Activities of Klaus-Heiner LEHNE related to 2009/0064(COD)
Legal basis opinions (0)
Amendments (47)
Amendment 31 #
Proposal for a directive
Recital 5
Recital 5
(5) The scope of this Directive should be confined to the management of collective investment undertakings which raise capital from a number of investors with a view to investing it in accordance with a defined investment policy on the principle of risk-spreading for the benefit of those investors. It should cover managers of all such collective investment undertakings which are not required to be authorised as UCITS. This Directive should not apply to the management of pension funds or managers of non-pooled investments such as endowments, sovereign wealth funds or assets hoeld on own account by credit institutions, insurance or reinsurance undertakings. This Directive should neither apply to actively managed investments in the form of securities, such as certificates, managed futures, or index-linked bonds. It should, howeNor, for the purposes of this Directiver, cover managers of all collective investment undertakings which are not required to be authorised as UCITSshould an undertaking which principally acts as a holding entity for a group of subsidiary undertakings, and which owns strategic stakes in undertakings with a view to long-term holding rather than for the purpose of generating returns through divestment within a defined timeframe, be regarded as a collective investment undertaking. Investment firms authorised under Directive 2004/39/EC on Mmarkets in Ffinancial Iinstruments should not be required to obtain an authorisation under this Directive in order to provide investment services in respect of AIF. Investment firms can however only provide investment services in respect of AIF, if and to the extent the units or shares thereof can be marketed in accordance with this Directive.
Amendment 41 #
Proposal for a directive
Recital 17 a (new)
Recital 17 a (new)
(17a) It is necessary to ensure that portfolio companies are not subject to more stringent requirements than any other issuer or non-listed company receiving private investment other than the investment provided by an AIF. While transparency in corporate law is needed, any discrimination such as the imposition of an obligation to make specific disclosure of the portfolio company's strategy and development plan based on ownership of the company would affect fair competition and endanger the financing of innovation in Europe. It may also affect the rights of other shareholders. To that end, the Commission should conduct a review of all relevant company law legislation as well as of relevant financial sector directives at the latest by the date of entry into force of this Directive, and should make necessary changes in the form of a legislative proposal, including any appropriate amendments needed to the present Directive. The Commission's report and associated proposal should ensure a level playing-field between portfolio companies and other companies. In its report and proposal, the Commission should take into account the protection of shareholders' rights as well as the need for an international level playing-field and European competitiveness regarding the financing of innovation and developing technologies.
Amendment 52 #
Proposal for a directive
Article 2 – paragraph 1 – subparagraph 1 a (new)
Article 2 – paragraph 1 – subparagraph 1 a (new)
In cases where the law under which the AIF is organised requires the establishment of a board of directors or any other governing body and the governing body is responsible for the performance of the management functions in relation to the AIF, then the AIF shall be considered as the AIFM under this Directive.
Amendment 64 #
Proposal for a directive
Article 2 – paragraph 2 – point g c (new)
Article 2 – paragraph 2 – point g c (new)
(gc) AIFM in respect of any AIF of the closed-ended type whose securities are admitted to trading or the subject of an application for admission to trading on a regulated market established or operating in the Community.
Amendment 69 #
Proposal for a directive
Article 3 – point a
Article 3 – point a
(a) 'Alternative investment fund' or 'AIF' means any collective investment undertaking, including investment compartments thereof whose object is the collective investment in assets which raises capital from a number of investors with a view to investing it in accordance with a defined investment policy on the principle of risk- spreading for the benefit of those investors, including investment compartments of any such undertaking, and which does not require authorisation pursuant to Article 5 of Directive 2009/…/EC [the UCITS Directive];
Amendment 72 #
Proposal for a directive
Article 3 – point e
Article 3 – point e
(e) 'Marketing' means any general offering or placement of units or shares in an AIF to or with investors domiciled in the Community, regardless of at whose initiative the offer or placement takes place, at the initiative of the AIFM managing such AIF, to or with investors domiciled in the Community;
Amendment 74 #
Proposal for a directive
Article 3 – point o a (new)
Article 3 – point o a (new)
(oa) ‘Closed-ended AIF’ means an AIF the shares or units of which the holders are not entitled to have re-purchased or redeemed, directly or indirectly, out of the AIF’s assets.
