Activities of Isabel BENJUMEA BENJUMEA related to 2021/0376(COD)
Plenary speeches (2)
Amendments to the Alternative Investment Fund Managers Directive (AIFMD) and to the Directive relating to undertakings for collective investment in transferable securities (UCITSD) (debate)
Amendments to the Alternative Investment Fund Managers Directive (AIFMD) and to the Directive relating to undertakings for collective investment in transferable securities (UCITSD) (debate)
Reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council amending Directives 2011/61/EU and 2009/65/EC as regards delegation arrangements, liquidity risk management, supervisory reporting, provision of depositary and custody services and loan origination by alternative investment funds
Amendments (29)
Amendment 120 #
Proposal for a directive
Recital 2 a (new)
Recital 2 a (new)
Amendment 121 #
Proposal for a directive
Recital 2 b (new)
Recital 2 b (new)
(2 b) The size of EU AIFs continued to expand, increasing by 8 % from 2019 to 2022 that AIFs accounted for one-third of the EEA30 fund industry at the end of 2020. Professional investors own most of the shares of AIFs, yet retail investor share is significant at 14 % of the net asset value (NAV)1a. __________________ 1a ESMA Annual Statistical Report on EU Alternative Investment Funds, 2022.
Amendment 154 #
Proposal for a directive
Recital 18
Recital 18
(18) In order to ensure consistent harmonisation of the supervisory reporting obligations, 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 Council39 to set out the contents, forms and procedures to standardise the supervisory reporting process by AIFMs. The regulatory technical standards should set out the contents, forms and procedures to standardise the supervisory reporting process, thus replacing the reporting template laid down in the Commission Delegated Regulation (EU) 231/201340 . Those regulatory and implementing technical standards should be adopted on the basis of a draft developed by ESMA. The information to be reported on delegation arrangements should be clearly set out in the text of Directive 2011/61/EU. Regarding that information, the regulatory technical standards should remain limited to setting out the appropriate level of standardisation of the information to be reported as defined in Directive 2011/61/EU, without adding any elements that are not foreseen by the text of that Directive. __________________ 39 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). 40 Commission Delegated Regulation (EU) No 231/2013 of 19 December 2012 supplementing Directive 2011/61/EU of the European Parliament and of the Council with regard to exemptions, general operating conditions, depositaries, leverage, transparency and supervision (OJ L 83, 22.3.2013, p. 1–95).
Amendment 175 #
Proposal for a directive
Recital 29 a (new)
Recital 29 a (new)
(29 a) There is a lack of regulatory homogeneity among various member states regarding depositary services. The creation and facilitation of a mechanism which allows cross-border operation of depositaries may allow AIF managers to assign the ask of depositary to an entity located in another member state, subject to the authorisation of the supervisory board of the home Member States; to promote the well-functioning of the Single market and a better access to cross-border services at EU level, there is a need to comprehensively study new formulas to address this topic. Such cross-border activity of depositaries will allow small markets to guarantee highly specialised services at lower prices, developing themselves and fostering a greater competition in a fair place in the AIFs markets. This cross-border operation of depositaries is an important step forward in the completion of a real Capital Markets Union, and for that reason it is essential that European asset managers should have access to a wide range of depositary services in their country.
Amendment 183 #
Proposal for a directive
Recital 33
Recital 33
(33) The requirements for third-country entities with access to the internal market should be aligned to the standards laid down in the relevant last updated version of the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes43 and Directive (EU) 2015/849 of the European Parliament and of the Council.44 In addition, non-EU AIFs or non-EU AIFMs that are subject to national rules and that are active in individual Member States should satisfy the requirement that they are not located in a third country that is deemed un-cooperative in tax matters. __________________ 43 OJ C 64, 27.2.2020, p.8. 44 Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).
Amendment 201 #
Proposal for a directive
Recital 47
Recital 47
(47) In order to ensure consistent harmonisation of the supervisory reporting obligations, 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 and Article 15 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council49 to set out the contents, forms and procedures to standardise the supervisory reporting process by UCITS. Those regulatory technical standards should be adopted on the basis of a draft developed by ESMA. The information to be reported on delegation arrangements should be clearly set out in the text of Directive 2009/65/EC. Regarding that information, the regulatory technical standards should remain limited to setting out the appropriate level of standardisation of the information to be reported as defined in Directive 2009/65/EC, without adding any elements that are not foreseen by the text of that Directive. __________________ 49 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 207 #
Proposal for a directive
Recital 52 a (new)
Recital 52 a (new)
(52 a) In order to give managers or management companies sufficient time to adapt to the new requirements, managers or management companies of existing AIFs or UCTIS should be subject to a grandfathering clause.
Amendment 213 #
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) ‘loan-originating AIF’ means an AIF whose notional value of its originated loans exceeds 60% of its net asset value.
Amendment 251 #
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 9
Article 7 – paragraph 9
9. By … [12 months before the date of the review referred to in Article 69b] ESMA shall provide the European Parliament, the Council and the Commission with regular reports, at least every two years,a report analysing market practices regarding delegation to entities located in third countries and compliance with Articles 7 and 20.;
Amendment 265 #
Proposal for a directive
Article 1 – paragraph 1 – point 5 – point a
Article 1 – paragraph 1 – point 5 – point a
Direcitve 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 capital 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 270 #
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 4d – point a a (new)
Article 15 – paragraph 4d – point a a (new)
(a a) an entity within the same group as defined in Article 2(11) of Directive 2013/34/EU of the European Parliament and the Council, except where that entity is a financial undertaking that exclusively finances borrowers that are not mentioned in points (a) to (c) of this paragraph.
