BETA

39 Amendments of Pervenche BERÈS related to 2009/0064(COD)

Pervenche BERÈS

Proposal for a directive
Recital 17 a (new)

(17a) This Directive should not be too burdensome for small AIF which do not pose systemic risk and do not endanger integrity of the markets. One of the tools by which to achieve that objective is the proper application of the proportionality principle. That principle should apply both to the requirements imposed on the AIFM, AIF, depositories and valuators, as well on the exercise of supervisory powers. All measures in this Directive, including delegated acts, should therefore incorporate the principle of proportionality to reflect the nature, scale and complexity or specificity of their business, such as the microfinance investment fund managers, for which adapted valuation and reporting requirements should prevail.

2010/02/12
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Recital 24

(24) Member States should lay down rules following guidelines established by the ESMA on sanctions applicable to infringements of the provisions of this Directive and ensure that they are implemented. The sanctions should be effective, proportionate and dissuasive.

2010/02/12
Committee: ECON

Pervenche BERÈS, Leonardo DOMENICI

Proposal for a directive
Recital 29

(29) Since the objectives of th~~e action to be taken~~is Directive, namely to ensure a high level of consumer and investor protection by laying down a common framework for the authorisation and supervision of AIFM cannot be sufficiently achieved by the Member States, as evidenced by the deficiencies of existing nationally based regulation and oversight of these actors, and can therefore, be better achieved at ~~Community~~Union level, the ~~Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty~~Union should entitle the ESMA to act as an Investor Protection Agency aimed at certifying new financial products and monitoring their evolution. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

2010/02/12
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 6 – paragraph 1 – subparagraph 1 a (new)

They may consult ESMA in case of difficulties.

2010/02/15
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 8 a (new)

Article 8a The competent authorities will inform ESMA on a quarter yearly basis and under a consolidated form of authorisations granted or not and on the application of Articles 6, 7 and 8 of this Directive.

2010/02/15
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 17 – paragraph 4

4. Depositaries may not delegate their tasks to other depositaries.

2010/02/15
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 21 – paragraph 2 – introductory part

2. For each AIF an AIFM manages, it shall periodically report the following to ESMA and to the competent authorities of its home Member State:

2010/02/16
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 21 – paragraph 3 – introductory part

3. For each of the AIF it manages the AIFM shall submit the following documents to the ESMA and to the competent authorities of its home Member State:

2010/02/16
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 24 – paragraph 1 - subparagraph 1

1. AIFM managing one or more AIF employing high levels of leverage on a systematic basis shall regularly provide, to ESMA, to the ESRC and to the competent authorities of its 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.

2010/03/08
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 25 – paragraph 1

1. ~~Member States~~The Commission shall ensure that the ESMA, the ESRC and the competent authorities of the home Member State use the information to be reported under Article 24 for the purposes of identifying the extent to which the use of leverage contributes to the build-up of systemic risk in the financial system or risks of disorderly markets.

2010/03/08
Committee: ECON

Pervenche BERÈS

Proposal for a directive
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~~, after consulting the ESMA, adopt delegated acts in accordance with Articles 49a, 49b and 49c setting limits to the level of leverage AIFM can employ. These limits should take into account, inter alia, the type of AIF, their strategy and the sources of their leverage.

2010/03/08
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 25 – paragraph 4

4. In exceptional circumstances and when th~~is is required in order to ensure~~e ESRB deems it necessary to 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 can employ. Measures taken by the competent authorities of the home Member State in line with ESMA guidelines and ESRB recommendations shall have a temporary nature and should comply with the provisions adopted by the Commission pursuant to paragraph 3.

2010/03/08
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 27 – paragraph 1 – subparagraph 1

1. ~~Member States~~ESMA shall ensure that when an AIFM is in a position to exercise 30 % or more of the voting rights of a non-listed company, such AIFM notifies the non- listed company and all other share-holders the information provided in paragraph 2.

