1. Article 1 – Amendments to the Stock Exchange Act (Börsengesetz)

a. Section 3 Functions and powers of the Exchange Supervisory Authority

(4) The Exchange Supervisory Authority may, to the extent necessary to perform its functions and even without special grounds for doing so, demand information and documents from exchanges, stock exchange operators, undertakings authorised to participate in exchange trading in accordance with section 19, exchange traders, lead brokers and lead broker persons (trading participants), persons who have been given direct electronic access to an exchange by a trading participant (indirect exchange participants) and issuers of securities admitted to the regulated market, and may conduct audits. The Exchange Supervisory Authority may require the information and documents to be transmitted on data carriers that can be processed automatically. If there is evidence to justify the assumption that exchange law rules or regulations are being infringed or other irregularities have occurred which could pose a threat to the orderly conduct of trading on an exchange or the settlement of exchange transactions, the Exchange Supervisory Authority may, to the extent necessary to perform its functions, demand information and documents as well as copies thereof from anyone, and may subpoena and question individuals. In such cases it may, without limitation:

1. require trading participants to disclose the identity of clients and the beneficiaries or obligated persons under executed transactions, and require them to notify it of changes in trading participants' holdings of financial instruments traded on the exchange;

2. require clients and beneficiaries or obligated persons to furnish information about the executed transactions, which may include disclosing the identity of the persons involved in such transactions;

3. require central depositories for securities and systems for ensuring the settlement of exchange transactions to furnish information about changes in trading participants' holdings of financial instruments traded on the exchange;

4. require exchanges, trading participants and their affiliates to produce existing records of telephone conversations and data transmissions; the fundamental right enshrined in Article 10 of the Basic Law (Grundgesetz) shall be limited to this extent, with the persons affected to be informed of their rights in accordance with section 101 of the Code of Criminal Procedure (Strafprozessordnung); and

5. require at any time from trading participants who conduct algorithmic trading within the meaning of section 33 (1a) sentence 1 of the Securities Trading Act information on their algorithmic trading and the systems they use for such trading as well as a description of the algorithmic trading strategies, trading parameters and trading limits to which the system is subject.

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(5) The Exchange Supervisory Authority may issue orders to maintain proper order and to facilitate business dealings on the exchange. It may issue orders to exchanges, stock exchange operators and trading participants as may be necessary and appropriate for preventing infringements of exchange law rules and regulations or rectifying irregularities which could pose a threat to the orderly conduct of trading on an exchange, the settlement of exchange transactions or the supervision thereof. To this end it may, without limitation:

1. order the suspension or cessation of trading in specific or several financial instruments, rights or economic assets;

2. prohibit the exchange from using a central counterparty, a clearing agent or an exchange settlement system if it would pose a threat to the orderly conduct of trading on the exchange or the settlement of exchange transactions, or if the criteria under Article 7(4) or Article 8(4) of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ L 201, 27.7.2012, p. 1) are met;

3. prohibit the use of an external settlement system; or

4. prohibit the use of an algorithmic trading strategy;

to the extent required in order to implement the provisions of this Act. The Exchange Supervisory Authority shall publish a notice on its website without undue delay if it takes any measures of the type described in sentence 1 no. 1.

b. Section 4 Authorisation

A new subsection (5a) is inserted:

(5a) The Exchange Supervisory Authority may make authorisations subject to conditions to the extent necessary in order to ensure that the authorisation criteria are met. Subject to the requirements of sentence 1, conditions may be subsequently imposed, or existing conditions may be retrospectively amended.

c. Section 10 Obligation of confidentiality

A new subsection (2) is inserted:

(2) Section 10 (1) sentence 2 of the Securities Trading Act shall apply mutatis mutandis for members of exchange bodies, employees of exchange operators and persons acting directly or indirectly on behalf of such exchange operators.

d. Section 12 Exchange Council

(2) The Exchange Council shall be responsible for the following, without limitation:

1. enacting exchange rules, the terms governing transactions on the exchange, fee regulations, rules for admitting exchange traders, and trading rules for the regulated unofficial market, with such rules and regulations being enacted as by-laws;

2. appointing, reappointing and dismissing members of the Board of Management subject to the agreement of the Exchange Supervisory Authority;

