Activities of Alain LAMASSOURE related to 2018/0041(COD)
Plenary speeches (1)
Cross-border distribution of collective investment undertakings (Directive) - Cross-border distribution of collective investment undertakings (Regulation) (debate) FR
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council amending Directive 2009/65/EC of the European Parliament and of the Council and Directive 2011/61/EU of the European Parliament and of the Council with regard to cross-border distribution of collective investment funds PDF (609 KB) DOC (77 KB)
Amendments (24)
Amendment 77 #
Proposal for a directive
Recital 10
Recital 10
(10) There are cases where an AIFM or a UCITS management company willing to test investor appetite for a particular investment idea or investment strategy is faced with a divergent treatment of pre- marketing activities in different national legal systems. In some Member States where pre-marketing is permitted, its definition and conditions vary considerably. However, in other Member States there is no concept of pre-marketing at all. To address these divergences, a harmonised definition of pre-marketing should be provided and conditions under which an EU AIFM or UCITS management company can engage in these activities should be established.
Amendment 79 #
Proposal for a directive
Recital 11
Recital 11
(11) For pre-marketing to be recognised as such under this Directives 2009/65/EC and 2011/61/EU, it should concern an investment idea or strategy without having an actual AIF already established. Accordingly, during the course of pre-of an AIF or UCITS, which is not yet notified for marketing, investors are unable to subscribe to the units or shares of an AIF because the fund does not exist yet, and no offering documents, even in a draft form, should be permitted to be distributed to potential investors during this stage. However, when following the pre-marketing activities the AIFM offers for subscription units or shares of an AIF with the features akin to the pre-marketed investment idea, the appropriate marketing notification procedure should be observed and the AIFM should not be able to invoke reverse solicitation the Member State where the potential investors are domiciled or have their registered office. In order to prevent AIFMs or UCITS management companies from invoking reverse solicitation through pre-marketing activities, within 12 months of being contacted as part of pre-marketing, investors may acquire units or shares in the AIF or UCITS referred to in the information provided in the context of pre-marketing or of an AIF or UCITS notified for marketing as a result of the pre-marketing only under marketing rules.
Amendment 81 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
Amendment 91 #
Proposal for a directive
Article 1 – paragraph 1 – point 5 a (new)
Article 1 – paragraph 1 – point 5 a (new)
Directive 2009/65/EC
Article 93 – paragraph 1
Article 93 – paragraph 1
Amendment 95 #
Proposal for a directive
Article 1 – paragraph 1 – point 7
Article 1 – paragraph 1 – point 7
Directive 2009/65/EC
Article 93a – paragraph 1 – subparagraph 1 – introductory part
Article 93a – paragraph 1 – subparagraph 1 – introductory part
1. The competent authorities of the UCITS home Member State shall ensure that UCITS may discontinuproceed to the denotification of the marketing of its units in a Member State where it has notified its activities in accordance with Article 93, where all the following conditions are fulfilled:
Amendment 101 #
Proposal for a directive
Article 1 – paragraph 1 – point 7
Article 1 – paragraph 1 – point 7
Directive 2009/65/EC
Article 93a – paragraph 1– subparagraph 1 – point a
Article 93a – paragraph 1– subparagraph 1 – point a
(a) no more than 50 investors which is domiciled or has a registered office in a Member State where the UCITS has notified its activities in accordance with Article 93 holds unitsto the best knowledge, upon reasonable inquiry, of thate UCITS, or no more than 10 investors which are domiciled or have a registered office in that Member State hold units of the UCITSat UCITS or the units of the UCITS held in that Member State represent ing total less than 1 % of the assets under the management of that UCITS calculated on the basis of the most recent valuation prior to the date of submission of the notification letter referred to in paragraph 2;
Amendment 102 #
Proposal for a directive
Article 1 – paragraph 1 – point 7
Article 1 – paragraph 1 – point 7
Directive 2009/65/EC
Article 93a – paragraph 1– subparagraph 1 – point b
Article 93a – paragraph 1– subparagraph 1 – point b
(b) a blanket offer to repurchase, free of any charges or deductions, all its UCITS units held by investors in a Member State where the UCITS has notified its activities in accordance with Article 93 is made public for at least 30 working days and is addressed, directly or through financial intermediaries, individually to all investors in the host Member State whose identity is known;
Amendment 104 #
Proposal for a directive
Article 1 – paragraph 1 – point 7
Article 1 – paragraph 1 – point 7
Directive 2009/65/EC
Article 93a – paragraph 1– subparagraph 1 – point c
Article 93a – paragraph 1– subparagraph 1 – point c
(c) the intention to stop the marketing activitiesproceed to denotification in the Member State where the UCITS has notified its activities in accordance with Article 93 is made public by means of a publicly available medium which is customary for marketing UCITS and suitable for a typical UCITS investor.
