Securities account
A securities account or more specifically securities account is banking one account , over the securities orders handled (purchase, sale, transfer) and securities holdings posted are. The term investment account is used for investment funds .
Legal issues
In Germany, the custody business , i.e. the safekeeping and administration of securities for others, is banking business within the meaning of Section 1 (1) No. 5 KWG . Custody accounts may only be kept by credit institutions or financial services institutions in accordance with Section 1 (1) or (1a) KWG, provided they operate custody business, brokerage or financial portfolio management. As an account type, custody accounts are subject to the general provisions on the opening and management of bank accounts with regard to tax requirements ( Section 154 (1) of the Tax Code (AO)) and the standards on money laundering . They are also reported in the account retrieval procedure. The account number, the opening and closing date as well as the name, date of birth of the account holder, the name of one or more possibly different beneficial owners (here also the address) as well as the names and date of birth of those authorized to dispose of a deposit account are saved.
Like current accounts, custody accounts can be managed as individual accounts or as joint accounts . In the case of a joint account (“Oder custody account”), it must be determined whether joint disposal should be possible for all account holders or whether each holder can dispose of the custody account alone. In the case of the Oder custody account, a distinction must be made between ownership of the securities held and the rights from the custody agreement. Section 430 BGB , which regulates the internal relationship of joint creditors, only applies to the rights from the custody agreement. In the case of the Oder custody account, Section 430 of the German Civil Code (BGB) is only relevant for the rights from the custody account contract , but not for the ownership of the securities in custody Or deposits of joint creditors. Because there is no general belief in bearer securities, especially in shares. The decisive factor is the entitlement in rem, i.e. the property situation. The establishment of a depot as an Oder depot usually does not provide any information about this. This is true because the account holder does not have to be the owner of the securities in custody. Experience has shown that setting up an Oder custody account, for example for married couples, often only serves the purpose of enabling the other spouse to dispose of the securities.
Custody agreement
As is customary in banking, the opening of a securities account is linked to the conclusion of a custody contract between the custodian bank and its custodian customer. The custody agreement is part of the general terms and conditions and obliges the custodian bank (custodian) to monitor and notify the exercise and exploitation of investor rights and obligations, such as subscription rights, payment obligations, compensation and takeover offers. However, due to the large number of factors, further warning and disclosure obligations about all circumstances relevant to the performance are neither determinable nor economically feasible. That is why the performance of the investment is fundamentally part of the customer's risk sphere. A custodian bank is not liable for damages without an additional obligation to monitor securities accounts. This does not affect the credit institutions' obligations arising from a consulting contract. The custody contract also contains the authorization of the custodian to his custodian bank ( § 185 BGB) to dispose of his co-ownership share in the collective giro portfolio in his own name in the event of a sales order. This is an agreement required under securities law, by means of which the custodian bank and the securities depository can only bring about a real agreement in accordance with § 929 sentence 1 BGB.
Only the securities-side postings of a securities transaction are processed via custody accounts , while the counter postings in money (purchase price, sales proceeds, interest and dividend credits) are routed via a clearing account (e.g. current account ). Correspondingly, deposit credits are based in particular on the purchase or transfer of securities, and deposit debit notes on the sale or transfer of securities. Custody account balances show the stock of precisely designated securities that the account holder maintains with the bank holding the account. The type of custody of the securities in the background to the deposit account is important.
Custody type
The various types of custody differ in terms of the legal status of the account owner with regard to the security and the legal basis for the custody.
Collective safe custody
Collective safe custody is the practical and, in the Depot Act, also the legal normal case. It simplifies the management of the securities account, as securities are only managed and transferred to giro accounts as deposit balances. This enables purchases, sales and transfers of securities to be made without moving. The deposit balances represent the share of ownership of the securities held in collective custody that is attributable to the respective account holder. Through collective custody, the securities lose some of their characteristic features. Securities from the same issue are kept in safe custody for a large number of depositories, which means that the depositor loses sole ownership and receives a co-ownership share in the collective inventory in accordance with Section 6 DepotG. This co-ownership share is expressed by his deposit balance, which is booked on his deposit account. This share entitles him at any time to demand the surrender of his co-ownership from the custodian bank ( § 985 BGB), enforceable by transferring the deposit credit to another deposit account or by selling it. In the event of a sale, the securities will no longer be handed over within the meaning of Section 929 BGB. Because this substantive regulation presupposes that a security document physically changes hands. However, it is precisely the purpose of collective safe custody to no longer have to do this. As a way out of this dilemma, the handover is replaced by the assignment of the surrender claim to the purchaser by declarations of intent according to § 931 BGB by means of rebooking of co-ownership shares.