3. supervising the Board of Management;

4. enacting rules of procedure for the Board of Management; and

5. appointing or reappointing and dismissing the head of the Trading Surveillance Office at the behest of the Board of Management and subject to the agreement of the Exchange Supervisory Authority.

e. Section 16 Stock exchange rules and regulations

(2) In the case of securities exchanges, the exchange rules shall also contain additional terms:

1. governing the meaning of stock price notations and status notes;

2. to ensure the settlement of exchange transactions and safeguard the available settlement systems in accordance with section 21; and

3. to enable designation, by trading participants, of orders generated via algorithmic trading within the meaning of section 33 (1a) sentence 1 of the Securities Trading Act and indication of the respective trading algorithms used for this purpose.

f. Section 17 Fees and charges

A new subsection (4) is inserted:

(4) Without prejudice to section 26a, the exchange shall charge separate fees for the excessive usage of exchange systems, in particular due to a disproportionately high number of order entries, modifications or cancellations, unless such fees are already charged separately by the exchange operator. The amount of these fees shall be set in such a way as to effectively counteract excessive usage within the meaning of sentence 1 as well as the associated adverse impacts on system stability and market integrity.

g. Section 19 Admission to the exchange

(8) If there are legitimate grounds for suspecting that any of the requirements set forth in subsections (2), (4) or (5) were not or are no longer met, the Board of Management may suspend admission to the exchange for a period of no longer than six months. Admission to the exchange may also be suspended for the duration of any default on payment of the fees prescribed under section 17 (1) nos. 1 and 2. The Board of Management may also suspend admission to the exchange for a period of no longer than six months if a trading participant fails to adhere to the order-to-transaction ratio as described in section 26a; if a trading participant repeatedly fails to adhere to the order-to-transaction ratio within the meaning of section 26a, the Board of Management may revoke the participant's admission to the exchange. The right of a person authorised to engage in exchange trading in accordance with subsection (5) shall be suspended for as long as the undertaking for which that person engages in exchange trading is suspended from trading.

h. Section 22 Disciplinary Committee

(2) The Disciplinary Committee may issue trading participants with a reprimand, impose a fine of up to two hundred and fifty thousand euros, or ban trading participants from the exchange for up to 30 trading days if they, or any person operating on their behalf, wilfully or negligently infringes exchange law rules and regulations that are intended to ensure the orderly conduct of trading on the exchange or the settlement of exchange transactions. The Disciplinary Committee may also reprimand issuers or impose a fine of up to two hundred and fifty thousand euros if they, or any person operating on their behalf, wilfully or negligently breach the duties associated with their admission to the exchange. The Disciplinary Committee shall perform the functions and exercise the powers delegated to it under this Act exclusively in the public interest.

i. Section 24 Exchange price

A new subsection (2a) is inserted:

(2a) The exchange shall take suitable precautionary measures to ensure an orderly determination of the exchange price even when prices fluctuate significantly. Suitable precautionary measures within the meaning of sentence 1 shall include, in particular, short-term changes to the market model and temporary circuit breakers to reduce volatility, taking into consideration the static and dynamic price ranges or limit systems of trading participants tasked with price determination.

j. Section 26a Order-to-trade ratio

In order to prevent risks to the proper functioning of exchange trading operations, trading participants shall be required to ensure an appropriate ratio between order entries, modifications and cancellations on the one hand and actually executed orders on the other (order-to-trade ratio). The order-to-trade ratio shall be determined for each financial instrument on the basis of the numerical volume of the respective orders and transactions over the period of one month. An appropriate order-to-trade ratio shall be deemed to exist in particular if such ratio is economically reasonable based on the liquidity of the respective financial instrument, the specific market situation or the function of the trading enterprise. The stock exchange rules and regulations must stipulate further provisions on appropriate order-to-trade ratios for specific types of financial instruments.

k. Section 26b Minimum tick size

The exchange shall be required to determine an appropriate minimum tick size for traded financial instruments in order to minimise adverse impacts on market integrity and market liquidity. Determination of the minimum tick size pursuant to sentence 1 shall pay particular attention to ensuring that the minimum tick size does not undermine the price discovery mechanism or the objective of an appropriate order-to-trade ratio within the meaning of section 26a. The stock exchange rules and regulations may stipulate additional provisions.

