Regulation on the examination of investment service companies in accordance with Section 36 of the Securities Trading Act (Wertpapierdienstleistungs-Examinerverordnung-WpDPV)

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WpDPV

Date of completion: 16.12.2004

Full quote:

" The German Securities Services Examination Ordinance of 16 December 2004 (BGBl. 3515), as last amended by Article 27 (4) of the Law of 4 July 2013 (BGBl). I p. 1981) "

Status:

Last amended by Art. 27 (4) G v. 4.7.2013 I 1981

For more details, please refer to the menu under Notes

Footnote

(+ + + Text evidence from: 1.1.2005 + + +) 

  

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Input formula

Pursuant to Article 36 (5) of the German Securities Trading Act (Securities Trading Act), which is defined by Article 1 (15) of the Law of 28. October 2004 (BGBl. 2630), in conjunction with Article 21 of the Law of 22 April 2002 (BGBl I). 1310) and in conjunction with Section 1 (1) of the Regulation on the delegation of powers to the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht) of 13 December 2002 (BGBl. 2003 I p. 3), the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht) allocates: Unofficial table of contents

§ 1 Scope

(1) This Regulation shall apply to the verification of compliance with

1.

the reporting obligations according to § 9, also in connection with a legal regulation pursuant to § 9 para. 3, the German Securities Trading Act (Reporting Obligations) and the disclosure obligations in accordance with § 10 paragraph 1 of the Securities Trading Act,

2.

in Section 6, also in conjunction with a legal regulation pursuant to Article 31 (11), Section 31a (8), § 31b (2), § 31c (3), § 33 (4), § 33a (9), § 34 (4), § 34a (5), 34b (8) and 34d (6) of the Securities trading law, as well as those contained in Commission Regulation (EC) No 1287/2006 of 10 August 2006 implementing Directive 2004 /39/EC of the European Parliament and of the Council as regards recording obligations for investment firms, the reporting of transactions, market transparency, the admission of financial instruments to trading and certain terms , within the meaning of this Directive (OJ EU No 1) regulated obligations (rules of conduct)

3.

(dropped)

by investment service providers. It also applies to the verification of compliance with the obligations of branches within the meaning of Section 53b of the Banking Act, which provide investment services in accordance with Section 36a (1) sentence 1 of the German Securities Trading Act (Securities Trading Act). (2) This Regulation shall also apply to the examination of the custodian transaction pursuant to Section 36 (1) sentence 2 of the Securities Trading Act and for the examination of the depositary function in accordance with § 68 (7) and (8) of the Capital Investment Code. Unofficial table of contents

§ 2 Definitions

(1) An error within the meaning of this Regulation is any individual deviation from the legal requirements. Compliance with the statutory requirements shall be determined by the examiner at the discretion of the examiner; in doing so, he shall be subject to the interpretation made by the Bundesanstalt für Finanzdienstleistungsaufsicht (Federal Institute for Financial Services Supervision) in guidelines, circulars, (2) A deficiency within the meaning of this Regulation shall be provided for:

1.

in respect of disclosure obligations pursuant to § 10 paragraph 1 and the codes of conduct pursuant to § 31 paragraph 2, § 31 paragraph 4 sentence 3, § 31 paragraph 4a sentence 1, § 31 paragraph 5 sentence 3, § 31a, § 33 paragraph 1 sentence 2 number 1, 2, 3, 3a and 4, § 33 paragraph 3 sentence 1, § 33a paragraph 7, § The first sentence of Article 34a (1), the first sentence of Article 34a (2), the first sentence of Article 34a (4), Article 34d (1), (2) and (3), and the subclaims of the Bundesanstalt pursuant to Section 36b (1) of the Securities Trading Act, if an error has occurred within the meaning of paragraph 1,

2.

with regard to the reporting obligations and the codes of conduct pursuant to § 31 (3), 3a and 4 sentence 1 and 2, § 31d (1) sentence 1 no. 2, § 31f (1) No. 5, § 32c, § 33a (5) sentence 2, § 33a (6), § 34 and § 34b (1) sentence 2 of the Securities Trading Act, as well as Articles 7 and 8 of Regulation (EC) No 1287/2006 where a total of 5 per cent or more of the transactions in a sample carried out for a statutory offence has at least one error within the meaning of paragraph 1, or

3.

in respect of the other rules of conduct, where a total of 5% or more of the business incidents in a sample carried out in a statutory event comprise at least one error within the meaning of paragraph 1, or if the examiner has another error in the case of a sample Evidence of an error of law that is equivalent to such a sample result in accordance with its discretionary discretion.