Amendment 113 #
Proposal for a directive
Article 1 – paragraph 1 – point 8 a (new)
Article 1 – paragraph 1 – point 8 a (new)
Directive 2009/65/EC
Chapter XIa (new)
Chapter XIa (new)
Amendment 114 #
Proposal for a directive
Article 1 – paragraph 1 – point 8 b (new)
Article 1 – paragraph 1 – point 8 b (new)
Directive 2009/65/EC
Article 99 – paragraph 1 – subparagraph 1
Article 99 – paragraph 1 – subparagraph 1
(8 b) In Article 99, the first subparagraph of paragraph 1 is replaced by the following: "Without prejudice to the supervisory powers of competent authorities referred to in Article 98 and the right of Member States to provide for and impose criminal sanctions, Member States shall lay down rules on administrative sanctions and other administrative measures to be imposed on companies and persons in respect of infringements of national provisions transposing this Directive and shall take all measures necessary to ensure that they are implemented. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A02009L0065-20140917)infringements of Article 2 of Regulation (EU)----/--- [Regulation on facilitating cross-border distribution of collective investment funds and amending Regulations (EU) No 345/2013 and (EU) No346/2013] and shall take all measures necessary to ensure that they are implemented." Or. en
Amendment 118 #
Proposal for a directive
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
(aea) ‘‘pre-marketing’ means a direct or indirect provision of information on investment strategies or investment ideas by an EU AIFM, or on its behalf, to potential professional investors domiciled or registered in the Union in order to test their interest in an AIF which is not yet established, or a compartment of an AIF, which is not yet notified for marketing in the Member State where the potential investors are domiciled or have their registered office.
Amendment 121 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
Directive 2011/61/EU
Article 30a – paragraph 1 – point a
Article 30a – paragraph 1 – point a
Amendment 127 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
Directive 2011/61/EU
Article 30a – paragraph 1 – point b
Article 30a – paragraph 1 – point b
Amendment 129 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
Directive 2011/61/EU
Article 30a – paragraph 1 – point c a (new)
Article 30a – paragraph 1 – point c a (new)
(c a) amounts to subscription forms or similar documents whether in a draft or a final form;
Amendment 132 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
Directive 2011/61/EU
Article 30a – paragraph 1 – point d
Article 30a – paragraph 1 – point d
(d) amounts to a prospectus, constitutional documents, a prospectus or offering documents of a not-yet- established AIF, offering documents, subscription forms or similar documents whether in a draft or a final form allowing investors to take an investment decision in a final form. For already established AIFs, the final form of a prospectus can be provided.
Amendment 136 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
Directive 2011/61/EU
Article 30a – paragraph 3
Article 30a – paragraph 3
3. Subscription by professional investors toAIFMs shall ensure that investors do not acquire units or shares ofin an AIF established following thethrough pre-marketing in accordance with paragraph 1 or to the units or shares of AIFs managed or marketed byactivities and that investors contacted as part of pre- marketing may only acquire units or shares in that AIF under marketing permitted under Article 31 or 32. In particular, any subscription by professional investors, within 12 months after the EU AIFM that had engaged in pre- marketing of a not-yet- established AIF with the similar features shall be considered the result of marketing, to units or shares of an AIF referred to in the information provided in the context of pre-marketing, or of an AIF established as a result of the pre- marketing shall be considered the result of marketing and shall be subject to the applicable notification procedures referred to in Articles 31 and 32.
Amendment 142 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
Directive 2011/61/EU
Article 30a – paragraph 3 a (new)
Article 30a – paragraph 3 a (new)
3 a. AIFMs shall, on an ex-post basis, provide an annual overview to their home competent authority regarding their pre- marketing activities. This overview shall contain information about the Member States and the period of time in which the pre-marketing activities were undertaken, and a description of the investment strategies or investment ideas as well as, where relevant, the list of the established AIFs and their compartments referred to in pre-marketing. The home competent authority shall forward the overview to the competent authorities of the concerned Member State(s) in which the pre-marketing activity took place.
Amendment 145 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
Directive 2011/61/EU
Article 30a – paragraph 3 b (new)
Article 30a – paragraph 3 b (new)
3 b. A third party shall only engage in activities referred to in paragraph 1 in a host Member State on behalf of an authorised EU AIFM where it is authorised as an investment firm in accordance with Directive 2014/65/EU, as a credit institution in accordance with Directive 2013/36/EU, as a UCITS management company in accordance with Directive 2009/65/EC, as an alternative investment fund manager in accordance with Directive 2011/61/EU, or acts as a tied agent.
