30 Amendments of Markus FERBER related to 2021/0376(COD)
Amendment 122 #
Proposal for a directive
Recital 3
Recital 3
(3) To increase the efficiency of AIFM activities, the list of authorised ancillary services set out in Article 6(4) of Directive 2011/61/EU should be extended to include benchmark administration governed by Regulation (EU) 2016/1011 of the European Parliament and of the Council27 and credit servicing governed by Directive 2021/…./EU of the European Parliament and of the Council.28 In particular, it should be possible for the AIFM to use customised benchmarks or indices for its managed AIFs as long as the requirements of Regulation (EU) 2016/1011 are met and the new benchmark is a combination of other publicly available benchmarks or indices. __________________ 27 Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014 (OJ L 171, 29.6.2016, p. 1–65). 28 OJ C , , p. .
Amendment 123 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
Amendment 126 #
Proposal for a directive
Recital 6
Recital 6
(6) To develop a reliable overview of delegation activities in the Union governed by Article 20 of Directive 2011/61/EU and to inform future policy decisions or supervisory actions, competent authoritieAIFMs should provide the European Securities and Markets Authority (‘ESMA’) with delegation notifications where an AIFMcompetent authorities of their home Member State with comprehensive and up-to-date information on delegates moreion of portfolio management, or risk management functions of the AIF, than it manages itself to entities located in third countriesin a uniform way. National competent authorities should provide aggregated data on delegation of portfolio management or risk management functions to ESMA where appropriate.
Amendment 130 #
Proposal for a directive
Recital 7
Recital 7
Amendment 156 #
Proposal for a directive
Recital 21
Recital 21
(21) To enable managers of open-ended AIFs based in any Member State to deal with redemption pressures under stressed market conditions, they should be required to choose at least one LMT from the harmonised list set out in the Annex,make use of effective liquidity management tools in addition to the possibility to suspend redemptions. When an AIFM takes a decision to activate or deactivate the LMT, it should notify the supervisory authorities. This would allow supervisory authorities to better handle potential spill-overs of liquidity tensions into the wider market.
Amendment 157 #
Proposal for a directive
Recital 23
Recital 23
(23) In order to ensure consistent harmonisation in the area of liquidity risk management by the managers of open- ended funds, power should be delegated to the Commission to adopt regulatory technical standards by means of delegated acts pursuant to Article 290 of the Treaty on the Functioning of the European Union (TFEU) in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council42 to specify the process for choosing and using LMTs to facilitate market and supervisory convergence. Those regulatory technical standards should be adopted on the basis of a draft developed by ESMA. __________________ The RTS should reflect IOSCO’s recommendations for liquidity risk management for collective investment schemes from February 20181a and should recognise that the primary responsibility for liquidity risk management remains with the AIFM. __________________ 41a https://www.iosco.org/library/pubdocs/pdf /IOSCOPD590.pdf 42 Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).
Amendment 171 #
Proposal for a directive
Recital 28 a (new)
Recital 28 a (new)
(28 a) General marketing and sales activities conducted by distributors on their own behalf should not be considered to be a delegation arrangement.
Amendment 187 #
Proposal for a directive
Recital 38
Recital 38
(38) To develop a reliable overview of delegation activities in the Union governed by Article 13 of Directive 2009/65/EC and to inform future policy decisions or supervisory actions, competent authoritmanagement companies should provide ESMA with delegation notifications where a UCITS management companycompetent authorities of their home Member State with comprehensive and up-to-date information on delegates moreion, portfolio management or risk management functions, than it manages itself, to entities located in third countries in a uniform way. National competent authorities shall make aggregated date available to ESMA where appropriate.
Amendment 190 #
Proposal for a directive
Recital 39
Recital 39
Amendment 193 #
Proposal for a directive
Recital 39
Recital 39
(39) In order to ensure consistent harmonisation of the notification process in the area of delegation, power should be delegated to the Commission to adopt regulatory technical standards by means of delegated acts pursuant to Article 290 of the Treaty on the Functioning of the European Union (TFEU) in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council45 to specify the contents, forms and procedures to standardise the notification process of UCITS delegation arrangements. The notification form should contain data fields indicating the activities making up the risk and portfolio management functions in order to determine whether a UCITS management company has delegated more of such functions than it has retained. Those regulatory technical standards should be adopted based on a draft developed by ESMA. __________________ 45 Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).
Amendment 209 #
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) ‘portfolio management’ as an investment management function listed in Annex II, first indent, means organisational units or persons who have the discretion to make or execute investment decisions on behalf of the UCITS, in particular the purchase and sale of assets within the investment and risk limits, employing techniques and instruments relating to transferable securities or reinvesting of collateral.
