BETA

Activities of Wolf KLINZ related to 2009/0064(COD)

Plenary speeches (1)

2016/11/22
Dossiers: 2009/0064(COD)

Amendments (144)

Proposal for a directive
Recital 2

(2) The impact of AIFM on the markets in which they operate is largely beneficial, but recent financial difficulties have underlined how activities of AIFM may also serve to spread or amplify risks through the financial system via their prime broker counterparts. Uncoordinated national responses to these risks make the efficient management of these risks difficult. Directives 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions1 and 2006/49/EC of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions2 thus need to take into account the potential systemic risk arising from exposure to alternative investment funds (AIF). This Directiv~~e therefor~~e aims at establishing common requirements governing the authorisation and supervision of AIFM in order to provide a coherent approach to the related risks and their impact on investors and markets in the Community. 1 OJ L 177, 30.6.2006, p. 1. 2 OJ L 177, 30.6.2006, p. 201.

2010/02/12
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Recital 3

(3) Recent difficulties in financial markets have underlined that many AIFM strategies are vulnerable to some or several important risks in relation to investors, other market participants and markets. In order to provide comprehensive and common arrangements for supervision, it is necessary to establish a framework capable of addressing those risks taking into account the diverse range of investment strategies and techniques employed by AIFM. Consequently, this Directive should apply to AIFM managing and marketing all types of funds which are not covered by Directive 2009/…/EC on the coordination of laws, regulations and administrative provisions relating to the undertakings for collective investment in transferable securities (UCITS) (recast), irrespective of the legal or contractual manner in which the AIFM is entrusted with this responsibility as long as they are of potential systemic relevance. AIFM should not be entitled to manage UCITS within the meaning of Directive 2009/…/EC on the basis of authorisation under this Directive.

2010/02/12
Committee: ECON

Proposal for a directive
Recital 3 a (new)

(3a) This Directive follows the agreement reached at the September 2009 G-20 summit in Pittsburgh that all players, markets and products shall be appropriately regulated.

2010/02/12
Committee: ECON

Proposal for a directive
Recital 4

(4) Theis Directive lays down requirements regarding the way in which AIFM should manage alternative investment funds (AIF) under their responsibility. It would be disproportionate to regulate the structure or composition of the portfolios of the AIF managed by AIFM or the authorisation processes for AIF and it would be difficult to provide for such extensive harmonisation due to the very diverse types of AIF managed by AIFM.

2010/02/12
Committee: ECON

Proposal for a directive
Recital 4 a (new)

(4a) The AIFM should either be an external manager, which is a legal person appointed by the AIF, or acting on behalf of the AIF, or, if the AIF is self-managed, which means established in such a way that the management decisions are taken by the governing body of the AIF and no external entity is designated, the AIF should qualify itself as the AIFM. Only one legal entity should qualify as the AIFM for a respective AIF.

2010/02/12
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Recital 5

(5) The scope of this Directive should be confined to the management of collective investment undertakings which raise capital from a number of investors with a view to investing it in accordance with a defined investment policy on the principle of risk-spreading for the benefit of those investors. This Directive should not apply to the management of AIF managed exclusively for their parent undertaking or subsidiaries, of pension funds or managers of non-pooled investments such as endowments, sovereign wealth funds or assets hoeld on own account by credit institutions, insurance or reinsurance undertakings nor to the management of investment products authorised in accordance with national law and sold only nationally on the territory of a respective Member State nor to national, regional and local governments and government investment vehicles or bodies or institutions which manage funds supporting social security and pension systems or employee participation schemes. This Directive should neither apply to actively managed investments in the form of securities, such as certificates, managed futures, or index-linked bonds. It should, however, cover managers of all collective investment undertakings which are not required to be authorised as UCITS in so far as they manage or market AIF of potential systemic relevance. Investment firms authorised under Directive 2004/39/EC on Markets in Financial Instruments should not be required to obtain an authorisation under this Directive in order to provide investment services in respect of AIF. Investment firms can however only provide investment services in respect of AIF, if and to the extent the units or shares thereof can be marketed in accordance with this Directive.

2010/02/12
Committee: ECON

Wolf KLINZ, Sharon BOWLES, Carl HAGLUND

Proposal for a directive
Recital 5 a (new)

(5a) This Directive should not prevent or restrict investors from placing units or shares which they hold in AIF on the capital markets. Such investors, or their intermediaries, may offer or place such shares or units in a Member State in accordance with the national law of that Member State. However, where such offering or placement is at the initiative of the AIFM managing such AIF, such offering or placement shall be treated as marketing.

2010/02/12
Committee: ECON

Wolf KLINZ, Sharon BOWLES, Carl HAGLUND

Proposal for a directive
Recital 6

(6) In order to avoid imposing excessive or disproportionate requirements, this Directive provides for a~~n exemption for~~ lighter regime for non-systemically relevant AIFM where the cumulative AIF under management fall below a threshold of EUR 10250 million. The activities of the AIFM concerned are unlikely to have significant consequences for financial stability or market efficiency. For AIFM which only manage unleveraged AIF and do not grant investors redemption rights during a period of five years a specific threshold of EUR 500 million applies. This specific threshold is justified by the fact that managers of unleveraged funds, specialised in long term investments, are even less likely to cause systemic risks. Furthermore, the five years lock-up of investors eliminates liquidity risks. AIFM ~~which are exempt from this Directive should continue to be subject to any relevant national legislation~~that fall under the lighter regime should register with their competent authorities and comply with the transparency requirements of this Directive. They should however be allowed to be treated as AIFM subject to the opt-in procedure foreseen by this Directive.

