74 Amendments of Eva KAILI related to 2021/0376(COD)
Amendment 144 #
Proposal for a directive
Recital 9
Recital 9
(9) Common rules should also be laid down to establish an efficient internal market for loan-originating AIFs, to ensure a uniform level of investor protection in the Union, to make it possible for AIFs to develop their activities by originating loans in all Member States of the Union and to facilitate the access to finance by EU companies, a key objective of the Capital Markets Union (‘CMU’).31 However, given the fast-growing private credit market, it is necessary to address the potential micro risks and macro prudential risks that loan originating AIFs could pose and spread to the broader financial system. The rules applicable to AIFMs managing loan- originating funds should be risk-based and be harmonised in order to improve risk management across the financial market and increase transparency for investors. __________________ 31 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A Capital Markets Union for people and businesses-new action plan (COM/2020/590 final).
Amendment 176 #
Proposal for a directive
Recital 31 a (new)
Recital 31 a (new)
(31 a) Studies show that investment funds that charge ‘performance fees’ rarely outperform investment funds that do not charge performance fees. Performance fees charges do not appear to be in the best interest of fund investors. EU Member States should therefore prohibit UCITS management companies and AIFMs from charging ‘performance fees’. UCITS management companies and AIFMs should only be allowed to charge performance fees where these are symmetrical, such as fulcrum fees where the level of fees are adjusted up or down based on an investment fund either outperforming or underperforming its benchmark.
Amendment 178 #
Proposal for a directive
Recital 31 b (new)
Recital 31 b (new)
(31 b) Member States should require UCITS management companies and AIFMs to act in such a way as to prevent undue costs from being charged to unit- holders. UCITS management companies and AIFMs should also be required to regularly carry out an annual assessment to demonstrate that they have not charged undue costs to their unit-holders. At the moment, divergent market and supervisory practices exist as what industry and supervisors may consider as ‘due’ or ‘undue’ costs. The lack of a consistent definition of the concept of ‘undue cost’ leaves room for regulatory arbitrage and risks of hampering competition between investment funds in the Union market. Furthermore, it may lead to different levels of investor protection depending on where an investment fund is domiciled. To ensure that UCITS management companies and AIFMs do not charge undue costs to investors, the European Securities and Markets Authority should be required to develop draft regulatory technical standards prescribing a definition of undue costs, including rules for AIFs and UCITS to assess on annual basis whether they have charged undue costs to their unit-holders.
Amendment 200 #
Proposal for a directive
Recital 46 a (new)
Recital 46 a (new)
(46 a) To facilitate timely monitoring of risks in stressed conditions, it is necessary for national competent authorities to have access to a harmonised and concise set of indicators, which could be requested at a high frequency. Especially in crisis scenarios, authorities require up-to-date and high-frequency data to monitor risks and to inform policy decisions. These data should be harmonised and easily accessible to all relevant authorities, allowing timely action by and coordination among authorities. ESMA should be empowered to draft technical standards with a minimum set of indicators that would be relevant for AIFs to provide in exceptional circumstances.
Amendment 205 #
Proposal for a directive
Recital 51 a (new)
Recital 51 a (new)
(51 a) UCITS management companies should be permitted to engage in efficient portfolio management techniques, such as securities lending, as well as repurchase agreement and reverse repurchase agreement transactions in order to reduce risk, or generate additional capital or income for investors. The use of efficient portfolio management techniques, in particular those concluded with or involving related parties, can lead to conflicts of interests that could result in investors in UCITS investment funds being effectively overcharged. UCITS management companies should be required to return to the UCITS all of the revenues arising from efficient portfolio management techniques, net of direct and indirect operational costs. In any case, at a minimum, at least 90% of the revenues arising from efficient portfolio management techniques should be returned to the UCITS.
Amendment 212 #
Proposal for a directive
Article 1 – paragraph 1 – point 1
Article 1 – paragraph 1 – point 1
Directive 2011/61/EU
Article 4 – paragraph 1 – point ap a (new)
Article 4 – paragraph 1 – point ap a (new)
(ap a) ‘leveraged AIF’ means an AIF whose exposures are increased by the managing AIFM, whether through borrowing of cash or securities, or leverage embedded in derivative positions or by any other means.
Amendment 225 #
Proposal for a directive
Article 1 – paragraph 1 – point 2 – point b
Article 1 – paragraph 1 – point 2 – point b
Directive 2011/61/EU
Article 6 – paragraph 6
Article 6 – paragraph 6
6. Articles 2(2), Article 15, Article 16 except for the first subparagraph of paragraph (5), and Articles 23, 24 and 25 of Directive 2014/65/EU, and Article 26 of Regulation (EU) No 600/2014 shall apply where the services referred to in paragraph 4, points (a) and (b), are provided by AIFMs.;
Amendment 228 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 – point a
Article 1 – paragraph 1 – point 3 – point a
(c) a programme of activity setting out the organisational structure of the AIFM, including information on how the AIFM intends to comply with its obligations under Chapters II, III, IV, and, where applicable, Chapters V, VI, VII and VIII of this Directive, and with its obligations under Regulation (EU) 2019/2088 and a detailed description of the appropriate human and technical resources that will be used by the AIFM to this effect;
Amendment 235 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b
Article 1 – paragraph 1 – point 3 – point b
Directive 2011/61/EU
Article 7 – paragraph 5 – subparagraph 3
Article 7 – paragraph 5 – subparagraph 3
Where an AIFM delegates more portfolio management or risk management functions to entities located in third countries than it retains, in terms of assets under management, number of staff performing relevant day-to-day operational activities and the amount of fees generated by the AIFM or paid to the delegate, the competent authorities shall, on an annual basis, notify ESMA of all such delegations (‘delegation notifications’).
