of a civil proceedings model case act, Deutsches Aktieninstitut calls for the adoption of stricter rules assessing the admission-procedure of claims in order to prevent abusive litigation. In addition, Deutsches Aktieninstitut points at the problem of an uncoordinated coexistence of national and European rules on collective redress, which will likely evolve in the near future.

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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 ...

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Ahead of the publication of the European Commission’s plans on Collective Redress scheduled for 11 April, Deutsches Aktieninstitut has expressed its concerns as regards the adoption of imbalanced European Collective Redress-mechanisms in letters to Commission Vice Presidents Timmermans and Katainen. Especially unprecise criteria for identifying qualified entities eligible to raise legal action as well as a differences in the Member States‘ transposition of a European directive are capable ...

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Deutsches Aktieninstitut welcomes the EU Commission`s consultation on a fitness check of supervisory reporting requirements under European financial markets regulation. In its response, Deutsches Aktieninstitut illustrates with quantitative evidence costs for German as well as European companies for compliance with the requirements under the derivatives regulation EMIR. To reduce costs for non-financial companies, we suggest to exempt those companies from the obligation to report intragroup ...

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In its response to the consultation on draft RTS, concretizing the new European Prospectus Regulation in more detail, Deutsches Aktieninstitut stresses the importance of more flexibility in drawing up prospectuses. For instance, Deutsches Aktieninstitut opposes to a fixed number of KFI (Key Financial Information) and APMs (Alternative Performance Measures) in the prospectus summary. Such a restriction is neither necessary nor useful. The 7-page limit foreseen for the summary by the new ...

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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 ...

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In its letter to the German Federal Ministry for Finance (BMF), Deutsches Aktieninstitut recommends to refrain from introducing any national restrictions to the prospectus exceptions provided under the new European Prospectus Regulation. The legislative proposal of the BMF foresees a liability-relevant securities information sheet in the context of a EU prospectus exception that is designed to facilitate market access for SMEs. From the point of view of Deutsches Aktieninstitut, this securities ...

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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 ...

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In a letter addressed to Ugo Bassi, Director “Financial Markets” within DG FISMA of the European Commission, Deutsches Aktieninstitut advocated the need for market-based solutions as regards the recent consultation on institutional investors’ and asset managers’ duties on sustainability. Detailed legal requirements will run counter the materiality-principle, thereby turning sustainability-reporting into a box-ticking-exercise. A dialogue with companies is crucial, as enterprises are ...

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Deutsches Aktieninstitut welcomes the proposed BMF-regulation for a standardised key informations document for shares. In order to relieve share advisory in banks the requirements should strictly take into concern already existing regulatory obligations. In addition, mentioning of benefits and risks should be better calibrated.

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The EU bank regulation reform proposal is currently debated in the European Parliament and the Council. We are particularily concerned about the amendments to the supervisory review and evaluation process (SREP). The proposed changes to the SREP could remove explicit exemptions from formal own funds requirements through the back door - such as the credit valuation risks (CVA risks) exemption for derivatives with non-financial companies.  

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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.

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Deutsches Aktieinstitut takes part in the consultation of the Best Practice Principles for Shareholder Voting Research & Analysis Providers. For companies the main issue with proxy advisors is a further better communication which is emphasized by Deutsches Aktieninstitut.

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The positon paper lays out the benefits of derivative transactions between a centralised treasury unit and the operative subsidiaries of a non-financial group. These transactions are risk-neutral. Therefore, exemptions from the reporting requirements under the EU derivative regulation EMIR, as proposed by the European Commission, are justified.

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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 ...

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In its response to the questionnaire on the early recommendations of the High Level Expert Group on Sustainable Finance, Deutsches Aktieninstitut underlines its support for and the importance of a sustainable economic development, to which also the financial system has to contribute. The current debate should, however, be led more balanced and also taking into account the role of the legislator and its responsibility for policy actions, e.g. as regards the environment, in the first place.

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In a joint association paper Deutsches Aktieninstitut generally welcomes the proposal of the EU-Commission to reduce administrative burden of EMIR especially for non-financial companies. Nevertheless, the paper also describes several problems that are to be solved in order to make the proposal a success story.