2010/02/12
Committee: ECON

Proposal for a directive
Recital 6 a (new)

(6a) In order to avoid potential asset stripping in target companies that AIF managed by an AIFM invest in, the AIFM should ensure that a lock-in period of three years of the AIF investment in the target company is obeyed.

2010/02/12
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Recital 7

(7) This Directive aims at providing a harmonised and stringent regulatory and supervisory framework for the activities of AIFM. Authorisation in accordance with this Directive should cover the services of management ~~and administration~~ of AIF throughout the Community. In addition, authorised AIFM established in the Union should be entitled to market AIF established in the Community across the Union to professional investors, subject to a notification procedure. Member States should be able to allow AIFM to market AIF established in third countries or not covered by this Directive to professional investors on their territory subject to national law. Member States may furthermore allow professional investors on their territory to invest under their own responsibility in AIF established in third countries.

2010/02/12
Committee: ECON

Proposal for a directive
Recital 12

(12) It is necessary to ensure that AIFM operate subject to robust governance controls. AIFM should be managed and organised so as to minimise conflicts of interest. Recent developments underline the crucial need to separate asset safe- keeping and management functions, and segregate investor assets from those of the manager. To this end, the AIFM has to ~~appoint a depositary and entrust it with the~~ensure that the depositary tasks of booking of the investor money on a segregated account, ~~the~~ safe-keeping of financial instruments and ~~the~~ verification of whether the AIF or the AIFM on behalf of the AIF has obtained ownership of all other assets are fulfilled independently and in the sole interest of the AIF investors. Those tasks may be performed by a depositary.

2010/02/12
Committee: ECON

Proposal for a directive
Recital 12 a (new)

(12a) The Commission should put forward an appropriate horizontal legislative proposal that clarifies the responsibilities and liabilities of a depositary. This Directive should, where appropriate, be amended in due course.

2010/02/12
Committee: ECON

Proposal for a directive
Recital 13

(13) Reliable and objective asset valuation is crucial for the protection of investor interests. Different AIFM employ different methodologies and systems for valuing assets, depending on the assets and markets in which they predominantly invest. It is appropriate to recognise these differences ~~but to, nevertheless,~~and to require the valuation of assets to be fun~~dertaken~~ctionally independent. Valuation of assets and calculation of the net asset value (NAV) should bye a~~n entity which is independent of the AIFM~~ble to be delegated to a third party. It is important that the underlying methodologies are sound and comprehensible. To that end, they should be published.

2010/02/12
Committee: ECON

Proposal for a directive
Recital 15

(15) Given that AIFM employing high levels of leverage in their investment strategies may, under certain conditions, contribute to the build up of systemic risk or disorderly markets, special reporting requirements should be imposed on AIFM ~~using certain techniques giving rise to particular risks.~~ employing leverage. The information needed to detect, monitor and respond to those risks has not been collected in a consistent way throughout the ~~Community~~Union, and shared across Member States so as to identify potential sources of risk to the stability of financial markets in the ~~Community~~Union. To remedy this situation, special reporting requirements should apply to AIFM, which ~~consistently~~ use high levels of leverage in their investment strategies. Those AIFM should be obliged to disclose information regarding their use and sources of leverage. That information should be aggregated ~~and shared with other authorities in the Community~~in a central register under the auspices of the European Systemic Risk Board (ESRB) established under Regulation 2009/.../EC and shared with other authorities in the Union, the European Securities and Markets Authority (ESMA) established under Regulation 2009/.../EC and competent authorities in third countries, where appropriate, so as to facilitate a collective analysis of the impact of the leverage of those AIFM on the financial system in the ~~Community~~Union, as well as a common response. A central register under the auspices of the ESRB for banks that provide prime broker services to AIF should also be set up in Directives 2006/48/EC and 2006/49/EC.

2010/02/12
Committee: ECON

Wolf KLINZ, Sharon BOWLES, Carl HAGLUND

Proposal for a directive
Recital 16

(16) Activities of AIFM based on the use of high levels of leverage could be detrimental to the stability and efficient functioning of financial markets. ~~It is considered necessary to allow t~~Leverage is a difficult concept to define. The Ccom~~mission to impose limit~~petent authorities onf the ~~level of leverage~~home Member States of thate AIFM cshould use in particular in those cases where AIFM employ high levels of leverage on a systematic basis. The limits to the maximum amount of leverage should take into account aspects related to the source of leverage and the strategies employed by the AIFM. They should also take into account the essentially dynamic nature of the management of leverage by most AIFM using a high level of leverage. In this respect the limits to leverage chowever have the possibility to impose limits on the level of leverage that AIFM could use in times of extreme market stress. The Member States should infor ~~example either consist in a threshold that should not be breached at any point in time or a limit on the average leverage employed during a given period (i.e. monthly or quarterly)~~m the European Securities Markets Authority (ESMA) and the Commission of any such measure.

2010/02/12
Committee: ECON

Proposal for a directive
Recital 16 a (new)

(16a) It is necessary to adopt a horizontal measure at Union level that bans naked short selling in the Union and addresses the general issues of short selling in the financial markets.

