The advice of a banking lawyer and certified banking law specialist does not refer to self-contained codification. Rather, a certified banking law attorney has a range of laws, ordinances and administrative directives in mind, which the banks and financial service providers he advises in Germany must observe. 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 license from the German Financial Supervisory Authority (BaFin) as components under supervisory law only constitute an initial part of the advice by our banking attorneys.
Our German banking lawyers assist 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 a specialized banking attorney. Otherwise, the risk of costly errors is very high. The legally compliant design of your customer contracts and general terms and conditions, consulting and execution documentation, and binding internal conduct requirements is a basic prerequisite for meeting legal compliance requirements in Germany.
The stability of capital markets and a reasonable protection of investors require high demands on the legally compliant provision of banking and investment services in Germany.
Implementation of compliance and monitoring measures
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 German Banking Act (management compliance) and in Sections 33 et seqq. German 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.
Prevent insider trading
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.
Implementation of business compliance measures
Our experienced compliance team also supports you in the implementation of business compliance.
DC Bank AG
Erste Bank der österreichischen Sparkassen AG
Mizrahi Tefahot Bank
Nomura International plc, German Branch
Careful adherence to the legal basis and compliance requirements not only protects you from complaints and administrative acts by BaFin. It also prevents claims for damages from customers who, for example, feel they have been wrongly advised about an investment, are not satisfied with the result of asset management or complain about errors in the wording of contracts, advisory protocols or general terms and conditions.
Compliance therefore takes place not only on the administrative law side in relation to the financial services regulator, but also in the civil law area in relation to your customers. It must be ensured at all levels that the requirements of the legal standards and the case law of the German Federal Supreme Court are complied with.
Of course, the advice of a banking lawyer contributes significantly to this. And should a legal dispute ever arise, our specialist attorneys for banking law can of course effectively defend you against unjustified claims.
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