The assertion of the documented right, for example the voting right in the case of shares , is no longer carried out by presenting the actual document, but by means of a depositary certificate from a bank. According to the prevailing opinion, the owner of securities held in collective custody is also their indirect owner. Attachment creditors cannot access the securities held in collective custody themselves, but only seize the depositor's right to the collective inventory with his / her intermediate custodian in accordance with §§ 829 , 835 , 836 and 857 ZPO . An acquisition in good faith (and objection exclusion) does not find more by immediate possession instead, but only by indirect co-ownership and certificate of deposit.
There are two types of collective custody. Collective safe custody in accordance with Section 5 (1) DepotG applies to securities issued and documented in Germany. They are stored directly with the domestic central securities depository ( Clearstream ). The registered office of the issuer can also be abroad. Collective safe custody in accordance with Section 5 (4) DepotG applies to securities issued and documented abroad. They are stored with a foreign central securities depository, but the domestic central securities depository (Clearstream) maintains a reciprocal account connection ("CSD link") with it, via which the custodian customer can acquire joint ownership of the securities portfolio. With Section 17a of the DepotG, the aim has been pursued since December 1999 to simplify and modernize securities clearing transactions with foreign connections (conflict of law aspects). According to this, for disposals of indirectly held securities, the law at the location of the custody account on which the booking required for the acquisition of rights is made or the registration takes place for the purchaser is decisive. In partially or completely dematerialized systems (global certificate or value right), the foreign law at the location of the central register in which the value rights are entered applies. According to § 17a DepotG, a deposit booking must have a legal (constitutive) effect. This includes all securities that are eligible for collective custody.
In order to assert rights from securities, it is usually necessary to present the documents. However, since documents in collective custody cannot be used to legitimize securities law , the legal system has developed different procedures. This happened in Germany even before global certificates were introduced because it has always been unreasonable for shareholders to come to the general meeting with the securities certificates. According to current law, it is sufficient to present a deposit certificate, which must be submitted in writing ( Section 123 (3 ) AktG ). This deposit certificate can be issued by a notary , a securities depository or a body designated for this purpose in the articles of association. The Articles of Association make it sufficient for the shares to be blocked at the custodian bank with the consent of this depository until the day of the General Meeting; a deposit transfer to the depository is therefore not necessary. The deposit receipt thus declares on the one hand that a certain person or a certain company holds shares and on the other hand that these shares are blocked. As a result of the block, the custodian bank will not be involved in a disposition that its customer has commissioned, unless the certificate is returned. In practice, even this return is unnecessary: the bank executes the sales order and informs the company in an electronic system ("DAMBA"). In this way, the current number of shareholders can be determined on the day of the general meeting.
The BaFin has identified in a bank regulatory arrangement in paragraph 1 no. 1 single permissible for collective custody types of securities. In addition to the justifiable securities of the same type, registered shares and registered shares with restricted transferability as well as debt register claims that are entered in the federal debt register , the debt register of a special fund of the federal government or in the debt books of the federal states in the name of a securities depository are therefore considered to be collectively safe . Collective safe custody for registered shares has been possible since March 1992; in practice it began with the contribution of Allianz SE in March 1997. The Lufthansa , which had to change because of legal restrictions on registered shares in September 1997, was introduced into the system created for this purpose CARGO. Registered shares and registered shares with restricted transferability can be held in collective custody if they are provided with a blank endorsement or blank assignment.