2010/02/12
Committee: ECON

Proposal for a directive
Recital 17

(17) It is necessary to ensure that an AIFM provides all companies over which it can exercise a controlling or dominant influence with the information necessary for the company to assess how this controlling influence in the short to medium term impacts the company’s economic and social situation. To this end, particular requirements should apply to AIFM managing AIF which are in a position to exercise controlling influence over a ~~listed or~~ non-listed company, in particular to notify the existence of this position and to disclose information to the company and all its other shareholders about the intentions of the AIFM with regard to the future business development and other planned changes of the controlled company. In order to ensure transparency regarding the controlled company, enhanced reporting requirements should apply. The annual reports of the relevant AIF should be supplemented with information that is specific to the type of investment and the controlled compan. In order to ensure transparency regarding the controlled company, enhanced reporting requirements should apply.

2010/02/12
Committee: ECON

Proposal for a directive
Recital 18

(18) Many AIFM currently manage AIF domiciled in third countries. It is appropriate to allow authorised AIFM to manage AIF domiciled in third countries~~, subject to appropriate arrangements that ensure the sound administration of those AIF and the effective safe-keeping of assets invested by Community investors~~.

2010/02/12
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Recital 19

(19) AIFM should ~~also~~ be able to market AIF domiciled in th~~ird countries~~e Union to professional investors both in the home Member State of the AIFM and in other Member States. That right should be subject to notification procedures and the existence of a tax agreement with the third country concerned which ensures an efficient exchange of information with the tax authorities in the domicile of the Community investors. Given the fact that such AIF and the third country in which they are domiciled have to meet additional requirements, some of which first have to be laid down in implementing measures, the rights granted under the Directive to market AIF domiciled in third countries to professional investors should only become effective three years after the transposition period. In the meantime Member States may allow or continue to allow AIFM to market AIF domiciled in third countries to professional investors on their territory subject to national law. During this period of three years, AIFM can however not market such AIF to professional investors in other Member States on the basis of rights granted under this Directive.

2010/02/12
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Recital 19 a (new)

(19a) Member States should be able to allow AIFM to market AIF established in third countries or not covered by this Directive to professional investors on their territory subject to national law. Member States should also be able to allow professional investors on their territory to invest under their own responsibility in AIF established in third countries.

2010/02/12
Committee: ECON

Proposal for a directive
Recital 19 b (new)

(19b) After a review period of five years, the Commission should put forward a proposal revising this Directive. The Commission should seek to establish equivalence with third countries that will allow an AIFM established in the Union to market units or shares of an AIF established in third countries in the whole Union, subject to notification procedures. Furthermore, it should establish the requirements for an AIFM established in a third country to market units or shares of an AIF within the Union. The requirements for equivalence should incorporate regulatory and supervisory equivalence, reciprocity of access to markets and an information sharing agreement between the competent authorities of the AIFM home Member State and the competent authority of the third country.

2010/02/12
Committee: ECON

Proposal for a directive
Recital 20

(20) It is appropriate to allow the AIFM to delegate administrative tasks to an entity established in a third country provided that necessary safeguards are in place. Similarly, a depositary may delegate its depositary tasks in respect of AIF domiciled in a third country to a depositary domiciled in that third country, provided that the legislation of that third country ensures a level of protection of investor interests which is equivalent to that in the Community. Under certain conditions, it should also be possible for the AIFM to appoint an independent valuator established in a third country.

2010/02/12
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Recital 21

(21) Subject to the existence of an equivalent regulatory framework in a third country, as well as of effective access for AIFM established in the Community to the market of that third country, Member States should be allowed to authorise AIFM in accordance with the provisions of this Directive, without requiring that it has a registered office in the Community, after a period of three years as from the end of the transposition period. This period takes account of the fact that such AIFM and the third country in which they are domiciled have to meet additional requirements some of which first have to be laid down by implementing measures.deleted