Amendment 78 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
Member States shall ensure that no AIFM covered by this Directive provides management services to any AIF or markets shares or units thereof without prior authorisation. Entities which are neitherot authorised in accordance with this Directive nor, in case of AIFM not covshall not be entitled to market units or shares of AIF within the Community. However, such entities may themselves or through intermed by this Directive,iaries, including AIFM authorised in accordance with this Directive, market units or shares of AIF to investors in a Member State in accordance with the national law of athat Member State, shall not be allowed to provide management services to AIF or market units or shares thereof within the Community. . This Directive shall not operate to prevent or restrict persons from selling or otherwise disposing of units or shares which they hold in AIF on the capital market, and a person who holds units or shares in an AIF may himself or through any intermediary, including an AIFM authorised in accordance with this Directive, market such shares or units to investors in a Member State in accordance with the national law of that Member State, where such marketing is not at the initiative of the AIFM managing such AIF.
Amendment 79 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
Member States shall ensure that no AIFM covered by this Directive provides management services to any AIF or markets shares or units thereof without prior authorisation. Entities which are neither authorised in accordance with this Directive nor, in case of AIFM not covered by this Directive, in accordance with the national law of a Member State, shall not be allowed to provide management services to AIF or market units or shares thereof within the Communitywithin the Community. This Directive shall not operate to prevent or restrict persons from selling or otherwise disposing of units or shares which they hold in AIF on the capital market, and a person who holds units or shares in an AIF may himself or through any intermediary, including an AIFM authorised in accordance with this Directive, market such shares or units to investors in a Member State in accordance with the national law of that Member State, where such marketing is not at the initiative of the AIFM managing such AIF.
Amendment 85 #
Proposal for a directive
Article 7
Article 7
AIFM shall, before implementation, notify the competent authorities of the home Member State of any change regarding the information provided in their initial application that may substantially affect the conditions under which the authorisation has been granted, in particular changes of the investment strategy and policy of any AIF managed by it, of the AIF rules or instruments of incorporation and the identity of any further AIF the AIFM intends to manage. The competent authorities shall, within a month of receipt of that notification, either approve, or impose restrictions, or reject those changematerial changes to the conditions for initial authorisation or registration, in particular changes in the programme of activity of the AIFM or the investment strategy and policy of any AIF managed by it. The AIFM shall inform the competent authority of any change concerning the persons effectively conducting the business of the AIFM. The competent authorities shall, within a month of receipt of that notification, either approve, or impose restrictions, or reject those changes. The competent authorities shall not without good reason reject changes regarding the investment strategy and policy of an AIF or changes regarding rules or instruments of incorporation if these have been agreed upon by the investors.
Amendment 89 #
Proposal for a directive
Article 9 – paragraph 2 – subparagraph 1
Article 9 – paragraph 2 – subparagraph 1
The Commission shall adopt implementing measures specifying thebe empowered by delegation to adopt acts, in accordance with Article 290 of the Treaty on the Functioning of the European Union, in respect of criteria to be used by competent authorities to assess whether AIFM comply with their obligation under paragraph 1.
Amendment 91 #
Proposal for a directive
Article 9 – paragraph 2 – subparagraph 2
Article 9 – paragraph 2 – subparagraph 2
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)e delegation of power shall be valid for three years from the date of entry into force of this Directive and shall be extended on a request from the Commission for periods of three years unless the European Parliament or the Council objects within three months of the request. A delegated act adopted pursuant to this Article shall enter into force only if no objection has been expressed by the European Parliament or the Council within a period of three months.
Amendment 98 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
1. The AIFM shall ensure that the functions of risk management and portfolio management are separated and subject to separate reviewso far as it is appropriate and proportionate in view of the nature, scale and complexity of the AIFM and the AIF that it manages.
Amendment 106 #
Proposal for a directive
Article 12 – paragraph 3 a (new)
Article 12 – paragraph 3 a (new)
3a. Paragraphs 1 to 3 shall not apply to a closed-ended AIF.
