Dentons (JD Supra Germany)
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Overhaul of German Telecommunications Rules – Catalyst for Digital Transformation in Germany?
On 7 May 2021 the Bundesrat approved the Telecommunications Modernization Act (Telekommunikationsmodernisierungsgesetz – TKMoG), which the Bundestag had passed two weeks earlier. The TKMoG fundamentally reforms and amends the Telecommunications Act (Telekommunikationsgesetz – TKG). This is the first fundamental reform of the telecommunications regulatory regime in Germany since 2004.
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Three years of GDPR in Germany – some potentially expensive wake-up calls
Looking back over three years of the GDPR for Germany, one significant change is clear: German data protection authorities are imposing heavy fines for infringements.
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A fork in the InsurTech road? BaFin’s measures disappoint, whilst EIOPA’s proposals offer hope
The German Federal Financial Supervisory Authority (BaFin) recently published its stringent new requirements for InsuranceTechs seeking authorization from the German regulator.
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The German Federal Supreme Court allows surcharges for certain payment transactions involving “Sofortüberweisung” and PayPal
On March 25, 2021, The German Federal Supreme Court (Bundesgerichtshof, BGH) ruled on appeal that certain transaction surcharges for the use of payment services offered by online payment service providers Sofortüberweisung, part of the Klarna Group, and PayPal do not violate the prohibition on surcharges for SEPA payment transactions.
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Major reform of Foreign Direct Investment rules in Germany
The long-awaited 17th amendment of the Foreign Trade and Payments Ordinance (Außenwirtschaftsverordnung - AWV) has now come. It will enter into force on May 1, 2021.
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More bite for BaFin 2.0? German Federal Finance Ministry publishes reform proposals to supervisory framework - April 2021
QuickTake - The Wirecard scandal exposed a number of operational and cultural weaknesses in Germany’s national competent authority (NCA), the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin). Please see full Publication below for more information.
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Dentons COVID-19 Retail Tracker - Germany
All German federal states have adopted ordinances to fight COVID-19 under their own authority. Therefore, the legal situation may (slightly) differ between each federal state.
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Germany introduces federal Competition Register for public procurement
The Competition Register Act establishes a federal and centralized register of information enabling contracting authorities to assess whether a company must or can be excluded from a tender procedure in Germany for having committed economic offences.
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Competition Newsletter February 2021
Dear readers, this month we are highlighting Germany's reform of its competition law, which came into force on 19 January. Enjoy your reading!
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Extension of the suspension of the obligation to file for insolvency due to the COVID-19-pandemic
On January 28, 2021, the German legislator adopted the further extension of the suspension of the obligation to file for insolvency in the event of over-indebtedness and illiquidity until April 30, 2021. To benefit from the (further) suspension, the affected company must file an application for financial aid in the period of November 1, 2020, until February 28, 2021.
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ESMA’s reminder on reverse solicitation principles and its supervisory expectations
Twelve days after the provisional entry into force of the EU-UK Trade and Cooperation Agreement (TCA)1 the European Securities and Markets Authority (ESMA) published a short but focused public statement, reminding non-EU/EEA firms and notably UK firms on the principles of “reverse solicitation”. Reverse solicitation allows third-country firms, including UK firms, to service EU clients without...
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Application for German tax relief to mitigate the impact of the Coronavirus crisis
In the course of the Corona crisis, Germany has introduced a wide range of fiscal measures to support the German economy, starting with a letter from the Federal Ministry of Finance dated March 19, 2020 and continuing with the current tax relief measures under the German Annual Tax Act (Jahressteuergesetz) 2020. Please see full alert below for more information.
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Germany implements the 6th Anti-Money Laundering Directive – What financial services firms need to know now
On October 14, 2020, the German Federal Government proposed the Draft Act for the Effective Prosecution of Money Laundering (Gesetz zur Verbesserung der strafrechtlichen Bekämpfung der Geldwäsche – the Draft Act) to implement the EU’s Sixth Anti-Money-Laundering Directive (AMLD6) into German law. The AMLD6 aims to improve the harmonization of the criminal liability of money laundering and...
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The EBA’s loan origination guidelines – taking a closer look at the road to June 2021 and beyond
Supervisory scrutiny of credit origination and servicing standards as well as consumer protection compliance has been growing since the 2008 global financial crisis and COVID-19 presents the next catalyst for change. The European Banking Authority published its final Guidelines on loan origination and monitoring May 29, 2020. On October 30, 2020 the EBA published a Compliance Table showing EU-27...
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Blockchain has been transformative and MiCA marks the “Big Bang” in regulation in the EU
On September 24, 2020 as part of its “Digital Finance Strategy Package”, the European Commission adopted: (collectively the MiCA Regime). This summary should be read in conjunction with our more detailed Background Briefing: Meet MiCA – The EU pushes forward its proposal for its Markets in Crypto-Assets Regulation plus a pilot regime for DLT infrastructure.
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German financial services supervisor amends supervisory requirements for IT in financial institutions
Germany’s financial supervisor has published new rules and expectations on how financial services firms should identify, mitigate and manage risks stemming from internal and external information and communications technology (ICT) solutions and providers. This marks the biggest overhaul since the rules were first introduced in 2018.
