Capital market supervision of the BaFin and bank supervision as well as bank supervision right
- Surely of the sales prospectuses and security prospectuses before the BaFin
- BaFin supplement and prospectus supplement with the public participation offer
Capital market, capital market supervision and security supervision by financing for enterprise about the private financial markets
The banks and capital market supervision of the government institution of financial service supervision (= BaFin) controls the money market and financial market. Financing and procurements of capital for enterprise about the capital markets and "collecting of capital" (deposits) is defeated by the state bank supervision and security supervision as well as a strict, penal-reinforced regimentation. It is allowed beyond the monopoly law about the banks (see law about the credit system, KWG) only at a society-juridical or security-juridical level on the basis of the sales prospectus laws "to collect capital". These are with the procurement of capital the Abgenzungen for the insert shops of the banks (see §1 KWG) and to keep to the capital market rules about the Genehmigungspflichtigkeit of the Kapitalakqusition.
Therefore, professional consultation and company is essential by financing about the private participation markets if one liked to risk no back winding up possession and no penal procedure. Offence against the banks and capital market right is punished with up to three years of prison. Every year approx. 3,000 procedures carries out the BaFin as a supervisory authority and is a very attentive authority which investigates constantly in the capital markets together with the Central Bank and the state central banks.
Capital market supervision - Komptenz and consultation
We consult and, on the other hand, inform about the capital market supervision right and the bank supervision right, about the approval conditions for capital market prospectuses on the one hand and about licensings or approvals for financial service institutes, investment trusts, security mercantile banks etc.
LLD Horst Siegfried Werner deals for 29 years exclusively with innovative financing models as well as the concept and the conversion of private orders to the procurement of capital for small business in and beyond the stock exchange. We have accompanied with our long-standing experience more than 650 capital market issues and in this connection more than 100 security-issue prospectuses with the Federal Office for financial service supervision, the BaFin (today Frankfurt / Main and Bonn), or earlier to the Federal Supervisory Office for the credit system, formerly Berlin, when have brought predecessor's authority of the BaFin to the approval.
The capital market issue and/or the mediation of finance instruments
The issue of kapitalmarktorientierter finance instruments (see www.finanzierung-ohne-bank.de) or the mediation of the same in the capital market require special material customer. Who act with securities commercially or provide finance instruments or for others would like to administer, therefore, a special commercial permission of the responsible capital market supervision needs in addition. The permission and licensing rules are established in the kapitalmarktrechtlichen law regulations. Issue enterprises, as well as financial service mediators must keep among other things to the rules of the credit system law (KWG) and the security trade law (WpHG). Should securities be offered like shares, pleasure notes, debentures (loans / pension paper / interest papers), change and option papers or also investment share notes publicly, the issue as well as the mediation of such shares basically from the capital market supervision BaFin show financial service liable to permission. Besides, the issue enterprises own for the order of own finance instruments this sucked. "Emitter's privilege" and need only one capital market prospectus-Gestattung or approval of security prospectuses. The sales and the mediation of the shares of own enterprise are free of permission.
A third - who is not at least dependent an employee in the issue enterprise - which would like to provide finance instruments as securities of other enterprises needs a permission after §32 of the credit system law (KWG) as sucked. Financial service institute. As far as a finance service provider owns no permission after §32 KWG as a mediator of securities and also no special fact of the matter reaches, the (Penal) fact of the matter of the unauthorised financial services is fulfilled for the government institution of financial service supervision (briefly BaFin called). Attains the BaFin knowledge from circumstances which could be fulfilled by such circumstances, she will immediately remit an interdiction possession and require extensive information from the partners. Then will examine the BaFin kind and the extent of the made transactions. Provided that transactions liable to permission KWG should be made commercially, the admission of these shops of the previous approval needs by the BaFin as a licensing authority or permit authority. The conditions for the granting of an approval after §32 of the credit system law are directed in the kind of the deliberate shops. The activities are differentiated between banking transactions and financial services.
I. To the capital market prospectuses liable to permission about investments and the security sales prospectuses:
Already in the past the duty was valid with a public offer of securities also beyond the stock exchange for the publication of a made capital market prospectus as a participation sales prospectus, as a security sales prospectus or fund prospectus about investments. With the investor's protection improvement law this prospectus duty has been also expanded to not security-vested investments.
