Activities of Wolf KLINZ related to 2008/0153(COD)
Plenary speeches (2)
Undertakings for collective investment in transferable securities (UCITS) (recast) (debate)
Undertakings for collective investment in transferable securities (UCITS) (recast) (debate)
Reports (1)
REPORT Report on the proposal for a directive of the European Parliament and of the Council on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (recast) PDF (789 KB) DOC (1 MB)
Amendments (217)
Amendment 93 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) Where a provision of this Directive requires a UCITS to take action, the obligation should be understood to refer to the management company where the UCITS is constituted as a common fund and where such fund has no legal personality and cannot act by itself.
Amendment 94 #
Proposal for a directive
Recital 9
Recital 9
(9) By virtue of the principle of home Member State supervision, management companies authorised in their home Member States should be permitted to carry on the services for which they have received authorisation throughout the Community by establishing branches or under the freedom to provide services. The approval of the fund rules of common funds/unit trusts falls within the competence of the management company's home Member State.
Amendment 97 #
Proposal for a directive
Recital 10
Recital 10
(10) With regard to collective portfolio management (management of unit trusts/common funds and investment companies), the authorisation granted to a management company authorised in its home Member State should permit the company to carry on in host Member States the following activities: to distribute the units of the harmonised unit trusts/common funds managed by the company in its home Member State; to distribute the shares of the harmonised investment companies, managed by such a company; to perform all the other functions and tasks included in the activity of collective portfolio management; to manage the assets of investment companies incorporated in Member States other than its home Member State; to perform, on the basis of mandates, on behalf of management companies incorporated in Member States other than its home Member State, the functions included in the activity of collective portfolio management.
Amendment 98 #
Proposal for a directive
Recital 11
Recital 11
(11) The principle of home Member State supervision requires that the competent authorities should not grant or should withdraw authorisation where factors, such as the content of programmes of operations, the geographical distribution or the activities actually carried on indicate clearly that a management company has opted for the legal system of one Member State for the purpose of evading the stricter standards in force in another Member State within the territory of which it intends to carry on or does carry on the greater part of its activities. For the purpose of this Directive, a management company should be authorised in the Member State in which it has its registered office. In accordance with the principle of the home country control, only the Member State in which the management company has its registered office can be considered competent to approve the fund rules of unit trusts/common funds set up by such a company and the choice of the depositary. In order to prevent supervisory arbitrage and to promote confidence in the effectiveness of supervision by the home Member State authorities, a requirement for authorisation of a UCITS should be that it should not be prevented in any legal way from being marketed in its home Member State. This does not affect the free decision, once the UCITS has been authorised, to choose the Member State(s) where the units of the UCITS are to be marketed in accordance with this Directivsupervision, only the competent authorities of the management company’s home Member State can be considered competent to supervise the organisation of the management company, which should be subject to the law of the management company’s home Member State.
Amendment 99 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
Amendment 100 #
Proposal for a directive
Recital 11b (new)
Recital 11b (new)
(11b) The competent authorities of the UCITS home Member State should be competent to supervise compliance with the rules regarding the constitution and functioning of the UCITS, which should be subject to the law of the UCITS home Member State. To this effect, the competent authorities of the UCITS home Member State should be able to get information directly from the management company. To remedy any breach of the rules under their responsibility, the competent authorities of the UCITS home Member State should be able to rely on the cooperation of the competent authorities of the management company’s home Member State and, if necessary, they should be able to take action directly against the management company.
Amendment 101 #
Proposal for a directive
Recital 11c (new)
Recital 11c (new)
(11c) In order to prevent supervisory arbitrage and to promote confidence in the effectiveness of supervision by the home Member State authorities, a requirement for authorisation of a UCITS should be that it should not be prevented in any legal way from being marketed in its home Member State. This does not affect the free decision, once the UCITS has been authorised, to choose the Member State(s) where the units of the UCITS are to be marketed in accordance with this Directive.
Amendment 102 #
Proposal for a directive
Recital 11d (new)
Recital 11d (new)
(11d) Appropriate procedures and arrangements to deal with investor complaints, including through appropriate provisions that are reflected in distribution arrangements or through providing an address in the UCITS home Member State, which need not be an address of the management company itself, should be adopted by the management company.
Amendment 103 #
Proposal for a directive
Recital 18
Recital 18
(18) Despite the need for consolidation between UCITS, mergers of UCITS encounter many legislative and administrative difficulties in the Community. It is therefore necessary, in order to improve the functioning of the Internal Market, to lay down Community provisions facilitating mergers between UCITS (and investment compartments thereof). Although some Member States havemay authorised only contractual funds, cross border mergers between all types of funds (contractual, corporate and unit trusts) should be allowed and recognised by the laws of each Member State. This Directive covers those merger techniques which are most commonly used in thdoes not require Member Sstates. It does not prevent UCITS from using other techniques on a domestic or cross-border basis. These will however remain subject to the relevant provisions of national law to introduce new legal forms of UCITS into their national regulation.
Amendment 105 #
Proposal for a directive
Recital 18 a (new)
Recital 18 a (new)
(18a) This Directive covers those merger techniques which are most commonly used in Member States. It does not imply that all Member States have to introduce all three techniques into their national laws but each Member State should recognize a transfer of assets resulting from these merger techniques. It should not prevent a UCITS from using other techniques on a purely domestic basis, in situations where none of the UCITS concerned by the merger has been notified for cross border marketing of its units. Those mergers should remain subject to the relevant provisions of national law. Quorum rules should not discriminate between national and cross border mergers, nor should they be more stringent than laid down for mergers of corporate entities.
Amendment 106 #
Proposal for a directive
Recital 19
Recital 19
(19) In order to safeguard investors' interests, Member States should require proposed mergers between UCITS either within their jurisdiction or on a cross- border basis to be subject to authorisation by their competent authorities. For cross- border mergers, the competent authorities of the home Member State of the UCITS that will cease to exist (the merging UCITS) should approve the merger so as to ensure that the interests of the unit- holders who effectively change funds are duly protected. If the merger involves more than one merging UCITS and such UCITS are domiciled in different Member States, the competent authorities of each merging UCITS will need to approve the merger, in close cooperation with each other. Since the interests of the unit-holders of the UCITS which continues to exist after the merger (, including through appropriate information sharing. Since the interests of the unit-holders of the receiving UCITS) also need to be adequately safeguarded, they should be taken into account by the competent authorities of the mergreceiving UCITS' home Member State when approving a cross- border merger. Furthermore, unit-holders of both the merging UCITS and the receiving UCITS should have the right to request the repurchase or redemption of their units, without additional charge, i.e. being subject only to the fees to be retained by the respective funds to cover disinvestment costs in all situations, as laid down in the respective prospectuses; or, where possible, to convert them into units in another UCITS with similar investment policies and managed by the same management company or by another company linked to it.
Amendment 107 #
Proposal for a directive
Recital 20
Recital 20
(20) It is necessary to ensure additional tThird-party control of mergers should also be ensured. The depositaries of each of the UCITS involved in the merger should verify the conformity of the common draft terms of the merger with the relevant provisions of this Directive and of the UCITS fund rules. AEither a depositary or an independent auditor should draw-up a report on behalf of all the UCITS involved in the merger validating the valuation methods of the assets and liabilities of such UCITS and the calculation method of the exchange ratio as set forth by the management and/or administrative body of such UCITS in the common draft terms of merger. In order to limit costs connected with cross-border mergers, it should be possible to draw up a single report for all UCITS involved and the statutory auditor of the merging UCITS and/or the receiving UCITS should be enabled to do so. For investor protection reasons, unit-holders should be offered the possibility to obtain a copy of such report free of charge.
Amendment 108 #
Proposal for a directive
Recital 21
Recital 21
(21) It is particularly important that the unit-holders are adequately informed about the proposed merger and that their rights are sufficiently protected. Although unit- holders of the merging UCITS are most concerned, the interests of the unit-holders of the receiving UCITS should also be safeguarded in such situations where the proposed merger could have a substantial impact on their investment.
Amendment 112 #
Proposal for a directive
Recital 39
Recital 39
(39) In order to facilitate the effective operation of the Internal Market and to ensure the same level of investor protection throughout the Community, both master- feeder-structures where the master and the feeder are established in the same Member State and where they are established in different Member States should be allowed. In order to allow investors to better understand master-feeder-structures and regulators to supervise them more easily, notably in a cross-border context, no feeder UCITS should be able to invest into more than one master. In order to ensure the same level of investor protection throughout the Community the master should be itself an authorised UCITS. In order to avoid undue administrative burden, provisions on notification of cross border marketing should not apply if a master UCITS does not raise capital from the public in a Member State other than that in which it is established, but only has one or more feeder UCITS in that other Member State.
Amendment 113 #
Proposal for a directive
Recital 40
Recital 40
(40) In order to protect the feeder UCITS' investors, the feeder UCITS' investment into the master UCITS should be subject to prior approval of the competent authorities of the feeder UCITS' home Member State. Only the initial investment into the master UCITS by which the feeder UCITS exceeds the limit applicable for investing into another UCITS should require approval. In order to facilitate the effective operation of the internal market and to ensure the same level of investor protection throughout the Community, the conditions which have to be met and the documents and information which have to be provided for approving the feeder UCITS' investment into the master UCITS should be exhaustive.
Amendment 114 #
Proposal for a directive
Recital 41
Recital 41
(41) In order to allow the feeder UCITS to act in the best interests of its unit-holders and notably place it in a position to obtain from the master UCITS all information and documents necessary to perform its obligations, the feeder UCITS and the master UCITS should enter into a binding and enforceable agreement. In a similar way theHowever, if both are managed by the same management company, it should be sufficient that the latter set up internal conduct of business rules. An information- sharing agreement between the depositaries or, respectively, the auditors of the feeder UCITS and the master UCITS should ensure the flow of information and documents that is needed for the feeder UCITS' depositary or auditor to fulfil its duties. This Directive should ensure that, when complying with these requirements, the depositaries or the auditors would not be in breach of any restriction on disclosure of information or of data protection.
Amendment 115 #
Proposal for a directive
Recital 42
Recital 42
(42) In order to ensure a high level of protection of the interests of the feeder UCITS' investors, the prospectus, the key investor information as referred to in Article 73, as well as all marketing communications should be adapted to the specificities of master-feeder-structures. The investment of the feeder UCITS into the master UCITS should not affect the ability of the feeder UCITS to itself repurchase or redeem units at the request of its unit-holders and to act in the best interests of its unit-holders.
Amendment 116 #
Proposal for a directive
Recital 44
Recital 44
(44) The conversion rules should enable an existing UCITS to convert into a feeder UCITS. At the same time they should sufficiently protect unit-holders. As such a conversion is a fundamental change of the investment policy, the converting feeder UCITS should be required to provide its unit-holders with sufficient information asin order to enable them to decide whether to maintain their investment or not. Competent authorities should not require the feeder UCITS to provide more or other information than those specified.