Amendment 218 #
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 b
Article 4 – paragraph 1 – point ap b
(ap b) 'risk management’ as an investment management function listed in Annex II, first indent, means organisational units or persons who are independent from portfolio management and responsible for identification, measurement, control, monitoring and communication of risks.
Amendment 222 #
Proposal for a directive
Article 1 – paragraph 1 – point -1 (new)
Article 1 – paragraph 1 – point -1 (new)
Directive 2011/61/EU
Article 4 – paragraph 1 – point ag
Article 4 – paragraph 1 – point ag
(-1) in Article 4(1), point (ag) is replaced by the following: ‘(ag) ‘professional investor’ means an investor that fulfils any of the following requirements: - the investor is considered to be a professional client or may, on request, be treated as a professional client within the meaning of Annex II of Directive 2014/65/EC; - the investor has invested or has committed to invest at least EUR 100 000 and has been informed in writing about the associated risks of the investment; or - the investor is a member of staff of the AIF and can therefore deemed to have sufficient knowledge about the AIF concerned;
Amendment 245 #
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 – paragraphs 8 and 9
Article 7 – paragraphs 8 and 9
Amendment 264 #
Proposal for a directive
Article 1 – paragraph 1 – point 5 – point a
Article 1 – paragraph 1 – point 5 – point a
Directive 2011/61/EU
Article 15 – paragraph 3 – point d
Article 15 – paragraph 3 – point d
(d) for loan granoriginating activities, other than in respect of shareholder loans where such loans do not exceed in aggregate 150% of the net asset value of the AIF, implement effective policies, procedures and processes for the granting of credit, for assessing the credit risk and for administering and monitoring their credit portfolio, keep those policies, procedures and processes up to date and effective and review them regularly and at least once a year.;
Amendment 285 #
Proposal for a directive
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Directive 2011/61/EU
Article 16 – paragraph 2b
Article 16 – paragraph 2b
2b. After assessing the suitability in relation to the pursued investment strategy, the liquidity profile and the redemption policy, an AIFM that manages an open- ended AIF shall select at least one appropriate liquidity management tool from the list set out in Annex V, points 2 to 48, for possible use in the interest of the AIF’s investors. The AIFM shall implement detailed policies and procedures for the activation and deactivation of any selected liquidity management tool and the operational and administrative arrangements for the use of such tool.
Amendment 287 #
Proposal for a directive
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Directives 2011/61/EU
Article 16 – paragraph 2c
Article 16 – paragraph 2c
2c. An AIFM that manages an open- ended AIF may, in the interest of AIF investors, temporarily suspend the repurchase or redemption of the AIF units or activate other liquidity management tools selected from the list set out in Annex V, points 2 to 48, and included in the fund rules or the instruments of incorporation of the AIFM.
Amendment 291 #
Proposal for a directive
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Directive 2011/61/EU
Article 16 – Paragraph 2d
Article 16 – Paragraph 2d
2d. An AIFM shall, without delay, notify the competent authorities of its home Member State when activating or deactivating aone of the liquidity management tool mentioned in 2bs set out in points (1) or (2) of Annex V.
Amendment 303 #
Proposal for a directive
Article 1 – paragraph 1 – point 7 – point a
Article 1 – paragraph 1 – point 7 – point a
Directive 2011/61/EU
Article 20 – paragraph 1
Article 20 – paragraph 1
(a) paragraph 1 is amended as follows: “(a) the introductory phrase is replaced by the following: deleted “1. AIFMs, which intend to delegate to third parties the task of carrying out, on their behalf, one or more of the functions listed in Annex I or of the services referred to in Article 6(4), shall notify the competent authorities of their home Member State before the delegation arrangements become effective. The following conditions shall be met:;” notification of delegation of portfolio management or risk management functions shall include at least the following:” (a) information on the AIF concerned; (b) the name of the delegate and the delegate’s country of domicile; (c) information on whether the delegate is authorised or registered for the purpose of portfolio or risk management and is subject to supervision. In these cases, the AIFM shall indicate the competent supervisory authority and the respective authorisation or registration number of the delegate. Insofar as the competent foreign supervisory authority does not issue such authorisation or registration numbers, the AIFM may provide evidence of the authorisation or registration of the delegate in another suitable manner; (d) a description of the delegated portfolio management and risk management functions; (e) a description of the retained portfolio management and risk management functions; (f) an indication of the date on which the delegation becomes effective; (g) a description of the objective reasons for the delegation. AIFMs shall notify the competent authorities of their home Member State of the termination and significant changes to delegation arrangements regarding portfolio management and risk management functions that could also affect the conditions for authorisation.