(a) With it is defeated since 2005, e.g., also the public offer of Kommanditbeteiligungen, fund participation, to quiet participation, partiarischen advances and pleasure rights without security (pleasure right capital, to pleasure notes) sucked as. Investments basically of the legal prospectus duty. This arises from the sales prospectus law with the suitable orders and implementation regulations. With the prospektierten participation offer the possibility on capital independent of bank is opened for the enterprise. A prospectus permission as "Gestattung" by the government institution of financial service supervision (BaFin) is not necessary merely when more than 20 sponsors per finance instrument should be involved (insignificance border) - see sales prospectus law §8 and the following paragraph 2 Ziff. 3. Besides, it does not depend on the height of the investment capital and on the height of the financing volume to be taken up. Consequently there are for all enterprises the following possibilities and financing chances: Capital from Privately without bank supervision approval:
- Procurement of capital for small and middle-size enterprise (KMU)
- Investment capital for enterprise with a capital market prospectus
- Company foundation with procurement of capital
- Investment capital for founders of a new business as a Small Capital financing
Public offers of investments free of security are also free of prospectus or BaFin freely if the least insert from 200,000 euros lies.
(b) for the issue and the public offer of securities is valid the security prospectus law (WpPG). Shares, loans or debentures - immediately in which stamping - are basically securities namely no matter whether a Verbriefung takes place by a physical security or not. Therefore, the meaning lies for shares, loans or change papers in the fact that a bank supervision-juridically approved security sales prospectus is necessary for the public issue (= issue) from securities. The kapitalmarktrechtliche approval occurs through the BaFin as "an approval" for the publication and announcement of the security prospectus. The conditions arise from the security prospectus law. Without security prospectus only 99 potential investors may be appealed or be promoted (= legal entry threshold) - see §3 paragraph 2 WpPG.
With a least insert from 50,000 euros the Werpapierprospektgesetz puts the issue of securities freely of prospectus and freely of approval, i.e. that no legal duty exists for the production of a security sales prospectus and no BaFin approval is necessary. In the purely practical order one often does not get by without comprehensive sales prospectus already for liability reasons. Besides, the emitter with a wide offer with a Mindest-Einmaleinlage from 50,000 euros will achieve only lower success.
II. BaFin supplement and prospectus-supplement duty with public participation offers
With capital market prospectuses is valid during the order phase (see www.finanzierung-ohne-bank.de) by "essential" changes or events a BaFin supplement duty. This exists, e.g., with unexpected losses, value corrections, divergences of plan calculations, elimination of key people or staatsanwaltschaftliche inquiry processes because of misappropriation etc. for the still running away order of participation for the finance distribution, as well as for the potential new investors, because these are to be published property-juridically by "basic meaning" and, hence! Essential changes are notifiable in particular within the scope of a prospectus negotiation as a prospectus supplement compared with the capital market supervision BaFin in Frankfurt / Main and need the formal, public announcement in a stock market duty sheet.
If since the order beginning and since the announcement of the sales prospectus – during the duration of the public offer - changes stamped which are for judgement of the capital-looking enterprise or the offered finance instruments of investment-determining meaning a supplement is to be published without culpable delay according to §11 sales prospectus law of the capital market prospectus in a stock market duty sheet and to register with the security supervision in Frankfurt / Main. The written supplement is to be deposited with the BaFin. A change is to be seen in this connection as "essential" in if, e.g., the objectives of the original sales prospectus have changed for the sponsor in a measure that the draftsman would differently make his investment decision if necessary than he would have hit on the basis of the approved sales prospectus. This is in particular the case when as an example the plan calculations shown in the prospectus are not appropriate after topical business situation any more or have considerably decreased the sales views and profit views (essential change of the financial situation).Sowohl the already involved investors as well as the potential, new sponsors as well as the expelling finance service providers have an interest in a quick clarification about the "essential" events to suffer no property damage. Therefore, is to be weighed taking into account the interests of all partners, when and how fast a publication of the processes has to occur. Consultation tips receive enterprise from the Dr. Werner Financial Service AG at the mail address dr.werner@finanzierung-ohne-bank.de.