Amendment 117 #
Proposal for a directive
Recital 46
Recital 46
(46) Key investor information should be provided to investors, at a pre-contractual stageas a specific document to investors free of charge, in good time before the subscription of the UCITS, in order to help them to reach informed investment decisions. It should contain only the essential elements for making such decisions. The nature of the information to be found in the key investor information should be fully harmonised to the highest extent so as to ensure adequate investor protection and comparability. Key investor information should be presented in a short format. A single document of limited length presenting the information in a specified order is the most appropriate way to achieve the clarity and simplicity of presentation that is required by retail investors, and should allow for useful comparisons.
Amendment 119 #
Proposal for a directive
Recital 47
Recital 47
(47) Key investor information should be produced for all UCITS. Management companies or, where applicable, investment companies should deliverprovide the key investor information to the relevant entities, depending on the distribution method used (direct sales or intermediated sales). Regulation on how the key investor information is used by intermediaries at the point of sale is to be left to the relevant legislation covering such intermediaries, such as Directive 2004/39/ECIntermediaries should provide key investor information to clients and potential clients.
Amendment 120 #
Proposal for a directive
Recital 47 a (new)
Recital 47 a (new)
(47a) The right for UCITS to sell their units in other Member States should be subject to their taking the necessary measures to ensure that facilities are available in the host Member State for making payments to unit-holders, re- purchasing or redeeming units and making available the information which UCITS are obliged to provide. However, UCITS should not be obliged by the law of the host Member State to have a paying agent in that Member State in order to fulfil their duties.
Amendment 121 #
Proposal for a directive
Recital 49
Recital 49
(49) In order to facilitate cross-border marketing of units of UCITS, control of compliance of arrangements made for marketing of units of UCITS with laws regulations and administrative procedures applicable in the UCITS host Member State, should be performed on a on-going basis after the UCITS has started marketing its units in that Member State. This control can cover, in particular,after the UCITS has accessed the market of that Member State. This control can cover the adequacy of arrangements made for marketing, in particular the adequacy of distribution arrangements and the obligation for marketing communications to be presented in a fair, clear and not- misleading way. This Directive should not prevent competent authorities of the host Member State from checking marketing communications (which does not include key investor information, prospectus and annual and half-yearly reports) according to national law before the UCITS can use them, but this control should not be discriminatory and should not prevent this UCITS from accessing the market.
Amendment 122 #
Proposal for a directive
Recital 50
Recital 50
(50) For the purpose of enhancing legal certainty there is a need to ensure that a UCITS which markets its units on a cross- border basis has an easy access, in the form of an electronic publication and in a language customary in the sphere of international finance, to complete information on the laws, regulations and administrative provisions applicable in the UCITS host Member State and related tothat specifically relate to the arrangements made for the marketing of UCITS.
Amendment 123 #
Proposal for a directive
Recital 51
Recital 51
(51) To facilitate cross-border marketing of units of UCITSaccess of UCITS to the markets of Member States, a UCITS should be required to translate only the key investor information into the official language or one of the official languages of a UCITS host Member State or a language approved by its competent authority. Key investor information should specify the language(s) in which other obligatory disclosure documents and additional information are available.
Amendment 124 #
Proposal for a directive
Recital 52
Recital 52
(52) It is necessary to enhance convergence of powers at the disposal of competent authorities so as to bring about an equal enforcement of the Directive throughout the Member States. A common minimum set of powers, consistent with those conferred upon competent authorities by other Community financial services legislation should guarantee supervisory effectiveness. In addition, Member States should lay down rules on penalties, including criminal, civil and administrative penalties, and administrative measures, applicable to infringements of this Directive and should take the measures necessary to ensure that they are implemented.
Amendment 125 #
Proposal for a directive
Recital 53 a (new)
Recital 53 a (new)
(53a) Member States should take the necessary administrative and organisational measures to enable the cooperation between national authorities and competent authorities of other Member States, including through bilateral or multilateral agreements between those authorities, so that they can fully carry out their duties in accordance with this Directive.
Amendment 126 #
Proposal for a directive
Recital 55
Recital 55
(55) The principle of home Member State supervision requires that the competent authorities should not grant or should withdraw authorisation where factors such as the content of programmes of operations, the geographical distribution or the activities actually carried on indicate clearly that a UCITS or an undertaking contributing towards its business activity has opted for the legal system of one Member State for the purpose of evading the stricter standards in force in another Member State within whose territory it carries on or intends to carry on the greater part of its activities. A UCITS or an undertaking contributing towards its business activity which is a legal person must be authorised in the Member State in which it has its registered office. A UCITS or an undertaking contributing towards its business activity which is not a legal person must have its head office in the Member State in which it has been authorised. In addition, Member States must require that a UCITS' head office or a head office of an undertaking contributing towards its business activity always be established in its home Member State and that it actually operates there.
Amendment 127 #
Proposal for a directive
Recital 65
Recital 65
(65) The Commission should be empowered to adopt the measures necessary for the implementation of this Directive. Concerning mergers, those measures are designed to specify detailed content and way to provide information to unit-holders. Concerning master-feeder structures, those measures are designed to specify the particulars to be included in the agreement between master and feeder, their depositories and their auditors, the definition of measures appropriate to prevent late trading risks, the impact of the merger of the master on the authorisation of the feeder, the type of irregularities originating from the master to be reported to the feeder, the way and format of the information to be provided to unit-holders in case of conversion from a UCITS to a feeder UCITS, the procedure for valuating and auditing the transfer of assets from a feeder to a master and the role of the depository of the feeder in this process. Concerning the provisions on disclosure, those measures are designed to specify the specific conditions to be met when the prospectuanagement companies, those measures are designed to specify the details regarding organisational requirements, risk management, conflicts of interest and conduct of business. Concerning depositaries, those measures are designed to specify the duties of depositaries ias provided in a durable medium other than paper and by means of a website which does not constitute a durable medium, the detailed content, form and presentation of the key investor information taking into account the different nature or components of the UCITS concerned, and the specific conditions for delivering key investor information in a durable medium other than paper and by means of a website which does not constitute a durable medium. Concerning notification, those measures are designed to specify the format and scope of the information on the applicable local rules to be published by host authorities, the application of the notification procedure to the marketing of compartments of UCITS and new share classes, and the technical details on access by host authorities to updated fund documents stored by home authorities. Those measures are also designed to clarify definitions and to align terminology and framing definitions in accordance with subsequent acts on UCITS and related matters. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC. Powers not falling under the above category should be subject to the regulatory procedure provided in Article 5 of the same Decision. Those measures are designed to specify the form and content of the standardised notification letter, the standard model of attestation and the procedure for the exchange of information and thfor in this Directive in the context of the management company passport and the particulars of the agreement between the depositary and the management company. Those measures should facilitate the uniform application of the obligations of management companies and depositaries under this Directive. However, the adoption of these measures should not be a precondition to implement the right of management companies to carry on the services for which they have been authorised in their home Member State throughout the Community by establishing branches or under the freedom to provide use of electronic communication during the notification process. They are also designed to detail the procedures for on-the-spot verifications and investigations exchange of information between competent authoritiesrvices including the management of UCITS in another Member State.
Amendment 128 #
Proposal for a directive
Recital 65 a (new)
Recital 65 a (new)
Amendment 129 #
Proposal for a directive
Recital 65 b (new)
Recital 65 b (new)
Amendment 132 #
Proposal for a directive
Article 4
Article 4
For the purposes of this Directive, a UCITS shall be deemed to be established in the Member State in which the investment company or the management company of the common fund has its registered office. The Member States shall require that the head office be established in the same Member State as the registered officits home Member State.
Amendment 133 #
Proposal for a directive
Article 5 - paragraph 1 - subparagraph 1
Article 5 - paragraph 1 - subparagraph 1
1. No UCITS shall carry on activities as such unless it has been authorised by the competent authorities of thits home Member State in which it is established.
Amendment 135 #
Proposal for a directive
Article 5 - paragraph 2
Article 5 - paragraph 2
2. A common fund shall be authorised only if the competent authorities of its home Member State have approved the choice of the management company to manage the UCITS, the fund rules and the choice of depositary. An investment company shall be authorised only if the competent authorities of its home Member State have approved both its instruments of incorporation and the choice of depositary, and, where applicable, the choice of the designated management company to manage the UCITS.
Amendment 137 #
Proposal for a directive
Article 5 - paragraph 2 a (new)
Article 5 - paragraph 2 a (new)
2a. Without prejudice to paragraph 2, if the UCITS is not established in the management company’s home Member State, the competent authorities of the UCITS home Member State shall approve the application of the management company to manage the UCITS pursuant to Article 5a. It must not be made a condition of authorisation that the UCITS be managed by a management company having its registered office in the UCITS home Member State or that the management company performs or delegates any activities in the UCITS home Member State.
Amendment 138 #
Proposal for a directive
Article 5 - paragraph 3 - subparagraph 1
Article 5 - paragraph 3 - subparagraph 1
3. The competent authorities may not authorise a UCITS if the management company or the investment company does not comply with the preconditions laid down in Chapters III and V respectively. of the UCITS home Member State may not authorise a UCITS if: (a) such authorities establish that the investment company does not comply with the preconditions laid down in Chapter V; or b) the management company is not authorised as a UCITS management company in its home Member State.
Amendment 139 #
Proposal for a directive
Article 5 - paragraph 3 - subparagraph 1 a (new)
Article 5 - paragraph 3 - subparagraph 1 a (new)
Without prejudice to Article 26, the management company or, where applicable, the investment company shall be informed, within one month of the submission of the complete documents, whether or not the choice has been approved.
Amendment 140 #
Proposal for a directive
Article 5 - paragraph 3 - subparagraph 2
Article 5 - paragraph 3 - subparagraph 2
Moreover, the competent authorities of the UCITS home Member State may not authorise a UCITS if the directors of the depositary are not of sufficiently good repute or are not sufficiently experienced also in relation to the type of UCITS to be managed. To that end, the names of the directors of the depositary and of every person succeeding them in office shall be communicated forthwith to the competent authorities.
Amendment 141 #
Proposal for a directive
Article 5 - paragraph 5
Article 5 - paragraph 5
5. Neither the management company nor the depositary may be replaced, nor may the fund rules or the instruments of incorporation of the investment company be amended, without the approval of the competent authorities of the UCITS home Member State.
Amendment 142 #
Proposal for a directive
Article 5 - paragraph 5 a (new)
Article 5 - paragraph 5 a (new)
5a. Member States shall ensure that complete information on the laws, regulations and administrative provisions implementing this Directive which relate to the constitution and functioning of the UCITS is easily accessible at a distance or by electronic means. Member States shall ensure that this information is available, at least, in a language customary in the sphere of international finance, provided in a clear and unambiguous manner, and kept up-to-date.
