[ParlTrack]

Proposal for a directive
Recital 29

(29) Some concentrated markets lack a competitive supply of depositary services. To address this shortage of service providers that can lead to increased costs for AIFMs and a less efficient AIF market, Member States could authorise, on a case- by case basis, competent authorities ~~should be able~~ to permit AIFMs or AIFs to procure depositary services located in other Member States ~~while the Commission assesses, in the context of its review of Directive 2011/61/EU, whether it would be appropriate to propose measures to achieve a more integrated market.~~ . To ensure that this possibility of authorising the appointment of a depositary in another Member States does not replicate a depositary passport before a thorough review of Directive 2011/61/EU is completed in this respect and before the EU law harmonisation reaches the necessary level to support the creation of an EU depository passport, it should only be utilised when conditions defined in this directive are fulfilled and with prior approval of the competent authorities of the AIF. Such conditions restrict the type of jurisdictions that can use this possibility to Member States where supply of depositary services is limited and clarify the regulatory set-up and the applicable rules to the depositary.

2022/07/04
Committee: ECON

Gunnar BECK

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point -a (new)

Directive 2011/61/EU
Article 21 – paragraph 5 – subparagraphs 1 a to 1 d (new)

(-a) the following subparagraphs are added: The home Member State of an AIF may entitle the national competent authorities of an AIF to allow, following a case-by- case assessment, institutions referred to in point (a) of Article 21(3) and established in another Member State to be appointed as a depositary, provided that the following conditions are fulfilled: (i) the competent authorities have received a motivated request by the AIFM which shall demonstrate the lack of the relevant depositary services, in line with the investment strategy of the AIF, for the appointment of a depositary in another Member State; and (ii) the national depositary market of the home Member State of the AIF fulfils at least one of the following conditions: - such market consists of fewer than a number of depositaries defined in RTS and less than 7 depositaries. These depositaries provide depositary services to EU AIFs (authorised under Article 4 (k) (i)) of this Directive) and managed by an EU AIFMs (authorised under Article 7(1)). Each of these depositaries has AIF assets under safekeeping below the threshold defined in RTS which is below EUR 1 billion or the equivalent in any other currency. This threshold excludes depositaries acting under Article 36(1a) of this Directive and the own assets of the depositary; - the aggregate amount in such market of assets under safekeeping on behalf of EU AIFs (authorised under Article 4 (k) (i) of this Directive) and managed by an EU AIFMs (authorised under Article 7(1) of this Directive) does not exceed the amount defined in RTS and shall not exceed EUR 30 billion or the equivalent in any other currency. This threshold excludes depositaries acting under Article 36(1a) of this Directive and the own assets of the depositary. ESMA should develop draft regulatory standards to specify this threshold. The NCAs shall notify ESMA when the option is activated. ESMA should develop draft regulatory standards to specify this maximum number of depositaries and the maximum amount of assets to be safekept by each depositary. Power is delegated to the commission to adopt the regulatory standards referred to in the previous subparagraph in accordance with Articles 10 to 14 of Regulation EU No 1095/2010. The authorisation to allow the appointment of a depositary in another Member State shall be granted on a case- by-case basis. When allowing the appointment of a depositary in another Member States on a case-by case basis, the competent authorities shall notify ESMA. This provision shall be without prejudice to the full application of Article 21, with the exception of point (a) of paragraph 5 of that Article on the place where the depositary is to be established.

2022/07/04
Committee: ECON

Gunnar BECK

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point b – point ii

Directive 2011/61/EU
Article 21 – paragraph 11 – subparagraph 5

For the purposes of this ~~paragraph~~Article, the provision of services by a central securities depository acting in the capacity of an issuer CSD as defined in Article 1, point (e) of Commission Delegated Regulation (EU) 2017/392 shall not be considered a delegation of the depositary’s custody functions. ;For the purposes of this paragraph, the provision of services by a central securities depositary acting in the capacity of an investor CSD as defined in Article 1, point (f), of Commission Delegated Regulation (EU) 2017/392 shall be considered a delegation of the depositary’s custody functions.

2022/07/04
Committee: ECON

Gunnar BECK

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point c

Directive 2011/61/EU
Article 21 – paragraph 16

16. The depositary shall make available to its competent authorities, to the competent authorities of the AIF that has appointed it as a depositary and to the competent authorities of the AIFM that manages that AIF, on request, all information that it has obtained while performing its duties and that may be necessary for the competent authorities of the AIF or the AIFM. If the competent authorities of the AIF or the AIFM are different from those of the depositary, i) the competent authorities of the depositary shall share the information received without delay with the competent authorities of the AIF and the AIFM.; ii) the competent authorities of the AIF shall share without delay any information relevant for the exercise of the supervisory powers by the competent authorities of the depositary.

2022/07/04
Committee: ECON

Gunnar BECK

Proposal for a directive
Article 1 – paragraph 1 – point 20

Directive 2011/61/EU
Article 61 – paragraph 5

~~(20) in Article 61, paragraph 5 is replaced by the following: 5. home Member State of an AIF or in case where the AIF is not regula~~deleted tThe competent authorities of the home Member State of an AIFM may allow institutions referred to in point (a) of Article 21(3) and established in another Member State to be appointed as a depositary. This provision shall be without prejudice to the full application of Article 21, with the exception of point (a) of paragraph 5 of that Article on the place where the depositary is to be established.;

2022/07/04
Committee: ECON

Gunnar BECK

Proposal for a directive
Article 1 – paragraph 1 – point 21

Directive 2011/61/EU
Article 69 b – paragraph 1 – point d

(d) the functioning and appropriateness of ~~complementing this Directive with a depositary passport~~the power of competent authorities to allow the appointment of a depositary in another Member State as set out in the second subparagraph of Article 21(5), including the relevance of the quantitative criteria laid down in point (ii) of that subparagraph.

2022/07/04
Committee: ECON

Gunnar BECK

Proposal for a directive
Article 2 – paragraph 1 – point 6 – point b

Directive 2009/65/EC
Article 22a – paragraph 4

4. For the purposes of this paragraph, the provision of services by a central securities depository acting in the capacity of an issuer CSD as defined in Article 1, point (e), of Commission Delegated Regulation (EU) 2017/392 shall not be considered a delegation of the depositary’s custody functions. ;For the purposes of this paragraph, the provision of services by a central securities depositary acting in the capacity of an investor CSD as defined in Article 1, point (f), of Commission Delegated Regulation (EU) 2017/392 shall be considered a delegation of the depositary’s custody functions.

2022/07/04
Committee: ECON

Activities of Gunnar BECK related to 2021/0376(COD)

Shadow reports (1)

Amendments (7)

ParlTrack - 2011-2024