2010/02/12
Committee: ECON

Proposal for a directive
Recital 27

(27) In particular the Commission should be empowered to adopt the measures necessary for the implementation of this Directive. In this respect, the Commission should be able to adopt measures determining the procedures under which AIFM managing portfolios of AIF whose assets under management do not exceed the threshold set out in this Directive may exercise their right to be treated as AIFM covered by this Directive. These measures are also designed to specify the criteria to be used by competent authorities to assess whether AIFM comply with their obligations as regards their conduct of business, the type of conflicts of interests AIFM have to identify, as well as the reasonable steps AIFM are expected to take in terms of internal and organizational procedures in order to identify, prevent, manage and disclose conflicts of interest. They are designed to specify the risk management requirements to be employed by AIFM as a function of the risks which the AIFM incurs on behalf of the AIF that it manages as well as any arrangements needed to enable AIFM to manage the particular risks associated with short selling transactions, including any relevant restrictions that might be needed to protect the AIF from undue risk exposures. They are designed to specify the liquidity management requirements of this Directive and in particular the minimum liquidity requirements for AIF. They are designed to specify the requirements that originators of securitisation instruments have to meet in order for an AIFM to be allowed to invest in such instruments issued after 1 January 2011. They are as well designed to specify the requirements that AIFM have to comply with when investing in such securitisation instruments. They are designed to specify the criteria under which a valuator can be considered independent in the meaning of this Directive. They are designed to specify the conditions under which the delegation of AIFM functions should be approved and the conditions under which the manager could no longer be considered to be the manager of the AIF in case of excessive delegation. They are designed to specify the content and format of the annual report that AIFM have to make available for each AIF they manage and to specify the disclosure obligations of AIFM to investors and reporting requirements to competent authorities as well as their frequency. They are designed to specify the disclosure requirements imposed on AIFM as regards leverage and the frequency of reporting to competent authorities and of disclosure to investors. They are designed to setting limits to the level of leverage AIFM can employ when managing AIF They are designed to determine the detailed content and the way AIFM acquiring controlling influence in issuers and non-listed companies should fulfil their information obligation towards issuers and non-listed companies and their respective shareholders and representatives of employees, including the information to be provided in the annual reports of the AIF they manage. They are designed to specify the types of restrictions or conditions that can be imposed on the marketing of AIF to professional investor in the home Member State of the AIFM. They are designed to specify general criteria for assessing equivalence of valuation standards of third countries where the valuator is established in a third country, the equivalence of legislation of third countries regarding depositaries and, for the purpose of the authorisation of AIFM established in third countries, the equivalence of prudential regulation and ongoing supervision. They are designed to specify general criteria for assessing whether third countries grant Community AIFM effective market access comparable to that granted by the Community to AIFM from third countries. They are designed to specify the modalities, content and frequency of exchange of information regarding AIFM between the competent authorities of the home Member State of the AIFM and other competent authorities where the AIFM individually or collectively with other AIFM may have an impact on the stability of systemically relevant financial institutions and the orderly functioning of markets. They are designed to specify the procedures for on- delegated acts necessary for the implementation of this Directive in accordance with Article 290 of the Treaty designed to specify the criteria to be used by competent authorities to assess whether AIFM comply with their obligations as regards their conduct of business, the type of conflicts of interests AIFM have to identify, as well as the reasonable steps AIFM are expected to take in terms of internal and organisational procedures in order to identify, prevent, manage and disclose conflicts of interest. They should also be designed to specify the requirements that originators of securitisation instruments have to meet in order for an AIFM to be allowed to invest in such instruments issued after 1 January 2011. They should also be designed to specify the requirements that AIFM have to comply with when investing in such securitisation instruments. They should also be designed to specify the criteria under which the valuation process can be considered independent in the meaning of this Directive. They should also be designed to specify the conditions under which the manager could no longer be considered to be the manager of the AIF in case of excessive delegation. They should also be designed to specify the content and format of the annual report that AIFM have to make available for each AIF they manage and to specify the disclosure obligations of AIFM to investors and reporting requirements to competent authorities as well as their frequency. They should also be designed to specify the modalities, content and frequency of exchange of information regarding AIFM between the competent authorities of the home Member State of the AIFM and other competent authorities where the AIFM individually or collectively with other AIFM may have an impact on the stability of systemically relevant financial institutions and the orderly functioning of markets. They should also be designed to specify the procedures for on-the-spot verifications and investigations.

2010/02/12
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Recital 28

(28) Since those ~~measure~~acts 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~~procedure provided for in Article 5a290 of ~~Decision 1999/468/EC~~the Treaty. Measures not falling under the above category should be subject to the regulatory procedure provided in Article 5 of ~~that~~ Decision. Those measures are designed to state that the fund valuation standards of a specific third country are equivalent to those applicable in the Community where the valuator is established in a third country. They are designed to state that the legislation on depositaries of a specific third country is equivalent to this Directive. They are designed to state that the legislation on prudential regulation and on-going supervision of AIFM in a specific third country is equivalent to this Directive. They are designed to state whether a specific third country grants Community AIFM effective market access comparable to that granted by the Community to AIFM from that third country. They are designed to 1999/468/EC. Those measures should specify standard models for notification and attestations and to specify the procedure for the exchange of information between competent authorities.

2010/02/12
Committee: ECON

Proposal for a directive
Article 2 – paragraph 1 – subparagraph 1 - introductory part

1. This Directive shall apply to all AIFM established in the ~~Community, which provide management services to~~Union which manage one or more alternative investment funds (AIF), irrespective of:

2010/02/15
Committee: ECON

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

~~(b) whether the AIFM provides its services directly or by delegation;~~deleted

2010/02/15
Committee: ECON

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

An AIFM authorised in accordance with this Directive to ~~provide management services to~~manage one or more AIF is also entitled to market shares or units of these AIF to professional investors in the ~~Community~~Union subject to the conditions laid down in Chapter VI and, where relevant, Article 35.

2010/02/15
Committee: ECON

Proposal for a directive
Article 2 – paragraph 2 – point a

(a) AIFM which either directly or indirectly through a company with which the AIFM is linked by common management or control, or by a substantive direct or indirect holding, manage portfolios of AIF whose assets under management, including any assets acquired through use of leverage, in total do not exceed a threshold of 100 million Euro or 500 millions euros when the portfolio of AIF consists of AIF that are not leveraged and with no redemption rights exercisable during a period of 5 years following the date of constitution of each AIF;deleted

2010/02/15
Committee: ECON

Proposal for a directive
Article 2 – paragraph 2 – point b

(b) AIFM established in the ~~Community~~Union which do not ~~provide management services to~~manage AIF domiciled in the ~~Community~~Union and do not market AIF in the ~~Community~~Union;

2010/02/15
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 2 – paragraph 2 – point b a (new)

(ba) AIFM which manage one or more AIF exclusively for their parent undertakings or subsidiaries or other subsidiaries of their parent undertaking;

2010/02/15
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 2 – paragraph 2 – point f a (new)

(fa) national, regional and local governments and government investment vehicles and bodies or institutions which manage funds supporting social security and pension systems;

2010/02/15
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 2 – paragraph 2 – point g f (new)

(gf) employee participation schemes.

2010/02/15
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 2 – paragraph 2 – point gt (new)

(gt) AIFM that solely manage investment products authorised in accordance with national law and sold only nationally on the territory of a respective Member State;

2010/02/15
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 2 – paragraph 2 c (new)

2c. For non-systemically relevant AIFM only Articles 6a, 19 to 21 and 40 to 44 of this Directive apply.