Amendment 143 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Amendment 144 #
Proposal for a directive
Article 6 - paragraph 1
Article 6 - paragraph 1
1. Access to the business of management companies shall be subject to prior official authorisation to be granted by the competent authorities of the UCITSmanagement company's home Member State. Authorisation granted under this Directive to a management company shall be valid for all Member States.
Amendment 147 #
Proposal for a directive
Article 12 - paragraph 1 - subparagraph 1
Article 12 - paragraph 1 - subparagraph 1
1. Each management company's home Member State shall draw up prudential rules which management companies authorised in that Member State, with regard to the activity of management of UCITS authorised according to this Directive, shall observe at all times.
Amendment 148 #
Proposal for a directive
Article 12 - paragraph 1 - point b
Article 12 - paragraph 1 - point b
(b) is structured and organised in such a way as to minimise the risk of UCITS' or clients' interests being prejudiced by conflicts of interest between the company and its clients, between one of its clients and another, between one of its clients and a UCITS orand between two UCITS. Nevertheless, where a branch is set up, the organisational arrangements may not conflict with the rules of conduct laid down by the UCITS host Member State to cover conflicts of interest.
Amendment 149 #
Proposal for a directive
Article 12 - paragraph 2 a (new)
Article 12 - paragraph 2 a (new)
2a. Management companies shall set up appropriate procedures and arrangements to ensure that they properly deal with investor complaints, and that there are no restriction for investors to exercise their rights in case the management company is located in another jurisdiction. Investors should be able to file complaints in their local language.
Amendment 150 #
Proposal for a directive
Article 12 - paragraph 2 b (new)
Article 12 - paragraph 2 b (new)
2b. The Commission shall adopt implementing measures specifying procedures and arrangements set out in point (a) of paragraph 1and the structures and organizational requirements to minimize conflicts of interests set out in point (b) of paragraph. 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 107(2).
Amendment 152 #
Proposal for a directive
Article 13 - paragraph 1 - introductory part
Article 13 - paragraph 1 - introductory part
1. If the management company’s home Member States permits management companies to delegate to third parties for the purpose of a more efficient conduct of the companies' business, to carry out on their behalf one or more of their own functions all of the following preconditions shall be complied with:
Amendment 156 #
Proposal for a directive
Article 13 - paragraph 1 - point i
Article 13 - paragraph 1 - point i
(i) the UCITS' prospectuses list the functions which the management company has been permitted to delegate by the management company’s home Member State.
Amendment 159 #
Proposal for a directive
Article 14 - paragraph 1 a (new)
Article 14 - paragraph 1 a (new)
1a. The Commission shall adopt implementing measures, with a view to ensuring that the management company complies with the duties set out in paragraph 1, in particular to: (a) define the steps that management companies might reasonably be expected to take to identify, prevent, manage and/or disclose conflicts of interest as well as to establish appropriate criteria for determining the types of conflicts of interest whose existence may damage the interests of the UCITS; (b) establish appropriate criteria for acting honestly and fairly and with due skill, care and diligence in the best interests of the UCITS; 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 107(2).
Amendment 161 #
Proposal for a directive
Article 15 - paragraph 2 a (new)
Article 15 - paragraph 2 a (new)
2a. Subject to the conditions set out in this Article, a UCITS shall be free to designate, or to be managed by, a management company authorized in another Member State in accordance with this Directive, provided that such a management company fulfils the following criteria: a) it complies with the provisions of Article 16 or Article 17; b) it complies with the provisions of Article 17a and Article 5a.
Amendment 166 #
Proposal for a directive
Article 16 - paragraph 1
Article 16 - paragraph 1
1. In addition to meeting the conditions imposed in Articles 6 and 7, any management company wishing to establish a branch within the territory of another Member State to carry on the activity for which it has been authorised shall notify the competent authorities of its home Member State.
Amendment 167 #
Proposal for a directive
Article 16 - paragraph 3 - subparagraph 2 a (new)
Article 16 - paragraph 3 - subparagraph 2 a (new)
Where a management company wishes to carry out the service of collective portfolio management as referred to in Annex II, the competent authorities of the management company's home Member State shall attach to the documentation an attestation that the management company has been authorised in accordance with this Directive and a description of the scope of the management company's authorisation and details of any restriction on the types of UCITS that the management company is authorised to manage.
Amendment 168 #
Proposal for a directive
Article 16 - paragraph 3 a (new)
Article 16 - paragraph 3 a (new)
3a. The services provided by a branch of a management company shall comply with the rules drawn up by the management company’s host Member State in accordance with Article 14.
Amendment 169 #
Proposal for a directive
Article 16 - paragraph 3 b (new)
Article 16 - paragraph 3 b (new)
3b. The competent authorities of the management company’s host Member State are responsible for supervising compliance with the rules referred to in paragraph 3a.
Amendment 170 #
Proposal for a directive
Article 16 - paragraph 4
Article 16 - paragraph 4
4. Before the branch of a management company starts business, the competent authorities of the management company's host Member State shall, within twoone months of receiving the information referred to in paragraph 2, prepare for the supervision of the management company and, if necessary, indicate the conditions, including the rules mentioned in Articles 86 and 87 in force in the management company's host Member State and the rules of conduct to be respected in the case of provision of the portfolio management service mentioned in Article 6 (3) (a) and of investment advisory services and custody, under which, in the interest of the general good, that business must be carried on in the management company's host Member Statecompliance of the management company with the rules under their responsibility.
Amendment 171 #
Proposal for a directive
Article 16 - paragraph 7 - subparagraph 1 a (new)
Article 16 - paragraph 7 - subparagraph 1 a (new)
The competent authority of the management company's home Member State shall update the information contained in the attestation referred to in paragraph 3 and inform the competent authorities of the management company's host Member State whenever there is a change in the scope of the management company’s authorisation or in the details of any restriction on the types of UCITS that the management company is authorised to manage.
Amendment 172 #
Proposal for a directive
Article 17 - paragraph 1 - introductory part
Article 17 - paragraph 1 - introductory part
1. Any management company wishing to carry on businessthe activities for which it has been authorised within the territory of another Member State for the first time under the freedom to provide services shall communicate the following information to the competent authorities of the management company's home Member State:
Amendment 173 #
Proposal for a directive
Article 17 - paragraph 2 - subparagraph 3
Article 17 - paragraph 2 - subparagraph 3
The management company may then start business in the the management company's host Member State notwithstanding the provisions of Article 88Chapter XI.
Amendment 174 #
Proposal for a directive
Article 17 - paragraph 2 - subparagraph 3 a (new)
Article 17 - paragraph 2 - subparagraph 3 a (new)
Where a management company wishes to carry out the service of collective portfolio management as referred to in Annex II, the competent authorities of the management company's home Member State shall enclose to the documentation an attestation that the management company has been authorised in accordance with this Directive and a description of the scope of the management company's authorisation and details of any restriction on the types of UCITS that the management company is authorised to manage.
Amendment 175 #
Proposal for a directive
Article 17 - paragraph 3
Article 17 - paragraph 3
3. When appropriate, the competent authorities of the management company's host Member State shall, on receipt of the information referred to in paragraph 1, indicate to the management company the conditions, including the rules of conduct to be respected in the case of provision of the portfolio management service mentioned in Article 6 (3) (a) and of investment advisory services and custody, with which, in the interest of the general good, the management company must comply in the the management company's host Member StateThe services provided by the management company under the freedom to provide services shall comply with the rules drawn up by the management company’s home Member State in accordance with Article 14.
Amendment 176 #
Proposal for a directive
Article 17 - paragraph 4
Article 17 - paragraph 4
4. Should the content of the information communicated in accordance with paragraphArticle 1(b) be amended, the management company shall give notice of the amendment in writing to the competent authorities of the management company's home Member State and of the management company's host Member State before implementing the change, so that t. The competent authorities of the management company's hostme Member State may, if necessary, inform the company of any change or addition to be made to the information communicated under paragraph 3shall update the information contained in the attestation referred to in paragraph 2 and inform the competent authorities of the management company's host Member State whenever there is a change in the scope of the management company’s authorisation or in the details of any restriction on the types of UCITS that the management company is authorised to manage.
Amendment 177 #
Proposal for a directive
Article 17 - paragraph 5
Article 17 - paragraph 5
Amendment 179 #
Proposal for a directive
Article 17 a (new)
Article 17 a (new)
Amendment 180 #
Proposal for a directive
Article 18 − paragraph 2 −subparagraph 1
Article 18 − paragraph 2 −subparagraph 1
Amendment 181 #
Proposal for a directive
Article 18 −paragraph 2− − subparagraph 2
Article 18 −paragraph 2− − subparagraph 2
Management company's host Member States may require management companies, carrying on business within their territories under the freedom to provide services or through the establishment of a branch, to provide them with the information necessary for the monitoring of their compliance with the standards set byrules under responsibility of the management company'’s host Member State that apply to them, although tincluding information regarding transactions concerning the investments of the UCITS. Those requirements may not be more stringent than those which the same Member State imposes on established management companies authorised in that Member State for the monitoring of their compliance with the same standards.
Amendment 182 #
Proposal for a directive
Article 18 −paragraph 3
Article 18 −paragraph 3
3. Where the competent authorities of a management company's host Member State ascertain that a management company that has a branch or provides services within its territory is in breach of the legal or regulatory provisions adopted in that State pursuant to those provisions of this Directive which confer powers on the management company's host Member State's competent authoritiesone of the rules under their responsibility, those authorities shall require the management company concerned to put an end to its irregular situation and inform the competent authorities of the management company's home Member State.
Amendment 183 #
Proposal for a directive
Article 18 −paragraph 5
Article 18 −paragraph 5
5. If, despite the measures taken by the management company's home Member State or because such measures prove inadequate or are not available in the Member State in question, the management company persists in breaching the legal or regulatory provisions referred to in paragraph 2 in force in the management company's host Member State, the latter may, after informing the competent authorities of the management company's home Member State, take appropriate measures, including those referred to in Articles 93 and 94, to prevent or to penalise further irregularities and, insofar as necessary, to prevent that management company from initiating any further transaction within its territory. Member States shall ensure that within their territories it is possible to serve the legal documents necessary for those measures on management companies. Where the service provided within the management company’s host Member State is the management of a UCITS, the management company’s host Member State may require the management company to cease managing this UCITS.
Amendment 184 #
Proposal for a directive
Article 18 −paragraph 6
Article 18 −paragraph 6
Amendment 185 #
Proposal for a directive
Article 18 −paragraph 7
Article 18 −paragraph 7
7. Any measure adopted pursuant to paragraphs 4, 5 or 6 and 5 involving penalties or restrictions on the activities of a management companymeasures or penalties shall be properly justified and communicated to the management company concerned. Every such measure shall be subject to the right to apply to the courts in the Member State which adopted it.