Amendment 237 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b
Article 1 – paragraph 1 – point 3 – point b
Directive 2011/61/EU
Article 7 – paragraph 5 – subparagraph 4 – point d a (new)
Article 7 – paragraph 5 – subparagraph 4 – point d a (new)
(d a) a description of the assets under management for which portfolio/risk management has been retained and delegated;
Amendment 238 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b
Article 1 – paragraph 1 – point 3 – point b
(d b) a description of the number of staff performing day-to-day portfolio or risk management tasks within the AIFM versus the number of staff performing these services on a delegated basis;
Amendment 239 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b
Article 1 – paragraph 1 – point 3 – point b
Directive 2011/61/EU
Article 7 – paragraph 5 – subparagraph 4 – point d c (new)
Article 7 – paragraph 5 – subparagraph 4 – point d c (new)
(d c) the amount of fees generated by the AIFM and the amount of fees paid to the delegate;
Amendment 244 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b a (new)
Article 1 – paragraph 1 – point 3 – point b a (new)
Directive 2011/61/EU
Article 7 – paragraph 6 – subparagraph 1
Article 7 – paragraph 6 – subparagraph 1
Amendment 247 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 – point c
Article 1 – paragraph 1 – point 3 – point c
Directive 2011/61/EU
Article 7 – paragraph 8
Article 7 – paragraph 8
8. ESMA shall develop draft regulatory technical standards to: (a) develop quantitative criteria to determine where an AIFM delegates more portfolio management or risk management functions than it retains; (b) determine the content of the delegation notifications and the standard forms, templates and procedures for the transmission of the delegation notifications in a language customary to the sphere of finance. The standard forms and templates shall include information fields covering at least all information referred to in paragraph 5, fourth subparagraph.
Amendment 252 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 – introductory part
Article 1 – paragraph 1 – point 4 – introductory part
Directive 2011/61/EU
Article 8 – paragraph 1 – point c
Article 8 – paragraph 1 – point c
(4) in Article 8(1), is amended as follows (a) point (c) is replaced by the following:
Amendment 253 #
Proposal for a directive
Article 1 – paragraph 1 – point 4
Article 1 – paragraph 1 – point 4
Directive 2011/61/EU
Article 8 – paragraph 1 – point c
Article 8 – paragraph 1 – point c
(c) the persons who effectively conduct the business of the AIFM are of sufficiently good repute and are sufficiently experienced also in relation to the investment strategies pursued by the AIF managed by the AIFM, the names of those persons and of every person succeeding them in the office being communicated forthwith to the competent authorities of the home Member States of the AIFM and the conduct of the business of the AIFM being decided by at least twohree natural persons who are either employed full-time by that AIFM or who are committed full-time to conduct the business of that AIFM and who are resident in the Union meeting such conditions;, one of whom shall be an independent director;
Amendment 255 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 – point b (new)
Article 1 – paragraph 1 – point 4 – point b (new)
Directive 2011/61/EU
Article 8 – paragraph 1 – point e a (new)
Article 8 – paragraph 1 – point e a (new)
(b) the following point (e a) is added: (e a) they are satisfied that the AIFM has sufficient expertise and resources to meet the requirements of Regulation (EU) 2019/2088.
Amendment 257 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 a (new)
Article 1 – paragraph 1 – point 4 a (new)
Directive 2011/61/EU
Article 11 – paragraph 1 – point f a (new)
Article 11 – paragraph 1 – point f a (new)
(4 a) In Article 11, the following point is added: (f a) has seriously or systemically infringed the provisions adopted pursuant to Regulation (EU) 2018/2088
Amendment 258 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 b (new)
Article 1 – paragraph 1 – point 4 b (new)
Directive 2011/61/EU
Article 12 – paragraph 1
Article 12 – paragraph 1
(4 b) Article 12 is amended as follows: (a) in paragraph (1), point (ba) is inserted: (ba) take account of climate and transition risks in their investment decisions (b) the following paragraph 4 is added: '4. ESMA shall develop draft regulatory technical standards specifying the framework according to which climate and transition risks shall be taken account in investment decisions as mandated by paragraph 1(ba). ESMA shall specifically outline which asset classes have a high risk of being subject to such risks and the timeframe in which such risks may materialise. ESMA shall submit those draft regulatory technical standards to the Commission by ... [18 months after the entry into force of this Directive]. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 or Regulation (EU) No 1095/2010'.
Amendment 259 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 c (new)
Article 1 – paragraph 1 – point 4 c (new)
Directive 2011/61/EU
Article 13 – paragraph 1
Article 13 – paragraph 1
(4 c) the first subparagraph of Article 13(1) is replaced by the following: '1. Member States shall require AIFMs to have remuneration policies and practices for those categories of staff, including senior management, risk takers, control functions, and any employees receiving total remuneration that takes them into the same remuneration bracket as senior management and risk takers, whose professional activities have a material impact on the risk profiles of the AIFMs or of the AIFs they manage, that are consistent with and promote sound and effective risk management, including ESG risks, and do not encourage risk-taking which is inconsistent with the risk profiles, rules or instruments of incorporation of the AIFs they manage'.