2010/02/15
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 2 – paragraph 3

3. Member States shall ensure that AIFM ~~not reaching the threshold set out~~excluded in accordance with paragraph 2(ba) or falling under the lighter regime established in paragraph 2~~(a)~~a are entitled to be voluntarily treated as AIFM falling under the scope of this Directive.

2010/02/15
Committee: ECON

Proposal for a directive
Article 2 – paragraph 4

4. The Commission shall adopt implementing measures with a view to determining the procedures under which AIFM managing portfolios of AIF whose assets under management do not exceed the threshold set out in paragraph 2(a) may exercise their right under paragraph 3. Those measures, designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 49(3).deleted

2010/02/15
Committee: ECON

Proposal for a directive
Article 3 – point a

(a) ‘Alternative investment fund’ or AIF means any collective investment undertaking, including investment compartments thereof whose object is the collective investment in a portfolio of assets and which does not require authorisation pursuant to Article 5 of Directive 2009/…65/EC [the UCITS Directive];

2010/02/15
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 3 – point a a (new)

(aa) ‘non-systemically relevant AIFM’ means AIFM which either directly or indirectly through a company with which the AIFM is linked by common management or control, or by a substantive direct or indirect holding, manage portfolios of AIF whose individual assets under management, including any assets acquired through use of leverage, do not exceed EUR 100 million and in total do not exceed a threshold of EUR 250 millions or whose total assets under management do not exceed EUR 500 millions when the portfolio of AIF consists of AIF that are not leveraged and with no redemption rights exercisable during a period of 5 years following the date of constitution of each AIF;

2010/02/15
Committee: ECON

Proposal for a directive
Article 3 – point b

(b) ‘manager of alternative investment funds ‘ or AIFM means any legal ~~or natural person whose regular business is to manage one or sev~~person that is responsible for the management of one or several AIF and for compliance with the requirements of this Directive and which can be the AIF itself unless it has designated an external ~~AIF~~entity;

2010/02/15
Committee: ECON

Proposal for a directive
Article 3 – point c

~~(c) ‘Valuator’ means any legal or natural person or company valuing the assets or establishing the value of the shares or units of an AIF;~~deleted

2010/02/15
Committee: ECON

Proposal for a directive
Article 3 – point c a (new)

(ca) ‘depositary task’ means the independent function of safe-keeping of financial instruments, the reception of payments made by investors and the verification of ownership of assets in which an AIF invests;

2010/02/15
Committee: ECON

Proposal for a directive
Article 3 – point d

(d) ‘management services’ means the activities ~~of managing and administering one or more AIF on behalf of one or more investors~~defined in Article 4a and Annex II of Directive 2009/65/EC;

2010/02/15
Committee: ECON

Proposal for a directive
Article 3 – point l

(l) ‘Leverage’ means any method by which the AIFM increases the exposure of an AIF it manages ~~to a particular investment~~ whether through borrowing of cash or securities, or leverage embedded in derivative positions or by any other means;

2010/02/15
Committee: ECON

Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2

Entities which are neither authorised in accordance with this Directive nor, in case of AIFM not covered by this Directive, in accordance with the national law of a Member State, shall not be allowed to ~~provide management services to~~manage AIF or market units or shares thereof within the ~~Community~~Union, except under delegation by the AIFM in accordance in Article 18 of this Directive.

2010/02/15
Committee: ECON

Proposal for a directive
Article 4 – paragraph 2 c (new)

2c. Only one legal entity should qualify as the AIFM for a respective AIF and should be responsible for compliance with the requirements of this Directive.

2010/02/15
Committee: ECON

Proposal for a directive
Article 4 a (new)

Article 4a Authorised activities 1. Member States shall require that no externally appointed AIFM covered by this Directive shall engage in activities other than the management of one or more AIF in accordance with this Directive, with the exception of administrative activities and marketing as listed in Annex II of Directive 2009/65/EC, activities related to the underlying assets of AIF or to the issue and redemption of units or shares in the AIF, or of additional management of UCITS pursuant to authorisation under Directive 2009/65/EC and of services according to Article 6(2) of Directive 2009/65/EC for which the AIFM is authorised. 2. Member States shall ensure that no self-managed AIF covered by this Directive engages in activities other than the internal management activities listed in Annex II of Directive 2009/65/EC, except marketing of that AIF and activities related to the underlying assets of that AIF or to the issue and redemption of units or shares in the AIF. 3. By way of derogation from paragraph 1, Member States may authorise an externally appointed AIFM to provide, in addition to the activities listed in paragraph 1, the following services: (a) management of portfolios of investments, including those owned by pension funds, institutions for occupational retirement provisions in accordance with Article 19(1) of Directive 2003/41/EC, in accordance with mandates given by investors on a discretionary, client-by-client basis; (b) non-core services: (i) reception and transmission of orders in relation to AIFs; (ii) safekeeping and administration in relation to AIFs, including related services such as cash/collateral management; (iii) investment advice concerning one or more of the instruments listed in Annex I, Section C to Directive 2004/39/EC.