Amendment 186 #
Proposal for a directive
Article 18 −paragraph 9 −subparagraph 1
Article 18 −paragraph 9 −subparagraph 1
9. In the event of the withdrawal of authorisation, the competentThe competent authorities of the management company’s home Member State shall consult the competent authorities of the UCITS home Member State before withdrawing the authoritiessation of the management company's host Member State shall be informed and shall take appropriate measures to. In such cases, the competent authorities of the UCITS home Member State shall take appropriate measures to safeguard investors' interests. Those measures can include decisions preventing the management company concerned from initiating any further transactions within its territory and to safeguard investors' interests.
Amendment 187 #
Proposal for a directive
Article 18 −paragraph 10 −subparagraph 1
Article 18 −paragraph 10 −subparagraph 1
10. Member States shall inform the Commission of the number and type of cases in which there have been refusals pursuant to Articles 5a and 16 or measures have been taken in accordance with paragraph 5 of this Article.
Amendment 188 #
Proposal for a directive
Article 20 −paragraph 2
Article 20 −paragraph 2
2. A depositary shall be an institution which is subject to public controlrudential regulation and on-going supervision. It shall also furnish sufficient financial and professional guarantees to be able effectively to pursue its business as depositary and meet the commitments inherent in that function.
Amendment 189 #
Proposal for a directive
Article 20 - paragraph 3 a (new)
Article 20 - paragraph 3 a (new)
3a. The depositary shall establish procedures that enable the competent authorities of the UCITS home Member State to obtain on request all information, which the depositary has obtained while discharging its duties, and which are necessary for the competent authorities to supervise compliance of the UCITS with the requirements under this Directive.
Amendment 191 #
Proposal for a directive
Article 20 - paragraph 3 b (new)
Article 20 - paragraph 3 b (new)
3b. If the management company’s home Member State is not the UCITS home Member State, the depositary shall sign a written agreement with the management company regulating the flow of information deemed necessary to allow it to perform the functions referred to in Article 19 and in other laws, regulations and administrative provisions which are relevant for depositaries in the UCITS home Member State.
Amendment 192 #
Proposal for a directive
Article 20 - paragraph 3 c (new)
Article 20 - paragraph 3 c (new)
3c. The Commission shall adopt implementing measures on the measures to be taken by a depositary in order to fulfil its duties regarding a UCITS managed by a management company situated in another Member State, including the particulars that need to be included in the standard agreements to be used by the depositary and the management company as referred to in paragraph 3a. 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 107(2).
Amendment 193 #
Proposal for a directive
Article 26 – paragraph 2
Article 26 – paragraph 2
2. AIn appliccase the investment company has not designated a management company, the investment companty shall be informed, within six months of the submission of a complete application, whether or not authorisation has been granted. Reasons shall be given whenever an authorisation is refused.
Amendment 194 #
Proposal for a directive
Article 30 – paragraph 2
Article 30 – paragraph 2
2. A depositary shall be an institution which is subject to public control. It shall also furnish sufficient financial and professional guarantees to be able effectively to pursue its business as depositary and meet the commitments inherent in that functrudential regulation and on-going supervision.
Amendment 196 #
Proposal for a directive
Article 30 – paragraph 3 a (new)
Article 30 – paragraph 3 a (new)
3a. The depositary shall establish procedures that enable the competent authorities of the UCITS home Member State to obtain on request all information, which the depositary has obtained while discharging its duties, and which are necessary for the competent authorities to supervise compliance of the UCITS with the requirements under this Directive.
Amendment 197 #
Proposal for a directive
Article 30 – paragraph 3 b (new)
Article 30 – paragraph 3 b (new)
Amendment 198 #
Proposal for a directive
Article 30 – paragraph 3 c (new)
Article 30 – paragraph 3 c (new)
3c. The Commission shall adopt implementing measures on the measures to be taken by a depositary in order to fulfil its duties regarding a UCITS managed by a management company situated in another Member state, including the particulars that need to be included in the standard agreements to be used by the depositary and the management company as referred to in paragraph 3a.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 107(2).
Amendment 199 #
Proposal for a directive
Article 34 – paragraph 1 – introductory part
Article 34 – paragraph 1 – introductory part
Amendment 200 #
Proposal for a directive
Article 35
Article 35
1. Member States shall, subject to the conditions set out in this SectionChapter and irrespective of the manner in which UCITS are constituted as set out in Article 1(3), allow for mergers between: (a) UCITS established within their territories; (b) UCITS established within their territories and UCITS established within the territories of othercross border mergers and domestic mergers as defined in this Article in accordance with one or more of the merger techniques provided for under Article 34. 2. For the purpose of this Directive a cross border merger shall mean: (a) a merger of UCITS of which at least two are established in different Member States; and (b) a merger of UCITS established in the same Member State into a newly constituted UCITS established in another Member State. The merger techniques used for cross border mergers must be allowed for under the laws of the merging UCITS home Member State. 3. For the purpose of this Directive, a domestic merger shall mean a merger of UCITS established in the same Member State when at least one of the involved UCITS has been notified pursuant to article 88. The merger techniques used for domestic mergers must be allowed for under the laws of that Member States. .
Amendment 202 #
Proposal for a directive
Article 36 – paragraph 2 – point a
Article 36 – paragraph 2 – point a
(a) the common draft terms of the proposed merger duly approved by the competent management or administrative body of the merging UCITS and the receiving UCITS;
Amendment 203 #
Proposal for a directive
Article 36 – paragraph 2 – point c
Article 36 – paragraph 2 – point c
(c) a certificate issued bystatement by each of the depositaries of the merging and the receiving UCITS confirming that they have verified compliance of the common draft terms of merger , in accordance with Article 38, they have verified the elements set out in points (a), ( f) and (g) of Article 37(1)with this Directive and the fund rules or instruments of incorporation of their respective UCITS and indicating their conclusions in this respect;
Amendment 204 #
Proposal for a directive
Article 36 – paragraph 2 – point d
Article 36 – paragraph 2 – point d
(d) the information on the proposed merger ithat the merging UCITS and the receiving UCITS intends to provide to itstheir respective unit-holders.
Amendment 205 #
Proposal for a directive
Article 36 – paragraph 2 – subparagraph 1 a (new)
Article 36 – paragraph 2 – subparagraph 1 a (new)
This information shall be provided so that both the competent authorities of the merging UCITS home Member State and the competent authorities of the receiving UCITS home Member State can read them in the official language or one of the official languages of the relevant Member State, or in a language approved by the relevant competent authorities.
Amendment 206 #
Proposal for a directive
Article 36 – paragraph 3 – subparagraph 1
Article 36 – paragraph 3 – subparagraph 1
3. The competent authorities of the merging UCITS home Member State shall consider the potential impact of the proposed merger on unit-holders of both the merging UCITS and the receiving UCITS and when doing so, shall consultshall immediately transmit copies of the information referred to in paragraph 2 to the competent authorities of the receiving UCITS. The competent authorities of the merging UCITS home Member State and the competent authorities of the receiving UCITS home Member State unless theyshall, respectively, consider that the potential impact of the proposed merger on the unit-holders of the receiving UCITS is negligible. merging UCITS and the receiving UCITS to assess whether appropriate information is provided to unit-holders.
Amendment 207 #
Proposal for a directive
Article 36 – paragraph 3 – subparagraph 2
Article 36 – paragraph 3 – subparagraph 2
If the competent authorities of the merging or receiving UCITS home Member State consider it necessary, they may require that the information to unit-holders of the merg, respectively, the merging or the receiving UCITS be clarified.
Amendment 208 #
Proposal for a directive
Article 36 – paragraph 3 – subparagraph 3
Article 36 – paragraph 3 – subparagraph 3
Amendment 209 #
Proposal for a directive
Article 36 – paragraph 4 – point c
Article 36 – paragraph 4 – point c
(c) after having considered the potential impact of the proposed merger on unit- holders in accordance with paragraph 3, the competent authorities arethe competent authorities of the merging and the receiving UCITS are, respectively, satisfied with the proposed information to be provided to unit-holders, of the merging UCITS, and where applicable, of the receiving UCITSr no indication of dissatisfaction from the competent authority of the receiving UCITS has been received under sub- paragraph 3 of paragraph (3).
Amendment 210 #
Proposal for a directive
Article 36 – paragraph 5 – subparagraph 1
Article 36 – paragraph 5 – subparagraph 1
5. The competent authorities of the merging UCITS home Member State shall inform the merging UCITS, within at the latest 30 days of the submission of a complete file as provided for in paragraph 2, whether or not the merger has been authorised.
Amendment 211 #
Proposal for a directive
Article 37 – paragraph 1 – subparagraph 1
Article 37 – paragraph 1 – subparagraph 1
1. Member States shall require that the management or administrative body of the merging UCITS and of the receiving UCITS draw up common draft terms of merger.
Amendment 212 #
Proposal for a directive
Article 37 – paragraph 1 – subparagraph 2 – introductory wording
Article 37 – paragraph 1 – subparagraph 2 – introductory wording
The common draft terms of merger shall includeset out the following particulars:
Amendment 213 #
Proposal for a directive
Article 37 – paragraph 1 – subparagraph 2 – point d
Article 37 – paragraph 1 – subparagraph 2 – point d
(d) the criteria adopted for valuation of the assets and, where applicable, the liabilities on the planned effective date of the merger in accordance with Article 44(1);
Amendment 214 #
Proposal for a directive
Article 37 – paragraph 1 – subparagraph 2 – point f a (new)
Article 37 – paragraph 1 – subparagraph 2 – point f a (new)
(fa) the rules applicable for respectively the transfer of assets and the exchange of units;
Amendment 215 #
Proposal for a directive
Article 37 – paragraph 1 – subparagraph 2 – point g
Article 37 – paragraph 1 – subparagraph 2 – point g
(g) in the case of a merger pursuant to Article 34 (b), the fund rules or instruments of incorporation of the newly constituted receiving UCITS.
Amendment 216 #
Proposal for a directive
Article 37 – paragraph 1 – subparagraph 2 a (new)
Article 37 – paragraph 1 – subparagraph 2 a (new)
Competent authorities may not require that any additional information is included in the common draft terms of mergers.
Amendment 217 #
Proposal for a directive
Article 38
Article 38
Member States shall require that the depositaries of the merging UCITS and of the receiving UCITS verify the conformity of the common draft terms of mergerelements set out in points (a),( f) and (g) Article 37(1) with this Directive and the fund rules or instruments of incorporation of their respective UCITS.