Individual certificates
In the collective safe custody of individual documents, there is no individual assignment to owners. Instead, only a cover pool is held. About this book will proportionately led to a "dematerialized" securities transfer permit, which is no longer an actual movement of physical form comes. If an owner delivers securities and later asserts his claim to surrender, he is only entitled to documents of the same type and number from the cover pool, not exactly the documents submitted. Historically, the custodian bank kept its customers' documents themselves ("collective custody") and had to post them to the buyer's custodian bank after a (stock exchange) trade if the buyer was not also their customer. Only the storage of the individual documents with the central securities depository (Clearstream) ensures that they can be transferred in all cases.
In April 1998, the legislature introduced in Section 10 (5 ) AktG the option for stock corporations to exclude the shareholder's right to securitization. Since then, it has been possible for stock corporations to effectively prevent individual certificates from coming into circulation.
Global certificates
In the case of collective custody of a global certificate, also known as a global certificate, only a single certificate is issued for the cover pool. The shareholders acquire a fractional ownership of it. The fact that certificates are still involved is only due to the legal basis that has evolved over time, which includes an embodiment as a formal requirement.
The prerequisites for the safekeeping of global certificates at central securities depository banks are created in Section 9a DepotG, where the term global certificate is also defined. According to this, the global certificate is a security that evidences several rights, each of which could be evidenced in justifiable securities of one and the same type ( Section 9a (1) sentence 1 DepotG). It securitizes a securities issue in whole or in part and is held in safekeeping with the central securities depository . The individual holders of the securities have a co-ownership share in this global certificate in accordance with Section 6 DepotG, expressed by a corresponding credit in the securities account. The conversion of sole ownership and co-ownership in collective custody is based neither on mixing nor on contract, but on law. The legal assessment of the custodian’s delivery claim against his custodian bank in accordance with Section 7, Paragraph 1 and Section 8 DepotG is controversial, but is similar to the claim for value participation in the form of delivery claims against the custodian.
The depositor of a global certificate must expressly authorize collective safe custody (collective safe custody); he is entitled, at any time and without the consent of the other parties involved, to replace a global certificate deposited with a securities depository with individual certificates or vice versa ( Section 9 (1) sentence 2 DepotG). The deposit of the global certificate has the same legal effect as if an equal number of individual effective securities certificates had been deposited. However, the legislature has taken into account the technical progress in shares by offering the stock corporation the possibility in Section 10 (5) of the AktG since April 1998 to exclude the shareholder's right to securitization. This reduces the security character of the share from the previous "embodiment" in a certificate to the existing book-based joint ownership of the shareholder in a global certificate.
Stock rights
The collective safe custody of book-entry securities is an unassigned safekeeping, i. In other words, it completely waives certificates, including a global certificate. It is used for debt register claims that are held in a bank deposit. This applies to federal and state securities, with the exception of foreign currency bonds (these are available as global certificates). The collectively held stock rights are entered into a collective debt register account in the name of the securities depository bank (Clearstream). Collective custody is the only way to hold stock rights in debt register claims via a securities account, which in turn is the only way to hold publicly listed federal securities issued after August 22, 2012. In the case of federal securities issued beforehand, it is also possible to keep them in individual custody , for which the owner himself has to keep an individual debt register account with the Federal Finance Agency and have his papers booked there in his own name (or could previously buy them directly from it). In 2011, however, a good 98.4% of the outstanding stock rights volume totaling € 1.093 trillion was already entered in the collective ledger account, so that the federal government considered it more economical to let the individual ledger account management expire for private investors.
In Germany, however, shares cannot be held directly in custody in the absence of a legal basis. This is only possible under foreign law, either through custody in a custody account at a foreign bank, or indirectly by means of a securities invoice through a German bank.
Although the practice for book-entry securities focuses on debt register entries, the legal bases are not limited to this: The definition of the term “security” in Section 1 (11) sentence 2 No. 1–4 KWG uses a non-exhaustive list and makes it clear that no documents need to be issued . The securitization of securities is no longer one of the defining elements in terms of banking supervisory law.