2. Article 2 Amendments to the Banking Act (Kreditwesengesetz)

a. Section 1 Definition of terms

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(1a) Financial services institutions are enterprises which provide financial services to others commercially or on a scale which requires a commercially organised business undertaking, and which are not credit institutions. Financial services comprise

1. the brokering of business involving the purchase and sale of financial instruments (investment broking),

1a. providing customers or their representatives with personal recommendations relating to transactions in certain financial instruments insofar as the recommendation is based on an evaluation of the investor’s personal circumstances or is presented as being suitable for the investor and is not provided exclusively via information distribution channels or for the general public (investment advice),

1b. operating a multilateral system, which brings together a large number of persons’ interests in the purchase and sale of financial instruments within the system according to set rules in a way that leads to a purchase agreement for these financial instruments (operation of a multilateral trading system),

1c. the placing of financial instruments without a firm underwriting commitment (placement business),

2. the purchase and sale of financial instruments in the name of and for the account of others (contract broking),

3. the management of individual portfolios of financial instruments for others on a discretionary basis (portfolio management),

4. the

a) continuous offering to purchase or sell financial instruments at self-determined prices on an organised market or in a multilateral trading system,

b) undertaking of trading, often on an own-account basis, in an organised and systematic manner outside an organised market or a multilateral trading system by providing a system accessible to third parties in order to transact business with these third parties,

c) purchasing or selling of financial instruments on an own-account basis as a service for others, or

d) purchasing or selling of financial instruments on an own-account basis as a direct or indirect participant in a domestic organised market or multilateral trading facility by using a high-frequency algorithmic trading technique characterised by infrastructures that intend to minimise latency, by systems that make the decision to initiate, generate, route or execute an order without human intervention for individual trades or orders and by high intra-day message rates in form of orders, quotes or cancellations, without necessarily providing services for others (proprietary trading);

5. brokering of deposit business with enterprises domiciled in a state outside the European Economic Area (non-EEA state) (non-EEA deposit broking),

6. (repealed)

7. dealing in foreign notes and coins (foreign currency dealing),

8. (repealed)

9. ongoing purchase of receivables on the basis of standard agreements, with or without recourse (factoring),

10. the conclusion of finance lease agreements in the capacity of the lessor and the management of asset-leasing vehicles within the meaning of section 2 (6) sentence 1 number 17 outside the management of investment funds within the meaning of section 1 (1) of the Investment Code (Kapitalanlagegesetzbuch) (finance leasing),

11. purchase and sale of financial instruments outside the management of investment funds within the meaning of section 1 (1) of the Investment Code for a community of investors, who are natural persons, with discretionary leeway regarding the choice of financial instruments, insofar as this is a core element of the product offered and serves the purpose of ensuring that these investors have a share in the performance of the financial instruments acquired (asset management),

12. safe-keeping and management of securities exclusively for alternative investment funds (AIF) within the meaning of section 1 (3) of the Investment Code (restricted depository business).

b. Section 2 Exceptions

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(6) The following are not deemed to be financial services institutions:

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9. enterprises which, without being involved in cross-border activities, conduct proprietary business on derivatives markets within the meaning of subsection (1) number 8 and trade on spot markets only for the purpose of hedging these positions, which engage in proprietary trading within the meaning of section 1 (1a) sentence 2 number 4 (a) to (c) or contract broking only for other members of these derivatives markets or which determine prices for other members of these derivatives markets through proprietary trading within the meaning of section 1 (1a) sentence 2 number 4 (a) as a market maker within the meaning of section 23 (4) of the Securities Trading Act, provided that clearing members of these markets or trading systems are liable for the fulfilment of the contracts which the aforementioned enterprises conclude;

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11. enterprises which conduct proprietary business in financial instruments or provide financial services within the meaning of section 1 (1a) sentence 2 numbers 1 to 4 (a) to (c) only in relation to derivatives within the meaning of section 1 (11) sentence 4 numbers 2 and 5, provided that:

a) they are not part of a corporate group whose principal activity comprises providing financial services within the meaning of section 1 (1a) sentence 2 numbers 1 to 4 or conducting banking business within the meaning of section 1 (1) sentence 2 numbers 1, 2 or 8,

b) the provision of financial services is of secondary significance to the principal activity at a group level, and

c) the financial services relating to derivatives within the meaning of section 1 (11) sentence 4 numbers 2 and 5 are provided only for principal activity customers in objective connection with principal activity operations;