Amendment 218 #
Proposal for a directive
Article 39 – paragraph 1 – introductory part
Article 39 – paragraph 1 – introductory part
1. Member States shall require thatThe law of the merging UCITS home Member States shall entrust either a depositary or an independent auditor, approved in accordance with Directive 2006/43/EC of the European Parliament and of the Council, with validateing the following:
Amendment 219 #
Proposal for a directive
Article 39 – paragraph 1 – point a
Article 39 – paragraph 1 – point a
(a) the criteria adopted for valuation of the assets and, where applicable, the liabilities on the planned effective date of the merger pursuant to Article 44(1);
Amendment 220 #
Proposal for a directive
Article 39 – paragraph 1 – point a a (new)
Article 39 – paragraph 1 – point a a (new)
(aa) where applicable, the cash payment per unit;
Amendment 221 #
Proposal for a directive
Article 39 – paragraph 1 – point b
Article 39 – paragraph 1 – point b
(b) the calculation method of the exchange ratio as well as the actual exchange ratio determined at the date in accordance with Article 44(1).
Amendment 222 #
Proposal for a directive
Article 39 – paragraph 2
Article 39 – paragraph 2
2. The statutory auditors of the merging UCITS or the statutory auditor of the receiving UCITS shall be considered independent auditors for the purposes of paragraph 1.
Amendment 223 #
Proposal for a directive
Article 39 – paragraph 3
Article 39 – paragraph 3
3. A copy of the reports of the independent auditor, or, where applicable, the depositary shall be made available on request and free of charge to the unit- holders of both the merging UCITS and the receiving UCITS and to their respective competent authorities.
Amendment 224 #
Proposal for a directive
Article 40 – paragraph 1
Article 40 – paragraph 1
1. Member States shall require the merging and receiving UCITS to provide appropriate and accurate information on the proposed merger to its or theirtheir respective unit-holders so as to enable their respective unit-holders to make an informed decisionjudgement of the impact of the proposal on their investment.
Amendment 225 #
Proposal for a directive
Article 40 – paragraph 2
Article 40 – paragraph 2
Amendment 226 #
Proposal for a directive
Article 40 – paragraph 3 – subparagraph 1
Article 40 – paragraph 3 – subparagraph 1
3. The information shall be provided to unit-holders of the merging UCITS and of the receiving UCITS only after the competent authorities of the merging UCITS home Member State have authorised the proposed merger under Article 36.
Amendment 227 #
Proposal for a directive
Article 40 – paragraph 3 – subparagraph 2
Article 40 – paragraph 3 – subparagraph 2
It shall be provided not less than 30 days before the date of the general meeting of unit-holders as referred to in Article 41 or, if no such general meeting of unit- holders is provided for under national law, not less than 30 days before the proposed effective date of the mergerlast date for requesting repurchase or redemption without additional charge referred to in Article 44.
Amendment 228 #
Proposal for a directive
Article 40 – paragraph 4 – subparagraph 1
Article 40 – paragraph 4 – subparagraph 1
4. The information to be provided to unit- holders of the merging UCITS and, where applicable, the receiving UCITS, shall include appropriate and accurate information on the proposed merger such as to enable them to take an informed decision on the possible impact thereof on their investment and to exercise their rights under Articles 41 and 42.
Amendment 229 #
Proposal for a directive
Article 40 – paragraph 4 – subparagraph 2 –introductory wording
Article 40 – paragraph 4 – subparagraph 2 –introductory wording
It shall include at least the following:
Amendment 230 #
Proposal for a directive
Article 40 – paragraph 4 – subparagraph 2 – point a
Article 40 – paragraph 4 – subparagraph 2 – point a
(a) the background to and the rationale ofor the proposed merger;
Amendment 231 #
Proposal for a directive
Article 40 – paragraph 4 – subparagraph 2 – point b
Article 40 – paragraph 4 – subparagraph 2 – point b
(b) the possible impact of the proposed merger on unit-holders, including but not limited to any material differences in respect of investment policy and strategy, costs, expected outcome, periodic reporting and, possible dilution in performance, and, where relevant, a prominent warning to investors that their tax treatment may be changed following the merger;
Amendment 233 #
Proposal for a directive
Article 40 – paragraph 4 – subparagraph 2 – point c
Article 40 – paragraph 4 – subparagraph 2 – point c
(c) any specific rights unit-holders have in relation to the proposed merger, including but not limited to the right to obtain additional information, the right to obtain a copy of the report of the independent auditor or the depositary on request, and the right to request the repurchase or redemption of their units without charge as specified in Article 42 and the last date for exerting that right;
Amendment 234 #
Proposal for a directive
Article 40 – paragraph 5
Article 40 – paragraph 5
5. If the merging UCITS and, where applicable,or the receiving UCITS, hasve been notified in accordance with Article 88, the information referred to in paragraph 4 shall be provided in the official language, or one of the official languages, of the merging UCITS host Member State and, where applicable the receivingrelevant UCITS host Member State, or in a language approved by theirits competent authorities. The translation shall be produced under the responsibility of the UCITS required to provide the information. It shall faithfully reflect the content of the original information.
Amendment 235 #
Proposal for a directive
Article 41 – paragraph 2
Article 41 – paragraph 2
The first paragraph shall be without prejudice to any presence quorum provided for under national laws. Where applicable, Member States shall not impose more stringent presence quora for cross border mergers than for domestic mergers. Nor shall they impose more stringent presence quora for UCITS mergers than for mergers of corporate entities.
Amendment 236 #
Proposal for a directive
Article 42 – paragraph 1
Article 42 – paragraph 1
1. The laws of Member States shall provide that unit-holders of both the merging UCITS and the receiving UCITS have the right to request, without any other charge than those retained by the fund to cover disinvestment costs, the repurchase or redemption of their units or, where possible, to convert them into units in another UCITS with similar investment policies, without charge and managed by the same management company or by any other company with which the management company is linked by common management or control, or by a substantial direct or indirect holding. This right shall become effective from the moment the unit-holders of the merging UCITS and, where applicable, those of the receiving UCITS, have been informed of the proposed merger. It shall cease to exist on the effective date of the merger in accordance with article 40. It shall cease to exist five working days before the date for calculating the exchange ratio as referred to in Article 44.
Amendment 238 #
Proposal for a directive
Article 42 – paragraph 2
Article 42 – paragraph 2
2. FWithout prejudice to the provisions of paragraph 1, for mergers between UCITS, by way of derogation from Article 79(1), Member States may allow the competent authorities to require or to allow the temporary suspension of the subscription, repurchase or redemption of units provided that such suspension is justified for the protection of the unit- holders.
Amendment 239 #
Proposal for a directive
Article 43
Article 43
Except in case where UCITS are self- managed, Member States shall ensure that any legal, advisory or administrative costs associated with the preparation and the completion of the merger shall not be charged, either directly or indirectly, to the merging UCITS, the receiving UCITS or any of their unit- holders.
Amendment 241 #
Proposal for a directive
Article 44 – paragraph 1
Article 44 – paragraph 1
1. Member States shall provide that theFor domestic mergers, the laws of the Member States shall determine the date on which a merger shall takes effect as soon as all assets, and where applicable, all liabilities have been transferred fromwell as the date for calculating the ratio for exchange of units of the merging UCITS into units of the receiving UCITS and unit- holders in the merging UCITS have received units in the receiving UCITS in exchange for their units in the merging UCITS, where applicable, for determining the relevant net asset value for cash payments. For cross border mergers, the laws of the receiving UCITS home Member State shall determine the dates referred to in the first subparagraph.
Amendment 242 #
Proposal for a directive
Article 44 – paragraph 2
Article 44 – paragraph 2
Amendment 245 #
Proposal for a directive
Article 44 – paragraph 3
Article 44 – paragraph 3
3. The entry into effect of the merger shall be made public through all appropriate means in the manner prescribed by the laws of the receiving UCITS home Member State, and notified to the competent authorities.
Amendment 246 #
Proposal for a directive
Article 44 – paragraph 4
Article 44 – paragraph 4
Amendment 247 #
Proposal for a directive
Article 44 a (new)
Article 44 a (new)
Article 44a 1. A merger carried out as laid down in point (a) of Article 34 shall have the following consequences: (a) all the assets and liabilities of the merging UCITS shall be transferred to the receiving UCITS or, where applicable, the depositary of the receiving UCITS; (b) the unit-holders of the merging UCITS shall become unit-holders of the receiving UCITS; in addition, if applicable, they are entitled to a cash payment not exceeding 10% of the net asset value of their units in the merging UCITS; (c) the merging UCITS shall cease to exist with the entry into effect of the merger. 2. A merger carried out as laid down in point (b) of Article 34 shall have the following consequences: (a) all the assets and liabilities of the merging UCITS shall be transferred to the newly constituted receiving UCITS or, where applicable, the depositary of the receiving UCITS; (b) the unit-holders of the merging UCITS shall become unit-holders of the newly constituted receiving UCITS; in addition, if applicable, they are entitled to a cash payment not exceeding 10% of the net asset value of their units in the merging UCITS; (c) the merging UCITS shall cease to exist with the entry into effect of the merger. 3. A merger carried out as laid down in point (c) of Article 34 shall have the following consequences: (a) the [net] assets of the merging UCITS shall be transferred to the receiving UCITS or, where applicable, the depositary of the receiving UCITS; (b) the unit-holders of the merging UCITS shall become unit-holders of the receiving UCITS; (c) the merging UCITS continues to exist until all remaining outstanding liabilities have been discharged. 4. Member States shall provide that a procedure is established, whereby the management company of the receiving UCITS confirms to the depositary of the receiving UCITS that transfer of assets and, where applicable, liabilities is complete. Where the receiving UCITS has not designated a management company, it will give that confirmation to the depositary of the receiving UCITS.
Amendment 251 #
Proposal for a directive
Article 46 – paragraph 4
Article 46 – paragraph 4
4. Member States shall inform the Commission on their regulation concerning the methods used to calculate the risk exposures mentioned inThe Commission shall adopt implementing measures specifying the following: - criteria for assessing the adequacy of risk management process employed by the management company in accordance with paragraph 31, including the risk exposure to a counterparty in OTC derivative transactions. The Commission shall forwardfirst sentence above; - detailed rules regarding the accurate and independent assessment of the value of OTC derivatives; - detailed rules regarding the content and the procedure to be followed for communicating thate information to the other Member States. Such information shall be the subject of exchanges of views within the European Securities Committeemanagement company home Member States' competent authorities referred to in paragraph 1 third sentence above ; 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 107(2).
Amendment 252 #
Proposal for a directive
Article 53 – paragraph 1
Article 53 – paragraph 1
1. A feeder UCITS is a UCITS whichor an investment compartments thereof, which has been approved to invests, by way of derogation from Article 1(2)(a), Article 45, Article 47, Article 50 and Article 51(2)(c), at least 85 % of its assets in units of another UCITS ("the master UCITS") or an investment compartment thereof ("the master UCITS").