Amendment 262 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 d (new)
Article 1 – paragraph 1 – point 4 d (new)
Directive 2011/61/EU
Article 14a
Article 14a
Amendment 274 #
Proposal for a directive
Article 1 – paragraph 1 – point 5 – point b
Article 1 – paragraph 1 – point 5 – point b
Directive 2011/61/EU
Article 15 – paragraph 4e – subparagraph 1
Article 15 – paragraph 4e – subparagraph 1
An AIFM shall ensure that the AIF it manages retains, on an ongoing basis, 510% of the notional value of the loans it has originated and subsequently sold on the secondary market.
Amendment 278 #
Proposal for a directive
Article 1 – paragraph 1 – point 6 – introductory part
Article 1 – paragraph 1 – point 6 – introductory part
Directive 2011/61/EU
Article 16
Article 16
(6) in Article 16, is amended as follows: (a) the following paragraphs 2a to 2h are inserted:
Amendment 282 #
Proposal for a directive
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Directive 2011/61/EU
Article 16 – paragraph 2a a (new)
Article 16 – paragraph 2a a (new)
2a a. By way of derogation from paragraph 2a, a loan-originating AIF may be open-ended, subject to the approval of the competent authorities and based on a demonstration by the AIFM of the compatibility of its liquidity management system with its redemption policy, which must meet at least the following criteria: i. the level of leverage employed by an AIFM with respect to the AIF shall not exceed 100%; ii. the AIF has as its primary objective the active management of the loans it originates and as such it retains, on an ongoing basis, a portion of the originated loans until the end of their maturity which is at least equal to 50 % of its net asset value; iii. the AIF invests at least 5 % of its assets in cash or other liquid assets that qualify as cash equivalents within the meaning of the applicable accounting framework; iv. the AIF offers its investors redemption rights at least on a quarterly basis; v. the AIFM clearly communicates the application of redemption schedules or gates, if applicable, to its investors in the disclosures referred to in Article 23(1); and vi. the assets under management of the AIF do not exceed EUR 3 billion.
Amendment 297 #
Proposal for a directive
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Directive 2011/61/EU
Article 16 – paragraph 2g
Article 16 – paragraph 2g
2g. By ... [12 months after entry into force of this Directive] ESMA shall develop draft regulatory technical standards on criteria for the selection and use of suitable liquidity management tools by the AIFMs for liquidity risk management, including appropriate disclosures to investors, taking into account the capability of such tools to reduce undue advantages for investors that redeem their investments first, and to mitigate financial stability risks.
Amendment 301 #
Proposal for a directive
Article 1 – paragraph 1 – point 6 – point a (new)
Article 1 – paragraph 1 – point 6 – point a (new)
Directive 2011/61/EU
Article 16 – paragraph 3 a (new)
Article 16 – paragraph 3 a (new)
a) The following paragraph is added: 3a. AIFMs shall, for each open-ended AIF that they manage investing into inherently less liquid assets, demonstrate that the investment strategy can be maintained in all foreseeable market conditions. ESMA shall develop draft regulatory technical standards to specify a list of inherently less liquid assets and to ensure uniform conditions of application of this paragraph. ESMA shall submit those draft regulatory technical standards to the Commission by ... [36 months after the entry into force of this Directive]. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the second subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’
Amendment 305 #
Proposal for a directive
Article 1 – paragraph 1 – point 7 – point a – point a a (new)
Article 1 – paragraph 1 – point 7 – point a – point a a (new)
Directive 2011/61/EU
Article 20 – paragraph 1 – point d
Article 20 – paragraph 1 – point d
(a a) point (d) is replaced by the following: '(d) where the delegation concerns portfolio management or risk management and is conferred on a third-country undertaking, in addition to the requirements in point (c), until ... [70 months after the publication of this Directive in the O.J.] cooperation between the competent authorities of the home Member State of the AIFM and the supervisory authority of the undertaking must be ensured;. After ... [70 months after the publication of this Directive in the O.J.], the third-country undertaking shall be located in a jurisdiction for which the Commission has adopted an equivalence decision in accordance with Article 20a.'
Amendment 310 #
Proposal for a directive
Article 1 – paragraph 1 – point 7 – point b a (new)
Article 1 – paragraph 1 – point 7 – point b a (new)
Directive 2011/61/EU
Article 20 – paragrah 3a (new)
Article 20 – paragrah 3a (new)
Amendment 312 #
Proposal for a directive
Article 1 – paragraph 1 – point 7 – point c a (new)
Article 1 – paragraph 1 – point 7 – point c a (new)
Directive 2011/61/EU
Article 20 – paragraphs 7 a and 7 b (new)
Article 20 – paragraphs 7 a and 7 b (new)
(c a) The following paragraphs are added: '7a. ESMA or the competent authority of the home Member State of AIFM may, at their own initiative or at the request of the competent authority of another Member State, declare that the conditions of Article 3 are no longer met and: (a) require the identification of another AIFMs as the manager of an AIF with immediate effect; or (b) give the AIFM a 12-month period to regain control over the AIFs, after which period the fund will be liquidated if no AIFM can be identified as effective manager of the AIF 7b. By ... [12 months after entry into force of this regulation] ESMA shall develop draft regulatory technical standards specifying the procedure stipulated in paragraph 7a for identifying whether an AIFM can no longer be considered to be the manager of the AIF. In doing so it shall take into account both qualitative and quantitative factors in order to properly identify the location of effective control over an AIF. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.'