Amendment 112 #
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 to establish the value of assets acquired by the AIF and the value of the shares and unppropriate and consistent procedures are established so that the proper valuation of the assets of the AIF can be carried out and the value of the shares or units of the AIF can be calculated and, where appropriate, published. The AIFM shall, where appropriate, ensure the functional independence of the valuation function and the portfolio management function, having regard to the nature, scale and complexitsy of the AIFeach AIF that it manages.
Amendment 113 #
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 to establish the value of assets acquired by the AIF and the value of the shares and units of the AIF.
Amendment 120 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. AIFM shall ensure that the valuator has appropriate and consistent procedures to value the assets of the AIF in accordance with existing applicable valuation standards and rules, in order to reflect the net asset value of the shares or units of the AIFWhen an external valuator is used, Article 18(1), points (c) and (d) and Article 18(2) shall apply.
Amendment 122 #
Proposal for a directive
Article 16 – paragraph 2 a (new)
Article 16 – paragraph 2 a (new)
2a. When an external valuator is not used, the competent authorities of the home Member State may require the AIFM to have its valuation procedures and/or valuations verified by an external valuator or, where appropriate, an auditor.
Amendment 128 #
Proposal for a directive
Article 17 – paragraph 1 – introductory wording
Article 17 – paragraph 1 – introductory wording
For each AIF it manages, other than AIF which are closed-ended and which have an investment policy of investing principally in financial instruments or other assets held for long-term investment and not for trading purposes, the AIFM shall ensure that a depositary is appointed to fulfil, where relevant, the following tasks:
Amendment 141 #
Proposal for a directive
Article 17 – paragraph 4
Article 17 – paragraph 4
4. Depositaries may delegate their tasks to o, apart from the functions of monitoring and overseeing their sub-depositaries. A depositary shall not delegate its functions to the extent that it becomes a 'letter-box' entity.
Amendment 142 #
Proposal for a directive
Article 17 – paragraph 5 – subparagraph 1
Article 17 – paragraph 5 – subparagraph 1
The depositary shall be liable to the AIFM and the investors of the AIF for any losses suffered by them as a result of its unjustifiable failure to perform its obligations pursuant to this DirectiveArticle or its improper performance of them.
Amendment 154 #
Proposal for a directive
Article 17 – paragraph 5 a (new)
Article 17 – paragraph 5 a (new)
5a. Any appointment of a depositary shall be subject to approval from the competent authority of the home Member State of the AIFM. The competent authority may permit the appointment of more than one depositary where it is satisfied that this will not interfere with the proper performance of all the obligations of the depositary set out in this Directive.
Amendment 159 #
Proposal for a directive
Article 19 – paragraph 1
Article 19 – paragraph 1
1. An AIFM shall, for each of the AIF it manages, 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 or no later than six months following the end of the financial year in the case of AIF which invest in other AIF and which require information from the annual reports or interim reports of those other AIF in order to prepare the annual report.
Amendment 160 #
Proposal for a directive
Article 19 – paragraph 1
Article 19 – paragraph 1
1. An AIFM shall, for each of the AIF it manages, 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 or, in circumstances where information is required from third parties (such as the audit of any underlying investments of the AIF), no later than six months following the end of the financial year.
Amendment 165 #
Proposal for a directive
Article 19 – paragraph 2 – point c a (new)
Article 19 – paragraph 2 – point c a (new)
(ca) the aggregated amount of remuneration, split into fixed and variable remuneration, paid by the AIFM and, where relevant, by the AIF. The requirement referred to in point (ca) does not apply to capital gains made by employees or others from their investments in or alongside AIF managed by the AIFM.
Amendment 167 #
Proposal for a directive
Article 19 – paragraph 3
Article 19 – paragraph 3
3. The accounting information given in the annual report shall be prepared in accordance with the accounting standards or principles required by the applicable AIF rules or instruments of incorporation or formation and audited by one or more persons empowered by law to audit accounts in accordance with Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on 1 OJ L 157, 9.6.2006, p. 87. 2 OJ L 157, 9.6.2006, p. 87. statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC. The auditor's report, including any qualifications, shall be reproduced in full in the annual report.
Amendment 168 #
Proposal for a directive
Article 19 – paragraph 4 – subparagraph 1
Article 19 – paragraph 4 – subparagraph 1
The Commission shall adopt implementing measures further specifying the content and format of the annual report. These measures shall be appropriate and proportionate and adapted to the type of AIFM to which they apply and to the AIF to which the report relates, taking account of the different size, resources, complexity, nature, investments, investment strategies and techniques, structures and investors of different types of AIFM and the AIF which they manage.
