"German Banking & Finance Law": Recent blog posts
12.02.2021 - Lars Gerbe
29.09.2020 - Dr. Annette Wagemann
29.09.2020 - Dr. Annette Wagemann
The advice of attorneys at law and certified banking law specialists does not relate to self-contained codification. Rather, a certified banking law specialist is to take into account an abundance of laws, ordinances and administrative instructions, which must be complied with by banks and financial services providers that the attorney advises. Of course, this always includes the latest EU regulations in connection with financial services of all kinds.
The examination of the obligation to obtain a permit and the obtaining of an appropriate BaFin license as components under supervisory law only constitute an initial part of the advice by our attorneys and certified banking law specialists.
We are assisting in a legally reliable and effective manner in drafting all of the relevant business documents, and explain how to use them correctly – also as part of a training course at your company, where required.
We have a large number of templates available, particularly
- contract documents
- General Terms and Conditions
- investment advice and investment brokerage contracts
- internal codes of conduct ("compliance manuals")
- schematic diagrams for structural and process organization
We will be glad to adapt these templates rapidly and cost-effectively to your individual needs and circumstances. Financial services providers without their own legal department should not write the required contracts and documents themselves, but have them drafted by an attorney at law or certified banking law specialists. Otherwise, the risk of costly errors is very high. The legally reliable design of your contracts and General Terms and Conditions, the advisory and design documentation and the binding internal conduct requirements are a basic prerequisite to meet statutory compliance requirements.
The stability of capital markets and a reasonable protection of investors require high demands on the legally compliant provision of banking and investment services. On June 07, 2010, BaFin specified the compliance requirements of investment services companies in its circular letter 4/2010 (WA) – MaComp. All financial services institutions must implement appropriate compliance functions as monitoring mechanisms to ensure compliance with the laws and ordinances on a sustained basis. Nevertheless, the responsibility for meeting the compliance requirements remains with management.
The legal bases for compliance are found in Section 25a(1) sentences 1 (general compliance) and 2 Banking Act (management compliance) and in Sections 33 et seqq. Securities Trading Act (special compliance requirements of investment services institutions). The institutions must ensure that all employees comply with the laws and ordinances applicable to them at all times. To this end, suitable control and monitoring measures must be taken. Investment services firms must also observe the good conduct rules of Sections 31 et seqq. Securities Trading Act and prevent unlawful employee transactions – such as insider trading according to Section 14 Securities Trading Act.
Failure to comply might under certain circumstances mean that managers can face liability claims as well as administrative and criminal sanctions. Economically, the institutions must guarantee their economic stability. They must have a proper business organization and in particular an adequate risk management. In the case of severe or repeated violations of these duties, BaFin can rescind the institution's financial services license according to Section 35 Banking Act. In order to also support you in implementing management compliance, we work closely together with a renowned auditing company, which specializes in financial service institutions.
Careful compliance with the legal bases and compliance requirements will protect you not only against complaints and administrative acts of BaFin. It will also prevent claims for damages by customers, who feel they were wrongly advised on a capital investment, are not satisfied with the result of asset management or complain of errors in the contract texts, advisory minutes or General Terms and Conditions. Therefore, there is compliance not only on the side of administrative law in relation to financial services supervision, but also in the civil law area in relation to your customers. It must be ensured on all levels that there is compliance with the guidelines from legal standards and Federal Court of Justice jurisdiction. Of course, the advice provided by an attorney or certified banking law specialists will considerably contribute to this end. Should there ever be a dispute in court nevertheless, we can of course also effectively defend unjustified claims on your behalf.
Attorney Dr. Annette Wagemann (Certified Specialist for Banking and Capital Markets Law) as well as Attorney Sebastian Förste are looking forward to addressing every question regarding German banking law. You can contact our attorneys via e-mail (email@example.com) or by phone (+49 (0)69 76 75 77 80).