Amendment 313 #
Proposal for a directive
Article 1 – paragraph 1 – point 7 a (new)
Article 1 – paragraph 1 – point 7 a (new)
Directive 2011/61/EU
Article 20 a (new)
Article 20 a (new)
(7 a) The following Article 20a is inserted: ' Article 20a Equivalence regime 1. The Commission shall be able to adopt equivalence decisions stating that the legal framework and supervisory practice of a third country ensure that: (a) undertakings authorised or registered in that third country comply with binding requirements which are equivalent to the requirements under this Directive; (b) the binding requirements are subject to effective supervision and enforcement on an on-going basis in that third country. 2. Third-country jurisdictions shall request the Commission to adopt an equivalence decision by submitting an application as referred to in paragraph 3 of this article. After receiving an application, the Commission shall have 12 months to, in consultation with ESMA, either adopt or not adopt an equivalence decision taking the form of a delegated act adopted in accordance with Article 56 and subject to the conditions of Articles 57 and 58. 3. By ... [48 months after publication of this Directive in the O.J.] the ESMA shall develop draft regulatory technical standards to stipulating the content and form of the application referred to in paragraph 2 of this article. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.'
Amendment 337 #
Proposal for a directive
Article 1 – paragraph 1 – point 10 – point b
Article 1 – paragraph 1 – point 10 – point b
Direcitive 2011/61/EU
Article 24 – paragraph 2 – point d
Article 24 – paragraph 2 – point d
(b) in paragraph 2, point (d) is deleted;replaced by the following: '(d) the exposure of the AIF to climate and transition risks'
Amendment 342 #
Proposal for a directive
Article 1 – paragraph 1 – point 10 – point b a (new)
Article 1 – paragraph 1 – point 10 – point b a (new)
Directive 2011/61/EU
Article 24 – paragraph 5 – subparagraph 2
Article 24 – paragraph 5 – subparagraph 2
(b a) the second subparagraph of paragraph 5 is replaced by the following: ‘In exceptional circumstances and where required in order to ensure the stability and integrity of the financial system, or to promote long-term sustainable growth, ESMA after consulting the ESRB may request the competent authorities of the home Member State to impose additional reporting requirements.'
Amendment 345 #
Proposal for a directive
Article 1 – paragraph 1 – point 10 – point c
Article 1 – paragraph 1 – point 10 – point c
Directive 2011/61/EU
Article 24 – paragraph 6 – subparagraph 1
Article 24 – paragraph 6 – subparagraph 1
ESMA shall develop draft regulatory technical standards specifying the details to be reported according to paragraphs 1 and 2. ESMA shall take into account: (a) other reporting requirements to which the AIFMs are subject, and (b) the report issued in accordance with paragraph 2 of Article 69b so as to reduce areas of duplication and inconsistencies between the reporting frameworks in the asset management sector and other sectors of the financial industry.
Amendment 349 #
Proposal for a directive
Article 1 – paragraph 1 – point 10 – point d
Article 1 – paragraph 1 – point 10 – point d
Directive 2011/61/EU
Article 24 – paragraph 7 – subparagraph 1 – point a
Article 24 – paragraph 7 – subparagraph 1 – point a
(a) the format and data standards for the reports referred to in paragraphs 1 and 2, which shall include in particular global legal entity identifiers (LEIs) and international securities indentification numbers (ISINs). In developing those draft technical standards, ESMA shall take into account international developments and standards agreed at Union or global level;
Amendment 352 #
Proposal for a directive
Article 1 – paragraph 1 – point 10 – point d
Article 1 – paragraph 1 – point 10 – point d
Directive 2011/61/EU
Article 24 – paragraph 7 – subparagraph 1 – point b a (new)
Article 24 – paragraph 7 – subparagraph 1 – point b a (new)
(b a) a minimum set of indicators that would be relevant for AIFs to provide in exceptional circumstances referred to in paragraph 5;
Amendment 353 #
Proposal for a directive
Article 1 – paragraph 1 – point 10 – point d
Article 1 – paragraph 1 – point 10 – point d
Directive 2011/61/EU
Article 24 – paragraph 7 – subparagraph 1 – point b b (new)
Article 24 – paragraph 7 – subparagraph 1 – point b b (new)
(b b) methods and arrangements for submitting the reports referred to in paragraphs 1 and 2, including methods and arrangements to improve data standardisation and efficient sharing and use of data already reported within any Union reporting framework by any relevant competent authority, at Union or national level, taking into account the findings of the report issued in accordance with paragraph 2 of Article 69b.
Amendment 355 #
Proposal for a directive
Article 1 – paragraph 1 – point 10 a (new)
Article 1 – paragraph 1 – point 10 a (new)
Directive 2011/61/EU
Article 25 – paragraph 3a (new)
Article 25 – paragraph 3a (new)
(10 a) In Article 25, the following paragraph 3a is inserted: '3a. Limits to the level of leverage referred to in paragraph 3 shall be based on the leverage measures specified in accordance with Article 4(3) of this Directive.'
