New version of MaRisk – Circular 10/2021 (BA) – Minimum risk management requirements

What exactly is the issue?

BaFin is currently consulting on an amendment to MaRisk, which will probably be implemented in Q1/Q2 2023.

Subject of the implementation

The 7th MaRisk amendment adopts in particular the requirements of the EBA guidelines on loan origination and monitoring (EBA/GL/2020/06) and thus a large number of additions to the design of credit processes as well as the consideration of ESG factors.

Furthermore, provisions on the handling of real estate business, in particular set-up organization, processes in real estate business, especially in acquisition/establishment, processing and monitoring of real estate projects are introduced.

Changes affecting all institutions

One of the most significant changes in the 7th MaRisk amendment relates to the consideration of ESG risks in the definition of risk-bearing capacity and its analysis, the design of the business strategy, risk management and controlling processes, and the ICS of an institution, including risk reporting.

Institutions must align their business strategy in an economically sustainable manner and develop it on the basis of a forward-looking analysis. To this end take into account changing environmental conditions and the transition to a sustainable economy. To this end, a business model analysis, including stress tests, must be carried out.

In the future, the institute’s capital planning must take into account operational business planning.
The use of models for decision-making (e.g. risk classification and quantification procedures, stress tests, valuation models, etc.) is subject to new requirements in terms of data sources, adjustments and reliability. The Ma-Risk amendment does not affect models that require approval by the competent authorities and fall within the scope of Regulation (EU) No. 575/2013 (CRR).

Innovations in lending

When granting loans and valuing loan collateral, ESG risks must be taken into account and the EBA Guidelines on Lending and Monitoring (EBA/GL/2020/06) must be followed. Loans and loan collateral shall be analyzed at least annually for enforceability and default risks.

Leveraged Transactions

Institutions with a portfolio of leveraged transactions shall also comply with the requirements of the EBA Guidelines on Lending and Supervision (EBA/GL/2020/06), Section 4.3.2 (Leveraged Transactions) when defining their strategy.

Changes in the lending business

If an institution is active in the real estate business (investment volume of more than EUR 10 million per year and/or 2% of total assets), MaRisk defines in the new Special Part BTO 3 requirements for the organizational structure, processes in the real estate business, in particular for acquisition/construction and the further processing and monitoring of real estate projects as well as the monitoring of real estate projects.

Effects on practice

All changes must be reflected accordingly in the organizational guidelines. This means that you not only have to implement the changes, but also document that you will implement them in the future.
We will be happy to support you in adapting your organizational guidelines and manuals in a way that fits the scope of your business model and reflects your corporate culture.

BaFin focuses audit on product governance and objects to accuracy of financial market participants

Complaints about product governance

BaFin has examined product providers as well as distributors, i.e. portfolio managers, investment advisors, etc., and found numerous reasons for objections. The complaints relate in particular to the following topics:

PRODUCT PROVIDER

Target market identification

When determining the target market, product providers must specify exactly what knowledge, experience, risk appetite, etc. the investors must have who are to be suitable for the product in question. The more complex a product is, the more extensive and in-depth the individual characteristics of the potential target customers must be designed (proportionality principle) to ensure that only customers within the target market are eligible for purchase.

BaFin has found that product providers rarely base their target market definition on the proportionality principle. There is a need for improvement here.

Costs and fees

The cost and fee structure must also fit the target customers. Costs, for example, must not eat up the expected return. Product providers must calculate and evaluate this accordingly when designing the product.

DISTRIBUTORS

Target market identification

For distributors, the target market must be determined individually against the background of the company’s own customer base. An independent target market definition must therefore be carried out; an unchecked takeover from the product provider is not sufficient. The following also applies to this target market definition: the more complex a product is, the more extensive and in-depth the individual characteristics of the potential target customers must be (principle of proportionality).

RESPONSIBILITIES, IMPLEMENTATION

Responsibilities

The responsibility for proper target market determination in compliance with the proportionality principle lies with the respective product provider or sales company. They cannot therefore delegate these tasks in one direction or the other.

Implementation in organizational guidelines

The best way to counter BaFin’s objections is to include appropriate requirements in your organizational guidelines.

We have years of experience in drafting them and therefore know exactly what is important and how you can implement them in a way that fits your corporate culture. Please feel free to contact us at any time and arrange a meeting.

Green Deal: eprimo acquires first own solar park

  • Energy trendsetter acquires 49 percent stake in PV plant in Biehla near Kamenz (Saxony)
  • Installed capacity to be expanded to a total of around 1.75 MWp by spring 2023

With the acquisition of its first own solar park, Germany’s largest green energy discounter eprimo is actively driving forward the energy transition. The PV park in Biehla (Saxony) will supply almost 590 households with climate-friendly energy. From April 2023, eprimo will make the electricity generated available to its customers via a direct purchase agreement (Power Purchase Agreement).

