63 Amendments of Bernd LANGE related to 2009/0064(COD)
Amendment 139 #
Proposal for a directive
Title
Title
on Alternative Investment Funds and Alternative Investment Fund Managers and amending Directives 2004/39/EC and 2009/…/EC
Amendment 336 #
Proposal for a directive
Article 2 – paragraph 1 a (new)
Article 2 – paragraph 1 a (new)
1a. Articles 19 to 30 shall apply to all AIF marketed in the Union, regardless of where they are established and whether they are domiciled in the Union.
Amendment 340 #
Proposal for a directive
Article 2 – paragraph 2 – point a
Article 2 – paragraph 2 – point a
Amendment 415 #
Proposal for a directive
Article 2 – paragraph 3
Article 2 – paragraph 3
Amendment 427 #
Proposal for a directive
Article 2 – paragraph 4
Article 2 – paragraph 4
Amendment 573 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5a Central Register 1. The ESMA shall keep a central public register containing the following data for each AIF and each AIFM: (a) a distinct identifier, (b) the names of each AIF and AIFM, (c) the competent supervisory authority for the AIFM. 2. For each AIF, the register shall contain: (a) the accountable AIFM, (b) the depository, (c) the valuator. 3. The register shall be published in electronic form and shall be publicly accessible through the Internet. The start of commercial operation of AIF shall be dependent on and admissible after registration.
Amendment 608 #
Proposal for a directive
Article 9 a (new)
Article 9 a (new)
Article 9a Remuneration policy 1. The remuneration policy of the AIFM shall be such that it does not encourage risk-taking disproportionate to the risk profile of the AIF it manages. 2. When establishing and applying the remuneration policies for those categories of staff whose professional activities have a material impact on their risk profile, AIFM shall comply with the principles laid down in Annex I of Directive 2010/.../EU [amending Directives 2006/48/EC and 2006/49/EC as regards capital requirements for the trading book and for re-securitisations], and the supervisory review of remuneration policies. 3. In addition, the remuneration policy shall be so that the independence of the risk function, the compliance function, and the valuation function is maintained.
Amendment 634 #
Proposal for a directive
Article 11 – paragraph 4
Article 11 – paragraph 4
4. In the case of AIFM which engage in short selling when investing on behalf of one or more AIF, Member States shall ensure that the AIFM operates procedures which provide it with access to the securities or other financial instruments at the date when the AIFM committed to deliver them, andAIFM shall be in the possession of the securities or other financial instruments at the beginning of the short selling act. Member States shall ensure that the AIFM implements a risk management procedure which allows the risks associated with the delivery of short sold securities or other financial instruments to be adequately managed.
Amendment 662 #
Proposal for a directive
Article 13 – paragraph 1 - point a
Article 13 – paragraph 1 - point a
(a) the requirements that need to be met by the originator in order for an AIFM to be allowed to invest in securities or other financial instruments of this type issued after 1 January 2011 on behalf of one or more AIF, including requirements that ensure that the originator retains a net economic interest of not less than 510 per cent;
Amendment 665 #
Proposal for a directive
Article 13 – paragraph 1 - point b a (new)
Article 13 – paragraph 1 - point b a (new)
(ba) the transparency requirements that need to be met regarding repackaged loans.
Amendment 715 #
Proposal for a directive
Article 16 – paragraph 1 – subparagraph 1
Article 16 – paragraph 1 – subparagraph 1
1. AIFM shall ensure that, for each AIF that it manages, a valuator is appointed which is independent of the AIFM management function to establish the value of assets acquired by the AIF and the value of the shares and units of the AIF in conformity with EU-wide valuation guidelines established by the ESMA. To this end, AIFM shall ensure that a qualified valuator is appointed which is adequately equipped for the purpose of valuation and certified by the ESMA.
Amendment 779 #
Proposal for a directive
Article 16 – paragraph 4 – subparagraph 1
Article 16 – paragraph 4 – subparagraph 1
4. The Commission shall adopt implementing measuresdelegated acts in accordance with Articles 49a, 49b and 49c further specifying the criteria under which a valuator can be considered independent and receive a valuation certificate within the meaning of paragraph 1.
Amendment 905 #
Proposal for a directive
Article 17 – paragraph 4
Article 17 – paragraph 4
Amendment 1034 #
Proposal for a directive
Article 19 – paragraph 1
Article 19 – paragraph 1
1. An AIFM shallIFM, for each of the AIF it manages, and AIF shall make available an annual report for each financial year. The annual report shall be made available to investors and competent authorities no later than four months following the end of the financial year.
Amendment 1044 #
Proposal for a directive
Article 19 – paragraph 4 – subparagraph 1
Article 19 – paragraph 4 – subparagraph 1
4. The Commission shall adopt implementing measuredelegated acts further specifying the content and format of the annual report. Theose measureacts shall be adapted to the type of AIF or AIFM to which they apply.