Amendment 356 #
Proposal for a directive
Article 1 – paragraph 1 – point 10 b (new)
Article 1 – paragraph 1 – point 10 b (new)
Directive 2011/61/EU
Article 30 – paragraph 3 a (new)
Article 30 – paragraph 3 a (new)
(10 b) In Article 30, the following paragraph is added: '3a. The Commission shall adopt benchmarks for long-term financial solvency of target companies that are subject to leveraged buy-out operations by AIF. The benchmarks shall contain a combination of four indicators, which consist of: (a) debt service cover (the ratio of cash flow to total debt service); (b) total leverage “dynamic gearing 1” (the ratio of consolidated EBITDA to net cash interest); (c) dynamic gearing 2 (the ratio of net debt to free cash flow); (d) equity ratio (the ratio of equity to total capital). Target companies shall comply with all four indicators and shall conduct regular solvency tests. Dividend payouts shall be limited to one disbursement per year and shall not exceed earnings. In the event of negative solvency there shall be no dividend payout. '
Amendment 360 #
Proposal for a directive
Article 1 – paragraph 1 – point 11
Article 1 – paragraph 1 – point 11
Directive 2011/61/EU
Article 35 – paragraph 2 – point c
Article 35 – paragraph 2 – point c
(c) the third country where the non-EU AIF is established has signed an agreement with the home Member State of the authorised AIFM and with each other Member State in which the units or shares of the non-EU AIF are intended to be marketed, which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements, and the third country is not mentioned in Annex I or Annex II to the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes54 .; __________________ 54 OJ C 64, 27.2.2020, p. 8.
Amendment 363 #
Proposal for a directive
Article 1 – paragraph 1 – point 12 – point b
Article 1 – paragraph 1 – point 12 – point b
Directive 2011/61/EU
Article 36 – paragraph 1 – point d
Article 36 – paragraph 1 – point d
(d) the third country where the non-EU AIF is established has signed an agreement with the home Member State of the authorised AIFM and with each other Member State in which the units or shares of the non-EU AIF are intended to be marketed, which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements, and that third country is not mentioned in Annex I or Annex II to the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes.;
Amendment 368 #
Proposal for a directive
Article 1 – paragraph 1 – point 13
Article 1 – paragraph 1 – point 13
Directive 2011/61/EU
Article 37 – paragraph 7 – point f
Article 37 – paragraph 7 – point f
(f) the third country where the non-EU AIFM is established has signed an agreement with the Member State of reference, which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements and the third country is not mentioned in Annex I or Annex II to the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes.;
Amendment 372 #
Proposal for a directive
Article 1 – paragraph 1 – point 14
Article 1 – paragraph 1 – point 14
Directive 2011/61/EU
Article 38a – paragraph 1
Article 38a – paragraph 1
1. ESMA shall, on a regular basis and at least every two years,By ... [18 months after entry into force of the Directive] ESMA shall conduct a peer review analysis of the supervisory activities of the competent authorities in relation to the application of Article 20. That peer review analysis shall focus on the measures taken to prevent that AIFMs, which delegate performance of portfolio management or risk management to third parties located in third countries, become letter-box entities.
Amendment 378 #
Proposal for a directive
Article 1 – paragraph 1 – point 15
Article 1 – paragraph 1 – point 15
Directive 2011/61/EU
Article 40 – paragraph 2 – point c
Article 40 – paragraph 2 – point c
(c) the third country where the non-EU AIF is established has signed an agreement with the Member State of reference and with each other Member State in which the units or shares of the non-EU AIF are intended to be marketed which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters including any multilateral tax agreements, and the third country is not mentioned in Annex I or Annex II to the Council conclusions of 2020 on the revised EU list on non- cooperative jurisdictions for tax purposes.;
Amendment 382 #
Proposal for a directive
Article 1 – paragraph 1 – point 16 – point b
Article 1 – paragraph 1 – point 16 – point b
Directive 2011/61/EU
Article 42 – paragraph 1 – point d
Article 42 – paragraph 1 – point d
(d) the third country where the non-EU AIF or non-EU AIFM is established has signed an agreement with the Member State in which the units or shares of the non-EU AIF are intended to be marketed, which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements, and that third country is not mentioned in Annex I or Annex II to the Council conclusions of 2020 on the revised EU list on non- cooperative jurisdictions for tax purposes.;
Amendment 429 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 a (new)
Article 2 – paragraph 1 – point 1 a (new)
Directive 2009/65/EC
Article 5 – paragraph 8
Article 5 – paragraph 8
Amendment 431 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 b (new)
Article 2 – paragraph 1 – point 1 b (new)
Directive 2009/65/EC
Article 6 – paragraph 4
Article 6 – paragraph 4
(1b) Article 6(4) is replaced by the following "4. Article 2(2) and Articles 12, 13 and 19 of Directive 2004/39/EC and Article 26 of Regulation (EU) No 600/2014 shall apply to the provision of the services referred to in paragraph 3 of this Article by management companies. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02009L0065-20210802)Or. en
Amendment 432 #
Proposal for a directive
Article 2 – paragraph 1 – point 2 – point a
Article 2 – paragraph 1 – point 2 – point a
Directive 2009/65/EC
Article 7 – paragraph 1 – point b
Article 7 – paragraph 1 – point b
(b) the persons who effectively conduct the business of a management company are of sufficiently good repute and are sufficiently experienced also in relation to the type of UCITS managed by the management company, the names of those persons and of every person succeeding them in office being communicated forthwith to the competent authorities and the conduct of the business of a management company being decided by at least twohree natural persons who are either employed full-time by that management company or who are committed full-time to conduct the business of that management company and who are resident in the Union meeting such conditions, one of whom shall be an independent director;
Amendment 435 #
Proposal for a directive
Article 2 – paragraph 1 – point 2 – point b
Article 2 – paragraph 1 – point 2 – point b
Directive 2009/65/EC
Article 7 – paragraph 1 – point e a (new)
Article 7 – paragraph 1 – point e a (new)
(e a) the management company has sufficient expertise and resources to adhere to the requirements of Regulation (EU) 2019/2088.