2010/02/15
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 - point -a (new)

(-a) information on the persons effectively conducting the business of the AIFM;

2010/02/15
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 - point a

(a) information on the identities of the AIFM shareholders or members, whether direct or indirect, natural or legal persons, that have qualifying holdings and of the amounts of those holdings. at the time of applying for authorisation; this point shall not apply to self-managed AIF;

2010/02/15
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 - point e

(e) information on arrangements made for the delegation to third parties of management services functions as referred to in Article 18 ~~and where applicable Article 35~~;

2010/02/15
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 - point f

(f) information on the arrangements made for the safe-keeping of the assets of AIF ~~including~~, where applicable~~, arrangements made under Article 38~~;

2010/02/15
Committee: ECON

Proposal for a directive
Article 5 – paragraph 1 - point g b (new)

(gb) where a self-managed AIF is applying for authorisation as the AIFM, the names of members of the governing body of the AIF and details of their background and experience in relation to the type of business carried out by the AIF.

2010/02/15
Committee: ECON

Proposal for a directive
Article 6 – paragraph 3 – subparagraph 1

~~3. The authorisation shall cover any delegation arrangements made by the AIFM and communicated in the application.~~deleted

2010/02/15
Committee: ECON

Proposal for a directive
Article 6 – paragraph 4 – subparagraph 1

4. The competent authorities shall inform the applicant in writing, within two months of the submission of a complete application, whether or not authorisation has been granted.

2010/02/15
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 6 a (new)

Article 6a Procedure and conditions for registration of non-systemically relevant AIFM 1. A non-systemically relevant AIFM shall provide the information stipulated in Article 5(-a) to (a), (c) and (g) as well as the following information to the competent authorities of its home Member State when registering: (a) a programme of activity, including information on how the AIFM intends to comply with its obligations under Chapter IV; (b) the organisational structure of the AIFM. 2. The competent authorities shall confirm the registration immediately after the complete information as referred to in paragraph 1 is submitted.

2010/02/15
Committee: ECON

Proposal for a directive
Article 9 – paragraph 1 – subparagraph 1

1. Member States shall ensure that AIFM may provide their cross-border management services within the Community only if they comply with the provisions of this Directive on an ongoing basis.

2010/02/15
Committee: ECON

Proposal for a directive
Article 11 – paragraph 2 – subparagraph 1

2. The AIFM shall implement risk management systems in order to measure ~~and~~, monitor and manage appropriately all risks ~~associated~~relevant to each AIF investment strategy and to which each AIF is or can be exposed to. The risk management shall be appropriate to the nature, scale and complexity of the AIF.

2010/02/15
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 11 – paragraph 4

4. In the case of AIFM which engage in short selling when investing on behalf of one or more AIF, Member States shall ensure that the AIFM operates procedures which provide it with access to the securities or other financial instruments at the date when the AIFM committed to deliver them, and that the AIFM implements a risk management procedure which allows the risks associated with the delivery of short sold securities or other financial instruments to be adequately managed.deleted

2010/02/15
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 11 – paragraph 5

5. The Commission shall adopt implementing measures further specifying the following: (a) the risk management requirements to be employed by AIFM as a function of the risks which the AIFM incurs on behalf of the AIF that it manages; (b) any arrangements needed to enable AIFM to manage the particular risks associated with short selling transactions, including any relevant restrictions that might be needed to protect the AIF from undue risk exposures. Those measures, designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 49(3).deleted

2010/02/15
Committee: ECON

Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1

1. For each AIF it manages the AIFM shall employ an appropriate liquidity management system and adopt procedures which ensure that the liquidity profile of the investments of the AIF complies with its underlying obligations and the nature of the AIF, the investment horizon and redemption policy, as laid down in the AIF fund rules or instruments of incorporation.

2010/02/15
Committee: ECON

Proposal for a directive
Article 12 – paragraph 2

2. AIFM shall ensure that each AIF it manages has a ~~redemption policy which is appropriate to the~~ liquidity profile of the investments of the AIF which is appropriate to the redemption policy and which must be laid down in the AIF rules or instruments of incorporation.

2010/02/15
Committee: ECON

Proposal for a directive
Article 12 – paragraph 3

3. The Commission shall adopt implementing measures further specifying: (a) the liquidity management requirements set out in paragraph 1 and (b) in particular, the minimum liquidity requirements for AIF which redeem units or shares more often than half-yearly. Those measures, designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 49(3).deleted

2010/02/15
Committee: ECON

Proposal for a directive
Article 13 – paragraph 1 – introductory part

In order to ensure cross-sectoral consistency and to remove misalignment between the interest of ~~firms that repackage loans into tradable securities and other financial instruments (originators)~~originators within the meaning of Article 4(40) of Directive 2006/48/EC and AIFM that invest in these securities or other financial instruments on behalf of one or more AIF, the Commission shall adopt implementing measures laying down the requirements in the following areas:

2010/02/15
Committee: ECON

Proposal for a directive
Article 13 – paragraph 1 - point a

(a) the requirements that need to be met by the originator in order for an AIFM to be allowed to invest in securities or other financial instruments of this type issued after 1 January 2011 on behalf of one or more AIF, including requirements that ensure that the originator retains a net economic interest of not less than 5 per cent. The AIFM shall be entitled to rely on a written documentation by the originator that it has and will maintain the net economic interest;

2010/02/15
Committee: ECON

Proposal for a directive
Article 14 – paragraph -1 (new)

-1. Where an AIF is self-managed, namely, authorised as an AIFM, the AIF shall have initial capital of at least EUR 300 000.

2010/02/15
Committee: ECON

Proposal for a directive
Article 14 – subparagraph 4 a (new)

4a. Member States may authorise AIFM not to provide up to 50 % of the additional amount of own funds referred to in the paragraph 2 if they benefit from a guarantee for the same amount given by a credit institution or an insurance undertaking; the credit institution or insurance undertaking shall have its registered office in a Member State, or a third country provided that it is subject to prudential rules considered by the competent authorities as equivalent to those laid down in Union law.