Amendment 387 #
Proposal for a directive
Article 1 – paragraph 1 – point 17
Article 1 – paragraph 1 – point 17
Directive 2011/61/EU
Article 46 – paragraph 2 – point j
Article 46 – paragraph 2 – point j
(j) in the interest of investors or of the public, require AIFMs to activate or deactivate a liquidity management tool referred to in point 1 or 2 of Annex V or selected by the AIFM in accordance with Article 16(2b), whichever is more suitable considering the type of open-ended AIF or group of open- ended AIFs concerned and investor protection or financial stability risks that necessitate this requirement.;
Amendment 426 #
Proposal for a directive
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
Directive 2009/65/EC
Article 2 – paragraph 1 – point u a (new)
Article 2 – paragraph 1 – point u a (new)
(u a) ‘portfolio management’ as an investment management function listed in Annex II, first indent, means organisational units or persons who have the discretion to make or execute investment decisions on behalf of the UCITS, in particular the purchase and sale of assets within the investment and risk limits, employing techniques and instruments relating to transferable securities or reinvesting of collateral.
Amendment 427 #
Proposal for a directive
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
Directive 2009/65/EC
Article 2 – paragraph 1 – point u b (new)
Article 2 – paragraph 1 – point u b (new)
(u b) ‘risk management’ as an investment management function listed in Annex II, first indent, means organisational units or persons who are independent from portfolio management and responsible for identification, measurement, control, monitoring and communication of risks.
Amendment 430 #
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 6 – paragraph 3 – point c
Article 6 – paragraph 3 – point c
(1 a) In Article 6, paragraph 3 the following point (c) is added: '(c) benchmark administration in accordance with Regulation (EU) 2016/1011';
Amendment 437 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point a – point i
Article 2 – paragraph 1 – point 3 – point a – point i
Directive 2009/65/EC
Article 13 – paragraph 1
Article 13 – paragraph 1
(a) paragraph 1 is amended asreplaced by the followsing: 1. Management companies, which intend to delegate to third parties the task of carrying out, on their behalf, one or more of the functions listed in Annex II and the services referred to in Article 6(3), shall notify the competent authorities of their home Member State before the delegation arrangements become effective. The following conditions shall be met:; notification of delegation of portfolio management or risk management functions should contain at least the following: (a) information on the UCITS concerned; (b) the name of the delegate and the delegate’s country of domicile; (c) information on whether the delegate is authorised or registered for the purpose of portfolio or risk management and is subject to supervision. In these cases, the management company shall indicate the competent supervisory authority and the respective authorisation or registration number of the delegate. Insofar as the competent foreign supervisory authority does not issue such authorisation or registration numbers, the management company may provide evidence of the authorisation or registration of the delegate in another suitable manner; (d) a description of the delegated portfolio management and risk management functions; (e) a description of the retained portfolio management and risk management functions; (f) an indication of the date on which the delegation becomes effective; (g) a description of the objective reasons for the delegation. Management companies shall notify the competent authorities of their home Member State of the termination and significant changes to delegation arrangements regarding portfolio management and risk management functions that could also affect the conditions for authorisation.
Amendment 456 #
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
Article 13 – paragraph 4
Amendment 459 #
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 5
Article 13 – paragraph 5
Amendment 465 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c
Article 2 – paragraph 1 – point 3 – point c
Amendment 473 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
Directive 2009/65/EC
Article 18a – paragraph 2
Article 18a – paragraph 2
2. After assessing the suitability in relation to the pursued investment strategy, the liquidity profile and the redemption policy, a management company shall select at least one appropriate liquidity management tool from the list set out in Annex IIA, points 2 to 48, and include in the fund rules or the instruments of incorporation of the investment company for possible use in the interest of the UCITS’ investors. The management company shall implement detailed policies and procedures for the activation and deactivation of any selected liquidity management tool and the operational and administrative arrangements for the use of such tool.
Amendment 476 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
Directive 2009/65/EC
Article 18a – paragraph 4
Article 18a – paragraph 4
4. ESMA shall develop draft regulatory technical standards on criteria for the selection and use of suitable liquidity management tools by the management companies 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. Those guidelines shall recognise IOSCO’s recommendations for liquidity risk management for collective investment schemes from February 2018 and that the primary responsibility for liquidity risk management remains with the management company.
Amendment 518 #
Proposal for a directive
Article 2 – paragraph 1 – point 8
Article 2 – paragraph 1 – point 8
Directive 2009/65/EC
Article 84 – paragraph 2 – point b
Article 84 – paragraph 2 – point b
(b) in the interest of the unit-holders or of the public, competent authorities of a UCITS home Member State may require a UCITS to activate a liquidity management tool referred to in points 1 or 2 of Annex IIA or selected and notified by the UCITS in accordance with Article 18a(2), whichever is more suitable considering the type of UCITS and the risks that necessitate taking this measure.