Amendment 436 #
Proposal for a directive
Article 2 – paragraph 1 – point 2 a (new)
Article 2 – paragraph 1 – point 2 a (new)
Directive 2005/65/EC
Article 7 – paragraph 5 – point f a (new)
Article 7 – paragraph 5 – point f a (new)
(2 a) In Article 7(5) the following point (f a) is added: (f a) has seriously or systemically infringed the provisions adopted pursuant to Regulation (EU) 2019/2088.
Amendment 438 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point a – point ii a (new)
Article 2 – paragraph 1 – point 3 – point a – point ii a (new)
Directive 2009/65/EC
Article 13 – paragraph 1 – point d
Article 13 – paragraph 1 – point d
(ii a) point (d) is replaced by the following: '(d) where the mandate concerns the investment management and is given to a third-country undertaking, cooperation between the supervisory authorities concerned must be ensured;until ... [70 months after the publication of this Directive in the O.J.] cooperation between the competent authorities of the home Member State of the AIFM and the supervisory authority of the undertaking must be ensured. After ... [70 months after the publication of this Directive in the O.J.], the third-country undertaking shall be located in a jurisdiction for which the Commission has adopted an equivalence decision in accordance with Article 13a'
Amendment 441 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point b a (new)
Article 2 – paragraph 1 – point 3 – point b a (new)
Directive 2009/65/EC
Article 13 – paragraph 2a (new)
Article 13 – paragraph 2a (new)
(b a) the following paragraph 2a is inserted: 2a. The delegates and any of the sub- delegates shall be subject to all relevant rules and requirements of this Directive in their execution of the delegated functions, irrespective of the delegates' legal status or national regulatory framework.
Amendment 445 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c
Article 2 – paragraph 1 – point 3 – point c
Directive 2009/65/EC
Article 13 – paragraph 3 – subparagraph 1
Article 13 – paragraph 3 – subparagraph 1
Where a management company delegates more portfolio management or risk management functions to entities located in third countries than it retains, in terms of assets under management, number of staff performing relevant day-to-day operational activities and the amount of fees generated by the management company or the delegate, the competent authorities shall, on an annual basis, notify ESMA of all such delegations (‘delegation notifications’).
Amendment 447 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c
Article 2 – paragraph 1 – point 3 – point c
Directive 2009/65/EC
Article 13 – paragraph 3 – subparagraph 2 – point d a (new)
Article 13 – paragraph 3 – subparagraph 2 – point d a (new)
(d a) a description of the assets under management for which portfolio and risk management has been retained and delegated
Amendment 448 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c
Article 2 – paragraph 1 – point 3 – point c
Directive 2009/65/EC
Article 13 – paragraph 3 – subparagraph 2 – point d b (new)
Article 13 – paragraph 3 – subparagraph 2 – point d b (new)
(d b) a description of the number of staff performing day-to-day portfolio or risk management tasks within the management company versus the number of staff performing these services on a delegated basis
Amendment 449 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c
Article 2 – paragraph 1 – point 3 – point c
Directive 2009/65/EC
Article 13 – paragraph 3 – subparagraph 2 – point d c (new)
Article 13 – paragraph 3 – subparagraph 2 – point d c (new)
(d c) The amount of fees generated by the management company and the amount of fees paid to the delegate
Amendment 458 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c
Article 2 – paragraph 1 – point 3 – point c
Directive 2009/65/EC
Article 13 – paragraph 4 – subparagraph 1
Article 13 – paragraph 4 – subparagraph 1
ESMA shall develop draft regulatory technical standards to: (a) develop quantitative criteria to determine where a management company delegates more portfolio management or risk management functions than it retains; (b) determine the content of the delegation notifications and the standard forms, templates and procedures for the transmission of the delegation notifications in a language customary to the sphere of finance. The standard forms and templates shall include information fields covering at least all information referred to in paragraph 3.
Amendment 469 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 a (new)
Article 2 – paragraph 1 – point 3 a (new)
Directive 2009/65/EC
Article 14
Article 14
(3 a) Article 14 is amended as follows: (a) in paragraph (1), point (ba) is inserted: (ba) take account of climate and transition risks in their investment decisions (b) the following paragraph 4 is added: '4. ESMA shall develop draft regulatory technical standards specifying the framework according to which climate and transition risks shall be taken account in investment decisions as mandated by point ba of paragraph 1. ESMA shall specifically outline which asset classes have a high risk of being subject to such risks and the timeframe in which such risks may materialise. ESMA shall submit those draft regulatory technical standards to the Commission by ... [18 months after the entry into force of this Directive]. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 or Regulation (EU) No 1095/2010'
Amendment 470 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 b (new)
Article 2 – paragraph 1 – point 3 b (new)
Directive 2009/65/EC
Article 14a – paragraph 1
Article 14a – paragraph 1
(3 b) Article 14a(1) is replaced by '1. Member States shall require management companies to establish and apply remuneration policies and practices that are consistent with, and promote, sound and effective risk management, including ESG risks, and that neither encourage risk taking which is inconsistent with the risk profiles, rules or instruments of incorporation of the UCITS that they manage nor impair compliance with the management company’s duty to act in the best interest of the UCITS.