2010/03/08
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 27 – paragraph 1 – subparagraph 2

This notification shall be made, as soon as possible, but not later than four trading days the first of which being the day on which the AIFM has reached the position of being able to exercise ~~30 % of the voting rights~~a controlling influence.

2010/03/08
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 31 – paragraph 2 – subparagraph 1

2. The AIFM shall submit a notification to ESMA and to the competent authorities of its home Member State in respect of each AIF that it intends to market.

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 32 – paragraph 1 – subparagraph 2

~~Member States may~~The ESMA shall for that purpose imelaborate guidelines and, as appropriate, propose stricter requirements on AIFM or the AIF.

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 32 – paragraph 2 – subparagraph 1

2. Member States that permit the marketing of AIF to retail investors on their territory, shall, within one year of the date referred to in Article 54(1), inform the ESMA and the Commission of:

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 32 – paragraph 2 – subparagraph 1 – point b

(b) any additional requirements that the Member State imposes for the marketing of AIF to retail investors on their territory in accordance with the aforementioned guidelines of ESMA.

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 32 – paragraph 2 – subparagraph 2

Member States shall also inform the ESMA and the Commission of any subsequent changes with regard to the first subparagraph.

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 34 – paragraph 4 – subparagraph 1

4. The competent authorities of the home Member State shall, no later than ten working days after the date of receipt of the complete documentation, transmit the complete documentation referred to in paragraph 2, and where relevant 3, to ESMA and to the competent authorities of the Member State where the management services will be provided and an attestation that they have authorised the AIFM concerned. They shall immediately notify the AIFM about the transmission.

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 34 – paragraph 6 – subparagraph 2

The competent authority of the home Member State shall inform the ESMA and the competent authority of the host Member State of those changes.

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 35

~~An AIFM may only market shares or units of an AIF domiciled in a third country to professional investors domiciled in a Member State, if the~~1. Member States may authorise, in accordance with this Directive, AIFM established in a third country to market units or shares of an AIF to professional investors in the Union under the conditions of this Directive, provided that: (a) that third country is the subject of a decision taken pursuant to paragraph 3(a) stating that its legislation regarding prudential regulation and on-going supervision is equivalent to the provisions of this Directive and is effectively enforced; (b) that third country is the subject of a decision taken pursuant to paragraph 3(b) stating that it grants Union AIFM effective market access comparable to that granted by the Union to AIFM from that third country; (c) the AIFM provides the competent authorities of the Member State in which it applies for authorisation with the information referred to in Articles 5 and 31 ; (d) a cooperation-agreement is in place between the competent authorities of that Member State and the supervisor of the AIFM which ensures an efficient exchange of all information that is relevant for monitoring the potential implications of the activities of the AIFM for the stability of systemically relevant financial institutions and the orderly functioning of markets in which the AIFM is active; (e) that third country has signed an agreement with thise Member State in which it applies for authorisation which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention and ensures an effective exchange of information in tax matters. Where AIFM market shares or units of AIF domiciled in a third country the home Member States may prolong the period referred to in Article 31(3), when this is necessary to check whether the conditions of this Directive are met. Before allow2. The Commission shall, after consultation of the ESMA, adopt delegated acts in accordance with Articles 49a, 49b and 49c aimed at establishing: (a) general equivalence criteria for the equivalence and effective enforcement of third-country legislation on prudential regulation and on-going supervision, based on the requirements laid down in Chapters III, IV and V. (b) general criteria for assessing whether third countries grant Union AIFM effective market access comparable to that granted by the Union to AIFM from those third countries. 3. On the basis of the criteria referred to in paragraph 2, the Commission shall, in accordance with the regulatory procedure referred to ing AIFM to market shares or units of AIF domiciled in a third country, the home Member State shall have particular regard to the arrangements made by the AIFM in accordance with Article 38, where relevant. rticle 49(2), adopt implementing measures stating: (a) that the legislation on prudential regulation and on-going supervision of AIFM in a third country is equivalent to this Directive and effectively enforced; (b) that a third country grants Union AIFM effective market access at least comparable to that granted by the Union to AIFM from that third country.