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§ 3 Examination period and reporting period

(1) The examiner shall determine the date of the commencement of the examination, unless the Bundesanstalt determines a different beginning of the examination within four weeks after receipt of the notification pursuant to Section 36 (3) sentence 5 of the Securities Trading Act. The examiner shall notify the commencement of the examination in accordance with Section 36 (3) sentence 5 of the German Securities Trading Act (Securities Trading Act) if the investment service company to be examined has not already made this notice. The auditor notifies the Bundesanstalt if the investment service company to be examined repeatedly requires a transfer of the examination date. The examination period begins with the day of the first examination and ends with the day of the last examination on the spot. The examination shall be completed within a reasonable period of time. If the examination has been interrupted, the examiner shall immediately inform the Federal institution of the interruption in text form, indicating the reasons and the probable duration of the interruption. An interruption shall be any deviation from the examination schedule lasting more than two weeks. The interruption shall be documented in the examination report, even if, although individual deviations were not lasting for more than two weeks, the examination was interrupted in total for more than four weeks. The examiner shall determine the date of the examination at the discretion of the examiner. The reporting period of the first examination shall be the period between the start of the activity as an investment service undertaking and the date of the first examination. The reporting period of the first examination after a period during which the Bundesanstalt has, in accordance with Section 36 (1) sentence 3 of the German Securities Trading Act (Securities Trading Act), apart from an annual examination, is the period between the end of the exemption period and the The date of the subsequent examination. The reporting period of the other examinations shall be the period between the date of the last examination and the date of the following examination. Operations of particular importance in the period between the date of an examination and the end of the examination period shall be presented in the examination report. (3) The examination must be carried out no later than 15 months after the beginning of the reporting period for the examination. have been started. Examination reports and questionnaires shall not be considered as immediately filed within the meaning of Section 36 (1) sentence 7 of the German Securities Trading Act if they do not apply to the Federal Office within two months of the end of the examination period; this applies Also for questionnaires to companies certified to be a member of the association. The audit report, including the questionnaire, shall be sent to the Bundesanstalt in the case of investment services undertakings carrying out the depositary function in accordance with Chapter 1, Section 3, Subsection 1 of the Capital Investment Code, to the office in Frankfurt am Main in triplicate and the relevant head office of the Deutsche Bundesbank in a simple way to send out; if the Bundesanstalt is additionally submitted to the examination report in electronic form, it is the Examination report, including the questionnaire, in two copies submit. In the case of all other investment services companies, the Federal Office of the Audit Report, including the questionnaire in two copies and the responsible head office of the Deutsche Bundesbank, shall be made available in a simple manner. , if the Federal Office of the Audit Report is additionally submitted in electronic form, it shall be sent to the Examination Report, including the questionnaire, in a simple way. The Federal Institute may, on a case-by-case basis and on an important basis, determine other time limits other than those set out in the first sentence or the second sentence. Unofficial table of contents