Amendment 148 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2011/61/EU
Article 32a – paragraph 1 – introductory part
Article 32a – paragraph 1 – introductory part
1. Member States shall ensure that an EU AIFM may discontinuproceed to the denotification of the marketing of units or shares of an EU AIF that it manages in the Member State where a notification of its marketing activities has been transmitted in accordance with Article 32, where all of the following conditions are fulfilled:
Amendment 153 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2011/61/EU
Article 32a – paragraph 1 – point a
Article 32a – paragraph 1 – point a
(a) nowhere the investors, which isto the best knowledge, upon reasonable inquiry, of the AIF, are domiciled or hasve a registered office in the Member State, where a notification of itsAIF marketing activities has been transmitted in accordance with Article 32, holds the units or shares of that AIF or no more than 10 investors, which are domiciled or have a registered office in that Member State, hold units or shares of the AIF representing less than 1 % of assets under management of that AIFrepresenting in total less than 5 % of assets under management of that AIF calculated on the basis of the most recent valuation prior to the date of submission of the notification letter referred to in paragraph 2;
Amendment 154 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2009/65/EC
Article 32a – paragraph 1 – point b
Article 32a – paragraph 1 – point b
(b) with the exception of closed-ended AIFs and funds regulated by Regulation (EU) 2015/760, a blanket offer to repurchase, free of any charges or deductions, all its AIF units or shares held by investors in the Member State, where a notification of its marketing activities has been transmitted in accordance with Article 32, is made public at least for 30 working days and is addressed, directly or through financial intermediaries, individually to all investors in that Member State whose identity is known;
Amendment 157 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
Directive 2011/61/EU
Article 43 – paragraph 2
Article 43 – paragraph 2
(6 a) In Article 43, paragraph 2 is replaced by the following: "2. Member States that permit the marketing of AIFs to retail investors in their territory shall, by 22 July 2014, inform the Commission and ESMA of: (a) the types of AIF which AIFMs may market to retail investors in their territory; (b) any additional requirements that the Member State imposes for the marketing of AIFs to retail investors; (ba) a description of the facilities referred to in Article 43a; (bb) the details necessary for the invoicing of any applicable regulatory fees or charges by the competent authority of the host Member State. Member States shall also inform the Commission and ESMA of any subsequent changes with regard to the first subparagraph. " Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0061)
Amendment 161 #
Proposal for a directive
Article 2 – paragraph 1 – point 7 a (new)
Article 2 – paragraph 1 – point 7 a (new)
Directive 2011/61/EU
Article 48
Article 48
(7 a) Article 48 is replaced by the following: "Article 48 Administrative penalties 1. Member States shall lay down the rules on measures and penalties applicable to infringements of the national provisions adopted pursuant to this Directive, and to infringements of Article 2 of Regulation (EU)----/--- [Regulation on facilitating cross-border distribution of collective investment funds and amending Regulations (EU) No 345/2013 and (EU) No346/2013], and shall take all measures necessary to ensure that those rules are enforced. Without prejudice to the procedures for the withdrawal of authorisation or to the right of Member States to impose criminal penalties, Member States shall ensure, in accordance with their national law, that the appropriate administrative measures can be taken or administrative penalties be imposed against the persons responsible where the provisions adopted in the implementation of this Directive have not been complied with. Member States shall ensure that those measures are effective, proportionate and dissuasive. 2. Member States shall provide that the competent authorities may disclose to the public any measure or penalty that will be imposed for infringement of the provisions adopted in the implementation of this Directive, and for infringements of Article 2 of Regulation (EU)----/--- [Regulation on facilitating cross-border distribution of collective investment funds and amending Regulations (EU) No 345/2013 and (EU) No346/2013], unless such disclosure would seriously jeopardise the financial markets, be detrimental to the interests of the investors or cause disproportionate damage to the parties involved. 3. ESMA shall draw up an annual report on the application of administrative measures and imposition of penalties in the case of breaches of the provisions adopted in the implementation of this Directive and of Article 2 of Regulation (EU)----/--- [Regulation on facilitating cross-border distribution of collective investment funds and amending Regulations (EU) No 345/2013 and (EU) No346/2013] in the different Member States. Competent authorities shall provide ESMA with the necessary information for that purpose. " Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32011L0061)
Amendment 164 #
Proposal for a directive
Article 2 – paragraph 1 – point 7 b (new)
Article 2 – paragraph 1 – point 7 b (new)
Directive 2011/61/EU
Annex IV
Annex IV