From now on, 49 percent of the solar park in Biehla near Kamenz in Saxony will be owned by eprimo, while RenExpert GmbH will hold a 51 percent share. The PV plant, whose first construction phase has been in operation since October 2021, currently generates an output of just under 750 kWp. This year, the expansion will start with a planned additional output of around 1 MWp. Commissioning is scheduled for spring 2023. The solar park will then have a total yield of 1.8 GWh. With an average consumption of around 3,100 kWh per household, this plant alone is expected to supply around 590 households with green electricity.

Due to the direct purchase agreement, the electricity is purchased in such a way that the customers of the eprimo Green Power Community (GSC) are directly supplied with the generated energy. This means that GSC customers can use the locally produced green power even if they do not generate their own electricity. For every kWh consumed by the GSC, eprimo provides 0.3 cents and thus promotes the further expansion of renewable energies with the eprimo Sonnencent. The PV park in Biehla is the first PV plant financed with the Sonnencent.

About eprimo

eprimo, the energy changer. As Germany’s green energy discounter with the most customers, eprimo is a provider of green electricity and green gas and brings the energy turnaround to over 1.7 million households. All customers are offered numerous opportunities to actively participate in the expansion of renewable energies: Through attractive additional payments for prosumers, the promotion of new PV systems with the Sonnencent, and participation in citizen energy projects, their customers become #energiewendemachers. As a company, eprimo also acts sustainably and is climate-neutral in all its business activities.

Advisors eprimo

act AC Tischendorf RechtsanwälteMarcus Columbu (Lead Partner; Regulatory & Finance); Dr. Fabian Brocke, LL.M. (M&A); Dr. Fabian Laugwitz, MBA, LL.M. Eur. (Real Estate); Sarah Landsberg (Corporate)

New Remuneration Ordinance for Medium-sized Securities Institutions
BaFin drafts regulations for securities institutions for the first time

Affected institutions

BaFin is currently consulting on a draft of a remuneration regulation (WpIVergV) for managing directors and risk takers of medium-sized securities institutions (§ 2 para. 17 WpIG). In doing so, BaFin is guided by the Remuneration Ordinance for Institutions (Institutsvergütungsverordnung), which, since the introduction of the WpIG, only applies to institutions that fall under the KWG.

Affected persons

The risk takers covered by the WpIVergV are the managing directors of an institution as well as all employees whose activities have a significant impact on the risk profile of the institution. In principle, all remuneration components are affected.
The aim of the provisions is to oblige institutions to link sustainable qualitative and quantitative criteria to the granting of remuneration to risk takers, which prevent conflicts of interest and false motivations and do not run counter to control and monitoring units.

Object of implementation

The draft of the WpIVergV contains special rules for the design of the remuneration systems of risk takers of so-called medium-sized securities institutions. Small securities institutions are not affected by the WpIVergV.

Essential regulatory content

The draft of the WpIVergV contains special rules for the design of the remuneration systems of risk takers of so-called medium-sized securities institutions. Small securities institutions are not affected by the WpIVergV.
Essential regulatory content You are obliged to adapt your remuneration strategy and your remuneration system to your business and risk strategy, and to and risk strategy and to structure the remuneration of the risk takers appropriately. For this purpose, the WpIVergV contains numerous requirements that must be complied with. These requirements include, in particular, the amount of variable remuneration, questions of appropriateness, measures for the evaluation and adjustment of the remuneration system as well as individual remuneration and remuneration components, the manner of granting variable remuneration and partial retention (deferred payments) as well as the regular review of the implementation of these requirements.

Responsibilities

Responsible for the implementation of the WpIVergV are, with regard to the managing directors, the supervisory body or, failing that, the managing directors of the institution and, with regard to the other risk takers, the managing directors of the institution.

Implementation in organisational guidelines

The requirements of the WpIVergV must be implemented in your organisational guidelines, in particular in your remuneration system; furthermore, committees must be set up and responsibilities defined, if necessary.
We have many years of experience in the implementation of the previous Remuneration Ordinance for Institutions (Institutsvergütungsverordnung) and therefore know exactly what is important and how you can implement the requirements in a way that suits your corporate culture. Please feel free to contact us at any time and arrange a meeting.