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Deutsches Aktieninstitut welcomes in a joint letter with the Federation of German Industries (BDI) to the European Commission considerations on EU level to enhance cross-border mobilty of companies and the digitalisation of company law. At the same time, Deutsches Aktieninstitut points out that any prospective measures in the area of the digitalisation of company law need to guarantee sufficient flexibility for companies. With regard to cross-border mobility of companies, ...

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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 ...

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On the 25th of May 2017 a code of conduct for FX markets (“FX Global Code”) was published, which has been developed by an international cross-sectorial expert group led by major central banks. Deutsches Aktieninstitut supports the Code. Its principles aim at strengthening market integrity in the interest of all market participants and offer guidance for good conduct for the FX business while being proportionate to the size, the role and the importance of the various market participants. The ...

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Deutsches Aktieninstitut welcomes the EU-Commission's proposal to amend the European derivative regulation EMIR. The proposal to retain the hedging definition as core of the clearing exemption for non-financial companies is of utmost importance. The proposed alleviations in the reporting regimes wait for certain clarifications.

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In its short position on the occasion of the EU Commission’s public consultation on whistleblower protection, Deutsches Aktieninstituts supports the implementation of well-balanced protection mechanisms into the compliance management systems of companies. Listed companies enact and enhance whistleblower protection mechanisms in their own best interest on a voluntary basis, so no legislative action on the European level is required.

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European Supervisory Authorities (ESAs) neither need more competences nor a new funding structure. The ESA review should rather focus on making the ESAs mandate more concrete and on improving stakeholder participation, in order to
ensure practicable compliance and to avoid the overstretching of mandates by the ESAs. These are the core messages of Deutsches Aktieninstitut’s position paper on that issue

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In its comment on the national adoption of the Fourth EU-Anti-Money-Laundering Directive Deutsches Aktieninstituts asks for reliefs for the custody of employee shares.

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The legislative period is coming to an end but the pressing economic and socio-political issues will remain. In its position paper concerning the German parliamentary election Deutsches Aktieninstitut is emphasizing the key issues that must play their role in the upcoming legislative period.   

 

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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.

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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.

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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.

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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.

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The Deutsche Aktieninstitutwelcomes the opportunity to comment the issue finches for the non-binding guidelines on non-financial reporting. The Commission is supposed to present the guidelines in order to facilitate the disclosure of non-financial information for undertakings. Therefore it is important that the guidelines will be finalized as soon as possible so companies, especially those that will report non-financial information for the first time, can get the necessary ...

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The Basel Committee on Banking Regulation suggests to constrain the use of internal model approaches by banks for calculatng credit risks. For example, banks shall be forced to apply the standardised approach only for large non-financial companies. From Deutsches Aktieninstitut's point of view the proposal discriminates against highly solvent large companies. Accordingly, this position paper urges the Basel Committee to evaluate carefully the potential negative impact on the economy.

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Deutsches Aktieninstitut provides data for the impact study conducted by the EU Commission regarding EMIR. This data contains costs of a potential clearing or margining obligation and reporting.

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The amendments aiming at keeping the Code lean are in principle welcomed. Furthermore there is need for discussion and change in particular regarding subjects as communication between the investor and the chairman of the supervisory board, requirements for the members of the supervisory board, whistleblower and the inclusion of ethic principles in the preamble.

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With the fourth EU Anti-Money Laundering Directive and its current amendment, every EU member state has, among other changes for companies, to implement a beneficial ownership register. Deutsches Aktieninstitut wrote a letter to the responsible ministries emphasizing that this beneficial ownership register has to be based on existing registers, instead of creating a completely independent, new register. Moreover, Deutsches Aktieninstitut advocates that obliged entities can efficiently and ...

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Deutsches Aktieninstitut welcomes the objective of the government draft bill for a ‘one to one’-transposition of the European CSR Directive into German law. This intention should be pursued in an even more consistent manner. From the point of view of Deutsches Aktieninstitut especially two aspects have to be adjusted in the following legislative process. The audit obligation of the supervisory board has to be removed and the level of sanctions for misconduct as regards the preparation of ...

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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).