§ 4 Art and scope of the examination

(1) The audit shall include compliance with reporting obligations and disclosure requirements, as well as the rules of conduct in all sub-areas of investment services and ancillary securities services; it shall cover the entire reporting period and be included in an appropriate relationship to the extent of the respective transactions and tasks. If the investment service company operates the securities depository business, the auditor shall also have to verify compliance with the provisions of the depositary act as well as § § 128 and 135 of the German Stock Corporation Act (custodian examination). Where a credit institution or a branch of a credit institution acts as a depositary in accordance with Article 68 (3) in conjunction with paragraph 2 of the capital investment code, the examination shall also cover whether and to what extent the (2) The examiner may, subject to the provisions of the Bundesanstalt, be able to perform the duties as a custodian bank. (2) The auditor may, subject to the provisions of the Federal Agency, have the following obligations. Contents of the examination in accordance with § 36 (3) sentence 1 and 2 of the German Securities Trading Act (Wertpapierhandelsgesetz), in accordance with the obligation of care At the discretion of the test, focus will be placed on the test and will be limited to system tests with functional tests and samples, unless a complete examination is required in individual cases. The possibility of priority education also exists with regard to the selection of sub-areas within the framework of a multi-annual audit plan. If errors are found during a system check, the check shall be extended until the examiner has obtained clarity as to whether the defects are in fact. If there are doubts as to whether these are defects, the Bundesanstalt shall be informed without delay. (3) In the case of investment services companies with such branches, branches or branches, the essential subdivisions of Investment services, ancillary services or analyses of financial instruments shall also cover these branches, branches and branches. Branches are all establishments in which investment services are provided. The examiner shall decide, at the discretion of the Court, to what extent an audit of branches, branches and branches on the spot is necessary. It may, for individual branches, branches and branches, not be subject to an examination, in particular if the sub-divisions which they carry out are insignificant and the investment service provider proves to him that all the branches are Branches, branches and branches shall be subject to regular and effective internal controls, and shall not be subject to any substantial complaints. The Federal Institute may, even without special occasion, require branches, branches and branches to be included in the next audit. The rates 1 to 5 shall apply in accordance with processes and activities which are outsourced to other undertakings and which are essential for the implementation of investment services and ancillary securities services, in particular for outsourcing Tied agents within the meaning of Section 2 (10) of the Banking Act and those relating to the outsourcing of the compliance function in accordance with § 33 (1) sentence 2 (1) of the Securities Trading Act. The Bundesanstalt is to be informed about the examination of a foreign branch or branch at the latest four weeks before the start of the examination. (3a) In the period under review, a review pursuant to Section 35 (1) of the German Securities Trading Act (Securities Trading Act) was examined. , the auditor shall assess the outcome of the audit during his examination. In the case of facts which have been the subject of this examination, the reporting may be limited to the changes that have occurred after the date of this examination. (4) The examiner shall immediately inform the Federal Institute if the (5) The examiner is obliged to make records in paper form or on data media, through the examination, and to make the audit available to the public in the reporting necessary documents to take on. In particular, the circumstances to be recorded include:

1.

the details of the audit planning and the examination priorities,

2.

the criteria for system, function and individual tests as well as

3.

the nature and concrete scope of samples taken and their results.

The auditor may only accept the business records of the audited securities service undertaking with the approval of the audited securities service undertaking. Upon request, the copies of documents required for reporting shall be made available to him. Records shall be kept for six years. Unofficial table of contents

§ 5 General requirements for the examination report

(1) The audit report shall state the reporting period and period of the examination and be so clear and complete that it clearly shows the extent to which the investment service provider is responsible for reporting obligations, the rules of conduct and the Requirements for the depot business have complied with. Any defect found shall be presented in detail in the examination report. Subject to the following provisions, the scope of the reporting shall be subject to the discretion of the examiner; the extent shall be in accordance with the significance of the procedures dealt with. (2) Insofar as the Federal Institute of the Federal Republic of Germany (Bundesanstalt) Provisions concerning the contents of the examination or the focal points of the examination are to be presented in the examination report to the extent to which the examination procedures and the findings are to be presented in detail. In the audit report, it is to be stated that, in relation to which partial areas of the auditor, the audit carried out at its sole discretion, and to what extent it has acted with functional tests or detailed examinations in the form of system audits. The method of determining samples, the number of samples and their results shall be reproduced. (3) Assignments to the content of previous audit reports shall not be permitted. In order to avoid extensive repetitions, such referrals are permissible if the examiner inserts the corresponding excerpts from the previous audit reports or the annual financial statements report as an asset to the audit report. (4) In the audit report , as to how the deficiencies noted in the last audit have been removed or what measures have been taken to remedy them. If the deficiencies were due to organisational requirements, it should be stated what organisational measures the investment services company has taken to avoid such deficiencies in the future. (5) In a final note, it is necessary to summarize the following: assess whether the investment service provider has complied with the reporting requirements and rules of conduct and the requirements for the depository business. Any identified defects shall be listed in the report under reference to the relevant references. The audit report must show who conducted the audit on the spot. The auditor has to sign the audit report stating the place and date. (6) The main test results shall be recorded in a questionnaire in accordance with the annex to this Regulation. The fully answered questionnaire shall be attached to the audit report. The questionnaire must also be submitted to the Bundesanstalt and the relevant head office of the Deutsche Bundesbank, if an audit report pursuant to section 36 (1) for the years in question in the case of a certified investment service company for the years in question. Sentence 8 of the Securities Trading Act is not requested. (7) At the request of the Federal Institute, the examiner must explain the audit report. If the Federal Institute participates in the examination in accordance with Article 36 (3) sentence 4 of the Securities Trading Act, the auditor shall forward the draft report to its request prior to its completion. If the Federal Institute announces its participation in a final meeting, the examiner shall, on request, send her the corresponding draft report in good time before the meeting. Unofficial table of contents