The "Wesentlichkeit" could be also given if the legal prospectus duty data are concerned according to the security prospectus law or the sales prospectus order. Whether the duty data do not apply by the change any more or have considerably changed investment-decisively. If the changes do not concern the prospectus laws / orders, is still to be checked by the responsible organs independently whether the change is to be classified as "essential" and to be gone after with it. False judgements go to loads of the enterprise and his managers. This indicates to publish a supplement in the doubt.
The uncertain legal concept of the "essential" meaning for the judgement of the participation offer encloses such changes with whose knowledge the investor would not have taken part. The question of the Wesentlichkeit is to be answered by the enterpriser in own responsibility itself. Besides, he has to respect to the fact, that he the being core from §264 a StGB (investment deception) not injured (...” if I had known this, I would not have taken part”).
If no publication happens and wants to avoid one the publicity, the running order of the issue is to be stopped within the scope of a private Placements immediately. In the other case the issue enterprise according to §264 a StGB because of investment deception can make itself punishable.
III. The financial services BaFin-liable to permission
They count to the financial services liable to permission among other things:
(a) The investment mediation, so the acceptance and transmission of orders of the investors who refer to the acquisition of securities, money market instruments, foreign currency, accounting units and derivatives (finance instruments for the purposes of the KWG);
(b) The final mediation, so the acquisition and disposal of finance instruments in the foreign name for foreign calculation;
(c) him sucked. Own trade: This is the buying and sales of securities as well as trade with finance instruments by order of a third as an own trader. In these cases the financial service institute to his customer faces not as a commission agent, but as a buyer and shop assistant;
(d) They sucked. Finance port folio management, so the management of property of the third which is put on in finance instruments, with own deciding match space. Enterprises are valid, e.g., nevertheless, then not as a financial service institute and are free of approval if they exercise the investment mediation or final mediation exclusively for calculation and under the liability of an insert loan institute with seat by the home without producing other financial services (sucked. Liability roof). If requested we establish for finance distributions contacts with financial service institutes or security mercantile banks to come under their liability roof to receive in this manner the permission to the distribution from securities.
IV. The banking transactions liable to permission and licensing applications as a loan institute
III. To the banking transactions liable to permission count among other things this:
(a) the finance commission business, so the acquisition and disposal of finance instruments in own name for foreign calculation (so-called concealed substitution);
(b) The depot business, so the preservation and management of securities for investors;
(c) The investment business, so the acquisition of money by the issue of the investment shares which are put on in own name for common calculation of the investors after the principle of the risk mixture;
(d) The issue business, so the takeover of finance instruments for own risk to the order or the takeover of equivalent guarantees;
(e) The loan business, so the granting of (bank) advance and acceptance loans; there are exceptions by the banking transactions, among the rest, for the enterprises, the banking transactions and bank services exclusively within the scope of group enterprise (see §18 AktG) or her daughter and sister enterprises producing. A necessary permission granting is attached to numerous legal conditions. In the following the most important aspects of the compelling prerau's settlements are briefly shown for the permission granting. First great importance comes up to the demands for him or the managers. Within the scope of banking transactions liable to permission two managers are necessary after the four-eye principle without exception. These may not act merely in an honourary capacity, but must exercise the surgical business activity really. Besides, may be given no facts which can prove doubt about the personal reliability of the managers as for example committed property offences (deception and infidelity) as well as offence against legal ordinal regulations for the company of an enterprise. Besides, the demands for the technical suitability and the number of the managers is directed in the kind of the deliberate shops. The technical suitability can be proved as a rule by the fact that the managers have at least three years of experiences in leading activity in the deliberate shops and are familiar with the supervision-juridical default.
One or several if the precalled or other shops BaFin-liable to permission is produced, is to be cleared by the preparations for the position of the permission application furthermore which financial means are necessary for the business concern. Besides, the least capital equipment amounts to 50,000 euros (e.g., as a financial service institute). If necessary a proof about the existence of a property liability insurance with a suitable sum insured is to be produced. According to extent of the applied permission the least capital equipment can amount up to 730,000 euros (e.g., security mercantile bank) or at full banks more than 10,000,000 euros. Besides has remitted the BaFin separate demands for the capital at banks-special institutes as well as for investment trusts as directives which intend an accordingly high starting capital:
(a) 50,000 euros do not act at the enterprises which intend to pursue the investment mediation, the final mediation or the finance port folio management and they are not authorised to get property or possession in money or securities of customers with the performance of financial services and at own account with finance instruments.