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The position paper „Accepting Challenges – Moving Ahead“ points out five central measures that need to be taken in order to successfully realize the European Capital Markets Union. Amongst others these include alleviations regarding the stock exchange listing, reducing of red tape within the secondary markets regulation and checking the regulatory projects in the
capital markets sector as to whether they have negative impacts on non-financial companies.

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Deutsches Aktieninstitut welcomes the proposal to amend the insolvency law released by the Federal Ministry of Justice and Consumer Protection. The proposal provides legal certainty regarding the effectiveness of close-out-netting-clauses in master agreements in the case of insolvency.

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Deutsches Aktieninstitut comments on the proposal regarding technical rules of the Institut der Wirtschaftsprüfer in Deutschland e.V. - IDW (Institute of Public Auditors in Germany) for non-financial companies under the derivative regulation EMIR. In its comment Deutsches Aktieninstitut asks the IDW to provide more clarity regarding certain definitons and the scope of the auditing process.

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The Net Stable Funding Ration (NSFR) shall ensure that banks have sufficient midterm funding. This position paper is Deutsches Aktieninstitut's comment to a targeted consultation of the EU Commission on the implementation of the NSFR in the EU, which will be due in 2018. Deutsches Aktieninstitut urges the EU Commission to evaluate carefully the impact of the NSFR on the availability and prices of derivatives used for hedgings purposes of non-financial companies.

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In its position paper, Deutsches Aktieninstitut rejects the EU Commission’s proposal for a mandatory public disclosure of tax-relevant information in form of country by country reports by multinational companies. According to Deutsches Aktieninstitut’s point of view, the EU should refrain from obliging corporates to publicly disclose such information. In order to prevent competitive disadvantages, companies should only be required to disclose country-specific information to tax ...

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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.

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Starting with Juli 2016 the ECB reference rates for the FX markets will published at 4pm which is two hours after the fixing is calculated. The main objective of this change is to prevent manipulation of the fixings. This position paper questions the necessitiy of the changes and summarizes the practical problems that will result from it for non-financial companies.

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Deutsches Aktieninstitut participated at the EU-Commission´s Online Consultation preparing the non-binding guidelines for the CSR-Directive. The consultation was open until 15 April. Deutsches Aktieninstitut emphasizes that the planned guidelines should not become a new European standard for non-financial reporting. Therefore, the EU-Commission should restrain itself from defining reporting aspects like for example business model within the guidelines. In particular it is important for ...

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In its comments on the ministerial draft statute for transposing the CSR-directive into German law, Deutsches Aktieninstitut welcomes the freedom of choice for companies to prepare a separate non-financial report instead of the non-financial statement. However, the plan to add consumer issues to the non-financial reporting obligations, should not be pursued. Also the concept that all non-financial information have to be submitted within the non-financial statement creates problems. 

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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.

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Deutsches Aktieninstitut appreciates the initiative of the EU Commission to determine, how the market for retail financial services can be further opened up, whilst maintaining an adequate level of consumer and investor protection. However, the baseline assumptions of the EU Commission’s Green Paper on “Retail financial services - Better products, more choice, and greater opportunities for consumers and businesses” (COM(2015) 630 final) from December 2015 does not properly reflect the ...

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Deutsches Aktieninstitut asks the legislator to use the proposed MiFID-delay to fix shortcomings of the level-1-text. Besides others this applies for the treatment of emission allowances within the ancillary activity exemption and the introduction of a waiver for the suitability report.

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The position paper comments on the draft of the EU Commission, published on the 11/30/2015. Deutsches Aktieninstitut opposes the idea of allocating risk factors into categories and restricting their number in the summary since this approach would give especially retail investors a false sense of security. The abolishment of the 100k bond exemption and facilitations is grounded on wrong assumptions. Moreover, 32 empowerments of the EU Commission and ESMA make it uncertain, if the new prospectus ...

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Deutsches Aktieninstitut and the Federation of German Industries (BDI) welcome the German government's restrictive interpretation of the European parameters on statutory audit as expressed in the government's draft-legislative proposal for transposition of the EU regulation and directive on the same subject. However, both trade-associations see room for improvement as regards provisions on external rotation of audit firms. Since the draft distinguishes between corporates and financial ...

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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.

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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- ...