Wrapper custody
The wrapper or special custody (English. Separate / segregated / individual / jacket custody) secures the depositor according to § 2 DepotG the right to surrender to exactly the same effective items that he has previously deposited. The pieces are kept and managed separately from the rest of the inventory by means of an individually marked paper loop (wrapper).
The express order of the depositor is necessary for the custody of securities that are capable of collective custody , as the more economical collective custody is normally used. Other securities (e.g. damaged pieces, private registered shares) must be kept in safe custody, as their different usability means that no equivalent co-ownership of a collective inventory can be established in collective custody.
In Austria, an additional order is required for the custody of the subsidiary documents (interest coupons, profit share coupons, income and renewal coupons) of the deposited security, otherwise the coupons will be separated from the depositary in the course of the usual custody account management and redeemed in favor of the depositor.
In the case of low-turnover securities, custody in stock exchange trading could become an obstacle if share certificates exist in several denominations (e.g. with a nominal value of € 100 and € 1,000). If the large denomination was offered, but there was only demand for lower denominations, there will be no turnover even if the buying and selling rates match, since the certificate is effectively not divisible. In the case of collective custody, however, there would have been a turnover.
Securities invoice
In the case of the securities invoice, the securities (which can be both stock rights and certificates) are not owned by the beneficiary, but are held in trust by a foreign agency as custodian. It is used for securities located abroad for which collective safe custody is not possible due to the lack of a CSD link, regardless of whether they come from domestic or foreign issuers. The domestic custodian banks are “intermediate custodians” because they are not the custodians themselves, but the correspondent banks abroad. The beneficiary only has a contractual right to the delivery of foreign securities, not ownership of them. 22 DepotG only provides a rudimentary legal basis , so that this type of custody is largely based on a private agreement between the customer and the bank, which is regulated uniformly for the industry in section 12 of the special conditions for securities transactions .
The § 17a Custody Act not engaged in credit in Securities Accounting, but is applied by analogy. If the purchase is made through entry in the register, the law of the state keeping the register applies; if only deposit account credits are made, the law of the place keeping the account applies.
For example, when buying an American non-denominated share, the German custodian receives such a “credit in the securities invoice” from his custodian bank. This in turn receives the same credit from the central securities depository Clearstream AG, which is granted fiduciary ownership of the acquired legal position by the international central securities depository Clearstream Luxembourg. (Theoretically there can also be other national and international central securities depositories, but in practice Clearstream is the only authorized central securities depository in Germany and Clearstream only uses Clearstream Luxembourg as the international central securities depository.) The latter receives a "securities entitlement" according to Article 8 UCC by the Depository in the USA at which the issuer's non-denominated securities are administered. According to § 17a DepotG, US law applies in this case. Depending on the foreign depository, a whole chain of such fiduciary relationships can exist between Clearstream Luxembourg and the actual owner, each of which is secured by so-called three-point declarations.
Closed depot
In the case of safekeeping in a closed custody account, the bank only offers one of its safes for the effective items. All administrative tasks must be assumed by the customer (eg. As redeeming coupons or talons ). The transfer (sale, donation, etc.) of bearer securities takes place, as with other things, by agreement and handover (§ § 929 ff. BGB ) to a purchaser. There are no notifications regarding corporate actions or general meetings. Ultimately, a closed depository is nothing more than a safe deposit box . This type of custody is mainly used for blackboard papers and is very unusual nowadays.
Aberdepot
With the Aberdepot, the securities are owned by the bank. The customer only has a debt-related claim for the delivery of securities without being entitled to a right of separation in the event of the bank's insolvency. The legal basis for Aberdepots in Germany is a private law contract to which the rules of the German Civil Code apply; the DepotG does not apply. Since the advantages of this custody method (lower fees) cannot outweigh the disadvantages, it is of no relevance in practice.
Types
Every bank and custodian classifies securities holdings into four different main categories in their internal accounting:
- Depot A (own depot) contains the securities from thebank's proprietary trading and is liable for all liabilities of the intermediate custodian (the bank) to the third-party custodian.
- Depot B (third-party, other or trust depot ) contains the securities from commission transactions . The holdings are owned by the depositor (the bank's customer).