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13. enterprises whose principal activity involves conducting proprietary business and proprietary trading within the meaning of section 1 (1a) sentence 2 number 4 (a) to (c) in commodities or derivatives within the meaning of section 1 (11) sentence 4 number 2 relating to commodities, provided that these enterprises do not belong to a corporate group whose principal activity comprises providing financial services within the meaning of section 1 (1a) sentence 2 numbers 1 to 4 or conducting banking business pursuant to section 1 (1) sentence 2 numbers 1, 2 or 8;

c. Section 33 Refusal of Authorisation

(1) Authorisation shall be refused if

1. the resources needed for business operations, in particular sufficient initial capital within the meaning of section 10 (2a) sentence 1 numbers 1 to 6 and 8, are not available in Germany; the initial capital which must be available is as follows:

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(g) in the case of enterprises which conduct proprietary business also on foreign derivatives markets and on spot markets only for the purpose of hedging these positions, which engage in principal broking services or investment broking only for other members of these markets or which determine prices for other members of these markets through proprietary trading within the meaning of section 1 (1a) sentence 2 number 4 (a) as a market maker within the meaning of section 23 (4) of the Securities Trading Act, the amount of 25,000 euro if clearing members of these markets or trading systems are liable for the fulfilment of the contracts which the aforementioned enterprises conclude on the said markets or in the said trading systems;

d. Section 64p Transitional provision in respect of the High-Frequency Trading Act

For an enterprise that becomes a financial services institution due to the expansion of the term “proprietary trading” in section 1 (1a) sentence 2 number 4 on 15 May 2013, provisional authorisation to conduct proprietary trading and proprietary business within the meaning of section 32 (1a) shall be deemed to have been granted on this date if such enterprise submits by 14 November 2013 a complete application for authorisation in accordance with section 32 (1) sentences 1 and 2, also in conjunction with a statutory order in accordance with section 24 (4). For an enterprise that is not domiciled in Germany and that is not an enterprise within the meaning of section 53b (1) sentences 1 and 2, sentence 1 shall apply with the proviso that a complete application for authorisation must be submitted by 14 February 2014.

3. Article 3 Amendments to the Securities Trading Act (Wertpapierhandelsgesetz)

a. Section 2 Definitions

(3) Investment services within the meaning of this Act are

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2. the

a) continuous offer to buy or sell financial instruments on an organised market or in a multilateral trading facility at prices defined by the offerors themselves,

b) dealing on own account outside an organised market or a multilateral trading facility on a frequent, organised and systematic basis by providing a system accessible to third parties in order to engage in dealings with them,

c) purchase or sale of financial instruments for own account as a service for third parties, or

d) purchase or sale of financial instruments for own account as a direct or indirect participant in a domestic organised market or multilateral trading facility by using a high-frequency algorithmic trading technique characterised by infrastructures that intend to minimise latency, by systems that make the decision to initiated, generate, route or execute an order without human intervention for individual trades or orders and by high intra-day message rates in form of orders, quotes or cancellations, without necessarily providing services for third parties (proprietary trading);

b. Section 2a Exceptions

(1) The following are not deemed to be investment services enterprises:

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8. enterprises whose investment service consists exclusively in providing one or several of the following services:

a) proprietary business on a German stock exchange or on multilateral trading facilities in Germany where derivatives are traded (derivatives markets), and on cash markets for the sole purpose of hedging these positions;

b) proprietary trading within the meaning of section 2 (3) sentence 1 no. 2 (a) to (c), principal broking services or contract broking on derivatives markets exclusively on behalf of other members of those markets;

c) quotation of prices as market maker within the meaning of section 23 (4) while engaging in proprietary trading within the meaning of section 2 (3) sentence 1 no. 2 (a) on behalf of other members of those derivatives markets;
to the extent that responsibility for ensuring the performance of contracts entered into by these enterprises on such markets or trading facilities is assumed by clearing members of the same markets or trading facilities;