Amendment 253 #
Proposal for a directive
Article 53 – paragraph 2 – subparagraph 1 – point b
Article 53 – paragraph 2 – subparagraph 1 – point b
(b) financial derivative instruments, which may be used only for hedging purposes, in accordance with Article 45(1)(g) and Article 46(2) and (3).
Amendment 255 #
Proposal for a directive
Article 53 – paragraph 2 – subparagraph 2
Article 53 – paragraph 2 – subparagraph 2
For the purposes of point (b) of the first subparagraph, the exposure of the feeder UCITS to the underlying assets as referred to in the third subparagraph of Article 46(3) shall be calculated by also taking into account the investments ofcompliance with Article 46(3), the feeder UCITS may calculate its global exposure related to financial derivative instruments by combining its own direct exposure under point (b) of the first subparagraph with: - either the master UCITS' actual exposure to financial derivative instruments in proportion to the mastfeeder UCITS,' including the investments of the master UCITS into financial derivative instruments and their underlyings,vestment into the master UCITS; or - the master UCITS potential maximum global exposure to financial derivative instruments provided for in the master UCITS' fund rules or instruments of incorporation in proportion to the feeder UCITS investment into the master UCITS.
Amendment 256 #
Proposal for a directive
Article 53 – paragraph 3 – introductory part
Article 53 – paragraph 3 – introductory part
3. A master UCITS is a UCITS or an investment compartment thereof which:
Amendment 257 #
Proposal for a directive
Article 53 – paragraph 3 – point a
Article 53 – paragraph 3 – point a
(a) must have among its unit-holders at least one feeder UCITS as unit-holder;
Amendment 258 #
Proposal for a directive
Article 54 – paragraph 1
Article 54 – paragraph 1
1. Member States shall ensure that the investment of a feeder UCITS into a given master UCITS which exceeds the limit applicable under Article 50(1) for investments into other UCITS be subject to prior approval by the competent authorities of the feeder UCITS' home Member State.
Amendment 259 #
Proposal for a directive
Article 54 – paragraph 2
Article 54 – paragraph 2
2. If the feeder UCITS already carried on activities as a UCITS, including as a feeder UCITS of a different master UCITS, tThe feeder UCITS shall be informed within at the latest 15 working days following the submission of a complete file, whether or not the competent authorities approved the feeder UCITS' investment into the master UCITS.
Amendment 260 #
Proposal for a directive
Article 54 – paragraph 3 – introductory part
Article 54 – paragraph 3 – introductory part
3. In the event that the feeder UCITS and the master UCITS are established in the same Member State, the competent authorities of thatThe competent authorities of the feeder UCITS home Member State shall grant approval if the feeder UCITS, its depositary and its auditor, as well as the master UCITS, comply with all the requirements set out in this Chapter. For such purpose, the feeder UCITS shall provide to the competent authorities of its home Member State the following documents:
Amendment 261 #
Proposal for a directive
Article 54 – paragraph 3 – point c
Article 54 – paragraph 3 – point c
(c) the agreement between the feeder UCITS and the master UCITS or the internal conduct of business rules referred to in Article 55(1);
Amendment 262 #
Proposal for a directive
Article 54 – paragraph 3 – point e
Article 54 – paragraph 3 – point e
Amendment 263 #
Proposal for a directive
Article 54 – paragraph 3 – point f
Article 54 – paragraph 3 – point f
(f) in the event thatf the master UCITS and the feeder UCITS have different depositaries, the information-sharing agreement referred to in Article 56(1) between their respective depositaries;
Amendment 264 #
Proposal for a directive
Article 54 – paragraph 3 – point g
Article 54 – paragraph 3 – point g
(g) in the event thatf the master UCITS and the feeder UCITS have different auditors, the information-sharing agreement referred to in Article 57(1) between their respective auditors.
Amendment 266 #
Proposal for a directive
Article 54 – paragraph 4 – subparagraph 1
Article 54 – paragraph 4 – subparagraph 1
4. When the feeder UCITS is established in another Member State than the master UCITS, the competent authorities of the feeder UCITS' home Member State shall grant approval provided the following conditions are met: (a)feeder UCITS shall also provide an attestation by the competent authorities of the master UCITS that the feedmaster UCITS, its depositarya UCITS, or and its auditor comply with all the requirements set out in this Chapter and the feeder UCITS for such purpose submits the documents referred to in paragraph 3 of this Article; (b) the feeder UCITS demonstrates that the master UCITS is duly authorised as a UCITS, that it is not itself a feeder UCITS and does not hold any units of a feeder UCITSnvestment compartment thereof, which fulfils the conditions set out in point (b) and (c) of Article 53(3). Documents shall be provided by the feeder UCITS in the official language, or one of the official languages, of the feeder UCITS home Member State or in a language approved by its competent authorities.
Amendment 267 #
Proposal for a directive
Article 54 – paragraph 4 – subparagraph 2
Article 54 – paragraph 4 – subparagraph 2
Amendment 268 #
Proposal for a directive
Article 55 – paragraph 1 – subparagraph 1
Article 55 – paragraph 1 – subparagraph 1
1. Member States shall require the feeder UCITS to enter into an agreement withat the master UCITS provide the mastfeeder UCITS concernewith all documents and in forder to enable the feeder UCITSmation necessary for the latter to meet the requirements laid down in this Directive. For this purpose, the feeder UCITS shall enter into an agreement with the master UCITS.
Amendment 269 #
Proposal for a directive
Article 55 – paragraph 1 – subparagraph 2 – introductory part
Article 55 – paragraph 1 – subparagraph 2 – introductory part
Amendment 270 #
Proposal for a directive
Article 55 – paragraph 1 – subparagraph 2 – point a
Article 55 – paragraph 1 – subparagraph 2 – point a
Amendment 271 #
Proposal for a directive
Article 55 – paragraph 1 – subparagraph 2 – point b
Article 55 – paragraph 1 – subparagraph 2 – point b
Amendment 272 #
Proposal for a directive
Article 55 – paragraph 1 – subparagraph 2 – point c
Article 55 – paragraph 1 – subparagraph 2 – point c
Amendment 273 #
Proposal for a directive
Article 55 – paragraph 1 – subparagraph 3
Article 55 – paragraph 1 – subparagraph 3
The feeder UCITS shall not invest in units of that master UCITS until the agreement referred to in subparagraph 1 has become effective. This agreement shall be available, on request and without charges, to all unit-holders.
Amendment 274 #
Proposal for a directive
Article 55 – paragraph 1 a (new)
Article 55 – paragraph 1 a (new)
1a. In the event that both master and feeder UCITS are managed by the same management company or administrative body, the agreement may be replaced by internal conduct of business rules ensuring compliance with the requirements set out in paragraph 1.
Amendment 278 #
Proposal for a directive
Article 55 – paragraph 4 – subparagraph 2
Article 55 – paragraph 4 – subparagraph 2
Amendment 279 #
Proposal for a directive
Article 55 – paragraph 5 – subparagraph 1 – point a
Article 55 – paragraph 5 – subparagraph 1 – point a
(a) continues to be a feeder UCITS of the master UCITS or another UCITS resulting from the merger or division of the master UCITS; or
Amendment 280 #
Proposal for a directive
Article 55 – paragraph 5 – subparagraph 2
Article 55 – paragraph 5 – subparagraph 2
No merger or division of a master UCITS shall become effective, unless the master UCITS provided all of its feeder UCITSunit-holders and the competent authorities of theseits feeder UCITS' home Member States with the information referred to in or comparable with Article 40 no later than 60 days before the proposed effective date.
Amendment 281 #
Proposal for a directive
Article 55 – paragraph 6 – subparagraph 1 – point a
Article 55 – paragraph 6 – subparagraph 1 – point a
(a) the particulars that need to be included in the agreement referred to in the first subparagraph ofcontent of the agreement or of the internal conduct of business rules referred to in paragraph 1;
Amendment 282 #
Proposal for a directive
Article 56 – paragraph 1 – subparagraph 2 a (new)
Article 56 – paragraph 1 – subparagraph 2 a (new)
Neither the depositary of the master UCITS nor that of the feeder UCITS, when complying with the requirements laid down in this Chapter, shall be in breach of any restriction on disclosure of information or of data protection imposed by contract or by any legislative, regulatory or administrative provision nor shall such behaviour involve such depositary or any person acting on its behalf in liability of any kind.
Amendment 283 #
Proposal for a directive
Article 56 – paragraph 1 – subparagraph 2 b (new)
Article 56 – paragraph 1 – subparagraph 2 b (new)
Member States shall require that the feeder UCITS or, when applicable, the management company of the feeder UCITS shall be in charge of communicating to the depositary of the feeder UCITS any information about the master UCITS and required for the completion of the duties of the depositary of the feeder UCITS.
Amendment 284 #
Proposal for a directive
Article 56 – paragraph 2
Article 56 – paragraph 2
2. The depositary of the master UCITS shall immediately inform the competent authorities of the master UCITS, the feeder UCITS or, where applicable, the management company and the depositary of the feeder UCITS about any irregularities it detects with regard to the master UCITS which are deemed to have a negative impact on the feeder UCITS.
Amendment 285 #
Proposal for a directive
Article 56 – paragraph 3 – subparagraph 1 – point a
Article 56 – paragraph 3 – subparagraph 1 – point a
(a) the particulars that need to be included in the agreement referred to in paragraph 1 subparagraph 1;
Amendment 286 #
Proposal for a directive
Article 57 – paragraph 1 – subparagraph 1
Article 57 – paragraph 1 – subparagraph 1
1. Member States shall require that, if the master UCITS and the feeder UCITS have different auditors, these auditors enter into an information-sharing agreement in order to ensure the fulfilment of the duties of both auditors, including the arrangements taken to comply with the requirements of paragraph 2.
Amendment 287 #
Proposal for a directive
Article 57 – paragraph 2 – subparagraph 1
Article 57 – paragraph 2 – subparagraph 1
2. In its audit report, the auditor of the feeder UCITS shall take into account the audit report of the master UCITS. If the feeder UCITS and the master UCITS do not have the same accounting year, the auditor of the master UCITS shall make an ad hoc report on the same closing date as the closing date of the feeder UCITS.
Amendment 288 #
Proposal for a directive
Article 57 – paragraph 2 a (new)
Article 57 – paragraph 2 a (new)
2a. Neither the auditor of the master UCITS nor that of the feeder UCITS, when complying with the requirements laid down in this Chapter, shall be in breach of any restriction on disclosure of information or of data protection imposed by contract or by any legislative, regulatory or administrative provision nor shall such behaviour involve such auditor or any person acting on its behalf in liability of any kind.