Andrei Croitoru, the first Romanian practicing lawyer to earn the Certified Fraud Examiner (CFE) credential

Already a name to note in the Romanian legal sector covering white collar crime, Andrei Croitoru has gone the extra mile and became the first Romanian practicing lawyer fully trained and certified in preventing, detecting and investigating fraud.

After many years of being involved in various high-profile corporate investigations and assisting companies on implementing compliance programs, Andrei Croitoru strengthened his capabilities, developing a unique set of diverse skills in white collar crime, a selection of which includes: 

  • excellent knowledge of complex financial transactions and of how fraud is committed, detected and prevented, as well as strong ability to resolve allegations of fraud,
  • strong investigative techniques that help him trace fraudulent transactions, interview individuals to obtain information and confessions, write investigation reports and advise clients on the findings of the internal investigations, as well as on the relevant legal issues,
  • high understanding of the underlying factors that motivate people to commit frauds, how to identify red flags that indicate evidence of fraud and fraud risk, as well as how to design effective anti-fraud programs.

Andrei is Counsel at act Botezatu Estrade Partners, with a wealth of experience in advising and representing major domestic and international companies in relation to organized crime, money laundering, tax evasion, corruption, complex frauds, occupational criminal offences, industrial and workplace accidents.

His practice includes legal representation before national and European courts, as well as in front the prosecution bodies, including in cases that involve detainment or requests for enforcement of European arrest warrants.

A Certified Fraud Examiner (CFE) is a leader in the anti-fraud community, noted as a specialist in the prevention, detection and deterrence of fraud. CFEs represent the highest standards held by the Association of Certified Fraud Examiners (ACFE), the world’s largest anti-fraud organization.

act legal Czech Republic je nejlepší advokátní kanceláří na právo životního prostředí

Advokátní kancelář act legal Czech Republic (act Řanda Havel Legal) se v letošním ročníku prestižního hodnocení advokátních kanceláří Právnická firma roku společnosti EPRAVO.CZ stala vítězem kategorie Právo životního prostředí. K vítězstvím v kategoriích Energetika a energetické projekty, Pracovní právo a Telekomunikace a media z minulých let tak přidala další nejvyšší ocenění. Kromě toho act Řanda Havel Legal uspěla v dalších 16 kategoriích. 

Mgr. Martin Řanda, LL.M., vedoucí environmentálního týmu, považuje toto ocenění za velký úspěch: „Právo životního prostředí patří mezi jednu z našich hlavních specializací. Velmi nás proto těší, že jsme se stali právnickou firmou roku právě v této kategorii. Naše odbornost budovaná téměř 17 let je pro naše klienty klíčová, a proto nám s důvěrou svěřují své případy. Je to pro nás čest a zároveň velký závazek.“   

act Řanda Havel Legal kromě práva životního prostředí uspěla i v dalších odborných kategoriích. V konkurenci téměř 80 českých i mezinárodních advokátních kanceláří je velmi doporučovaná v oblastech energetiky a energetických projektů, řešení sporů a arbitráží, práva hospodářské soutěže, developerských a nemovitostních projektů, restrukturalizace a insolvence, telekomunikací a medií, práva informačních technologií, veřejných zakázek, pracovního práva, firemního compliance, zdravotnického práva, a také je velmi doporučovaná ve zvláštní kategorii Česká firma na mezinárodních trzích. Doporučovaná je pak pro oblasti fúzí a akvizic, bankovnictví a financí, práva obchodních společností a duševního vlastnictví. 

Kontinuální úspěšnost v žebříčku kvality právních služeb dlouhodobě řadí advokátní kancelář act Řanda Havel Legal mezi absolutní špičku advokátních kanceláří v České republice.

Kompletní žebříček zde

act AC Tischendorf advises DEG (HQIB)
on its majority shareholding in SMAL GmbH

Digital Experiences Group GmbH („DEG“), in which Harald Quandt Industriebeteiligungen GmbH („HQIB“) holds a majority stake, has acquired a majority stake in SMAL GmbH („SMAL“).

SMAL is an international full-service design and development agency with offices in Munich, Amsterdam and San José. Since 2011, SMAL has been developing outstanding brands, products and services in the physical and digital space.

SMAL represents an important strategic extension for DEG due to its complementary services. SMAL and Ergosign will remain independent companies with their respective brands within DEG and will work together strategically and operationally in the joint group of companies in the future.

The founders of SMAL will remain with the company both as co-partners and in their operational roles. The parties have agreed not to disclose further details of the transaction.