Amendment 1053 #
Proposal for a directive
Article 20 – paragraph 1 – introductory part
Article 20 – paragraph 1 – introductory part
1. AIF and AIFM shall ensure that AIF investors receive the following information before they invest in the AIF, as well as any changes thereof:
Amendment 1100 #
Proposal for a directive
Article 20 – paragraph 1 – point ja (new)
Article 20 – paragraph 1 – point ja (new)
(ja) the AIFM remuneration policy;
Amendment 1113 #
Proposal for a directive
Article 20 – paragraph 2 – introductory part
Article 20 – paragraph 2 – introductory part
2. FAIF and AIFM, for each AIF an AIFMthat it manages, it shall periodically disclose to investors, beneficiaries, their representatives and their assigned analysts:
Amendment 1120 #
Proposal for a directive
Article 20 – paragraph 2 – subparagraph 1 a (new)
Article 20 – paragraph 2 – subparagraph 1 a (new)
For AIF eligible for pension funds, AIFM shall publicly disclose the risks that are specific to this asset class. The Commission shall define additional disclosure requirements in this respect.
Amendment 1123 #
Proposal for a directive
Article 20 – paragraph 3 – subparagraph 1
Article 20 – paragraph 3 – subparagraph 1
3. The Commission shall adopt implementing measuredelegated acts further specifying the disclosure obligations of AIF and AIFM and the frequency of the disclosure referred to in paragraph 2.These measureacts shall be adapted to the type of AIF and AIFM to which they apply.
Amendment 1130 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 1
Article 21 – paragraph 1 – subparagraph 1
1. AIFM and AIFM, for each of the AIF it manages, shall regularly report to the competent authorities of its home Member State on the principal markets and instruments in which it trades on behalf of the AIF it manages.
Amendment 1132 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 2
Article 21 – paragraph 1 – subparagraph 2
Amendment 1145 #
Proposal for a directive
Article 21 – paragraph 2 – introductory part
Article 21 – paragraph 2 – introductory part
2. FAIF and AIFM, for each AIF anof the AIFM it manages, it shall periodically report the following to the competent authorities of its home Member State:
Amendment 1149 #
Proposal for a directive
Article 21 – paragraph 2 – point a a (new)
Article 21 – paragraph 2 – point a a (new)
(aa) a description of the investment strategy and objectives of the AIF, all the assets which the AIF can invest in and of the techniques it may employ and of all associated risks, any applicable investment restrictions, the circumstances in which the AIF may use leverage, the types and sources of leverage permitted and the associated risks and of any restrictions to the use of leverage;
Amendment 1151 #
Proposal for a directive
Article 21 – paragraph 2 – point c
Article 21 – paragraph 2 – point c
(c) the actual risk profile of the AIF and the risk management tools employed by the AIFM to manage these risks;
Amendment 1161 #
Proposal for a directive
Article 21 – paragraph 3 – introductory part
Article 21 – paragraph 3 – introductory part
3. FAIF and AIFM, for each of the AIF it manages the AIFM, shall submit the following documents to the competent authorities of itstheir home Member State:
Amendment 1164 #
Proposal for a directive
Article 21 – paragraph 3 – point a
Article 21 – paragraph 3 – point a
(a) an annual report of each AIF managed by the AIFM for each financial year, within four months from the end of the periods to which it relates;
Amendment 1191 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
This section shall apply only to AIFM which manage one or more AIF employing high levels of leverage on a systematic basis and AIFM managing one or more of such AIF.
Amendment 1196 #
Proposal for a directive
Article 22 – subparagraph 2
Article 22 – subparagraph 2
AIF and AIFM shall assess on a quarterly basis whether the AIF employs high levels of leverage on a systematic basis and shall inform the competent authorities accordingly.
Amendment 1208 #
Proposal for a directive
Article 23 – introductory part
Article 23 – introductory part
Amendment 1211 #
Proposal for a directive
Article 23 – point a
Article 23 – point a
(a) disclose to investors the maximum level of leverage which the AIFM may be employ on behalf of the AIFed as well as any right of re-use of collateral or any guarantee granted under the leveraging arrangement;
Amendment 1215 #
Proposal for a directive
Article 23 – point b
Article 23 – point b
(b) quarterly disclose to investors the total amount of leverage employed by each AIF in the preceding quarter.
Amendment 1222 #
Proposal for a directive
Article 24 – paragraph 1 - subparagraph 1
Article 24 – paragraph 1 - subparagraph 1
1. AIFM managing one or more AIF employing high levels of leverage on a systematic basis and AIFM managing one or more of such AIF shall regularly provide, to the competent authorities of itsthe home Member State, information about the overall level of leverage employed by each AIF it manages, and a break-down between leverage arising from borrowing of cash or securities and leverage embedded in financial derivatives.