Amendment 471 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 c (new)
Article 2 – paragraph 1 – point 3 c (new)
Directive 2009/65/EC
Article 14b – paragraph 1
Article 14b – paragraph 1
(3 c) Article 14b(1) is amended as follows: (a) point (a) is replaced by the following: '(a) the remuneration policy is consistent with and promotes sound and effective risk management, including ESG risks, and does not encourage risk taking which is inconsistent with the risk profiles, rules or instruments of incorporation of the UCITS that the management company manages; ' (b) point (b) is replaced by the following: '(b) the remuneration policy is in line with the business and sustainability strategy, objectives, values and interests of the management company and the UCITS that it manages and of the investors in such UCITS, and includes measures to avoid conflicts of interest; ' (c) point (g) is replaced by the following: '(g) where remuneration is performance- related, the total amount of remuneration is based on a combination of the assessment as to the performance of the individual and of the business unit or UCITS concerned and as to their risks and of the overall results of the management company when assessing individual performance, taking into account financial and non-financial criteria; in equal measure;' (d) point (l) is replaced by the following: '(l) the measurement of performance used to calculate variable remuneration components or pools of variable remuneration components includes a comprehensive adjustment mechanism to integrate all relevant types of current and future risks; , including climate and transition risks;' (e) point (r) is replaced by the following: '(r) variable remuneration is not paid through vehicles or methods that facilitate the avoidance of the requirements laid down in this Directive. or have the effect of reducing the tax liability of the employee'
Amendment 483 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2009/65/EC
Article 20a – paragaraph 1
Article 20a – paragaraph 1
1. A management company shall regularly report to the competent authorities of its home Member State on the markets and instruments in which it is trades on behalfing, on markets of which it is a member or where it actively trades, and on the exposures of each of the UCITS it manages.
Amendment 486 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2009/65/EC
Article 20a – paragraph 1 a (new)
Article 20a – paragraph 1 a (new)
1 a. A management company shall, for each of the UCITS it manages, provide the following to the competent authorities of its home Member State: (a) if relevant, information on tools used for managing the liquidity of the UCITS according to Article 84(2); (b) the current risk profile of the UCITS and the risk management systems employed by the management company to manage the market risk, liquidity risk, counterparty risk and other risks including operational risk; (c) the exposure of the UCITS to climate and transition risks; (d) the level of global exposure; (e) the results of the stress tests performed.
Amendment 490 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2009/65/EC
Article 20a – paragraph 1 b (new)
Article 20a – paragraph 1 b (new)
1 b. The competent authorities of the home Member State of the management company shall ensure that all information gathered under this Article in respect of all management companies that they supervise is made available to competent authorities of other relevant Member States, ESMA and the ESRB.
Amendment 494 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2009/65/EC
Article 20a – paragraph 2 – subparagraph 1
Article 20a – paragraph 2 – subparagraph 1
ESMA shall develop draft regulatory technical standards specifying the details to be reported in accordance with paragraphs 1, 1a and 1b. ESMA shall take into account: (a) other reporting requirements to which the management companies are subject and; (b) the findings of the report issued in accordance with Article 20b. , so as to reduce areas of duplications and inconsistencies between the reporting frameworks in the asset management sector and other sectors of the financial industry.
Amendment 497 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2009/65/EC
Article 20a – paragraph 2a (new)
Article 20a – paragraph 2a (new)
2 a. Where necessary for the effective monitoring of systemic risk, the competent authorities of the home Member State may require additional reporting to that described in paragraph 1, on a periodic or on an ad-hoc basis. The competent authorities shall inform ESMA about the additional reporting requirements. In exceptional circumstances and where required in order to ensure the stability and integrity of the financial system, or to promote long-term sustainable growth, ESMA after consulting the ESRB may request the competent authorities of the home Member State to impose additional reporting requirements.
Amendment 499 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2009/65/EC
Article 20a – paragraph 3 – subparagraph 1 – point a
Article 20a – paragraph 3 – subparagraph 1 – point a
(a) the format and data standards for the reports referred to in paragraph 1, 1a and 1b which shall include in particular global legal entity identifiers (LEIs) and international securities identification numbers (ISINs). In developing those draft technical standards, ESMA shall take into account international developments and standards agreed at Union or global level;
Amendment 502 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2009/65/EC
Article 20a – paragraph 3 – subparagraph 1 – point b a (new)
Article 20a – paragraph 3 – subparagraph 1 – point b a (new)
(b a) methods and arrangements for submitting the reports referred to in paragraphs 1, 1a, 1b and 2a, including methods and arrangements to improve data standardisation and efficient sharing and use of data already reported within any Union reporting framework by any relevant competent authority, at Union or national level, taking into account the findings of the report issued in accordance with Article 20b(2).
Amendment 504 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2009/65/EC
Article 20a – paragraph 3 – subparagraph 1 – point b b (new)
Article 20a – paragraph 3 – subparagraph 1 – point b b (new)
(b b) the reporting templates that includes a minimum set of indicators that would be relevant for AIFs to provide in exceptional circumstances referred to in paragraph 2a;
Amendment 507 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2009/65/EC
Article 20a – paragraph 3 a (new)
Article 20a – paragraph 3 a (new)
3 a. Under stressed market circumstances, for each UCITS that it manages, the management company shall report a subset of key indicators, on a daily basis, to the competent authority of its home Member State. The competent authority shall without undue delay make available any information reported in accordance with this paragraph to competent authorities of other relevant Member States, ESMA and the ESRB. The Commission shall adopt a delegated act in order to supplement this Regulation by specifying what should be understood by the stressed market circumstances referred to in this paragraph.