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 37

Article 37 Valuator established in a third country 1. Member States shall only allow the appointment of a valuator established in a third country, provided that all of the following conditions are met: (a) the requirements set out in Article 16 are fulfilled; (b) the third country is the subject of a decision taken pursuant to paragraph 3 stating that the valuation standards and rules used by valuators established on its territory are equivalent to those applicable in the Community. 2. The Commission shall adopt implementing measures specifying the criteria for assessing the equivalence of the valuation standards and rules of third countries as referred to in paragraph (1) (b). Those measures, designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 49(3). 3. On the basis of the criteria referred to in paragraph 2, the Commission shall, in accordance with the procedure referred to in Article 49(2), adopt implementing measures, stating that the valuation standards and rules of a third country legislation are equivalent to those applicable in the Community.deleted

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 38

~~Delegation of the depositary tasks in respect of AIF dom~~Articiled in third countries 1. 17(4), in respect of AIF domiciled in a third country Member States shall allow the depositary of that AIF appointed in accordance with Article 17 to delegate the performance of one or more of its functions to a sub-depositary domiciled in the same third country provided that the legislation of that third country is equivalent to the provisions of this Directive and is effectively enforced. The following conditions shall also be met: (a) the third country is the subject of a decision taken pursuant to paragraph 4 stating sub-depositaries domiciled in that country are subject to effective prudential regulation and supervision which is equivalent to the provisions laid down in Community law; (b) co-operation between the home Member State and the relevant authorities of the third country is sufficiently ensured; (c) the third country is the subject of a decision taken pursuant to paragraph 4 stating that the standards to prevent money laundering and terrorist financing are equivalent to those laid down in Community law. 2. investors shall not be affected by the fact that it has delegated to a third country depositary the performance of all or a part of its tasks. 3. implementing measures specifying the criteria for assessing the equivalence of the prudential regulation, supervision and standards of third countries as referred to in paragraph 1. Those measures, designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 49(3). 4. referred to in paragraph 3, the Commission shall, in accordance with the procedure referred to in Article 49(2), adopt implementing measures, stating that prudential regulation, supervision and standards of a third country are equivalent to this Directive. 38 deleted By way of derogation from Article The depositary's liability towards The Commission shall adopt On the basis of the criteria

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 39

Article 39 Authorisation of AIFM established in third countries 1. accordance with this Directive, AIFM established in a third country to market units or shares of an AIF to professional investors in the Community under the conditions of this Directive, provided that: (a) the third country is the subject of a decision taken pursuant to paragraph 3 (a) stating that its legislation regarding prudential regulation and on-going supervision is equivalent to the provisions of this Directive and is effectively enforced; (b) the third country is the subject of a decision taken pursuant to paragraph 3 (b) stating that it grants Community AIFM effective market access comparable to that granted by the Community to AIFM from that third country; (c) the AIFM provides the competent authorities of the Member State in which it applies for authorisation with the information referred to in Articles 5 and 31 ; (d) a cooperation-agreement between the competent authorities of that Member State and the supervisor of the AIFM exists which ensures an efficient exchange of all information that are relevant for monitoring the potential implications of the activities of the AIFM for the stability of systemically relevant financial institutions and the orderly functioning of markets in which the AIFM is active. (e) the third country has signed an agreement with the Member State in which it applies for authorisation which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention and ensures an effective exchange of information in tax matters. 2. implementing measures aimed establishing: (a) general equivalence criteria for the equivalence and effective enforcement of third country legislation on prudential regulation and on-going supervision, based on the requirements laid down in Chapters III, IV and V. (b) general criteria for assessing whether third countries grant Community AIFM effective market access comparable to that granted by the Community to AIFM from those third countries. Those measures, designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 49(3). 3. referred to in paragraph 2, the Commission shall, in accordance with the regulatory procedure referred to in Article 49(2), adopt implementing measures stating: (a) that the legislation on prudential regulation and ongoing supervision of AIFM in a third country is equivalent to this Directive and effectively enforced; (b) that a third country grant Community AIFM effective market access at least comparable to that granted by the Community to AIFM from that third country.deleted Member States may authorise, in The Commission shall adopt at On the basis of the criteria