Amendment 1224 #
Proposal for a directive
Article 24 – paragraph 1 - subparagraph 2
Article 24 – paragraph 1 - subparagraph 2
That information shall include the identity of the five largest sources of borrowed cash or securities for each of the AIF managed by the AIFM, and the amounts of leverage received from each of those entities for each of the AIF managed by the AIFM.
Amendment 1229 #
Proposal for a directive
Article 24 – paragraph 2 - subparagraph 1
Article 24 – paragraph 2 - subparagraph 1
2. The Commission shall adopt implementing measuresAfter having heard the ESRB and the ESMA, the Commission shall adopt delegated acts in accordance with Articles 49a, 49b and 49c further specifying the disclosure requirements with regard to leverage and the frequency of reporting to competent authorities and of disclosure to investors.
Amendment 1231 #
Proposal for a directive
Article 24 – pargraph 2 - subparagraph 1 a (new)
Article 24 – pargraph 2 - subparagraph 1 a (new)
The Commission shall also adopt delegated acts in accordance with Articles 49a, 49b and 49c further specifying the methodology to calculate leverage. This methodology shall be in line with Article 22, relating combined leverage from all sources to the equity capital of the AIF.
Amendment 1245 #
Proposal for a directive
Article 25 – paragraph 2
Article 25 – paragraph 2
2. Home Member States shall ensure that all information received under Article 24, aggregated in respect of all AIF and AIFM that ithey supervises, areis made available to other competent authorities as well as the European Systemic Risk Board and the European Securities and Markets Authority, through the procedure set out in Article 46 on supervisory co-operation. ItThey shall, without delay, also provide information through this mechanism, and bilaterally to other Member States directly concerned, if an AIF or AIFM under itstheir responsibility could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institution in other Member States.
Amendment 1255 #
Proposal for a directive
Article 25 – paragraph 3 – subparagraph 1
Article 25 – paragraph 3 – subparagraph 1
3. In order to ensure the stability and integrity of the financial system, the Commission shall adopt implementing measures, taking account of the views of the ESRB, shall adopt delegated acts in accordance with Articles 49a, 49b and 49c setting limits to the level of leverage that AIF and AIFM can employ. These limits should take into account, inter alia, the type of AIF, their strategy, their size and the sources of their leverage, whereas the maximum leverage shall not exceed five times net equity.
Amendment 1280 #
Proposal for a directive
Article 25 – paragraph 4
Article 25 – paragraph 4
4. In exceptional circumstances and when this is required in order to ensure the stability and integrity of the financial system, the competent authorities of the home Member State may impose additional limits to the level of leverage that AIFM and AIF can employ. Measures taken by the competent authorities of the home Member States shall have a temporary nature and should comply with the provisions adopted by the Commission pursuant to paragraph 3.
Amendment 1283 #
Proposal for a directive
Article 25 – paragraph 4 a (new)
Article 25 – paragraph 4 a (new)
4a. 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 1291 #
Proposal for a directive
Article 26 – paragraph 1 – point a
Article 26 – paragraph 1 – point a
(a) AIFM managing one or more AIF which either individually or in aggregation acquires 3025 % or more of the voting rights of an issuer or of a non-listed company domiciled in the CommunityUnion, as appropriate and AIFM managing one or more of such AIF;
Amendment 1296 #
Proposal for a directive
Article 26 – paragraph 1 – point b
Article 26 – paragraph 1 – point b
(b) AIFM having concluded an agreement with one or more other AIFM which would allow the AIF managed by these AIFM to acquire 3025 % or more of the voting rights of the issuer or the non-listed company, as appropriate.
Amendment 1303 #
Proposal for a directive
Article 26 – paragraph 2
Article 26 – paragraph 2
Amendment 1319 #
Proposal for a directive
Article 27 – paragraph 1 – subparagraph 1
Article 27 – paragraph 1 – subparagraph 1
1. Member States shall ensure that when an AIF or AIFM is in a position to exercise 3025 % or more of the voting rights of a non- listed company, such AIF or AIFM notifies the non- listed company and all other share-holders the information provided in paragraph 2.
Amendment 1321 #
Proposal for a directive
Article 27 – paragraph 1 – subparagraph 2
Article 27 – paragraph 1 – subparagraph 2
This notification shall be made, as soon as possible, but not later than four tradworking days the first of which being the day on which the AIF or AIFM has reached the position of being able to exercise 3025 % of the voting rights.
Amendment 1343 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 1
Article 28 – paragraph 1 – subparagraph 1
1. In addition to Article 27, Member States shall ensure that where an AIF or AIFM acquires 3025 % or more of the voting rights of an issuer or a non-listed company, that AIF or AIFM makes the information set out in the second and third subparagraphs available to the issuer, the non-listed company, their respective shareholders and representatives of employees or, where there are no such representatives, to the employees themselves.