- Depot C (deposit) contains all pledged securities of the bank's customers. The portfolio is fully jointly and severally liable for the repayment to the third party custodian.
- Depot D (special deposit ) contains the limited pledged securities of the bank's customers. The portfolio is only liable for the loan back to the third party custodian up to the amount of the individual loan granted to the customer.
fees
The bank usually charges custody fees for providing a securities account . These are typically graded according to the amount and type of inventory. Collective custody is cheaper than the other types of custody. However, offers for free custody accounts are no longer uncommon , especially with direct banks . The main source of income for banks with free custody accounts are the fees for buying and selling securities and (less often) for crediting income and redeeming securities due.
For a book-entry transfer , a bank may in Germany do not require their own fees, regardless of whether the transfer is done in the course of a depot resolution or only parts inventories are transferred. The bank may, however, invoice the external costs incurred. The prohibition of fees exists because the custodian bank fulfills its legal obligation to surrender the securities in custody during the transfer. This exemption from fees does not currently apply to Austrian banks.
Account statement
According to Section 11 No. 1 of the BaFin announcement , the securities accounts are to be coordinated with the securities account customers at least once a year by sending them account statements. In practice, this happens at the end of the year. According to No. 2, the holdings of the custody account on the day of the voting must be clearly evident from the account statements. The securities entrusted to the bank are to be listed individually in the custody account statements with their nominal amount or number, the exact description of the type of security including the specification of their characteristics (series, group, series, etc.) and the type of custody. In the case of collective custody, a distinction must be made between collective custody accounts and collective giro accounts. From the indication of the type of safekeeping in the deposit statement, it must be clearly recognizable to the depositor how he owns the securities.
The deposit account statement is usually supplemented by an income statement and annual tax certificate .
Custodian bankruptcy
For bank customers, the question of whether the securities held by their custodian bank are affected by the custodian's insolvency is important. With the exception of the Aberdepot, the type of safekeeping does not matter. Regardless of whether they are collective safe custody, wrapping paper or securities accounts, the securities held with a custodian bank are not affected by the insolvency of this custodian bank, unless the custodian bank itself is the issuer of these securities and provided that the cover is sufficient (i.e. no misappropriation or loss) . In the case of custody, the bank customer is regularly the owner (sole owner of the open custody account, co-owner of the collective custody account) or at least has a contractual right to return the securities (securities invoice), while the custodian bank is only the owner (group custody account), co-owner (collective custody account) or trustee (securities account) of the securities. In the insolvency of the custodian, the owner is entitled to a surrender claim according to § 985 BGB, § 47 InsO , whereby he may demand his securities from the custodian in the context of segregation . In Section 47 InsO, this right to segregation is expressly linked to the consequence that the owner is not a bankruptcy creditor and therefore does not take part in the actual bankruptcy proceedings. The interest and dividends from securities that can be segregated after the opening of insolvency at the custodian bank can also be segregated .
If the custodian bank has violated the property or co-ownership of the customer through an illegal disposition and thus thwarted the customer's right to segregation, the customer receives the insolvency privilege of Section 32 (1) No. 2 DepotG and enjoys priority. For liabilities from securities transactions under Section 1 (4) EAEG (e.g. sales proceeds that have not yet been credited, embezzled or lost securities), the banks in Germany are legally obliged to deposit up to 90% of the amount owed, a maximum of the equivalent of 20,000 euros per Client and institute secured ( Section 2 (3) EinSiG , Section 4 (2) EAEG). Damages that exceed these limits are reimbursed by the additional deposit protection fund on a voluntary basis, but this is not an actionable legal claim. In the case of a closed custody account, neither the statutory nor the voluntary deposit protection applies, and instead a special safe deposit box insurance must be taken out against the loss of securities. Some home insurance policies also provide coverage in this case, although the upper limits for reimbursement depend on the insurance conditions. In US brokers and -Banks the legal protection (in cases of fraud is English fidelity insurance ) adopted by the SIPC, the limit is 500,000 USD less up to 250,000 USD indemnified losses of cash accounts.