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 40 – paragraph 2

Where a Member State designates several competent authorities it shall inform the Commission and the ESMA thereof, indicating any division of duties. The ESMA will establish the appropriate methods to monitor that AIFM comply with their obligations under this Directive.

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 41 – title

Powers of ESMA and competent authorities

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 41 – paragraph 1 – introductory part

1. CThe ESMA and the competent authorities shall be given all supervisory and investigatory powers that are necessary for the exercise of their functions. Such powers shall be exercised in any of the following ways:

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 41 – paragraph 2 – introductory part

2. The ESMA and the competent authorities shall have at least the following powers of investigation:

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 41 a (new)

Article 41a Powers of the ESMA The ESMA shall define and regularly review guidelines for the competent authorities of the Member States on the exercise of their authorisation powers and on the reporting obligations imposed by this Directive.

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 42 – paragraph 1 – introductory part

1. The home Member State shall ensure that the competent authorities may take the following measures in accordance with guidelines drafted by the ESMA:

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 42 – paragraph 2

2. Member States shall ensure that the competent authorities have the powers necessary to take all measures required by the ESMA in order to ensure the orderly functioning of markets in those cases where the activity of one or more AIF in the market for a financial instrument could jeopardise the orderly functioning of that market.

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 43 – paragraph 1

1. Without prejudice to the procedures for the withdrawal of authorisation or to the right of Member States to impose criminal sanctions, Member States shall ensure, in conformity with the ESMA's guidelines and their national law, that the appropriate administrative measures can be taken or administrative sanctions be imposed against the persons responsible where the provisions adopted in the implementation of this Directive have not been complied with. Member States shall ensure that these measures are effective, proportionate and dissuasive.

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 45 – paragraph 1

1. The competent authorities of the Member States shall co-operate with the ESMA and with each other 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.

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 45 – paragraph 4

4. The competent authorities of the Member States shall immediately supply the ESMA and one another with the information required for the purposes of carrying out their duties under this Directive.

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 48 – paragraph 1

1. The ~~Committee of European Securities Regulators (CESR)~~ESMA shall establish a mediation mechanism.

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive
Article 48 – paragraph 2

Article 49 Committee 1. The Commission shall be assisted by the European Securities Committee established by Commission Decision 2001/528/EC of 6 June 2001 establishing the European Securities Committee. 2. Where reference is made to this paragraph, Articles 5 and 7 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission shall apply, having regard to the provisions of Article 8 thereof. The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months. 3. Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.deleted

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive – amending act
Article 51 a (new)

Article 51a Micro-finance AIF In order to develop a convenient regulatory framework for the asset class of microfinance investment funds, in compliance with the principle of proportionality, the Commission shall propose a specific regulatory framework for microfinance investment funds by, for example, including them in its amendment of Directive 2009/65/EC.

2010/02/18
Committee: ECON

Pervenche BERÈS

Proposal for a directive – amending act
Article 53 a (new)

Directive 2006/48/EC
Annex XI – paragraph 3 a (new)

Article 53a Amendment of Directive 2006/48/EC The following point is added in Annex XI to Directive 2006/48/EC: "3a. For the purposes of the determination to be made under Article 124(3), as the case may be, the competent authorities shall monitor specifically the exposures of a credit institution which constitute leverage for alternative investment funds in accordance with Directive 2010/.../EC [on Alternative Investment Fund Managers].".

2010/02/18
Committee: ECON