2010/02/15
Committee: ECON

Proposal for a directive
Article 15 – paragraph 1

AIFM shall, at all times, use adequate and appropriate resources that are necessary for the proper ~~performance of their~~ management ~~activities~~of AIF.

2010/02/15
Committee: ECON

Proposal for a directive
Article 16 – paragraph 1 – subparagraph 1

1. AIFM shall ensure that, for each AIF that it manages, ~~a valuator is appointed which is independent of the AIFM to establish~~ the value of assets acquired by the AIF and the value of the shares and units of the AIF are assessed in a consistent and functionally independent manner. Any third party assigned shall ensure the independence of those functions.

2010/02/15
Committee: ECON

Proposal for a directive
Article 16 – paragraph 1 – subparagraph 2

The ~~valuator shall ensure that the~~ assets, shares and units arhave to be valued at an appropriate frequency and at least once a year, and each time shares or units of the AIF arcan be issued or redeemed ~~if this is more frequent~~.

2010/02/15
Committee: ECON

Proposal for a directive
Article 16 – paragraph 2

2. AIFM shall ensure that ~~the valuator has~~ appropriate and consistent procedures to value the assets of the AIF in accordance with existing applicable valuation standards and rules are in place, in order to reflect the net asset value of the shares or units of the AIF. The responsibility for the valuation of assets or the calculation of the net asset value of the AIF rests with the AIFM and shall not be affected by the delegation of such functions to a third party.

2010/02/15
Committee: ECON

Proposal for a directive
Article 16 – paragraph 2 – subparagraph 1 a (new)

Where a third party is used for the valuation, the AIFM must be able to demonstrate that such third party is qualified and capable of performing the functions in question, that it was selected with due care and that the AIFM is in a position to monitor effectively at any time the activity of such third party.

2010/02/15
Committee: ECON

Proposal for a directive
Article 16 – paragraph 2 – subparagraph 1 b (new)

By way of derogation from subparagraph 1, Member states may allow the AIFM to assign the valuation function and the corresponding responsibility for the valuation to a third party in accordance with the national law where the AIF is domiciled.

2010/02/15
Committee: ECON

Proposal for a directive
Article 16 – paragraph 2 – subparagraph 1 c (new)

AIFM shall regularly publish the methodologies used for the valuation of illiquid assets, whether valuation occurs within the AIFM or is delegated to a third party.

2010/02/15
Committee: ECON

Proposal for a directive
Article 16 – paragraph 4 – subparagraph 1

4. The Commission shall adopt ~~implementing measures~~delegated acts in accordance with Articles 49a, 49b and 49c further specifying the criteria under which athe valuatorion process can be considered independent ~~in th~~and what organisational requirements have to be meant ing o~~f paragraph 1~~rder to prevent any conflict of interest.

2010/02/15
Committee: ECON

Proposal for a directive
Article 17 – title

Article 17 Article 17 Depositary Depositary tasks

2010/02/15
Committee: ECON

Proposal for a directive
Article 17 – paragraph 1 – introductory part

1. For each AIF it manages, the AIFM shall ensure that ~~a depositary is appointed to fulfil, where relevant,~~, where relevant, the depositary tasks are performed independently and solely in the interest of AIF investors. The depositary tasks are the following ~~tasks~~:

2010/02/15
Committee: ECON

Proposal for a directive
Article 17 – paragraph 2 – subparagraph 1

~~2. An AIFM shall not act as depositary.~~deleted

2010/02/15
Committee: ECON

Proposal for a directive
Article 17 – paragraph 2 – subparagraph 2

~~The depositary shall act independently and solely in the interest of AIF investors.~~deleted

2010/02/15
Committee: ECON

Proposal for a directive
Article 17 – paragraph 3 – subparagraph -1 (new)

The tasks mentioned in paragraph 1 may be fulfilled by a depositary.

2010/02/15
Committee: ECON

Proposal for a directive
Article 17 – paragraph 4

~~4. Depositaries may delegate their tasks to other depositaries.~~deleted

2010/02/15
Committee: ECON

Proposal for a directive
Article 17 – paragraph 5 – subparagraph 1

~~5. The depositary shall be liable to the AIFM and the investors of the AIF for any losses suffered by them as a result of its failure to perform its obligations pursuant to this Directive.~~deleted

2010/02/15
Committee: ECON

Proposal for a directive
Article 17 – paragraph 5 – subparagraph 2

In case of any loss of financial instruments which the depositary safe- keeps, the depositary can only discharge itself of its liability if it can prove that it could not have avoided the loss which has occurred.deleted

2010/02/15
Committee: ECON

Proposal for a directive
Article 17 – paragraph 5 – subparagraph 3

Liability to AIF investors may be invoked either directly or indirectly through the AIFM, depending on the legal nature of the relationship between the depositary, the AIFM and the investors. The depositary's liability shall not be affected by any delegation referred to in paragraph 4.deleted

2010/02/15
Committee: ECON

Proposal for a directive
Article 18 – paragraph 1 – subparagraph 1

1. AIFM which intend to delegate to third parties the task of carrying out on their behalf one or more of their functions shall ~~request prior authorisation fro~~inform the competent authorities of the home Member State for each delegation.

