- BaFin – Translation -
This translation is furnished for information purposes only.
The original German text is binding in all respects.

Market Access Information Regulation of 30 September 2004 (Federal Law Gazette I, p. 2576), as amended by the Regulation of 24 October 2007 (Federal Law Gazette I, p. 2498)

Preamble

By virtue of section 37i (1) sentences 3 and 4 and section 37m sentences 3 and 4 of the Securities Trading Act (Wertpapierhandelsgesetz) as published in the announcement of 9 September 1998 (Federal Law Gazette I, p. 2708), inserted by Article 2 no. 24 of the Act of 21 June 2002 (Federal Law Gazette I, p. 2010), in conjunction with section 1 no. 1 of the Regulation on the Transfer of Powers to issue Regulations to the Federal Financial Supervisory Authority (Verordnung zur Übertragung von Befugnissen zum Erlass von Rechtsverordnungen auf die Bundesanstalt für Finanzdienstleistungsaufsicht) of 13 December 2002 (Federal Law Gazette 2003 I, p. 3), the Federal Financial Supervisory Authority issues the following Regulation:

Part 1
Scope of application

Section 1
Scope of application

This Regulation shall apply to applications for an authorisation under section 102 of the Securities Trading Act.

Part 2
Application for an authorisation under section 102 of the Securities Trading Act

Section 2
Name and address

The application must contain the name or company name and the address of the respective market, its operator and its management. In the case of legal persons, their legal form, registered office and, if applicable, details of their registration in any public commercial or business register shall be provided.

Section 3
Reliability of management

For the purpose of assessing their reliability, senior managers shall attach to their application a statement as to whether they are the subject of pending criminal proceedings, whether criminal proceedings were pending against them for an offence or misdemeanour, or whether they or an enterprise managed by them are or were involved as debtor in any insolvency proceedings or proceedings requiring the lodgement of an affidavit or similar proceedings. Applications shall also be accompanied by the senior managers’ curriculum vitae, which must include the names of the enterprises for which the senior managers have previously worked and a description of the nature of their work. Sentences 1 and 2 shall also apply to the appointment of any deputy who is intended to perform the senior manager's function if the senior manager is incapacitated.

Section 4
Business plan

The application shall be accompanied by a business plan which must contain the following information:

1. the business objective of the market according to the articles of association;
2. the business areas and trading segments of the market to which direct access is to be granted;
3. (repealed)
4. (repealed)
5. a description of the organisational structure of the market, including a graphical overview; this should make clear the areas of responsibility of each business area and of the governing bodies, in particular management, the supervisory board, the admissions office, the trading surveillance unit, the disciplinary committee or comparable bodies; information about the human resources of each business area and body should also be provided; information shall also be provided as to whether, and if so which, key functions and activities relevant to stock exchange operation have been outsourced to third parties.
6. (repealed)
7. a description of the market's internal control mechanisms; the description shall include details of the arrangements and organisational measures taken in order to avoid and manage conflicts of interest on the part of trading participants; a description of the processes in place for the internal monitoring of trading , particularly the pricing process, shall also be included; an explanation shall be included of the safeguards in place against unauthorised trading and the method by which mistrades are identified and rectified.

Section 5
Authorised recipient

The applicant shall provide the name and address of an authorised agent in Germany who is legally and actually capable of accepting the service of documents from the Federal Financial Supervisory Authority (Supervisory Authority) on behalf of the applicant. Evidence of the appointment of an authorised agent shall be attached in the form of a copy of the relevant deed.

Section 6
Competent surveillance units and their powers

(1) The applicant shall provide the name and address of the competent surveillance units of the market. An explanation shall also be included of the powers of intervention and control on the part of the competent surveillance units with respect to the market, its operator, admitted trading participants, persons authorised to settle trades and other natural and legal persons. This shall particularly include a description of the powers of the surveillance units when monitoring reporting requirements, insider trading, publication and notification requirements, market manipulation, changes in major holdings of voting rights, rules of conduct for investment services enterprises and for securities analyses as well as the powers of the surveillance units to suspend trading and to ban trading participants or impose other sanctions.

(2) The applicant shall state whether there is any statutory or contractual basis upon which the surveillance units cooperate with the Supervisory Authority for the purpose of the activities described in subsection (1). The application shall also be accompanied by a confirmation issued by the surveillance unit outlining the nature and scope of its cooperation with the Supervisory Authority in supervising the market.

(3) The text of the statutory provisions or agreements on which the powers described in subsections (1) and (2) are based shall be attached.

Section 7
Traded financial instruments

The applicant shall provide information on the types of financial instruments intended to be traded via direct market access. The financial instruments shall be categorised according to the types listed in section 2 of the Securities Trading Act (Wertpapierhandelsgesetz). Other financial instruments traded on the market that are not specifically listed in section 2 of the Securities Trading Act shall be explained, including a description of their characteristics and function.

Section 8
Trading participants

The application shall be accompanied by a list containing the names or company names and addresses of the trading participants domiciled in Germany who are to be granted direct market access. In the case of legal persons, their legal form and registered office shall also be provided.

Section 9
Additional information and documents

The Supervisory Authority may request additional information and documents to the extent necessary in connection with section 102 (1) sentence 2 of the Securities Trading Act for reaching a decision on individual applications.

Section 10
Format of application

Subject to sentence 2 below, information and documents to be provided under this Part shall be in German and submitted in duplicate. Information and documents referred to in sections 4 and 6 may be drafted in English. In such cases, however, the applicant may be required by the Supervisory Authority to provide a German translation.

Part 3
(repealed)

Sections 11 to 13 (repealed)

Part 4
Transitional and final provisions

Section 14
Transitional provisions

This Regulation shall not apply to applications and notifications received by the Supervisory Authority prior to 16 October 2004.

Section 15
Entry into force

This Regulation shall enter into force on the day following its promulgation.