Grant (Securities Trading Act)

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Under funding ( English inducements ) are understood in banking supervision law , all commissions , fees or other monetary and non-monetary benefits that an investment services company by a third party accepts or be granted by the investment services company to a third party.

General

Investment services companies provide investment advice before entering into securities transactions with investors . This investment advice could endanger the independence of companies if the company receives commissions from their issuers for the investment brokerage of certain financial products . There is a conflict of interest that consists in the fact that the financial product is only brokered because of its commission. If the company does not disclose these commissions to the investor ( internal commission ), the necessary market transparency is prevented. That is why the legislature decided to include in Section 31d (1) WpHG a. F. to issue a ban on accepting or granting benefits.

Legal issues

Since January 2018, investment services companies have been obliged in accordance with Section 64 of the WpHG to inform the customer before the start of the advice and before the conclusion of the advisory contract (e.g. in the context of a suitability declaration ) whether the investment advice is being provided as fee-based investment advice . The new regulation of the prohibition of donations based on MiFID II can be found in Section 70 (2) WpHG. The legal concept of donation is to be interpreted broadly and includes all kinds of monetary benefits such as sales or agency commissions or the free provision of advertising material or training .

In particular, the prohibition does not apply if the type and scope of the benefit is disclosed to the customer (section 70 (1) sentence 1 no. 2 WpHG). The customer must be fully informed about the existence, type and scope of the benefit or the way it is calculated; he must be informed of the exact amount. A further exception is provided in Section 70 (7) of the WpHG, according to which fees and charges that enable or are necessary for the provision of investment services are also not subject to the general prohibition. These include custody fees , transaction costs (such as brokerage ) or statutory fees / charges ( stock exchange sales tax ).

According to Directive 2014/65 / EU on Markets in Financial Instruments ( Financial Markets Directive ) for credit institutions and investment services companies in connection with a securities (ancillary) service for an investor, inducements are only permitted in the EU member states if they do not contradict the interests of the client, or are based on it are designed to improve the quality of the securities (ancillary) service or the existence, type and scope of the benefits are comprehensively, comprehensibly and clearly disclosed to the investor in advance.

Legal consequences

A violation of the prohibition by the investment services company constitutes an administrative offense that is threatened with a fine according to Section 120 (3) No. 52/53 WpHG . The supervisory principle, according to which commission payments from third parties are generally prohibited and, if necessary, permitted if they are disclosed, is to be taken into account as an expression of a general legal principle when interpreting the (implied) contractual declarations.

See also

Individual evidence

  1. ↑ Directive 2014/65 / EU of the European Parliament and of the Council of May 15, 2014 on markets in financial instruments and amending Directives 2002/92 / EC and 2011/61 / EU , accessed on November 30, 2018
  2. ↑ Directive 2014/65 / EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92 / EC and Directive 2011/61 / EU , accessed on November 30, 2018
  3. ↑ André M. Szesny, Thorsten Kuthe, Michaela Theissen, Judith Marie chair: capital market compliance . 2018, ISBN 978-3-8114-4703-5 , pp. 677 ( limited preview in Google Book search).
  4. ↑ André M. Szesny, Thorsten Kuthe, Michaela Theissen, Judith Marie chair: capital market compliance. 2018, p. 1083.
  5. ^ Petra Buck-Heeb: Capital Market Law . 2017, ISBN 978-3-8114-6351-6 , pp. 270–271 ( limited preview in Google Book Search).