The updated version of the Guidance Notice takes into account the Guidelines on exemptions for market making activities and primary market operations of the European Securities and Markets Authority (ESMA Guidelines). BaFin informed ESMA that it intends to comply with the ESMA Guidelines except for the provisions regarding the requirement of membership at each of the trading venues where the respective financial instruments are traded as well as the requirements for reportable financial instruments other than shares, sovereign debt and sovereign credit default swaps.

Up until 14 August 2013, 24:00, market makers and primary dealers have to comply with the rules set out in the Guidance Notice of 31 August 2012 and use the corresponding notification forms.

From 15 August 2013, 00:00, market makers and primary dealers have to comply with the rules set out in the updated Guidance Notice and use the respective updated notification forms.

Obligation to renew notification of financial instruments already notified

There is no grandfathering provision for activities that have already been notified to BaFin in accordance with national law and/or the rules set out in the Guidance Notice of 31 August 2012. You are, however, entitled to make use of the exemption regarding financial instruments that have already been notified to BaFin pursuant to Article 17 of the EU Short Selling Regulation without awaiting expiry of the 30-day period

• if the financial instruments and the activities that have already been notified to BaFin qualify for exemption under the current version of the ESMA Guidelines to the extent BaFin intends to comply with them;

• if a collective notification (reference date: 14 August 2013, 24:00) is submitted to BaFin by 31 August 2013 for all financial instruments that have been notified to BaFin up until 14 August 2013, in accordance with the rules set out in the old version of the Guidance Notice. Anyone submitting such collective notification has to comply with the rules of the updated Guidance Notice and use the respective updated forms; and
• if the persons subject to the notification requirement explicitly confirm that they have already submitted a notification for the financial instruments to BaFin (express written declaration required).

Period of 30 calendar days

A notification of intent has to be submitted for each newly added share no less than 30 calendar days before the first intended use of the exemption. This requirement only applies to sovereign debt and sovereign credit default swaps if debt instruments of another public issuer (e.g. another federal state) are added.

In general, the exemption may be used only following expiry of a period of 30 calendar days. Once BaFin has received a notification, it examines whether the financial instruments qualify for exemption. BaFin will give a positive response within a period of 30 calendar days if the requirements for exemption are met and BaFin does not intend to prohibit the use of the exemption. You may make use of the exemption once you have received BaFin's response, even if the period of 30 calendar days has not yet expired.

Regular submission of inventory lists

Starting on 15 August 2013, anyone notifying BaFin of a newly added or disposed financial instrument must, at the same time, submit an excel file which lists the current inventory. Please use the excel files especially designed for this purpose. The lists have to include all financial instruments currently held that have already been notified to BaFin as well as any newly added financial instruments; the latter must be highlighted. Please state the date on which you notified/will notify BaFin of your market making activities and/or primary market operations for each financial instrument.

When completing the excel sheets, please name the respective share itself in the case of shares, the sovereign issuer of the debt instruments in the case of sovereign debt and CDS in sovereign debt and the basic instrument and the category pursuant to Part C Annex 1 of the MiFID by naming the specific element of the category in the case of financial instruments other than shares, sovereign debt or CDS in sovereign debt. Any changes and/or newly added financial instruments have to be included in the respective excel sheet. Once you have completed the excel sheets, please submit the entire file as your inventory list to BaFin.

Inventory lists may be submitted to BaFin by e-mail. It is not necessary to submit the inventory list by fax/post; however, if you do submit the list by fax/post, please make sure to name the newly added financial instruments.