Investment brokerage ( English BrokerageDriving ) is finance the brokering of transactions between a buyer and a seller of financial instruments or financial products .
The term investment brokerage was incorporated into the Banking Act (KWG) in April 2002 as a financial service . If the prerequisites for investment brokerage are met, it is a financial service that may only be provided by financial service institutions or other institutions. These in turn require a banking license in accordance with Section 32 KWG .
The investment brokerage stands between a party willing to buy and a party willing to sell. The legal definitions of section 1 (1a) sentence 2 no. 1 KWG and section 2 (8) sentence 1 no. 4 WpHG require a brokerage activity. The term brokerage is based on Section 34c (1) No. 1 GewO , which describes the activity of the evidence broker insofar as it relates to financial instruments within the meaning of Section 1 (11) KWG. Accordingly, the target-oriented promotion of the investor's willingness to enter into a transaction is recorded so that he can conclude a transaction with a third party for the acquisition and sale of financial instruments. The investment intermediary is limited to the receipt and transmission of orders from investors. While the EU Directive 2004/39 / EC of April 21, 2004 still saw brokerage as a kind of forwarding activity in the form of acceptance and transmission of orders, BaFin specified in May 2011 that this included the merging of two parties for the purpose of concluding a transaction is to be understood.
The investment intermediary must get in touch with both parties willing to enter into, bring them together for future business or contribute to the conclusion of a contract. The investment broker's field of activity is limited to the sale of one or a very limited number of investments, which distinguishes investment brokerage from investment advice. The activity can either come from the mediator or from the parties to be mediated. The fact of the investment brokerage is the Federal Court interpreted broadly (BGH) According to and is already fulfilled if the intermediary has been so fully prepared to conclude a concrete business and handled that customers only have to sign the contract and send it has or if the Broker forwards the order documents signed by the customer after an investment consultation . Both the investment intermediary and the investment advisor must correctly and completely inform the investor of all factual circumstances that are important for the financial instrument. If the investment broker is an investment services company , it must provide the private investor with a declaration of suitability prior to the investment brokerage pursuant to Section 64 WpHG .
Brokerage objects can be all types of financial instruments and financial products. The term of the financial instruments comprising the legal definition in § 1. 11 KWG money market instruments , currencies , derivatives , investments in the sense of § 1 , para. 2 VermAnlG ( shares , participating loans , subordinated , participation rights ), bonds or units of investment funds within the meaning of Section 1 (1) of the KAGB .
While the investment broker acts as a messenger of the declarations of intent of the parties to be mediated, the final broker makes his own declarations of intent as an open representative of his client. As soon as the investor has granted the intermediary power of representation and the intermediary does not appear as a messenger, but rather as a representative of the investor submits a declaration of intent on his behalf, this activity does not fall under investment brokerage. Rather, the intermediary acts as a broker (section 1 (1a) sentence 2 no.2 KWG) or financial portfolio management (section 1 (1a) sentence 2 no.3 KWG). The distinction between investment brokerage and investment advice is largely based on the fact that the latter is based on a recommendation .
- ↑ BT-Drs. 13/7142 of March 6, 1997, draft of a law for the implementation of EC directives for the harmonization of banking and securities supervisory regulations , p. 65
- ↑ BaFin, information sheet on the facts of the investment brokerage , May 2011, section 1a.
- ↑ Herbert Schimansky / Hermann-Josef Bunte / Hans-Jürgen Lwowski-Joachim Siol, Banking Law Manual , Volume I, 2011, § 45, marginal no. 2 ff.
- ↑ Manuel Lorenz, Churning , 2015, p. 26
- ^ BGH, judgment of December 5, 2013, Az .: III ZR 73/12
- ^ BGH, judgment of March 22, 1979, Az .: VII ZR 259/77