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BaFin’s consultation on ORA – A Solvency 2 déjà-vu?
On September 27, 2020, the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht – BaFin) concluded its consultation on its Draft Guidelines regarding the minimum regulatory requirements for the own-risk assessment (ORA) for occupational pension funds (IORPs) (the ORA Draft Guidelines). Results are expected to be published shortly. The ORA Draft...
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European Court of Justice annuls three 2017 ex ante contribution decisions by the SRB
This Client Alert outlines the European Court of Justice’s recent judgments on three 2017 Single Resolution Board (SRB) contribution decisions and assesses the impact these and other judgments may have on the SRB’s future approach to determining Single Resolution Fund contributions.
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ECB SSM publishes changes to delegated decision making of supervisory powers
In July 2020, we provided our analysis on the European Central Bank’s (ECB) changes (July 2020 Changes) to the internal organization of the Single Supervisory Mechanism (SSM). These changes, which are to be implemented from October 1, 2020, aim to better reflect the types of Banking Union Supervised Institutions (BUSIs) within the ECB-SSM’s growing mandate. The ECB-SSM has long used the...
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The PEPP – the last mile towards a European finish line for product development?
On August 14, the European Insurance and Occupational Pensions Authority (EIOPA) delivered to the European Commission a set of draft Regulatory Technical Standards (RTS) and Implementing Technical Standards (ITS) along with its advice on delegated Acts to implement the framework for the design and delivery of the Pan-European Personal Pension Product (PEPP).
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US Personal Data Transfers – still an issue
Due to the recent judgement of the European Court of Justice regarding the validity of the EU US Privacy Shield (Case C-311/18, “Schrems II“), European data controllers and processors find themselves in a world of legal uncertainty. Most of them have business partners or service providers located in the United States (the “US”) and such business relations often require the exchange of personal...
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What’s next for the EU’s Capital Markets Union project? Charting the path beyond 2020
This Background Briefing assesses the immediate impact and longer-term outlook following the announcements in the EU Capital Markets Recovery Package, the amendments to the MiFIR/MiFID II, Prospectus Regulation, Securitization Regulation and Benchmarks Regulation regimes as well as the details on further policy changes that may flow from the EU Commission’s High-Level Forum on Capital Markets...
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Digitalization in Germany - proposal to allow securities to be issued electronically
Almost one and a half years after publishing a key issues paper on the regulatory treatment of electronic securities and crypto-tokens, the German government has come up with a ministerial draft bill enabling the issuance of electronic bearer bonds. If this "test run" proves to be successful, a later application to further types of bearer securities is possible.
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EBA and ESMA publish consultations on new revised guidelines on internal governance as well as on suitability and appropriateness for management and key function holders
Firms, notably banks and MiFID Investment Firms, will want to review the issues discussed below and with counsel forward plan how to amend or supplement existing documented and non-documented arrangements. Firms would also be advised to update their governance function (management board) as well as to provide training on these changes to the firm generally, as well as to relevant identified...
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Germany’s priorities for the 2020 presidency of the Council of the EU
This Background Briefing looks at the priorities set out by each of the presidencies, how they interoperate with the recent announcements from the EU Commission over the summer of 2020 and what all of this might mean for policymakers’ approach to regulated financial services firms and non-regulated market participants. Please see full article below for more information.
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Consultation on new Banking Union supervisory guidelines on the approach to consolidation in the European banking sector
In its clearest sign of support for further consolidation of the European banking sector, the European Central Bank (ECB) has published supervisory guidelines on how it will evaluate mergers and acquisitions. The draft guidelines clarify that merging entities may not necessarily be asked for additional regulatory capital. It also sets out the ECB’s supervisory expectations as to merging entities’
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ECB-SSM announces July 2020 changes to its internal organization and supervisory tone
On July 29, 2020, the European Central Bank (ECB) announced changes to the internal organization of the Single Supervisory Mechanism (SSM) (the July 2020 Changes). This is the first shake-up of the SSM’s structure in six years. The ECB-SSM has communicated that it is committed to implementing and operationalizing the July 2020 Changes before the end of 2020. No announcements on amendments to the...
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What could happen when bonds go bad? The ESRB publishes its July 2020 assessment on Fallen Angels Risk
This Client Alert summarizes the findings of the ESRB’s recent assessment of the impact of fallen angels for the EU’s financial system and possible policy actions by the ESRB and other EU supervisory and regulatory policymakers. Please see full alert below for more information.
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The new ECSP-Proposal reaches the home straight on harmonized crowdfunding rules
The proposal for a Regulation and a Directive of the European Parliament and of the Council on European crowdfunding service providers has been adopted by the EU Council on July 20, 2020. The Directive and the Regulation provide common EU-wide rules that aim to improve access to crowdfunding, notably for small investors and businesses in need of funding, particularly start-ups. Investors on...
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Bulgaria and Croatia join the EU’s ERM II and establish close-cooperation with the Banking Union
Bulgaria and Croatia joining the EU’s ERM II comes with a variety of opportunities and points to bear in mind. This Client Alert assesses the impact and opportunities for financial services firms based in these newest EU Member States joining the Banking Union and ERM II, as well as for firms looking to do business in these jurisdictions. Please see full article below for more information.