Investment Management Client Alert September 2025

BaFin Consults on Draft Guidance Note on the Authorisation Procedure for AIF Capital Management Companies

On 9 September 2025, the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht, BaFin) published a draft revised guidance note on the authorisation procedure for AIF management companies. The amendments are intended to simplify and accelerate the authorisation procedure under § 22 of the German Capital Investment Code (Kapitalanlagegesetzbuch, KAGB).

The draft provides further details on the assessment of the professional suitability of managing directors in the context of an authorisation procedure. While managing directors must have a basic understanding of portfolio management, risk management and the regulatory framework of the AIF capital management company, it should be sufficient if specific knowledge of portfolio management is only available in relation to the assets for which the respective managing director is responsible. This must be demonstrated in the CV to be submitted. BaFin has certain reservations regarding the appointment of a managing directors of a registered (sub-threshold) management company within the framework of a full licence, particularly with regard to risk management. It should also be noted that with the implementation of the AIFMD Review through the Funds Risk Limitation Act (Fondsrisikobegrenzungsgesetz), the requirements for the licence application of an AIF management company will be changed once again.

Furthermore, BaFin further specifies the requirements for the statutory purpose of the management company. For closed-ended retail AIFs and for special AIFs, the individual assets under management must be listed, which should be more or less the same as under previous practice. However, reference should also be made to the assets of special purpose vehicles and target funds.

The consultation will be open until 30 September 2025.

Draft Bill on CSRD Implementation Law Published

On 2 September 2025, the German government published its draft Bill on the Implementation of the EU Directive regarding corporate sustainability reporting (Corporate Sustainability Reporting Directive, CSRD). The deadline for implementing that Directive had already expired on 6 July 2024. The first attempt of implementation came to an end by the change of the German government. EU infringement proceedings have already been initiated against Germany. However, the requirements of the CSRD have recently been amended several times at EU level, for example by the Omnibus Relief Package at the beginning of 2025. These amendments to EU law are to be partially taken into account in the draft bill.

The legislator intends to implement the CSRD requirements on a one-to-one basis in principle and to amend the existing legal framework only in specific areas. Implementation will involve, among other things, extensive amendments to the German Commercial Code (Handelsgesetzbuch, HGB). The draft already takes into account the exemption whereby companies that employ no more than 1,000 employees on average per year are exempt from the application of the new regulations for financial years beginning before 1 January 2027. Third-country companies with domestic subsidiaries or branches that exceed certain turnover thresholds would also be covered by the sustainability reporting obligation. 

The CSRD Implementation Act will enter into force upon publication in the Federal Law Gazette. It will be applied retroactively on a staggered basis for companies with more than 1,000 employees from 1 January 2025.

BaFin publishes Information Sheet on Public Offerings

On 11 September 2025, the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht, BaFin) published a new information sheet on the concept of public offerings under the EU Prospectus Regulation, which is aimed at securities’ offerors. BaFin particularly emphasises its broad interpretation of the term “public offer”, according to which a public offering can in principle take any form (e.g. including personal conversations or telephone calls). Only a minimum amount of information needs to be provided to enable investors to make an investment decision. The information does not have to be provided all at once; it is sufficient if the individual communications can be considered a “coherent whole”. So-called collective decisions as the “sum of many individual decisions” (e.g. decisions by corporate bodies) can also be considered a relevant investment decision. The person or group of persons responsible for the public offer is the one who initiates the communication, which may therefore differ from the actual seller of the security in question. From a quantitative perspective, the communication must be addressed to at least two persons. The German term “public offer” (öffentliches Angebot) is slightly misleading in this respect. As a rule, a public offer can always be assumed unless one of the exceptions listed in Art. 1(4) of the Prospectus Regulation applies. In any case, it does not depend on an indefinite group of persons or an indeterminable number of persons. In terms of time, the public offer begins at the point in time at which the minimum amount of information relevant to the decision is available and ends at the point in time at which the security can no longer be acquired. The prospectus requirement therefore extends to the secondary market in addition to the primary market. However, the corresponding interpretative letter from BaFin on the term “public offer of securities” (Auslegungsschreiben der BaFin zum Begriff des öffentlichen Angebots von Wertpapieren) dated 24 June 2013 should still be taken into account.

Ordinance on the Disclosure of Insider Information in Crypto Markets Published

On 28 August 2025, the Ordinance specifying the Notification Requirements for the Disclosure of Insider Information pursuant to § 36 of the German Crypto Markets Supervision Act (Kryptomärktemitteilungs-Verordnung, KMMV) was published in the Federal Law Gazette.

The Ordinance specifies what kind of information must be included in insider information to be disclosed, such as the required wording, media channels and contact details for the issuer or provider. Obliged issuers, providers and applicants under the European Markets in Crypto-Assets Regulation (MiCAR) are required to report insider information immediately and completely.

All reports must be submitted electronically to BaFin using the procedure described on BaFin’s website.

The Ordinance came into force on 29 August 2025 and is intended to prevent market abuse and protect investors.

BaFin and EBA Ease ESG Requirements for Small Institutions

On 24 September 2025, BaFin published a supervisory notice in which it expressly agreed with the European Banking Authority's (EBA) no-action-letter on ESG (environmental, social, and governance) disclosure requirements. 

The no-action-letter, which was published on 6 August 2025, aims to remove legal and operational uncertainties for all institutions that have recently been added to the scope of Art. 449a of the Capital Requirements Regulation (CRR), and to maintain the status quo until new proportionate Implementing Technical Standards (ITS) are published. In this context, the EBA recommends not prioritising the enforcement of certain disclosure requirements (e.g. under the Commission’s Implementing Regulation (EU) 2024/3172). This is intended to grant a deferral in relation to certain ESG-related disclosure requirements, particularly for small institutions for which proportional and thus reduced requirements are already planned in the foreseeable future. 

The no-action-letter thus enables regulators and affected institutions to agree on a coherent framework for ESG disclosure and avoid unnecessarily high costs for implementation that is only temporary.