The best-known compensation case with a criminal background in Germany was Phoenix Kapitaldienst . A historically famous case was the misappropriation of papers at the broker Richard Whitney & Co., which was exposed in the wake of the global economic crisis (see also Black Friday ).
The situation with the bankruptcy of the US broker MF Global was a little more complicated . The embezzlement there did not directly affect the securities of the customers. Instead, credit balances from clearing accounts were lost. As a broker, MF Global had to deposit these with full banks separately from its own capital. After customers had transferred their securities and balances to other brokers in the course of bankruptcy, around 40% of the funds were missing in the clearing accounts. Since they were often deposited as collateral for loan-financed security purchases, customers were faced with the sale of their securities if they could not otherwise satisfy the margin call .
See also
Web links
- Bundesbank deposit statistics
- Historical film material, manual depot management in case of collective custody
Individual evidence
- ↑ MünchKomm / Karsten Schmidt, BGB, 2nd edition, § 741 Rn. 52.
- ↑ BGH, judgment of February 25, 1997 ( Memento of the original of July 18, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Az. XI ZR 321/95, full text.
- ↑ a b BGHZ 4, 295, 297.
- ↑ OLG Karlsruhe WM 1992, 577
- ↑ Reinhard Ege: The conflict of laws of indirectly held securities. 2006, p. 119.
- ↑ BGH, judgment of July 16, 2004 , Az.IXa ZB 24/04, full text, NJW 2004, 3340, 3341.
- ^ A b Hans-Josef Wieling: Property Law. 2007, p. 113.
- ↑ CBF Customer Handbook ( Memento of the original dated May 13, 2013 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 2.3 MB).
- ↑ Reinhard Ege: The conflict of laws of indirectly held securities. 2006, p. 50.
- ^ "Announcement on the requirements for the correctness of the custody business and the fulfillment of securities delivery obligations of December 21, 1998"
- ↑ according to § 2 of the regulation on the treatment of bonds of the German Reich in banking and stock exchange transactions of December 31, 1940
- ^ Georg Opitz: Depotgesetz. 2nd Edition. §§ 6, 7, 8; Notes 1, 6 and 13.
- ^ Dorothee Einsele: Securities law as a law of obligations. (1995), p. 85 ff.
- ↑ Ulrich Seibert: The exclusion of the shareholder's right to securitization in law and practice. DB 1999, pp. 267, 269.
- ↑ a b faz.net
- ↑ Handbook ( page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF; 83 kB) German Finance Agency.
- ↑ Peter Derleder, Kai-Oliver Knops, Heinz-G. Bamberger: Handbook on German and European banking law. 2003, p. 1238.
- ↑ Reinhard Ege: The conflict of laws of indirectly held securities. 2006, p. 112.
- ↑ Bundestag printed matter 14/1539, p. 16
- ↑ Reinhard Ege: The conflict of laws of indirectly held securities. 2006, p. 113.
- ↑ Reinhard Ege: The conflict of laws of indirectly held securities. 2006, p. 120.
- ↑ Custody options for international corporate securities with and via Clearstream Banking . ( Page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF; 463 kB) Clearstream AG, Stocks & Standards, February 24, 2010, p. 6
- ↑ https://www.bafin.de/SharedDocs/Veroeffnahmungen/DE/Aufsichtsrecht/Verfuetzung/vf_981221_depot.html?nn=7846700#doc7863810bodyText10
- ^ BGH, judgment of November 30, 2004, Az .: XI ZR 200/03
- ^ Dorothee Einsele: Securities Law as Obligations Law (1995) p. 429 .
- ^ Dorothee Einsele: Securities law as a law of obligations. (1995), p. 438 .
- ↑ Safe deposit box . Stiftung Warentest, January 16, 2013
- ↑ Is it safer to use multiple fund companies? obliviousinvestor.com
- ↑ Bank deposits are not as secure as expected . faz.net, June 25, 2013
- ↑ fortune.com
- ↑ Rehypothecation Is An Old Story: MF Global's Story Is a Different Story of filched funds . huffingtonpost.com, Feb 25, 2012
- ↑ reuters.com
