There is significant potential for alternative investment fund managers (AIFMs) to access Germany's large base of institutional investors. Despite the recent post-AIFMD challenges — including the abolition of Germany's pre-AIFMD private placement regime (NPPR) and BaFin's (the German supervisory authority) restrictive interpretation of reverse solicitation practices — Germany is far from the 'impenetrable' jurisdiction for marketing purposes under AIFMD or the KAGB (Kapitalanlagegesetzbuch, the 2013 German implementing legislation) that many clients assume. Not only is it possible for a non-EU fund to become authorised for marketing in Germany to professional and semi-professional investors under the KAGB, it is in fact not as difficult as previously assumed.
Draft legislation (the Draft) issued by the Ministry of Finance on December 4th 2012, and designed, inter alia, to implement the AIFM-Directive into German tax law, will make significant changes to both the scope of the German Investment Tax Act (InvTA) and the taxation of German investors under InvTA. This note explains recent developments in connection with these proposed changes and their potential impact on funds not established under German law. In particular, investors in certain non-German funds may in future cease to qualify for tax transparent treatment and, instead, be subject to a less beneficial lump-sum tax regime.
The German Ministry of Finance (BMF) on 20 July 2012 published the draft of a bill (Draft AIFM-Act) to implement the Directive 2011/61/EU on Alternative Investment Fund Managers (AIFMD) into German law. Within the framework of implementing the AIFMD, the Draft AIFM Act provides, in particular, for the repeal of the German Investment Act (Investmentgesetz – InvA), which implemented the UCITS Directive 2009/65/EC (UCITSD) among other things.
Nearly five years have passed since the federal state of Saxony-Anhalt in Germany issued Europe’s first Islamic bond in July 2004. This prompted market players to be quite enthusiastic about the potential of Islamic finance in the German market. Although more than three million Muslims live in Germany and corporate Germany has a good reputation in many Muslim countries, the expected boom for Islamic finance does not seem to have emerged.
With a new German Investment Act and Investment Tax Act in force since 1 January 2004, a wide variety of new business opportunities have opened up in the German hedge fund sector for foreign players. In fact, the new legislation not only provides a sound legal framework for hedge funds in Germany, it also creates a more level playing field between domestic and foreign players in the asset management business. The focus of this article is on the distribution of foreign hedge funds in Germany. Of course, foreign sponsors can also set up a hedge fund in Germany. However, the benefits of doing so are not obvious since the new legislation aims notto discriminate against foreign funds.