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In its comment on the proposal to reform the taxation of investment funds Deutsches Aktieninstitut states that disadvantages for the long-term wealth building and the corporate finance should be avoided.

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Deutsches Aktieninstitut criticises ESMA for the proposal to make XBRL reporting mandatory for listed companies by 2020. Such an obligation would cause significant additional compliance costs and risks for issuers although there is no evidence that analysts or investors are interested in XBRL reporting. The paper is Deutsches Aktieninstitut's response to an ESMA-consultation on the concretisation of the EU Transparency Directive.

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In order to promote public equity financing and equity culture in Germany Deutsches Aktieninstitut suggests to implement the recommandations developed by the round table initiated by the economics minister Gabriel as soon as possible.

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To revitalize the securitisation market in Europe is at the core of the Capital Markets Union. Regarding this aim the respective proposals of the European Commission are insufficient, which the joint position paper of Deutsches Aktieninstitut, BDI and DIHK clearly states.

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The positiov of German listed companies for the trialogues on the Shareholder Rights Directive is summarized in two position papers of Deutsches Aktieninstitut. In a joint position paper with the Bundesverband der Deutschen Industrie (BDI) Deutsches Aktieninstiutt focusses on the provisions on related party transactions, remuneration and the topic of proxy advisors. Both associations stress that for the German industry it is of major importance that in particular the improvements on related ...

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With this letter to Mr. Lueder Deutsches Aktienistitut comments on the brought to light proposals of the EU Commission. Overall, Deutsches Aktieninstitut appreciates the attempt to facilitate capital market finance and support several changes. However, we are among others very concerned about the abolishment of the 100.000 denomination threshold per unit, the new definition of home Member State and the restriction and classification of risk categories.

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Deutsches Aktieninstitut opposes jointly with five other important German associations (BDI, BGA, DIHK, EFET und VDT) the proposal of ESMA to abandon the hedging exemption for non-financial companies under the derivative markets regulation EMIR. This would force larger companies into the clearing obligation or the obligation to collateralise derivative transactions bilaterally.

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Deutsches Aktieninstitut comments on the proposal launched by the Bundesfinanzministeriums regarding the reform of the taxation of investment funds. It is crucial that dividends should be taxed twice, on fund and on investor level, and that free float capital gains realised by corporations should be no longer exempted from taxation. Both seriously harms equity culture in Germany.

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Deutsches Aktieninstitut contributes to the EU-Commission's consultation regarding the review of the derivative markets regulation EMIR. It asks the regulator to decrease the regulatory burden for non-financial companies in particular regarding the reporting requirements and the risk mitigating techniques.

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Transparency and reliability of proxy advisors have improved over the past decade as has the incorporation of national specifics of corporate governance into the voting guidlines. However, listed companies still miss a possibility to check voting recommendations against factual errors before they are issued to investors. These are two of the main findings of this position paper prepared for an ESMA's consultation on a code of business conduct of the proxy industry.

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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.

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Jointly with 19 other associations Deutsches Aktieninstitut launches a proposal for the calculation of the ancillary activity thresholds under MiFID II.

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Regarding the implementation of the CSR-Directive Deutsches Aktieninstitut pleads not to include small and medium sized enterprises or additional reporting aspects but to implement the directive one-to-one. Clarifications regarding the rules set out in the directive should be left to the European legislator, who can enact the non binding guidelines mentioned in the directive if considered appropriate.

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In its comment on the second consultation paper of the European Supervisory Authorities EBA, ESMA and EIOPA regarding bilateral collateralisation of derivatives Deutsches Aktieninstitut addresses concerns that initial margins should be segregated and that bank guarantees should not be acknowledged as collateral. 

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Deutsches Aktieninstitut is concerned that EBA is about to requalify all non-financial companies with centralised treasury or finance activities as shadow banks for regulatory purposes. This will be the outcome of a defintion that EBA proposes for the treatment of credit exposures of banks with the shadow banking sector. The main shortcome of the definition is that internal financial tranactions are not excluded. This position paper summarises Deutsches Aktieninstitut's concerns.

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In this position paper Deutsches Aktieninstitut and the Federation of German Industries (BDI) criticize the far-reaching consequences of the German transposition act of the EU audit reform as it partially undermines well-tried corporate governance-mechanisms of the two-tier-system. This applies especially to the newly introduced rules on audit committees of which some threaten to cross the line between the management and the supervisory function.