9. enterprises conducting proprietary business in financial instruments or providing investment services within the meaning of section 2 (3) sentence 1 no. 1, no. 2 (a) to (c) or nos. 3 to 9 in derivatives within the meaning of section 2 (2) nos. 2 and 5, provided that

a) they are not part of a group whose main business is the provision of investment services within the meaning of section 2 (3) sentence 1 no. 1, no. 2 (a) to (c) or no. (3) to (9) or banking services within the meaning of section 1 (1) sentence 2 no. 1, 2, 8 or 11 of the Banking Act;

b) these investment services are ancillary activities to their main business when considered on a group basis; and

c) the investment services within the meaning of section 2 (3) sentence 1 no. 1, no. 2 (a) to (c) or no. (3) to (9) in derivatives within the meaning of section 2 (2) nos. 2 and 5 are provided exclusively to the clients of their main business in connection with transactions conducted in their main business;

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12. enterprises whose main business is to conduct proprietary business and proprietary trading within the meaning of section 2 (3) sentence 1 no. 2 (a) to (c) in commodities or derivatives within the meaning of section 2 (1) no. 2 relating to commodities, provided that they are not part of a group whose main business is the provision of investment services or banking services within the meaning of section 1 (1) sentence 2 no. 1, 2, 8 or 11 of the Banking Act;

c. Section 4 Functions and powers

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(3a) The Supervisory Authority may, at any time, request from an investment services enterprise that conducts algorithmic trading within the meaning of section 33 (1a) sentence 1 information on its algorithmic trading and the systems it uses for such trading, to the extent that this is necessary, as indicated by evidence, for monitoring compliance with the prohibitions and requirements of this Act. In particular, the Supervisory Authority may demand a description of the algorithmic trading strategies, details of trading parameters and trading limits to which the system is subject, the most important procedures for assessing risks and for complying with the provisions of section 33, and the particulars of its systems testing.

d. Section 31f Operation of a multilateral trading facility

(1) The operator of a multilateral trading facility shall be obliged to:

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5. ensure that the records pertaining to orders placed and transactions executed permit, on the multilateral trading facility, full and uninterrupted supervision by the Supervisory Authority;

6. publish all information necessary for and relevant to the use of the multilateral trading facility, taking into account the nature of the users and the types of financial instruments traded;

7. charge separate fees for the excessive usage of the multilateral trading facility, in particular due to a disproportionately high number of order entries, modifications and cancellations; the amount of such fees shall be set in such a way as to effectively counteract excessive usage and the associated adverse impacts on system stability and market integrity;

8. take suitable precautionary measures to ensure orderly price determination even when prices fluctuate significantly; suitable precautionary measures shall include, in particular, short-term changes to the market model and temporary circuit breakers to reduce volatility, taking into consideration the static and dynamic price ranges or limit systems of trading participants tasked with price determination;

9. ensure and monitor that trading participants ensure an appropriate ratio between order entries, modifications and cancellations on the one hand and actually executed orders on the other (order-to-trade ratio) to prevent risk to the proper functioning of the trading in the multilateral trading system; the order-to-trade ratio shall be determined for each financial instrument on the basis of the numerical volume of the respective orders and transactions over the period of one month and an appropriate order-to-trade ratio shall be deemed to exist in particular if such ratio is economically reasonable based on the liquidity of the respective financial instrument, the specific market situation or the function of the trading enterprise;

10. determine an appropriate minimum tick size for traded financial instruments in order to minimise adverse impacts on market integrity and market liquidity; determination of the minimum tick size shall pay particular attention to ensuring that the minimum tick size does not undermine the price discovery mechanism or the objective of an appropriate order-to-trade ratio within the meaning of number 9; and

11. define rules for the designation, by trading participants, of orders generated via algorithmic trading within the meaning of section 33 (1a) sentence 1 and for indicating the respective trading algorithms used for this purpose.