Background:
HQIB is an investment company of the Harald Quandt family and a small number of selected (industrial) families and partners. HQIB invests in small and medium-sized companies in German-speaking countries that are active in established, future-oriented and technically demanding sectors with attractive growth potential.

act legal – with more than 350 professionals throughout Central Europe – offers act legal sophisticated national and international legal advice – the attractive alternative to large international law firms.

act legal Germany regularly and comprehensively advises HQIB on their transactions.

Advisors to HQIB:
act legal Germany: Dr. Fabian Brocke, LL.M. (Corporate/M&A), Dr. Nina Honstetter (Corporate, Labour Law); Marcus Columbu (Finance); Dr. Fabian Laugwitz MBA, LL.M. Eur. (Real Estate)
Ebner Stolz: Alexander Euchner; Wolfgang Klövekorn; Franz Günther (all Tax)

act legal Germany advises Intersaction on its first acquisition in Germany

Intersaction, a private equity investor headquartered in the Netherlands, acquired all shares in Amberg Umwelt-Technik GmbH through its portfolio company BMAir Deutschland GmbH & Co. KG.

BMAir is one of Europe’s leading manufacturers of pressurized filter systems. The group follows an ambitious growth and internationalization strategy, in which the German market plays a key role. The transaction creates a new European market leader in the field of filter pressurization systems for the construction machinery.

Following the acquisition by BMAir, Amberg will continue its operational activities under its own brand. On an organizational level, Robin Veltman, managing partner at BMAir for 20 years, has been appointed as managing director together with Thomas Cronen, who successfully led Amberg Umwelt-Technik for many years as general manager and developed Amberg Umwelt-Technik into a German market leader. Both parties have agreed not to disclose further details of the transaction.

Background:

Intersaction invests with focus to niche and B2B companies with significant growth potential and an EBITDA of EUR 2-10 million. The acquisition of Amberg Umwelt-Technik was their first acquisition in the German market.

act legal – with more than 350 corporate and commercial lawyers across central Europe – offers demanding corporate clientele high-level, cross-border, or regional legal advice being the attractive alternative to major international law firms.

act legal Germany was recommended by a long term client and advised Intersaction/BMAir comprehensively in all matters of this transaction.

Advisors Intersaction/BMAir:

act legal Germany: Dr. Fabian Brocke, LL.M. (Corporate/M&A, lead partner), Maximilian Dieler (Corporate/M&A); Dr. Fabian Laugwitz, MBA, LL.M. Eur. (Real Estate); Marcus Columbu (Finance).

Financial & Tax | Ebner Stolz: Armand von Alberti; Lukas Benzinger

Notary: Anne Vins-Niethammer (Oppenhoff & Partner)

„100% Power, 100% Innovation, 100% Technik. Ich stelle Weichen.“ – IT System & Netzwerk Administrator



Für die Unterstützung und sukzessive Nachfolge in die Verantwortung für die IT unserer Kanzlei suchen wir einen

IT System & Netzwerk Administrator (m/w/d).

Wir sind modern, voll durchinvestiert und verfügen im Branchenvergleich bereits über einen sehr hohen technischen Standard. Die konsequente Weiterentwicklung dieses Standards in den kommenden Jahren hat bei uns höchste Priorität.

Werden Sie ein Teil von act AC Tischendorf!

Mehr Infos erhalten Sie in unserer Stellenanzeige:

Wenn Sie sich angesprochen fühlen und bereit für Ihre nächste Herausforderung sind, bewerben Sie gerne direkt bei Dr. Sven Tischendorf: sven.tischendorf@actlegal-act.com Wir freuen uns auf Sie!

Folgen Sie uns auch auf LinkedIn

act legal Germany advises Lafayette Mittelstand Capital on acquisition of mdexx

Lafayette Mittelstand Capital takes over the business operations, including all employees, of mdexx, a former business unit of Siemens, by way of an asset deal.  

mdexx develops and manufactures at its sites in Germany, the Czech Republic and China transformers, power supplies, chokes and filters as well as axial- and centrifugal fans for customized ventilation solutions.

mdexx filed for insolvency proceedings under self-administration on 11 October 2021. With the acquisition by Lafayette, which was consummated in July 2022, the business operations can be continued, expanded and all of the approximately 460 jobs of mdexx are secured.

Background:

Lafayette Mittelstand Capital is an investment firm focused on carve-outs and restructurings. act legal Germany regularly advises Lafayette on M&A transactions.

Advisor Lafayette:

act legal Germany: Dr. Fabian Brocke, LL.M. (Corporate/M&A); Dr. Fabian Laugwitz, MBA, LL.M. Eur (Real Estate/Commercial); Dr. Nina Bogenschütz (Employment); Marcus Columbu (Finance); Maximilian Dieler (Restructuring/ M&A)