Amendment 1348 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 2 – introductory part
Article 28 – paragraph 1 – subparagraph 2 – introductory part
With regard to issuers, the AIF or AIFM shall make available the following to the issuer concerned, its shareholders and representatives of employees:
Amendment 1356 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 2 – point b
Article 28 – paragraph 1 – subparagraph 2 – point b
(b) the policy for preventing and managing conflicts of interests, in particular between the AIF or AIFM and the issuer;
Amendment 1361 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 2 – point ca (new)
Article 28 – paragraph 1 – subparagraph 2 – point ca (new)
(ca) the potential consequences for employees.
Amendment 1365 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 3 – introductory part
Article 28 – paragraph 1 – subparagraph 3 – introductory part
With regard to non-listed companies, the AIF or AIFM shall make available the following to the non-listed company concerned, its shareholders and representatives of employees:
Amendment 1367 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 3 - point d
Article 28 – paragraph 1 – subparagraph 3 - point d
(d) the identity of the AIF or AIFM which either individually or in agreement with other AIFM have reached the 3025 % threshold;
Amendment 1374 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 3 – point f
Article 28 – paragraph 1 – subparagraph 3 – point f
(f) the policy for preventing and managing conflicts of interests, in particular between the AIF or AIFM and the non-listed company;
Amendment 1378 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 3 – point ga (new)
Article 28 – paragraph 1 – subparagraph 3 – point ga (new)
(ga) the potential consequences for employees of matters related to company strategy and employment policy.
Amendment 1384 #
Proposal for a directive
Article 28 – paragraph 2 a (new)
Article 28 – paragraph 2 a (new)
2a. Where an AIF or AIFM has reached the position of being able to exercise controlling rights, the target company shall inform the representatives of its employees or, where there are no such representatives, the employees themselves, comprehensively and in due time about the take-over, through the submission of all relevant documentation referred to in Article 9(5) of Directive 2004/25/EC as appropriate, if and to the extent to which the conduct of business is not jeopardized.
Amendment 1385 #
Proposal for a directive
Article 28 a (new)
Article 28 a (new)
Article 28a Disclosure 1. Notification shall be given within 20 working days by the AIFM to the target company on: (a) the objectives pursued with the take- over; (b) the originating capital for the take- over. The notification shall be made public by the target company. 2. The target company shall without delay inform the representatives of employees or, where there are no such representatives, the employees themselves about the provisions in paragraph 1.
Amendment 1387 #
Proposal for a directive
Article 28b (new)
Article 28b (new)
Amendment 1395 #
Proposal for a directive
Article 29 – paragraph 1
Article 29 – paragraph 1
1. Member States shall ensure that AIFM and AIFM, for each AIF they manage, include in the annual report provided for in Article 19 for each AIF that they manage, the additional information provided in paragraph 2 of this Article.
Amendment 1405 #
Proposal for a directive
Article 29 – paragraph 2 – subparagraph 1 - point d
Article 29 – paragraph 2 – subparagraph 1 - point d
(d) statement on significant divestment of assets and the annual turnover of the assets.
Amendment 1417 #
Proposal for a directive
Article 29 – paragraph 3
Article 29 – paragraph 3
3. The AIFM shall, for each AIF it manages and for which it is subject to this section,ubject to this section and AIFM, for each of such AIF they manage, shall provide the information referred to in paragraph 2 above to all representatives of employees of the company concerned referred to in paragraph 1 of Article 26 within the period referred to in Article 19 (1)
Amendment 1467 #
Proposal for a directive
Article 32 – paragraph 1 – subparagraph 1
Article 32 – paragraph 1 – subparagraph 1
1. Member States may allow the marketing of AIF to retail investors in their territory, provided that each investment is at least EUR 50.000.
Amendment 1472 #
Proposal for a directive
Article 32 – paragraph 2 – subparagraph 1
Article 32 – paragraph 2 – subparagraph 1
2. Member States that permit the marketing of AIF to retail investors on their territory provided that each investment is at least EUR 50.000, shall, within one year of the date referred to in Article 54(1), inform the Commission and the ESMA of:
Amendment 1476 #
Proposal for a directive
Article 32 – paragraph 2 – subparagraph 2
Article 32 – paragraph 2 – subparagraph 2
Member States shall also inform the Commission and the ESMA of any subsequent changes with regard to the first subparagraph.
Amendment 1661 #
Proposal for a directive – amending act
Article 53 a (new)
Article 53 a (new)
Article 53a Relationship with other Union and with national provisions This Directive shall be without prejudice to the information, consultation and, if applicable, participation procedures provided for under national law, in particular pursuant to Directives 2009/38/EC, 2001/86/EC, 2002/14/EC and 2004/25/EC.