Following MaRisk and the recently published MaComp, BaFin has now published a draft of the MaDepot. These minimum requirements are intended to supplement the administrative practice “Bekanntmachung über die Ordnungsmäßigkeit der Depotführung”, which, despite its 20th anniversary which is to be celebrated this year, is likely to be unknown to the vast majority of employees in the banking industry. This is probably due to the fact that the entire area of custody of securities with the applicable custody law, among other things, is a legal matter that has not received much attention in recent years, apart from the discussions about the BaFin Depository Circularfor custody in the fund area. This will also be revised shortly, by the way. But back to the DepotG and the MaDepot: The Depotgesetz, which dates back to 1937 and has not been fundamentally revised since 1995, is still based on the abstraction principle underlying German law of property and is often only applicable in today’s practice, especially in times of CCP and cross-border custody chains, with one or the other fiction. The question has often been raised whether a reform is not necessary, not only to make German law on custody compatible with other legal systems but also to make it ultimately internationally competitive. There have been quite some dissertations, habilitations and expert reports. Unfortunately, none has come further than debating about a reform so far. However, the reform of depository law should be tackled urgently especially in light of the continuous effort to make the German financial centre stable and even more attractive for international players, – the law in its current form is certainly unfit for digitalisation and block chain. The Swiss Intermediated Securities Act might serve as a model for submitting just to make one proposal.
Dr. Oliver Wagner