Amendment 509 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2009/65/EC
Article 20a – paragraph 3b (new)
Article 20a – paragraph 3b (new)
3 b. The competent authorities of the home Member State of the UCITS management company shall ensure that all information gathered in accordance with paragraphs 1, 1a, 1b, 2a and 3 in respect of all UCITS management companies that they supervise is made available to competent authorities of other relevant Member States, ESMA and the ESRB by means of the procedures set out in Article 101 on supervisory cooperation.
Amendment 514 #
Proposal for a directive
Article 2 – paragraph 1 – point 7 a (new)
Article 2 – paragraph 1 – point 7 a (new)
Directive 2009/65/EC
Article 51 a (new)
Article 51 a (new)
(7a) the following Article is inserted: ‘Article 51a 1. A UCITS shall inform investors clearly in the prospectus of its intention to use efficient portfolio management techniques and instruments referred to in Article 51(2) of this Directive and Article 11 of Directive 2007/16/EC. This shall include a detailed description of the risks involved in these activities, including counterparty risk and potential conflicts of interest, and the impact they will have on the performance of the UCITS. The use of these techniques and instruments shall be in line with the best interests of the UCITS. 2. In accordance with Article 11 of Directive 2007/16/EC, UCITS employing efficient portfolio management techniques shall make sure that the risks arising from these activities are adequately captured by the risk management process of the UCITS. 3. The UCITS shall disclose in the prospectus the policy regarding direct and indirect operational costs/fees arising from efficient portfolio management techniques that may be deducted from the revenue delivered to the UCITS. These costs and fees shall not include hidden revenue. 4. All the revenues arising from efficient portfolio management techniques, net of direct and indirect operational costs, shall be returned to the UCITS. In any case, at least 90% of the revenues arising from efficient portfolio management techniques shall be returned to the UCITS. 5. A UCITS shall ensure that it is able at any time to recall any security that has been lent out or terminate any securities lending agreement into which it has entered. 6. A UCITS that enters into a reverse repurchase agreement shall ensure that it is able at any time to recall the full amount of cash or to terminate the reverse repurchase agreement on either an accrued basis or a mark-to-market basis. When the cash is recallable at any time on a mark-to-market basis, the mark-to- market value of the reverse repurchase agreement shall be used for the calculation of the net asset value of the UCITS. A UCITS that enters into a repurchase agreement shall ensure that it is able at any time to recall any securities subject to the repurchase agreement or to terminate the repurchase agreement into which it has entered. 7. Fixed-term repurchase and reverse repurchase agreements that do not exceed seven days shall be considered as arrangements on terms that allow the assets to be recalled at any time by the UCITS. 8. UCITS entering into efficient portfolio management transactions shall take into account these operations when developing their liquidity risk management process in order to ensure they are able to comply at any time with their redemption obligations.’
Amendment 533 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 a (new)
Article 2 – paragraph 1 – point 8 a (new)
Directive 2009/65/EC
Article 89a (new)
Article 89a (new)
Amendment 534 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 b (new)
Article 2 – paragraph 1 – point 8 b (new)
Directive 2009/65/EC
Article 90a (new)
Article 90a (new)
(8 b) The following article 90a is inserted: 'Article 90a Member States shall prohibit UCITS management companies from charging performance fees to its unit-holders, except where these performance fees are symmetric.'
Amendment 542 #
Proposal for a directive
Article 2 – paragraph 1 – point 9 a (new)
Article 2 – paragraph 1 – point 9 a (new)
Directive 2009/65/EC
Article 101 – paragraph 1
Article 101 – paragraph 1
(9 a) Article 101(1) is replaced by the following: "1. The competent authorities of the Member States shall cooperate with each other and with ESMA and the ESRB whenever necessary for the purpose of carrying out their duties under this Directive or of exercising their powers under this Directive or under national law. Member States shall take the necessary administrative and organisational measures to facilitate the cooperation provided for in this paragraph. Competent authorities shall use their powers for the purpose of cooperation, even in cases where the conduct under investigation does not constitute an infringement of any regulation in force in their Member State. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02009L0065-20210802)’ Or. en
Amendment 558 #
Proposal for a directive
Annex I a (new)
Annex I a (new)
Direcitve 2011/61/EU
Annex II – paragraph 1
Annex II – paragraph 1
Annex Ia Paragraph 1 of Annex II is amended as follows: (a) point (a) is replaced by: '(a) the remuneration policy is consistent with and promotes sound and effective risk management , including ESG risks, and does not encourage risk- taking which is inconsistent with the risk profiles, rules or instruments of incorporation of the AIFs they manage;. (b) point (b) is replaced by: '(b) the remuneration policy is in line with the business and sustainability strategy, objectives, values, and interests of the AIFM and the AIFs it manages or the investors of such AIFs, and includes measures to avoid conflicts of interest; ' (c) point (g) is replaced by: '(g) where remuneration is performance related, the total amount of remuneration is based on a combination of the assessment of the performance of the individual and of the business unit or AIF concerned and of the overall results of the AIFM, and when assessing individual performance, financial as well asnd non-financial criteria are taken into account; in equal measure;' (d) point (l) is replaced by: '(l) the measurement of performance used to calculate variable remuneration components or pools of variable remuneration components includes a comprehensive adjustment mechanism to integrate all relevant types of current and future risks; , including climate and transition risks' (e) point (r) is replaced by: '(r) variable remuneration is not paid through vehicles or methods that facilitate the avoidance of the requirements of this Directive. or that have the effect of reducing the tax liability of the employee.'