Amendment 289 #
Proposal for a directive
Article 57 – paragraph 3
Article 57 – paragraph 3
3. The Commission may adopt implementing measures specifying the particulars that need to be included incontent of the agreement referred to in paragraph 1 subparagraph 1. Theose 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 107(2).
Amendment 290 #
Proposal for a directive
Article 58 – paragraph 1 – subparagraph 1 – point b
Article 58 – paragraph 1 – subparagraph 1 – point b
(b) onthe investment objective and policy, including the risk profile and whether the performance of the feeder UCITS and the master UCITS are identical, or to what extent and for which reasons they differ, including a description of the investment made in accordance with Article 53(2);
Amendment 291 #
Proposal for a directive
Article 58 – paragraph 1 – subparagraph 1 – point d
Article 58 – paragraph 1 – subparagraph 1 – point d
Amendment 292 #
Proposal for a directive
Article 58 – paragraph 1 – subparagraph 1 – point e
Article 58 – paragraph 1 – subparagraph 1 – point e
(e) a summary of the agreement entered into between the feeder UCITS and the master UCITS or of the internal conduct of business rules pursuant to Article 55(1);
Amendment 293 #
Proposal for a directive
Article 58 – paragraph 1 – subparagraph 1 – point g
Article 58 – paragraph 1 – subparagraph 1 – point g
Amendment 294 #
Proposal for a directive
Article 58 – paragraph 4
Article 58 – paragraph 4
4. A feeder UCITS shall disclose in any relevant marketing communications that it is a feeder UCITS of a given master UCITS and as such permanently invests 85 % or more of its assets in units of such master UCITS.
Amendment 295 #
Proposal for a directive
Article 58 – paragraph 4 a (new)
Article 58 – paragraph 4 a (new)
4a. A paper copy of the prospectus, annual and half-yearly report of the master shall be delivered by the feeder UCITS to investors upon their request, free of charge.
Amendment 296 #
Proposal for a directive
Article 59 – paragraph 1 – subparagraph 1 – point c
Article 59 – paragraph 1 – subparagraph 1 – point c
(c) the date when the feeder UCITS is to start to invest into the master UCITS or, if it has already invested into the master, the date when its investment is to exceed the limit applicable under Article 50(1);
Amendment 297 #
Proposal for a directive
Article 59 – paragraph 1 – subparagraph 1 – point d
Article 59 – paragraph 1 – subparagraph 1 – point d
(d) a statement that the unit-holders have the right to request the re-purchase or redemption of their units free of chargewithout any other charges than those retained by the fund to cover disinvestment costs within 30 days; this right shall become effective from the moment the feeder UCITS has provided the information referred to in this paragraph.
Amendment 298 #
Proposal for a directive
Article 59 – paragraph 1 – subparagraph 2
Article 59 – paragraph 1 – subparagraph 2
This information shall be provided not less than 30 days before the date of the feeder UCITS' investment into the master UCITS pursuant toreferred to in point (c) of the first subparagraph.
Amendment 299 #
Proposal for a directive
Article 59 – paragraph 3
Article 59 – paragraph 3
3. Member States shall ensure that the feeder UCITS does not invest into the units of the given master UCITS in excess of the limit applicable under Article 50(1) before the period of 30 days referred to in the second subparagraph of paragraph 1 has elapsed.
Amendment 300 #
Proposal for a directive
Article 59 – paragraph 4 – subparagraph 2
Article 59 – paragraph 4 – 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 107(2).
Amendment 301 #
Proposal for a directive
Article 60 – paragraph 3
Article 60 – paragraph 3
3. Where, by virtue ofin connection with an investment in the units of the master UCITS, a commissiondistribution fee, commission or monetary benefit is received by the feeder UCITS, the management company of the feeder UCITS or any person acting on behalf of either the feeder UCITS or the management company of the feeder UCITS, the fee, commission or monetary benefit shall be paid into the assets of the feeder UCITS.
Amendment 302 #
Proposal for a directive
Article 62 – paragraph 1
Article 62 – paragraph 1
1. If the master UCITS and the feeder UCITS are established in the same Member State, the competent authorities shall immediately inform the feeder UCITS and, when they deem it necessary, the other unit-holders, of any decision, measure, observation of non-compliance with the conditions of this Chapter or of any information reported pursuant to Article 101(1) with regard to the master UCITS or, where applicable, its management company, depositary or auditor.
Amendment 303 #
Proposal for a directive
Article 62 – paragraph 2
Article 62 – paragraph 2
2. If the master UCITS and the feeder UCITS are established in different Member States, the competent authorities of the master UCITS' home Member State shall immediately communicate any decision, measure, observation of non-compliance with the conditions of this Chapter or information reported pursuant to Article 101(1) with regard to the master UCITS or, where applicable, its management company, depositary or auditor, to the competent authorities of the feeder UCITS' home Member State. The latter, which shall then immediately inform the feeder UCITS. When those authorities deem it necessary, they shall also immediately communication this information to the other unit-holders.
Amendment 304 #
Proposal for a directive
Article 69
Article 69
UCITS shall send their prospectus and any amendments thereto, as well as their annual and half-yearly reports, to the competent authorities of the UCITS home Member State. UCITS shall provide this documentation to the competent authorities of the management company’s home Member State on request.
Amendment 305 #
Proposal for a directive
Article 70 – paragraph 2
Article 70 – paragraph 2
2. The prospectus may be provided in a durable medium or by means of a website. A paper copy shall be provided to the investors on request, free of charge. Or. en The prospectus may be provided in a durable medium or in electronic form. 2.
Amendment 306 #
Proposal for a directive
Article 70 – paragraph 3
Article 70 – paragraph 3
3. The annual and half-yearly reports shall be available to investors in the manner specified in the prospectus and in the key investor information referred to in Article 73. A paper copy of the annual and half- yearly reports shall be delivered to the investors on request, free of charge.
Amendment 307 #
Proposal for a directive
Article 72
Article 72
All marketing communications to investors shall be clearly identifiable as such. They shall be fair, clear and not misleading and the inform. In particular, any marketing communications contained therein shall be consistmprising an invitation to purchase units of UCITS that contains specific information about a UCITS shall not make statements withhich contradict or diminish the significance of the information contained in the prospectus and the key investor information referred to in Article 73. TheyIt shall indicate that a prospectus exists and that the key investor information referred to in Article 73 is available and specify where and in which language such information or documents may be obtained by investors or potential investors or how they may have access to them.
Amendment 308 #
Proposal for a directive
Article 73 – paragraph 1
Article 73 – paragraph 1
1. Member States shall require that an investment company and, for each of the common funds it manages, a management company draw up a short document containing key investor information for investors ( “key investor information”). The words “key investor information” should be clearly mentioned on this document, in the language referred to in point (b) of Article 89(1).
Amendment 309 #
Proposal for a directive
Article 73 – paragraph 3 – subparagraph 1 – introductory part
Article 73 – paragraph 3 – subparagraph 1 – introductory part
3. Key investor information shall incluprovide information on at least the following essential elements in respect of the UCITS concerned: Or. eenen
Amendment 310 #
Proposal for a directive
Article 73 – paragraph 3 – point -a (new)
Article 73 – paragraph 3 – point -a (new)
(-a) identification of the UCITS;
Amendment 311 #
Proposal for a directive
Article 73 – paragraph 3 – point b
Article 73 – paragraph 3 – point b
(b) past performance presentation or, where relevant, performance scenarios;
Amendment 313 #
Proposal for a directive
Article 73 – paragraph 7 – subparagraph 1 – point a
Article 73 – paragraph 7 – subparagraph 1 – point a
(a) the detailed and exhaustive content of the key investor information to be provided to investors as referred to under paragraphs 2,3 and 4;
Amendment 314 #
Proposal for a directive
Article 73 – paragraph 7 – subparagraph 1 – point b – introductory part
Article 73 – paragraph 7 – subparagraph 1 – point b – introductory part
(b) the detailed and exhaustive content of the key investor information to be provided to investors in the following specific cases:
Amendment 315 #
Proposal for a directive
Article 73 – paragraph 7 – subparagraph 1 – point b – point v
Article 73 – paragraph 7 – subparagraph 1 – point b – point v
Amendment 316 #
Proposal for a directive
Article 73 – paragraph 7 – subparagraph 1 – point b – point vi
Article 73 – paragraph 7 – subparagraph 1 – point b – point vi
(vi) for structured, capital protected and other comparable UCITS, the key investor information to be provided to investors subscribing to structured, capital protected and other comparable UCITS offering a predetermined pay-off at a certain time horizon, entirely depending on certain parameters such as the evolution of a given indexin relation to the special characteristics of such UCITS;
Amendment 318 #
Proposal for a directive
Article 75 – paragraph 1
Article 75 – paragraph 1
1. Member States shall require that an investment company and, for each of the common funds it manages, a management company, which sells UCITS directly or through a tied agent to investors, delivers to investors, either directly or through their tied agent,nother natural or legal person who acts on its behalf and under its full and unconditional responsibility, provides investors with key investor information on such UCITS in good time before their proposed subscription of units in such UCITS.
Amendment 319 #
Proposal for a directive
Article 75 – paragraph 2
Article 75 – paragraph 2
2. Member States shall require that an investment company and, for each of the common funds it manages, a management company, which does not sell UCITS directly or through a tied agentperson who acts on its behalf and under its full and unconditional responsibility to investors, deliverprovides key investor information to product manufacturers and intermediaries selling or advising investors on potential investments in such UCITS or in products offering exposure to such UCITS, so as to enable them to provide all relevant information on the proposed investment to their client. Member States shall require that the intermediaries selling or advising investors orn potential cliinvestments, in compliance with any information obligations applicable to them under the relevant Community and national lawUCITS, provide key investor information to their clients or potential clients.
Amendment 323 #
Proposal for a directive
Article 75 – paragraph 2a (new)
Article 75 – paragraph 2a (new)
2a. Key investor information shall be provided to investors free of charge.
Amendment 324 #
Proposal for a directive
Article 76 – paragraph 1
Article 76 – paragraph 1
1. Member States shall allow investment companies and, for each of the common funds they manage, management companies, to deliverprovide key investor information in a durable medium or by means of a website. A paper copy shall be delivered free of charge to the investor, upon request.
Amendment 328 #
Proposal for a directive
Article 86 – paragraph 3
Article 86 – paragraph 3
3. Member States shall ensure that complete information on the laws, regulations and administrative provisions which do not fall within the field governed by this Directive and which are relevant tospecifically relevant to the arrangements made for the marketing of units of UCITS, established in another Member State within their territories, is easily accessible at distance and by electronic means. Member States shall ensure that this information is available in a language customary in the sphere of international finance, is provided in a clear and unambiguous manner and is kept up to date.