§ 6 Special requirements for the examination report

(1) In the examination report, the following shall be presented in detail, provided that the nature of the investment services or ancillary investment services provided is relevant:

1.

The nature and extent of the investment services and ancillary securities services carried out during the reporting period, in particular the volumes of custody, transaction volumes, customer numbers, forms of investment and the nature of the financial instruments sold, including

a)

the total number of orders issued by private customers pursuant to Section 31a (3) of the Securities Trading Act, which are based on investment advice pursuant to Section 2 (3), first sentence, point 9 of the Securities Trading Act,

b)

the total number of orders issued by private customers not based on such investment advice, and

c)

the quota resulting from this ratio;

where plausible information from the investment service undertaking may be used, in particular the details of the last year or month ' s financial statements;

2.

the fulfilment of reporting requirements;

3.

compliance with the general rules of conduct according to § 31 of the German Securities Trading Act (Securities Trading Act), in particular compliance with the requirements of § 31 (3a) and (4a) of the Securities Trading Act;

4.

the performance of the obligations under Section 31c (2) of the Securities Trading Act for the processing of customer orders;

5.

the admissibility of receiving or granting benefits and compliance with the disclosure requirements in accordance with Section 31d of the Securities Trading Act;

6.

compliance with the requirements laid down in § § 31f and 31g of the Securities Trading Act in the operation of a multilateral trading system;

7.

the fulfilment of the publication obligations under Section 31h of the Securities Trading Act at the conclusion of transactions outside an organised market or a multilateral trading system;

8.

compliance with the requirements laid down in Articles 32a to 32d of the Securities Trading Act by systematic internalisers within the meaning of Section 32 of the Securities Trading Act;

9.

the measures and measures required under Articles 31a and 31c (1) and Article 33 of the Securities Trading Act, and the organisation of the investment service undertaking, in particular with regard to customer classification and processing of customer orders, and their assessment of the audit; the structure and the organisation of the investment service undertaking as well as business units with special requirements for the structure of the investment service undertaking shall be presented separately;

10.

without prejudice to the obligation laid down in point 9 above, in particular, compliance with the requirements laid down in Article 33 (1), second sentence, point 1 of the Securities Trading Act, in particular the number of employees to be assigned to the compliance function , and to form a quota from the ratio of those employees to the employees of the investment service undertaking in accordance with Section 33b of the Securities Trading Act;

11.

without prejudice to the obligation laid down in point 9 above, in particular, compliance with the requirements of section 33 (1), second sentence, point 3a of the Securities Trading Act;

12.

Number and extent of cultural payments and legal proceedings relating to investment services and ancillary services, as well as the number and type of treatment of customer complaints and the related personnel and organisational consequences;

13.

the arrangements for the best possible execution of client orders in accordance with Section 33a of the Securities Trading Act and their verifiable assessment;

14.

the means and procedures for the fulfilment of the obligations under Section 33b of the Securities Trading Act for employees and staff operations and their assessment of their audit;

15.

the fulfilment of the recording and retention obligations in accordance with § 34 of the Securities Trading Act and Articles 7 and 8 of Regulation (EC) No 1287/2006, in particular compliance with the requirements of § 34 (2a) and (2b) of the Securities trading law;

16.

the performance of the obligations under Section 34a of the Securities Trading Act, including the provision of

a)

the extent to which the agreement of the funds or securities shown to the customer has been verified with the balances of the trust accounts or depots at the depositary institutions,

b)

whether the depositary institutions fulfil the conditions laid down in Section 34a of the Securities Trading Act;