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The joint call for action to promote employee share ownership in Germany of ten associations - including Deutsches Aktieninstitut - asks the legislator to improve the institutional framework regarding employee particiption in order to increase its dissemination among German companies.

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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.

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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 ...

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In its joint position paper on the EU-Commission's consultation "An EU framework for simple, transparent and standardised securitisations" Deutsches Aktieninstitut, DIHK and BDI asks the legislator to not impede the securitisation of SME loans.

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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.

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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.

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In its answers to ESMA's consultation on draft technical standards regarding MiFID II/MiFIR Deutsches Aktieninstitut points out that the risk management by non-financial companies should not be negatively affected by the rules. This applies especially for the ancillary activity exemption, the position limits/position reporting and the transparency requirements for the derivative markets.

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In its position papers regarding the "technical advice" of ESMA on MiFID II/MiFIR Deutsches Aktieninstitut states that the new rules should not impact equity culture in Europe negatively. This applies especially for the offering of share investment advice in banks and the availability of research for SMEs. Besides, an appropriate definition should ensure that contracts for the delivery of commodities used by the real economy are not classified as derivatives. The comment from 16 January 2015 is ...

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In order to enhance data quality under EMIR Deutsches Aktieninstitut recommends in its position regarding the ESMA consultation on EMIR reporting to decrease complexity. Perspectively, the introduction of an one-sided reporting regime and the abolition of the intra-group reporting should improve data quality on trade repository level as well.

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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.

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In a joined statement regarding the consultation of the European Banking Authority EBA on "simple, standard and transparent securitisations" Deutsches Aktieninstitut and BDI ask for appropriate requirements especially for ABS including SME loans.

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Die OECD hat einen Entwurf zur Überarbeitung ihrer Grundsätze der Corporate Governance vorgelegt und bis Anfang Januar 2015 öffentlich konsultiert. Die Grundsätze der OECD richten sich nicht direkt an Unternehmen, sondern an Staaten und Regulierer, die sich die Empfehlungen zur Benchmark für ihre Gesetzgebung machen können. Wegen ihrer Vorbildfunktion darf die Bedeutung der Prinzipien gerade im Wettbewerb der Rechtsordnungen nicht unterschätzt werden. Die Stellungnahme des Deutschen ...

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In its answer to ESMA's consultation on commodity derivatives Deutsches Aktieninstitut asks for the clarification that take or pay clauses in commodity contracts should not be treated as derivatives. Overall, a cash compensation due to force majeure or insolvency should not be confused with a cash settlement.

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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.

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The position paper emphasizes the importance of functioning IPO-markets for growth financing and employment. An adequate regulatory framework should incentivise retail and institutional investors to invest more money in shares. An efficient regulation should also increase the attractiveness of stock markets as a financing instrument for companies.

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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.

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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 ...

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Deutsches Aktieninstituts welcomes the idea of promoting shareholders' engagement. However, the proposal of the EU Commission goes too far especially concerning the regulation on related parties' transactions.

Furthermore Deutsches Aktieninstituts is against a binding vote of the general meeting on remuneration policy. It also asks for appropriate regulation on questions of shareholders' identification and of transparency of proxy advisors.

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The EU is about to regulate the processes of the provision of indices and benchmarks. From Deutsches Aktieninstitut’s
point of view summarised in this positio paper the proposed requirements for index providers go too far. The high regulatory intensity will make it more costly to provide a benchmark or contribute data to its calculation, so that
important references might not be available in Europe in the future. This would also happen to the disadvantage of the real economy.

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Deutsches Aktieninstitut comments on the consultation paper of IOSCO regarding global standards for risk-mitigating techniques for non-cleared OTC-derivatives. We call for the clarification that the proposed global standards should not contradict EU-rules already enacted.

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This position paper critisises ESMA's draft delegated acts on the Market Abuse Regulation. Because ESMA's interpretation reaches too far listed companies in Europe face massive additional compliance risks and costs regarding insider lists, the publication of inside information and the notificatio of managers' transactions.