(b) 125,000 euros at the enterprises which want to pursue the investment mediation and final mediation as well as the finance port folio management and which are authorised to get property or possession in money or securities of customers with the performance of financial services.
(c) 730,000 euros at the financial service institutes who pursue own trade for others as well as with investment mediators or mediators and finance port folio governors who act at own account with finance instruments as well as at security mercantile banks and investment trusts.
(d) 1,000,000 euros at the enterprises which want to pursue only the E money business.
(e) 2,500,000 euros with investment trusts if these certain Nebendienstleistungen want to produce or administer as a real estate fund a real estate-special property.
(f) 25,000,000 euros for the incentive of a building society. Besides, the starting capital has to exist of core capital, it must be freely available. Obligations (e.g., companion's advance) or other advance money do not count to sucked. Core capital. The core capital consists therefore of several company capital components which are defined according to the society-juridical characteristic of the enterprise differently. E.g., money of atypically quiet companions and to 50% counts to 100% the Genussrehctskapital to the core capital. Any time of the exercise of the surgical business adequate own resources must exist. These funds must be recognised to KWG as a being liable company capital. Quiet participation and the pleasure right capital belongs according to §10 paragraph 4 and 5 KWG by observance of prescribed contract rules to the approved own resources also (atypically).
Within the scope of the licensing application and the permission procedure are to be demonstrated of the BaFin the commercial model and to describe a row of details of the planned commercial model in a standardised procedure. The permission to the admission of the business concern is only given by the BaFin when is proved that all demands of the credit system law are fulfilled. The permission application is written from the future permission bearer, but to put shapelessly and, among the rest, must contain the following documents:
(a) The company (name) of the financial institution, the legal form, the seat and the commercial purpose,
(b) The financial services or the banking transactions for which the permission is applied.
(c) notariel accredited copy of the foundation documents, the social contract or the statute,
(d) A proof, the finances necessary to the business concern (as a rule a bank statement),
(e) occupational data / curriculum vitae about the boards of directors or managers as a manager and their reliability as well as technical suitability together with suitable documents,
(f) the presentation of a logical and realitischen commercial plan. The commercial plan shows the central element of the permission application., Among the rest, he has to contain the planned figures considering the calculation lapping regulations for banking undertakings, a closer description of the future business development, patterns of the intended customer contracts and a representation of the organizational enterprise structure. Prospective customers preserved from the capital market expert LLD Horst Siegfried Werner further information under dr.werner@finanzierung-ohne-bank.de. With pleasure the Dr. Werner Financial Service AG is available to a free exchange of information.
Consultation to the finance service provider's liability and mediator's liability within the scope of the capital market activity
With the long-standing capital market experience the Dr. Werner Financial Service AG with her network partners belongs with the government institution of the capital market supervision to the so-called "Vieleinreichern". The consultation about the finance service provider's responsibilites, about the guarantee of the extensive duties to inform and compared with ad hoc-news of the BaFin, in particular listed enterprises or from finance service enterprise, we have strengthened during the last years and have improved. The mediator's liability and finance service provider's liability as well as the distribution liability find in the legal regulations of the bank supervision and the credit system law her origin and starting point.
BaFin consultation directly from the practise-experienced capital market expert
About our financing activity and finance service provider's consultation we stood and stand in the permanent submission contact with the BaFin. We know the historical developments of the bankaufsichtsrechtlichen regulations and can estimate future developments with the interpretation of the appropriate regulations on the capital market early. This moves us into the situation to represent our mandators about the Ra Ltd co-operating with us zukunftsbezogen, practically orientedly and appropriate for interest with and before the federal authority of the BaFin.
Appeal to us because of kapitalmarktrechtlicher questions or bank supervision-juridical problems. We immediately help you. They receive a professional BaFin consultation:
Dr. Werner Financial Service AG
Gerhard-Gerdes-Str. 5
D-37079 Göttingen
Dr. jur. Horst Siegfried Werner
BaFin consultation to the procurement of capital
with a public participation offer
Tel. +49 (0)551 / 99964-240
Fax an +49 (0)551 / 99964-248
or confidentially by e-mail directly to Dr. Werner:
dr.werner@finanzierung-ohne-bank.de
Web: www.finanzierung-ohne-bank.de
Web: www.kapitalbeschaffung-sofort.de
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