17.

the measures and procedures taken to comply with the requirements for the production, dissemination or transfer of financial analyses or other information on financial instruments or on their issuers, which directly or indirectly: Recommendation for a specific investment decision, in accordance with § 31 (1) or § 34b of the German Securities Trading Act (Securities Trading Act) as well as their verifiable assessment;

18.

compliance with the requirements of Section 34d of the Securities Trading Act, in particular in view of the fact that:

a)

the employees responsible for the investment advice, the sales representatives and the compliance officers are knowledgeable in accordance with the first sentence of § 34d (1), the first sentence of the first sentence of paragraph 2 and the first sentence of paragraph 3 of the Securities Trading Act, and on the activities of the have the necessary reliability,

b)

the employees responsible for the investment advice, the sales representatives and the compliance officers with respect to the Federal Institute in accordance with § 34d (1) sentence 2 and 3, the second sentence of the second sentence of paragraph 2 and the third sentence of the second sentence of paragraph 3 and the third sentence of the second sentence of the second sentence of the second sentence of securities trading law; and

c)

Complaints pursuant to Section 34d (1) sentence 4 of the German Securities Trading Act (Wertpapierhandelsgesetz) are to be displayed in compliance with the Bundesanstalt.

19.

the subject-matter of the examination and the examination procedures relating to branches, branches, branches, branches, branches and other activities and processes involved in the examination in accordance with § 4 (3) of the examination.

In the case of the presentation in the audit report, it shall also be necessary to report on the performance of the respective obligations arising from a regulation on the performance of the investment services or ancillary investment services provided, provided that the nature of the investment services or ancillary services provided is relevant. pursuant to Section 31 (11), Section 31a (8), Section 31b (2), Section 31c (3), Article 33 (4), Section 33a (9), Section 34 (4), Section 34a (5), Section 34b (8) or Section 34d (6) of the Securities Trading Act and Regulation (EC) No 1287/2006. (2) (Omitted) (3) In the case of the depository examination, the examination report shall also contain information:

1.

on the regularity of the safekeeping and management of securities for other, the depositary, the orders of the customer value documents and the authorisations, and

2.

to comply with § § 128 and 135 of the German Stock Corporation Act.

If a credit institution or a branch of a credit institution is acting as depositary in accordance with section 68 (3) in conjunction with paragraph 2 of the capital investment code, the examination shall also be based on the proper performance of the provisions of § § 70 to 79 of the Capital investment code. The organisation responsible for these tasks shall be described in basic terms and shall be assessed for their appropriateness. The contracting capital management companies and externally managed investment companies, as well as the number of domestic investment assets under management and the net fund assets, are to be mentioned. On major events, in particular in the issuing and withdrawal of shares of an investment property, in the case of conflicts of interest which have occurred within the meaning of Section 70 of the Capital Investment Code, the exercise of the control functions in accordance with § 76 of the The capital investment code and the burden on the investment property with remuneration and the reimbursement of expenses in accordance with § 79 of the Capital Investment Code shall be reported. In so far as claims under section 78 of the capital investment code have been asserted by investors in relation to the depositary or by the depositary vis-à-vis a capital management company, this is also to be reported on. Unofficial table of contents

§ 6a (omitted)

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Section 7 Entry into force, external force

This Regulation shall enter into force on 1 January 2005. Unofficial table of contents

Annex (to § 5 (6))
Questionnaire according to § 5 paragraph 6 WpDPV

(Fundstelle: BGBl. I 2013, 1267-1269)

Investment services firms:
Reporting Period:
Review Period:
Audit date: audit findings:

-:

Provision is not relevant.

0:

The legal requirements have been complied with throughout the reporting period.

1:

There has been a lack of compliance with the legal requirements, which has been dislodged until the end of the examination period.

2:

There has been a lack of compliance with the legal requirements, which cannot be dislodged or can no longer be dislodged.

3:

There has been a lack of compliance with the legal requirements, which has not been dislodged until the end of the examination period.