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This position paper on ESMA's draft technical advice on the Market Abuse Regulation raises the concern that the notifications of managers' transactions will likely create misleading signals. According to ESMA's proposal transactions will have to be notified even if the manager has no discretion as to whether the purchase/sale of the share will take place. From Deutsches Aktieninstitut's point of view the notification of such 'passive transactions' would clearly contradict the regulatory ...

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In its draft technical advice regarding the evaluated Market in Financial Instruments Directive (MiFID II) ESMA proposes to prohibit the availability of research which is provided free of costs. We object this proposal as not appropriate as it will impact especially shares of SMEs which are already lacking a sufficient coverage of professional analysts today.

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Deutsches Aktieninstitut is concerned about a possible mandatory use of an single European electronic format for financial reports of listed companies. This is principally forseen in the revised Transparency Directive. The critique holds true for a possible mandatory implementation of XBRL (eXtensible Business Reporting Language) in particular. This comment summarises Deutsches Aktieninstitut's point of view for the purpose of an impact assessment which is currently conducted by an ...

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The joint letter to the EU-Commission (with BDI and VDT) addresses the debate on the technical regulatory standards regarding the liquidity coverage ratio (LCR) under Basel III. The definition of asset backed securities which are acknowledged as high quality liquid assets under the LCR should be appropriate and should carefully take into consideration well-established standards regarding securitisation of SME loans.

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On behalf of the Federal Ministry of Justice and Consumer Protection the Institute for Transparency conducted a study on the documentation of investment advice in financial institutions. Our comment welcomes the conclusion drawn in the study that experienced banking clients should be allowed to resign from the documentation obligation. Nevertheless, the right to withdraw should not be too restrictive.

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We comment the work of ESMA regarding the draft technical standards and technical advise according to MiFID II / MiFIR. ESMA should properly take into account the specifics of non-financial companies using derivatives relating to their commercial and treasury financing activities. Furthermore, an appropriate level of transparency on equity markets should ensure fair trading and an efficient price discovery process.

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In its answer to the Commission´s Online Consultation Deutsches Aktieninstitut emphasizes that after having adopted the Directive on disclosure of non-financial information no more legal steps by the Commission are necessary. Insteadthe EU should raise the awareness for the importance of CSR by enhancing market reward for CSR. From the point of view of Deutsches Aktieninstitut the main challenge to-be for the EU policy on CSR is to create an International Fair Level Playing Field in order to ...

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The position paper comments on the draft regulatory standards on bilateral collateralisation of derivatives released by the European supervisory authorities EBA, EIOPA and ESMA. The standards should not oblige all counterparties to collateralise transactions between an EU-bank and a non-EU-entity. Furthermore, the standards should acknowledge bank guarantees as collateral and should ensure that the requirements for the exemption of intra-group transactions are not inappropriate strict.

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We comment the draft position paper of Institut der Wirtschaftsprüfer in Deutschland (IDW) regarding the auditing process on the requirements of non-financial companies according to EMIR. So called „take-or-pay-clauses“ in contracts for the delivery of commodities should not be regarded as derivatives. Furthermore, we ask IDW for an appropriate calculation of the clearing thresholds.

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This position paper comments on the level-2-implementing measures of ESMA under the revised Transparency Directive. The main issue is ESMA's interpretation of the exemptions from the major sharehholdings notificatons requirements. Deutsches Aktieninstitut generally calls for applying the exemptions rather narrowly since experience has shown that exemptions may also be used for secret stakebuilding.

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ESMA plans to harmonise the presentation of so called alternative performances measures in the financial communication of listed companies. Frequently used measures such as EBITDA could only be presented with less prominence compared to financial measures stemming directly from the IFRS framework. This approach interferes with capital market communication, creates legal risks and is stricter than comparable rules of the SEC as is pointed out in this comment by Deutsches Aktieninstitut.

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This position paper reemphasises the critique of Deutsches Aktieninstitut and the Bundesverband der Deutschen Industrie on a possible separation of banking activities in the EU as proposed by the EU Commission in January 2014. E.g., the bank structure reform is about to limit the core credit institution's ability to provide non-financial companies with derivatives and thus with hedging services. This will create an obstacle to risk management and is inconsitent with the EU derivatives ...

