Specialist lawyer Lutz Auffenberg and his law firm Fin Law have specialized in the field of fintech and innovative technologies. In particular, blockchain technology and its regulation are the focus of his activities. In his guest commentary he deals with tokenized investments.
This article is first on the Fin Law Blog published
Companies looking for capital have numerous options for financing investments in Germany. The first point of contact is usually the house bank, even if the use of bank loans is usually associated with the granting of extensive loan collateral. Startups in particular regularly choose the option of surrendering business shares to business angels and venture capital investors. A third variant is the financing of projects via the free capital market. If the owners of the company seeking capital do not want to give up any shares in the company for financing, there is the option of public offering of purely debt-related bonds. Investors receive interest for the temporary provision of capital as well as a repayment claim at the end of the term, whereby the details of the offer are variable. While most of such bond products are regulated as securities, there is a special regulatory regime in Germany for certain arrangements – the Asset Investment Act (VermAnlG).
What are investments and how do they differ from securities?
Only investment products that are not already regulated as securities according to the EU Prospectus Regulation or as shares in investment funds according to the Capital Investment Code are considered as investments. In addition, it is necessary that the issuer’s acceptance of investor funds is not classified as a deposit transaction and thus as a banking transaction under the German Banking Act (KWG). Historically, these are those products that were previously considered investment products on the gray capital market.
The gray capital market denoted investment opportunities that were legal, but not further regulated, so that issuers were not required to provide a prospectus for the public offering of such products. With the introduction of the Asset Management Act, the legislature wanted to regulate the products of the gray capital market and subject issuers and providers of assets to transparency, conduct and publication obligations. Since then, limited partner shares, shares in trust assets, subordinated loans and unsecuritized profit participation rights as well as registered bonds and direct investments have been regulated accordingly in Germany.