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(6) The Federal Ministry of Finance may, by means of a Regulation not requiring the consent of the Bundesrat, issue more detailed provisions on the collection and amount of fees in accordance with subsection (1) no. 7, on the determination of an appropriate ratio between order entries, modifications and cancellations on the one hand and actually executed orders on the other in accordance with subsection (1) no. 9, on the determination of an appropriate minimum tick size in accordance with subsection (1) no. 10 and on the determination of designation and indication rules in accordance with subsection (1) no. 11. The Federal Ministry of Finance may, by means of a Regulation, delegate this authority to the Supervisory Authority.

e. Section 32c Execution of client orders by systematic internalisers

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(5) The systematic internaliser is required to determine an appropriate minimum tick size for traded financial instruments in order to minimise adverse impacts on market integrity and market liquidity; determination of the minimum tick size in accordance with the first half of this sentence shall pay particular attention to ensuring that the minimum tick size does not undermine the price discovery mechanism.

f. Section 33 Organisational requirements

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(1a) An investment services enterprise must additionally comply with the provisions stipulated in this subsection if it conducts trading in financial instruments in such a way that a computer algorithm automatically determines individual parameters of orders, unless the system involved is used only for the purpose of routing orders to one or more trading venues or for the confirmation of orders (algorithmic trading). Parameters of orders within the meaning of sentence 1 include, in particular, decisions on whether to initiate the order, on the timing, price or quantity of the order, or on how to manage the order after its submission with limited or no human intervention. An investment services enterprise that conducts algorithmic trading must have in place effective systems and risk controls to ensure that

1. its trading systems are resilient, have sufficient capacity and are subject to appropriate trading thresholds and limits;

2. the routing of erroneous orders or the functioning of the system in a way that may create or contribute to a disorderly market are prevented;

3. its trading systems cannot be used for any purpose that is contrary to European or national rules against market abuse or to the rules of the trading venue to which it is connected.

An investment services enterprise that conducts algorithmic trading must also have in place effective business continuity arrangements to deal with unforeseen failures of its trading systems and must ensure that its systems are fully tested and properly monitored. Furthermore, it must ensure the documentation of every modification of any computer algorithm used for trading purposes.

4. Article 4 Amendments to the Investment Act (Investmentgesetz)

a. Section 9a Organisational requirements

The following sentence is added:

“Section 33 (1a) of the Securities Trading Act shall apply mutatis mutandis."
[Note: On 22 July 2013, the InvG was replaced by the Investment Code (Kapitalanlagegesetzbuch). The reference to section 33 (1) of the Securities Trading Act is now included in section 28 (1) sentence 3 of the Investment Code.]

5. Article 5 Amendments to the Market Manipulation Definition Regulation (Marktmanipulations-Konkretisierungsverordnung)

a. Section 3 False or misleading signals or artificial price levels

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4. purchase or sell orders that are placed, changed or cancelled at a market by means of a computer algorithm that automatically determines order parameters, provided that they

a) disrupt or delay the functioning of the trading venue, or are likely to do so; or

b) make it more difficult for other persons to identify genuine purchase or sell orders on the trading system, or are likely to do so; or

c) create or are likely to create a false or misleading signal about the supply of or demand for a financial instrument.

6. Article 6 – Amendments to the Deposit Guarantee and Investor Compensation Act (Einlagensicherungs- und Anlegerentschädigungsgesetz)

a. Section 1 Definition of terms

(1) Institutions within the meaning of this Act are

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2. credit institutions which have been granted authorisation to conduct banking business within the meaning of section 1 (1) sentence 2 no. 4 or 10 of the Banking Act or to provide financial services within the meaning of section 1 (1a) sentence 2 nos. 1 to 4 (a) to (c) or sentence 3 of the Banking Act;
3. financial services institutions which have been granted authorisation to provide financial services within the meaning of section 1 (1a) sentence 2 nos. 1 to 4 (a) to (c) or sentence 3 of the Banking Act,
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7. Article 7 Entry into force

(1) Article 1 no. 5 [i.e. section 16 (2) no. 3 of the Stock Exchange Act – flagging obligation], Article 3 no. 6 [i.e. section 33 (1a) of the Securities Trading Act – organisational requirements for investment services enterprises conducting algorithmic trading] and Article 4 [i.e. section 9a (1), sentence 2 of the Investment Act, now section 28 (1), sentence 3 of the Investment Code – organisational requirements for asset management companies and self-managed investment stock corporations] shall enter into force on 14 November 2013.

(2) The remainder of this Act shall enter into force on the day after its promulgation [i.e. 15 May 2013].