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The position paper refers to the consultation of the European Commission on the delineation between FX spot and FX forward transactions. We demanded the legislator to apply the already existing definition for certain commodity spot contracts for the FX market as well.

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According to the reviewed Markets in Financial Instruments Directive (MiFID II) all costs of a financial instrument should be made transparent to the client. Our comment focuses on the discussion whether the costs of the issuance of shares or bonds should be included in the respective cost ratio. We strictly object this idea as these costs are not borne by the client but by the issuing company.

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A consultation paper released by the Financial Stability Board discusses different proposals on how information regarding derivative transactions could be aggregated on a global level. Our comment focuses inter alia on the necessity that the aggregation should not aggravate already existing reporting requirements under EMIR.

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We object the notion that take-or-pay-clauses in contracts for the delivery of commodities are derivatives. These clauses do ensure a flexible and efficient provision of commodities and are no derivative instruments.

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The implementing measures under the new European Market Abuse Regulation will likely go too far. This is the key concern Deutsches Aktieninstitut raises in a consultation of ESMA on this issue. ESMA's proposals will likely tighten supervisory practice regarding the publication of inside information, the publication of insider lists and managers' transactions in shares of the own company.

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The position paper comments the draft regulation on "key information documents for packaged retail products". The intention of the EU-parliament to extend the scope of the regulation on corporate bonds would have negative impacts. A key information document for corporate bonds does not provide additionally benefits for retail investors. Nevertheless, its preperation is very burdensome for issuers. As a result attractiveness of capital market financing decreases.

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This position paper comments on a draft code of conduct which has been presented in October 2013 by a group of proxy advisors to govern their transparency and business conduct. Deutsches appreciate the initiative as step forward in order to improve the transparency of the proxy advisory industry. However, the code should be improved. Deutsches Aktieninstitut is in particular calling for the opportunity to check the draft of a voting recommendation on factual errors before its ...

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The joint position paper of Deutsches Aktieninstitut, Bundesverband der Deutschen Industrie and Verband Deutscher Treasurer stresses the importance of the German securitisation market, especially with regard to sales and working capital financing in German industry. The paper focuses on several draft regulations that will lead to a major slump in the European and German securitisation market and hence cause damage to the real economy.

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According to the analysis of Deutsches Aktieninsitut the role of money market funds for the cash management and the financing of non--financial companies will likely decrease. This will be the consequence of the EU Commission's porposed for a regulation of money markets funds. This position paper which is co-signed by the Bundesverband der Deutschen Industrie (BDI) explains in detail the concerns of non-financial companies.

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31.10.2013

Promoting sustainable business practices and social responsibility – Avoiding superfluous and adverse reporting obligations

With regard to the Commission’s proposal regarding the disclosure of non-financialinformation Deutsches Aktieninstitut views it as essential that the right balance is struck between the interests of companies and the true needs of investors.

Deutsches Aktieninstitut released recommandations for the coaltion talks between CDU, CSU and SPD. It was stressed that the functioning of capital markets should be retained and improved. An adequate regulatory framework is decisive that retail investors could better use capital market products for wealth accumulation and for private age provisions. In addition, it is very important that companies can better access capital markets for financing and risk-mitigating purposes.

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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.

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The starting date for the reporting obligation under EMIR will be likely mid February 2014. So far corporates face uncertainties regarding various issues which aggrevates the due implementation of the required processes. This holds true especially for an appropriate methodology how the Unique Trade Identifier (UTI) will be determined which is not available up to now. This is the key issue of our paper.

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The separation of proprietary trading of banks from deposit taking and the provision of credit is currently intensively discussed. Advocates argue that such a separation will help to avoid future banking crisis. Deutsches Aktieninstitut and BDI are not convinced of the arguments, concerned about the impact on the real economy and call for a detailed impact analysis. The joint position paper is the response to an EU consultation on the issue which discusses different models of separation.

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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.

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Deutsches Aktieninstitut welcomes the objective of the green paper to foster long-term financing. For this reason regulatory barriers which encumber investors such as banks, insurers, institutional and retail investors need to be removed. The position paper shows how this could be done.