Amendment 329 #
Proposal for a directive
Article 86 – paragraph 3 a (new)
Article 86 – paragraph 3 a (new)
3a. For the purpose of this Chapter, a UCITS shall mean a UCITS or an investment compartment thereof.
Amendment 330 #
Proposal for a directive
Article 88 – paragraph 1 – subparagraph 1
Article 88 – paragraph 1 – subparagraph 1
1. If a UCITS proposes to market its units in a Member State other than that in which it is establishedits home Member State, it shall first submit a notification letter to the competent authorities of its home Member State.
Amendment 331 #
Proposal for a directive
Article 88 – paragraph 1 – subparagraph 2
Article 88 – paragraph 1 – subparagraph 2
The notification letter shall include information on arrangements made for marketing of units of the UCITS in thae host Member State.
Amendment 332 #
Proposal for a directive
Article 88 – paragraph 3 – subparagraph 2
Article 88 – paragraph 3 – subparagraph 2
The competent authorities of the UCITS home Member State shall transmit the complete documentation referred to in paragraphs 1 and 2 to the competent authorities of the Member State in which the UCITS proposes to market its units, no later that one monthn five working days after the date of receipt of the notification letter and the complete documentation provided for in paragraph 2. They shall enclose to the documentation an attestation that the UCITS fulfils the conditions imposed by this Directive.
Amendment 336 #
Proposal for a directive
Article 88 – paragraph 4
Article 88 – paragraph 4
4. Member States shall ensure that the notification letter as referred to in paragraph 1 and the attestation as referred to in paragraph 3 are provided in a language customary in the sphere of international finance. , unless the UCITS home Member State and the UCITS host Member State agree to the notification letter as referred to in paragraph 1 and the attestation as referred to in paragraph 3 being provided in an official language of both Member States. Or. en Justification
Amendment 338 #
Proposal for a directive
Article 88 – paragraph 7
Article 88 – paragraph 7
7. The UCITS home Member State shall ensure that the competent authorities of the UCITS host Member State have access, by electronic means, to the documents referred to in paragraph 2 and, if applicable, to any translations thereof and that those documents and translations are kept up to date. It shall ensure that the UCITS keep those documents and translations up to date. The UCITS shall notify any amendments to the documents referred to in paragraph 2 to the competent authority of the host Member State and indicate where these documents can be obtained electronically.
Amendment 339 #
Proposal for a directive
Article 88 – paragraph 8
Article 88 – paragraph 8
8. In the event of a change in the information regarding the marketing arrangements made for marketing communicated in the notification letter in accordance with paragraph 1, the UCITS shall give a written notice of this change to the competent authorities of the host Member State before implementing the change.
Amendment 340 #
Proposal for a directive
Article 90 – paragraph 1 – subparagraph 1 – point a
Article 90 – paragraph 1 – subparagraph 1 – point a
(a) the format and the scope of the information as referred to in Article 86 (3);
Amendment 341 #
Proposal for a directive
Article 92 – paragraph 1
Article 92 – paragraph 1
1. Member States shall designate the competent authorities which are to carry out the duties provided for in this Directive. They shall inform the Commission thereof, indicating any division of duties.
Amendment 342 #
Proposal for a directive
Article 92 – paragraph 3
Article 92 – paragraph 3
3. The authorities of the UCITS home Member State shall be competent to supervise that UCITS including, where relevant, pursuant to Article 17a. However, the authorities of the UCITS host Member State shall be competent to supervise compliance with the provisions falling outside the field governed by the Directive and requirements set out in Articles 87 and 89.
Amendment 343 #
Proposal for a directive
Article 93 – paragraph 2 – point j
Article 93 – paragraph 2 – point j
(j) require the suspension of the issue, repurchase or redemption of units in the interest of the unit holders or of the public;
Amendment 344 #
Proposal for a directive
Article 94 – paragraph 1
Article 94 – paragraph 1
1. Member States shall lay down the rules on measures and penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. TheWithout prejudice to the procedures for the withdrawal of authorization or to the right of Member States to impose criminal sanctions, Member States shall in particular ensure, in conformity with 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. The measures and penalties provided for must be effective, proportionate and dissuasive. Without precluding rules on measures and penalties applicable to infringements of the other national provisions adopted pursuant to this Directive, Member States shall in particular lay down effective, proportionate and dissuasive measures and penalties concerning the duty to present key investor information in a way that is likely to be understood by retail investors according to Article 73(5).
Amendment 345 #
Proposal for a directive
Article 94 – paragraph 2
Article 94 – paragraph 2
2. Member States shall provide that the competent authorities may disclose to the public any measure or sanction that will be imposed for infringement of the provisions adopted in the implementation of this Directive, unless such disclosure would seriously jeopardise the financial markets, be detrimental to the interests of investors or cause disproportionate damage to the parties involved.
Amendment 346 #
Proposal for a directive
Article 96 – paragraph 1 – subparagraph 2
Article 96 – paragraph 1 – subparagraph 2
Member Sstates shall take the necessary administrative and organisational measures to facilitate the cooperation provided for in this paragraphbetween competent authorities, including through bilateral or multilateral agreements, so that they can fully carry out their duties according to this Directive.
Amendment 347 #
Proposal for a directive
Article 96 – paragraph 2a (new)
Article 96 – paragraph 2a (new)
2a. Where a competent authority has good reasons to suspect that acts contrary to this Directive, carried out by entities not subject to its supervision, are being or have been carried out on the territory of another Member State, it shall notify this in a manner as specific as possible to the competent authority of the other Member State. The latter authority shall take appropriate action. It shall inform the notifying competent authority of the outcome of the action and, to the extent possible, of significant interim developments. This paragraph shall be without prejudice to the competences of the competent authority that has forwarded the information.
Amendment 349 #
Proposal for a directive
Article 97 – paragraph 2 – subparagraph 1a (new)
Article 97 – paragraph 2 – subparagraph 1a (new)
Competent authorities exchanging information with other competent authorities under this Directive may indicate at the time of communication that such information must not be disclosed without their express agreement, in which case such information may be exchanged solely for the purposes for which those authorities gave their agreement.
Amendment 350 #
Proposal for a directive
Article 97 – paragraph 5 – subparagraph 1 – introductory part
Article 97 – paragraph 5 – subparagraph 1 – introductory part
5. Paragraphs 1 and 4 shall not preclude the exchange of information between the competent authorities, within onea Member State or between several Member States, which arebetween competent authorities; and:
Amendment 351 #
Proposal for a directive
Article 102 – paragraph 1
Article 102 – paragraph 1
1. The competent authorities shall give reasons for any decision to refuse authorisation, and any negative decision taken in implementation of the general measures adopted in application of this Directive, in writing and communicate them to applicants.
Amendment 352 #
Proposal for a directive
Article 102 – paragraph 2
Article 102 – paragraph 2
2. Member States shall provide that any decisions taken in respect of a UCITS pursuant tounder laws, regulations andor administrative provisions adopted in accordance with this Directive areis properly reasoned and is subject to the right to apply to the courts; the same shall apply if no decision is taken within six months of the submission of an authorisation application made by a UCITS. The right to apply to the courts shall apply also where, in respect of an application for authorization which incluprovides all the information required under the provisions in force, no decision is taken within six months of its submission.
Amendment 353 #
Proposal for a directive
Article 103 – paragraph 2
Article 103 – paragraph 2
2. Any decision to withdraw authorisation, or any other serious measure taken against a UCITS, or any issue, suspension of re- purchase or redemption imposed upon it, shall be communicated without delay by the authorities of the UCITS home Member State to the authorities of the UCITS host Member States and, if the management company of a UCITS is situated in another Member State, to the competent authorities of the management company’s home Member State.
Amendment 354 #
Proposal for a directive
Article 103 – paragraph 2 a (new)
Article 103 – paragraph 2 a (new)
2a. The competent authorities of the management company’s home Member State and those of the UCITS home Member State shall, respectively, have the ability to take action against the management company if it infringes rules under their respective responsibility.
Amendment 355 #
Proposal for a directive
Article 103 – paragraph 4 – subparagraph 1 – introductory part
Article 103 – paragraph 4 – subparagraph 1 – introductory part
4. If, despite the measures taken by the competent authorities of the UCITS home Member State or because such measures prove inadequate, or because the UCITS home Member State fails to act within a reasonable timeframe, the UCITS persists in acting in a manner that is clearly prejudicial to the interests of the UCITS host Member State's investors, the competent authorities of the UCITS host Member State, may take consequently either of the following actions:
Amendment 356 #
Proposal for a directive
Article 103 – paragraph 4 – subparagraph 1 – point b
Article 103 – paragraph 4 – subparagraph 1 – point b
(b) if necessary, bring the matter to the attention of the Committee of European Securities Regulators.
Amendment 357 #
Proposal for a directive
Article 103 – paragraph 5
Article 103 – paragraph 5
5. Member States shall ensure that within their territories it is legally possible to serve the legal documents necessary for the measures which may be taken by the UCITS host Member State on UCITS pursuant to paragraphs 2 to 4.
Amendment 359 #
Proposal for a directive
Article 104 – paragraph 2
Article 104 – paragraph 2
2. Insofar as it is necessary for the purpose of exercising their powers of supervision, the competent authorities of the management company's home Member State shall be informed by the competent authorities of the management company's host Member State of any measures taken by the management company's host Member State pursuant to Article 18 (6) which involve measures and penalties imposed on a management company or restrictions on a management company's activities.
Amendment 360 #
Proposal for a directive
Article 104 – paragraph 2 a (new)
Article 104 – paragraph 2 a (new)
2a. The competent authorities of the management company's home Member State shall notify, without delay, the competent authority of the UCITS home Member State of any problems identified at the level of the management company and which would affect the ability of the management company to properly perform its duties with respect to the fund and any breaches of the requirements under Chapter III. .
Amendment 361 #
Proposal for a directive
Article 104 – paragraph 2 b (new)
Article 104 – paragraph 2 b (new)
2b. The competent authorities of the UCITS's home Member State shall notify, without delay, the competent authority of the management company’s home Member State of any problems identified at the level of the UCITS and which may affect the ability of the management company to properly perform its duties and comply with applicable rules.
Amendment 362 #
Proposal for a directive
Article 111 – paragraph 2 a (new)
Article 111 – paragraph 2 a (new)
References to the simplified prospectus shall be construed as references to the key investor information referred to in Article 73.
Amendment 363 #
Proposal for a directive
Article 112 – paragraph 1 a (new)
Article 112 – paragraph 1 a (new)
1a. The Commission shall adopt and publish by July 2010 at the latest, the implementing measures as provided by Articles 12, 14, 20, 30, 46 and 73.
Amendment 364 #
Proposal for a directive
Annex I – schedule A – point 1 – middle column
Annex I – schedule A – point 1 – middle column
1. Information concerning the management company including an indication whether the management company is domiciled in another Member State than in the UCITS home Member State