Amendment 171 #
Proposal for a directive
Article 19 a (new)
Article 19 a (new)
Amendment 186 #
Proposal for a directive
Article 20 – paragraph 2 – introductory wording
Article 20 – paragraph 2 – introductory wording
2. For each AIF an AIFM manages, it which permits redemptions at the option of investors, the AIFM shall periodically disclose to investors:
Amendment 201 #
Proposal for a directive
Article 21 – paragraph 2 – subparagraph 1 a (new)
Article 21 – paragraph 2 – subparagraph 1 a (new)
An AIFM shall only be required to report the information referred to in points (a), (b) and (c) in relation to AIF which permits redemptions at the option of investors.
Amendment 210 #
Proposal for a directive
Article 21 a (new)
Article 21 a (new)
Article 21a Confidentiality Nothing in this Directive shall prevent an AIFM from notifying its competent authority that certain information provided by it pursuant to this Directive is a trade secret or confidential information, without prejudice to the ability of the competent authority to share information with other competent authorities pursuant to this Directive.
Amendment 227 #
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 30 % or more of the voting rights ofa controlling influence over an issuer or ofver a non-listed company domiciled in the Community, as appropriate;
Amendment 232 #
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 30 % or more of the voting rights ofa controlling influence over the issuer or the non-listed company, as appropriate.
Amendment 236 #
Proposal for a directive
Article 26 a (new)
Article 26 a (new)
Amendment 242 #
Proposal for a directive
Article 27 – paragraph 1 – subparagraph 1
Article 27 – paragraph 1 – subparagraph 1
1. Member States shall ensure that when an AIFM is in a position to exercise 30 % or more of the voting rights ofa controlling influence over a non-listed company, such AIFM notifies to the non- listed company and all other share-holders the information provided for in paragraph 2.
Amendment 244 #
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 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 rightsa controlling influence.
Amendment 247 #
Proposal for a directive
Article 27 – paragraph 2 – point b
Article 27 – paragraph 2 – point b
(b) the conditions under which the 30% thresholdcontrolling influence has been reached, including information about the identity of the different shareholders involved, any natural person or legal entity entitled to exercise voting rights on their behalf and, if applicable, the chain of undertakings through which voting rights are effectively held;
Amendment 249 #
Proposal for a directive
Article 27 – paragraph 2 – point c
Article 27 – paragraph 2 – point c
(c) the date on which the thresholdcontrolling influence was reached or exceeded.
Amendment 260 #
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 AIFM acquires 30 % or more of the voting rights ofa controlling influence over an issuer or a non-listed company, that 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 267 #
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 AIFM which either individually or in agreement with other AIFM have reached the 30 % thresholda controlling influence;
Amendment 306 #
Proposal for a directive
Article 30
Article 30
Where, following an acquisition of 30 % or more of the voting rights ofa controlling influence over an issuer, the shares of that issuer are no longer admitted to trading on a regulated market, it shall nevertheless continue to comply with its obligations under Directive 2004/109/EC for twoone years from the date of withdrawal from the regulated market.
Amendment 308 #
Proposal for a directive
Article 31 – paragraph 4 a (new)
Article 31 – paragraph 4 a (new)
Amendment 313 #
Proposal for a directive
Article 35 – paragraph 1 – subparagraph 1
Article 35 – paragraph 1 – subparagraph 1
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 third country has signed an agreement with this Member State 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 mattersis included on the OECD list of jurisdictions which have substantially implemented the internationally agreed tax standard.
Amendment 325 #
Proposal for a directive
Article 39 – paragraph 1 – point b
Article 39 – paragraph 1 – point b
Amendment 327 #
Proposal for a directive
Article 39 – paragraph 1 – point e
Article 39 – paragraph 1 – point e
Amendment 332 #
Proposal for a directive
Article 39 – paragraph 2 – subparagraph 1 – point b
Article 39 – paragraph 2 – subparagraph 1 – point b
Amendment 335 #
Proposal for a directive
Article 39 – paragraph 3 – point b
Article 39 – paragraph 3 – point b