If there is a defect which has already occurred during the last examination, it shall be marked with the symbol *:


Nr.Pre-written Examination Area fortress discovery site

		Behavioral Rules
1	Section 31 (1) No. 1 of the WpHG	Providing the services with expertise, diligence and conscientiousness in the interest of customers
2	Section 31 (2) WpHG § 4 WpDVerOV	Honest, unambiguous and non-misleading information and advertising to customers and to private customers
3		Appropriate customer information, in particular information sheet on financial instruments
	Section 31 (3) and (3a) of the WpHG § 5 (1) and (2) and Section 5a (1) of the WpDVerOV	Content design of the information
	Section 31 (3) and (3a) of the WpHG § 5 (3), (4) and (5) and Section 5a (2) of the WpDVerOV	Provision of information
4		Admissibility and disclosure of benefits
	§ 31d para. 1 sentence 1 no. 2 WpHG
	Section 31d (3) WpHG
5		Collection of customer data; adequacy and aptitude test
	Section 31 (4), 4a and 5 of the WpHG § 6 WpDVerOV
	Section 31 (7) WpHG
6	§ 31a WpHG § 2 WpDVerOV	Classification of customers and agreement on classification
7	Section 34b (1) sentence 1 WpHG	Proper preparation and presentation of financial analyses
8	Section 34b (2) WpHG	Transfer of financial analyses
		Organizational Obligations
9	Section 33 (1) sentence 2 No. 1 WpHG § 12 (1) and 2 of the WpDVerOV	Appropriate principles, means and procedures to ensure compliance with the obligations under the WpHG
10	Section 33 (1) sentence 2 No. 1 WpHG Section 12 (3) and (4) of the WpDVerOV	Establishment, equipment and organisation of the compliance unit
11	Section 33 (1) sentence 2 no. 2 and 3 WpHG § 13 WpDVerOV	Conflict of interest management (appropriate arrangements to prevent conflicts of interest and to set out unavoidable conflicts of interest)
12	Section 33 (1) sentence 2 no. 3a WpHG	Design, implementation and monitoring of sales specifications
13	Section 31c (1) No. 1 of the WpHG and § 33a WpHG	Execution of orders; reasonable accommodation and determination of principles for best execution of customer orders
14	Section 33 (1) sentence 2 no. 4 of the WpHG	Treatment of customer complaints
15	§ 33b (3) and (4) WpHG	Adequate resources and procedures for the prevention of employee activities within the meaning of Section 33b (3) No. 1 to 3 of the WpHG
16		Use of employees in investment advisory services, as sales representatives or as compliance officers
	Section 34d (1) sentence 1, subsection 2 sentence 1, para. 3 sentence 1 WpHG § § 1, 2, 3 and 6 MaAnzV	Expertise and the required reliability of the employees in the investment advisory service, sales representatives and compliance officers
	Section 34d (1) sentence 2 and 3, para. 2 sentence 2 and 3, para. 3 sentence 2 and 3 WpHG § 7, § 8 (1) to (3) and § 10 WpHGMaAnzV	Display of employees in the investment advisory service, sales representatives and compliance officers
	Section 34d (1) sentence 4 WpHG § 7, § 8 (4) and § 10 WpHGMaAnzV	Display of complaints pursuant to § 34d paragraph 1 sentence 4 WpHG
		Reporting and recording obligations
17	Section 31 (8) WpHG § § 8 and 9 of the WpDVerOV	Reporting on the execution of orders as well as the financial portfolio management
18	§ 34 WpHG § 14 WpDVerOV Art. 7 and 8 of Regulation (EC) No 1287/2006	Fulfilment of the recording and retention requirements, unless already covered by the numbers 1 to 17
19	Section 34 (2a) and (2b) WpHG	Advisory protocol, unless it is already covered by points 1 to 18
		Depot Store
20	Custodian § § 128 and 135 AktG	Relevant findings relevant to the assessment of the regularity of the custody account business
	§ § 20 et seq. Invg § § 68 ff. KAGB	Relevant findings relevant to the assessment of the regularity of the custodian bank function or the function of the depositary function
		Other business
21	Section 36 (3) WpHG	Focus of the examination by the Federal Institute
		Explanatory notes:
22		Determination of internal audit in areas relevant to examination	yes/no
		Explanatory notes:
23		Other findings relevant to the assessment of the regularity of the investment services provided are of outstanding importance	yes/no
		Explanatory notes: