34 Amendments of Corien WORTMANN-KOOL related to 2009/0064(COD)
Amendment 170 #
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 UCITSis 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, to be regarded as a collective investment undertaking. Investment firms authorised under Directive 2004/39/EC on Markets in Financial Instruments2 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 176 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
Amendment 274 #
Proposal for a directive
Recital 19
Recital 19
(19) AIFM should alsony investor established in the Union should be ablfree to market AIF domiciledinvest, on its own initiative, in a third countries to professional investors both in the home Member Statey fund in accordance with the existing national private placement regimes. However, in such a case, transparency of the AIFMfund and in other Member States. That right should be subject to notification procedures and the existence of a tax agreement with the third country concerned which ensures an efficient exchange of informationeffective monitoring of potential systemic risk should be ensured. To that end, if the AIFM is established in a third country, the competent authority of the Member State in which the relevant AIF is marketed should have an agreement for cooperation and exchange of information concerning systemic risk with the taxcompetent authoritiesy in the domicile of the Community investors. Given the fact that such AIF and the third country in which they are domiciled have to meet additional requirements, some of which first have to be laid down in implementing measures, the rights grantedat third country. In addition, to complete the internal market, AIF established in the Union and managed by an AIFM established in the Union should benefit from a European marketing passport under theis Directive to market AIF domiciled in third countries to professional investors should only become effective three years after the transposition period. In the meantime Member States may allow or continue to allow AIFM to market AIF domiciled in third countries to professional. As UCITS benefit from the UCITS brand, so also should an AIF established in the Union benefit from such a European brand, offering the investors the standards as set by this Directive, reinforced by the requirement that the depository and the AIF should be established in the same Member State. Those provisions should not be circumvented though master-feeder structures. Therefore, when a feeder AIF investors oin their territory subject to national law. During this period of three years, AIFM can however not market such AIF to professional investors in other Member States on the basis of rights granted under this Directivea master fund which would not benefit from the European marketing passport under this Directive, that feeder AIF should not benefit from the European passport.
Amendment 331 #
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 for the purposes of this directive.
Amendment 338 #
Proposal for a directive
Article 2 – paragraph 1c (new)
Article 2 – paragraph 1c (new)
1c. This Directive shall not prevent or restrict investors from disposing of units or shares which they hold in AIF on the capital market. Such investors, or their intermediaries, may offer or place such shares or units to or with investors in a Member State in accordance with the national law of that Member State. However, where such offering or placement is at the initiative of the AIFM managing such AIF, such offering or placement shall be treated as marketing by such AIFM for the purposes of this Directive.
Amendment 348 #
Proposal for a directive
Article 2 – paragraph 2 – point a
Article 2 – paragraph 2 – point a
(a) AIFM which either directly or indirectly through a company with which the AIFM is linked by common management or control, or by a substantive direct or indirect holding, manage portfolios of AIF whose assets under management, including any assets acquired through use of leverage, in total do not exceed a threshold of EUR 100 million Euro or 500 millions eor EUR 1 billion when the portfolio of AIF consists of AIF that are not leveraged and have no redemption rights exercisable during a period of 5 years following the date of constitution of each AIF. For the purpos when thees of calculating such thresholds: (i) portfolios of AIF consists ofmanaged by the AIFM or the management of which is delegated by the AIFM shall be included, but portfolios the AIFM is managing under delegation shall be excluded; (ii) in relation to AIF that are not leveraged and withhave no redemption rights exercisable during a period of 5 years following the date of constitution of each AIF;he AIF, the thresholds shall be applied to the total of the investors’ commitments to the AIF rather than to the amount of assets under management.
Amendment 410 #
Proposal for a directive
Article 2 – paragraph 2 b (new)
Article 2 – paragraph 2 b (new)
2b. This Directive shall not apply to AIFM insofar as they manage one or more AIF whose only investors are (i) the AIFM themselves, (ii) the parent undertakings or the subsidiaries of the AIFM, (iii) other subsidiaries of those parent undertakings or (iv) pension funds connected to the institutions mentioned under (i), (ii) and (iii) and to which those institutions contribute pension premium payments, provided that none of those investors itself is an AIF.
Amendment 440 #
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 authoriszation pursuant to Article 5 of Directive 2009/…65/EC [the UCITS Directive];
Amendment 463 #
Proposal for a directive
Article 3 – point e
Article 3 – point e
(e) ‘Marketing’ means any generaldirect or indirect offering or placement of units or shares in an AIF to or with investors domiciled in the Community, regardless of at whos, at the initiative of the AIFM or on behalf of the AIFM, of shares or units in an AIF to or with investors domiciled in the Union; The Commission shall adopt delegated acts in accordance with Articles 49a, 49b and 49c setting out principles clarifying circumstances in which marketing as defined in point (e) shall be deemed to be at the initiative of the offer or placement takes place;AIFM, taking into account the means of communication to investors and the form and content of available information on the AIF.
Amendment 622 #
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 is appropriate and proportionate in view of the nature, scale and complexity of the AIFM and the AIF it manages.
Amendment 687 #
Proposal for a directive
Article 14 – paragraph 4 a (new)
Article 14 – paragraph 4 a (new)
4a. Paragraphs 1 to 4 shall not apply to AIFM only managing AIF which: (a) are not leveraged; (b) have no redemption rights exercisable during a period of five years following the date of constitution of each AIF; and (c) in accordance with their investment strategy and objectives, make investments and divestments infrequently. The Member States shall require that the initial capital of an AIFM which fulfils the conditions set out in the first subparagraph is at least EUR 50 000.
Amendment 743 #
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 AIFThe valuation procedures used shall ensure that the assets and shares or units are valued at least once a year. If the AIF is of the open-ended type, such valuations shall also be carried out at a frequency which is appropriate given the specificities of the underlying assets held by the fund and its issuance and redemption policy. Where an external valuer is used, the AIFM must be able to demonstrate that such third party is qualified and capable of undertaking the functions in question, that it was selected with due care and that the AIFM is in a position to monitor effectively at any time the activity of the external valuer. The use of an external valuer shall not prevent the effectiveness of supervision by the AIFM, and, in particular, it must not prevent the AIFM from acting, or the AIF from being managed, in the best interests of its investors. Where an external valuer 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 valuer or, where appropriate, an auditor. The home Member State may also require all valuation, whether carried out by the AIFM or by an external valuer, to be subject to oversight by the depositary.
Amendment 773 #
Proposal for a directive
Article 16 – paragraph 4 – subparagraph 1
Article 16 – paragraph 4 – subparagraph 1
4. The Commission shall adopt implementing measures further specifying the criteria under which a valuator can be considered independent in the meaning ofdelegated acts in accordance with Articles 49a, 49b and 49c further specifying the criteria concerning the procedures for the proper valuation of the assets and shares or units of AIF and the appropriate level of functional independence of the valuation function. Such acts shall also specify the appropriate frequency of valuation to be carried out by open-ended funds given the underlying assets held by the fund and its issuance and redemption policy. The Commission shall also adopt delegated acts in accordance with Articles 49a, 49b and 49c further specifying the criteria where there is a need for external verification as referred to in paragraph 12.
Amendment 789 #
Proposal for a directive
Article 17 – paragraph 1 – introductory part
Article 17 – paragraph 1 – introductory part
1. For each AIF it manages, (other than for AIF which are closed-ended and which have an investment policy of investing mainly 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 864 #
Proposal for a directive
Article 17 – paragraph 3
Article 17 – paragraph 3
3. The depositary shall be either: (a) a credit institution having its registered office in the Community and be authorised in accordance with Directive 2006/48/EC of the European Parliament and Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast).;
Amendment 875 #
Proposal for a directive
Article 17 – paragraph 3 – point a a (new)
Article 17 – paragraph 3 – point a a (new)
(aa) an investment firm authorised in accordance with Directive 2004/39/EC to also provide the ancillary service of safe- keeping and administration of financial instruments for the account of clients in accordance with Section B(1) of Annex I to that Directive, having its registered office in the Union;
Amendment 883 #
Proposal for a directive
Article 17 – paragraph 3 – point a e (new)
Article 17 – paragraph 3 – point a e (new)
(ae) a legal person which is authorised by the competent authorities of the home Member State of the AIFM to act as a depositary, which is subject to prudential regulation and ongoing supervision and which can provide sufficient financial and professional guarantees to be able to effectively perform the relevant depositary functions and meet the commitments inherent to those functions.
Amendment 997 #
Proposal for a directive
Article 18 – paragraph 1 – subparagraph 2 – point b
Article 18 – paragraph 1 – subparagraph 2 – point b
(b) where the delegation concerns the portfolio management or the risk management, the third party must also be authorised as an AIFM to manage an AIF of the same typemandate shall be given only to undertakings which are authorised or registered for the purpose of asset management and subject to supervision;
Amendment 1028 #
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 the case of AIF which invest in other AIF, no later than six months following the end of the financial year.
Amendment 1110 #
Proposal for a directive
Article 20 – paragraph 2 – introductory part
Article 20 – paragraph 2 – introductory part
2. For each AIF that an AIFM manages, it which permits redemptions at the option of investors, the AIFM shall periodically disclose to investors:
Amendment 1124 #
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 AIFM and the frequency of the disclosure referred to in paragraph 2.These measureacts shall be adapted to the type of AIFM to which they apply and be proportionate, taking account, inter alia, of the different size, resources, complexity, nature, investments, investment strategies and techniques, structures and investors of different types of AIFM.
Amendment 1143 #
Proposal for a directive
Article 21 – paragraph 2 – introductory part
Article 21 – paragraph 2 – introductory part
2. An AIFM shall only be required to report the information referred to in points (a), (b) and (c) in relation to AIF which permit redemptions at the option of investors. For each AIF an AIFM manages, it shall periodically report the following to the competent authorities of its home Member State:
Amendment 1251 #
Proposal for a directive
Article 25 – paragraph 3
Article 25 – paragraph 3
Amendment 1260 #
Proposal for a directive
Article 25 – paragraph 3 a (new)
Article 25 – paragraph 3 a (new)
3a. The competent authorities shall assess the risks that the use of leverage by an AIFM with respect to the AIF it manages could entail, and when it is deemed necessary in order to ensure the stability and integrity of the financial system, the competent authorities of the home Member State of the AIFM shall impose limits to the level of leverage that an AIFM is permitted to employ. The competent authorities of the home Member State of the AIFM shall duly inform the competent authorities of the home Member State of the AIF, the ESMA and the ESRB of actions taken in that respect, in accordance with Article 46.
Amendment 1265 #
Proposal for a directive
Article 25 – paragraph 3 b (new)
Article 25 – paragraph 3 b (new)
3b. The Commission shall adopt delegated acts in accordance with Articles 49a, 49b and 49c setting out principles clarifying the circumstances in which competent authorities should implement the provisions in paragraph 3a, taking into account different strategies of AIF, different market conditions in which AIF operate and possible pro-cyclical effects following from exercising the provisions.
Amendment 1269 #
Proposal for a directive
Article 25 – paragraph 3 c (new)
Article 25 – paragraph 3 c (new)
3c. In order to ensure uniform application of this Article, the ESMA may develop draft technical standards to determine the conditions of application of the provisions in paragraph 3a, taking into account the delegated acts adopted by the Commission in accordance with this paragraph. The Commission may adopt the draft technical standards referred to in the first subparagraph in accordance with the procedure laid down in Article 7 of Regulation …/…. [ESMA].
Amendment 1274 #
Proposal for a directive
Article 25 – paragraph 4
Article 25 – paragraph 4
Amendment 1455 #
Proposal for a directive
Article 31 – paragraph 4a (new)
Article 31 – paragraph 4a (new)
4a. Subject to national law, an AIFM home Member State may permit AIFM to market on its territory AIF domiciled outside the Union. Where an AIF permits redemptions at the option of investors, such a possibility requires that the AIFM be domiciled in the Union or that a cooperation agreement and an efficient exchange of all relevant information for monitoring systemic risks exists between: (a) the competent authorities of the Member State where the AIF is marketed and the third country competent authorities; (b) the AIFM and its supervisor; (c) the AIFM's supervisor and the ESMA.
Amendment 1470 #
Proposal for a directive
Article 32 – paragraph 1 a (new)
Article 32 – paragraph 1 a (new)
1a. Member States shall not allow the marketing of an AIF to retail investors in their territory if such AIF invests more than 30 % in other AIFs which do not benefit from the European passport, unless such AIF is of the closed-ended type and has securities admitted to trading or the subject of an application for admission to trading on a regulated market established and operating in the Union.
Amendment 1509 #
Proposal for a directive
Article 35 – paragraph 1
Article 35 – paragraph 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 signis included aon 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 mattersthe OECD list of jurisdictions which have substantially implemented the internationally agreed tax standard.
Amendment 1514 #
Proposal for a directive
Article 35a (new)
Article 35a (new)
Article 35a Third-country AIF Member States shall ensure that an authorised AIFM established in the EU may only manage AIF established in a third country that market units or shares to professional investors in that Member State under the conditions of this Directive and according to the procedures laid down in Article 31, provided that appropriate cooperation arrangements are in place between the competent authorities of that Member State and the competent authorities of the third country which ensure an efficient exchange of information.
Amendment 1517 #
Proposal for a directive
Article 35 a (new)
Article 35 a (new)
Article 35a Conditions for investing in AIF domiciled in third countries Professional investors domiciled in a Member State may invest in an AIF domiciled in a third country. Where such AIF permits redemptions at the option of investors, the AIF must either be managed by an AIFM having its registered office in a Member State and authorized in accordance with Article 4, or the third country where the AIF has its registered office must have signed an information-sharing cooperation agreement in line with relevant international standards.
Amendment 1647 #
Proposal for a directive – amending act
Article 51 – paragraph 1 a (new)
Article 51 – paragraph 1 a (new)
,Insofar as AIFM manage AIF of the closed-ended type or the open-end type with an active lock-up on ... *, which do not make any capital commitments after ...**, they may continue to manage such AIF without authorisation under this Directive until ...***. * OJ please insert date: date of entry into force of this Directive. ** OJ please insert date: four years after the date of entry into force of this Directive. *** OJ please insert date: 20 years after the date of entry into force of this Directive.
Amendment 1649 #
Proposal for a directive – amending act
Article 51 – paragraph 1 b (new)
Article 51 – paragraph 1 b (new)
Professional investors established in the Union, which have invested, on ...*, in an AIF established in a third country may continue their investment in such AIF as the investment is deemed to have taken place at the initiative of the professional investor. * OJ please insert date of entry into force of this Directive.