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With this position paper Deutsche Aktieninstitut contributes to the German und European debate on non-financial reporting which has gained momentum after the EU Commission legislative proposal on the respective issues. In particular, we are concerned that the so-called "report or explain"-principle will result in a tremendous additional financial burden for listed companies. we expect that binding reporting requirments will be counter-productive with regard to the development of voluntary ...

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This position paper is a shorter version of the German position paper on the financial transaction tax originally published on 2 May 2013. It lays down in detail that the financial transaction tax would severely burden the real economy and retail investors.

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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 ...

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This position paper lays down in detail that the financial transaction tax would severely burden the real economy and retail investors.

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16.04.2013

Deutsches Aktieninstitut takes part in the EU consultation relating to transfer of registered offices

Deutsche Aktieninstitut generally supports the idea of a harmonised regime of the transfer of the seat of companies across borders. However, even under a harmonised regime there may be national specifics that may make a transfer of the registered office more time-consuming. Deutsches Aktieninsituts therefore calls for European wide study to take stock of such differences.

21.03.2013

Response of Deutsches Aktieninstitut in regard of the consultation of the German Corporate Governance Code 2013 - Plea for the supervisory boards (in German)

In this position Deutsches Aktieninstitut speaks up for strengthening supervisory boards. We fear the opposite effect by some of the proposed measures respectively recommendations.

15.03.2013

The debate on the separation of commercial and investment banking - arguments of Deutsches Aktieninstitut (in German)

The Liikanen report as well as a recent German legislative initiative call for a separation of trading activities of banks from the deposit taking and the provision of credit. Deutsches Aktieninstitut is concerned about the negative consequences of such an separation of commercial banking and proprietary trading. The position paper presents ten arguments and comments concretely on the German legislative proposal.

For the second time IOSCO and the Basel committee on banking supervision (BCBS) ask market participants for their view on global standards regarding the collateralisation of derivative transactions. We welcome the clarification that non-financial companies which are not clearing required should not become required to post collateral. Furthermore, FX derivatives should be exempted from the obligations irrespective of their maturity.

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21.02.2013

Position paper on the European energy and climate policy

On the occasion of a meeting between the board of Deutsches Aktieninstitut and Günther Oettinger, EU Commissioner for energy, Deutsches Aktieninstitut summarised its position on the European energy and climate policy. In particular Deutsches Aktieninstitut asks for an adequate regulatory framework which increases the attractiveness of investments in renewable energies.

21.02.2013

Capital markets regulation should be well balanced

The members of the executive committee of the Deutsches Aktieninstitut had the opportunity to discuss recent legislative proposals with members of the European Parliament. The Deutsches Aktieninstitut summarised the key concerns regarding the issues discussed in a policy paper.

The position paper summarises the concerns of Deutsches Aktieninstitut with respect to the revision of the EU rules on market abuse. At the start of the trialogues EU members states, EU Parliament and EU Commission are inter alia requested not to increase the scope of the prohibition of insider dealings to so-called "relevant information generally available".

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In responding to a number of consultative documents of the Financial Stability Board Deutsches Aktieninstitut raises the concern, that a possible regulation of "shadow banking” may have negative consequences for companies of the real economy. Negative side effects may be direct or indirect and have to be avoided from Deutsches Aktieninstitut's point of view.

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11.01.2013

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.

23.11.2012

Comment of Deutsches Aktieninstitut on the government draft of the legislation for the implementation of the European Market Infrastructure Regulation (EMIR)

  

24.09.2012

Comment of Deutsches Aktieninstitut on the ministerial draft of the legislation for the implementation of the European Market Infrastructure Regulation (EMIR)

   

30.03.2012

Deutsches Aktieninstitut's comment on the national adoption of the SEPA regulation

  

09.03.2012

Deutsches Aktieninstitut's comment on ESMA's draft technical advice on the EU short selling regulation (in German)

  

02.03.2012

Position of Deutsches Aktieninstitut on the financial transaction tax

  

02.02.2012

Comment of Deutsches Aktieninstitut on the EU regulation of the rating market

  

25.01.2012

Comment of Deutsches Aktieninstitut on the regulation of the external auditor market

  

06.01.2012

Response of Deutsches Aktieninstitut to ESMA - Retail Cascade