Amendment 294 #
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. ESMA shall develop draft regulatory technical standardrecommendations 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. Those recommendations shall recognise that the primary responsibility for liquidity risk management remains with the AIFM. They shall allow adequate time for adaptation before they apply, in particular for existing AIFs.
Amendment 314 #
Proposal for a directive
Article 1 – paragraph 1 – point 8 – point -a (new)
Article 1 – paragraph 1 – point 8 – point -a (new)
Directive 2011/61/EU
Article 21 – paragraph 1
Article 21 – paragraph 1
(-a) paragraph 1 is replaced by the following: "1. For each AIF it manages, the AIFM shall ensure that a single depositary is appointed, independently of where the depositary and the AIF are established, in accordance with this Article. " Or. en (Directive 2011/61/EU)
Amendment 315 #
Proposal for a directive
Article 1 – paragraph 1 – point 8 – point -a a (new)
Article 1 – paragraph 1 – point 8 – point -a a (new)
Directive 2011/61/EU
Article 21 – paragraph 5 – point (a)
Article 21 – paragraph 5 – point (a)
(a) for EU AIFs, in the home Member State of the AIF -aa) point (a) of paragraph 5 is replaced by the following: (a) for EU AIFs, in the home Member State of the AIF; or in any Member State for depositary entities registered as Union credit institutions as defined in Directive 2006/48/EC1a __________________ 1a Directive (EU) 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (OJ L 177, 30.6.2006, p.1). Or. en (Directive 2011/61/EU)
Amendment 320 #
Proposal for a directive
Article 1 – paragraph 1 – point 8 – point -a b (new)
Article 1 – paragraph 1 – point 8 – point -a b (new)
Directive 2011/61/EU
Article 21 – paragraph 5 a (new)
Article 21 – paragraph 5 a (new)
(-ab) the following paragraph 5a is inserted: 5a. If a depositary is established in a Member State and complies with requirements laid down in the Directive, it shall be able to perform its services in any other Member States from its home Member State.
Amendment 322 #
Proposal for a directive
Article 1 – paragraph 1 – point 8 – point a
Article 1 – paragraph 1 – point 8 – point a
Directive 2011/61/EU
Article 21 – paragraph 6 – point d
Article 21 – paragraph 6 – point d
(d) the Member States in which the units or shares of the non-EU AIF are intended to be marketed, and, in so far as different, the home Member State of the AIFM, have signed an agreement with the third country where the depositary is established 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 to the relevant last updated version of the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes53 ;’; __________________ 53 OJ C 64, 27.2.2020, p. 8.
Amendment 338 #
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 2 – point ea and eb (new)
Article 24 – paragraph 2 – point ea and eb (new)
Amendment 344 #
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.points (a) to (ea) of paragraph 2. These draft regulatory technical standards shall also set out the appropriate level of standardisation of the information to be reported according to paragraph 2, point (eb), without introducing additional reporting obligations. In order to reduce duplication and inconsistencies between reporting frameworks, ESMA shall take into account other reporting requirements to which the AIFMs are subject and the report issued in accordance with paragraph 2 of Article 69b.
Amendment 359 #
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 to the relevant last updated version of 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 362 #
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 to the relevant last updated version of the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes.;
Amendment 367 #
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 to the relevant last updated version of the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes.;
Amendment 377 #
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 to the relevant last updated version of the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes.;
Amendment 381 #
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 to the relevant last updated version of the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes.;
Amendment 416 #
Proposal for a directive
Article 1 – paragraph 1 – point 21
Article 1 – paragraph 1 – point 21
(d) the appropriateness of complementing this Directive with aeffectiveness and the impact on financial stability of the depositary passport.
Amendment 463 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c
Article 2 – paragraph 1 – point 3 – point c
Directive 2009/65/EU
Article 15 – paragraph 5
Article 15 – paragraph 5
5. By … [12 months before the date of the review referred to in Article 110a] ESMA shall provide the European Parliament, the Council and the Commission with regular reports, at least every two years,a report analysing market practices regarding delegation to entities located in third countries and compliance with Articles 7 and 13.
Amendment 482 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2009/65/EU
Article 20a – paragraph 1
Article 20a – paragraph 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 trades on behalf of the UCITS it manages, in the same format and content as the one it already has to provide to the central bank of the relevant Member State in accordance with Regulation ECB/2013/38.
Amendment 485 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2009/65/EU
Article 20a – paragraph 1 a (new)
Article 20a – paragraph 1 a (new)
Amendment 495 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Directive 2009/65/EU
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 paragraph 1. These draft regulatory technical standards shall also set out the appropriate level of standardisation of the information to be reported according to paragraph 1a without introducing additional reporting obligations. ESMA shall take into account other reporting requirements to which the management companies are subject and the report issued in accordance with Article 20b.
Amendment 553 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
This Directive shall enter into force on the 20th day following that of its publication in the Official Journal of the European Union. This Directive shall not apply to AIFs or UCITS marketed before its date of entry into force.