2010/02/16
Committee: ECON

Proposal for a directive
Article 18 – paragraph 1 – subparagraph 2 – point b

(b) where the delegation concerns the portfolio management or the risk management, the ~~third party must also be authorised as an AIFM to manage an AIF of the same type;~~ mandate shall be given only to undertakings which are authorised or registered for the purpose of asset management and subject to prudential supervision; the AIFM shall perform due diligence. Where the mandate concerns the investment management and is given to a third-country undertaking, cooperation between the supervisory authorities concerned shall be ensured; where this condition is not fully satisfied, the delegation may only be given on the condition of prior authorisation by the competent authorities of the home Member State of the AIFM;

2010/02/16
Committee: ECON

Proposal for a directive
Article 18 – paragraph 1 – subparagraph 3

~~No delegation shall be given to the depositary, the valuator, or to any other undertaking whose interests may~~The AIFM shall ensure that the delegation does not conflict with th~~ose~~e interests of the AIF or its investors.

2010/02/16
Committee: ECON

Proposal for a directive
Article 18 – paragraph 3

~~3. The third party may not sub-delegate any of the functions delegated to it.~~deleted

2010/02/16
Committee: ECON

Proposal for a directive
Article 18 – paragraph 4 - subparagraph 1 - point a

~~(a) the conditions for approving the delegation;~~deleted

2010/02/16
Committee: ECON

Proposal for a directive
Article 19 – paragraph 1

1. An AIFM shall, for each of the AIF it manages, make available an annual report for each financial year. The annual report shall be made available to investors and competent authorities no later than four months following the end of the financial year or, in the case of an AIF investing in other AIF, no later than six months following the end of the financial year.

2010/02/16
Committee: ECON

Proposal for a directive
Article 20 – paragraph 1 – introductory part

1. AIFM shall ensure that ~~AIF investors receive~~ the following information is made available to AIF investors before they invest in the AIF, as well as any changes thereof:

2010/02/16
Committee: ECON

Proposal for a directive
Article 20 – paragraph 1 – point a

(a) a description of the investment strategy and objectives of the AIF, all the assets which the AIF can invest in and of the techniques it may employ and of all associated risks, any applicable investment restrictions, the circumstances in which the AIF may use leverage, the types and sources of leverage permitted, the maximum level of leverage and the associated risks and of any restrictions to the use of leverage as well as the total amount of leverage, on a periodic basis;

2010/02/16
Committee: ECON

Proposal for a directive
Article 20 – paragraph 1 – point c

(c) a description of the legal implications of the contractual relationship entered into for the purpose of investment, including information on jurisdiction, applicable law and on the existence, or not, of any legal instruments providing for the recognition and enforcement of judgments on the territory where the fund is domiciled;deleted

2010/02/16
Committee: ECON

Proposal for a directive
Article 20 – paragraph 1 – point d

(d) the identity of the AIF's ~~depositary, valuator,~~ auditor and any other service providers and a description of their duties and the investors' rights should any failure arise;

2010/02/16
Committee: ECON

Proposal for a directive
Article 20 – paragraph 1 – point e

(e) a description of any delegated management or valuation function or depositary ~~function~~task and the identity of the third party to whom the function or task has been delegated;

2010/02/16
Committee: ECON

Proposal for a directive
Article 20 – paragraph 1 – point i

(i) whenever an investor obtains a preferential treatment or the right to obtain preferential treatment, ~~the identity of the investor and~~ a description of that preferential treatment;

2010/02/16
Committee: ECON

Proposal for a directive
Article 21 – paragraph 2 – point d a (new)

(da) the overall level of leverage employed by each AIF it manages, a break-down between leverage arising from borrowing of cash or securities and leverage embedded in financial derivatives and the extent to which their assets have been reused under leveraging arrangements, including the five largest sources of borrowed cash or securities and the leverage received for each AIF it manages;

2010/02/16
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 21 – paragraph 2 – point e

~~(e) where relevant, the use of short selling during the reporting period.~~deleted

2010/02/16
Committee: ECON

Proposal for a directive
Article 21 – paragraph 2 – subparagraph 1 b (new)

The competent authorities of the home Member State shall forward the aggregated information referred to in point (da) of the first paragraph to the ESRB and the ESMA in a common reporting format.

2010/02/16
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 22 – subparagraph 2

~~AIFM shall assess on a quarterly basis whether the AIF employs high levels of leverage on a systematic basis and shall inform the competent authorities accordingly~~deleted.

2010/03/08
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 22 – subparagraph 3

For the purposes of the second subparagraph, an AIF shall be deemed to employ high levels of leverage on a systematic basis where the combined leverage from all sources exceeds the value of the equity capital of the AIF in two out of the past four quarters.deleted

2010/03/08
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 23

Article 23 Disclosure to investors AIFM managing one or more AIF employing high levels of leverage on a systematic basis shall for each such AIF: (a) disclose to investors the maximum level of leverage which the AIFM may employ on behalf of the AIF as well as any right of re-use of collateral or any guarantee granted under the leveraging arrangement; (b) quarterly disclose to investors the total amount of leverage employed by each AIF in the preceding quarter.deleted

2010/03/08
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 24

Article 24 Reporting to competent authorities 1. AIFM managing one or more AIF employing high levels of leverage on a systematic basis shall regularly provide, to the competent authorities of its home Member State, information about the overall level of leverage employed by each AIF it manages, and a break-down between leverage arising from borrowing of cash or securities and leverage embedded in financial derivatives. That information shall include the identity of the five largest sources of borrowed cash or securities for each of the AIF managed by the AIFM, and the amounts of leverage received from each of those entities for each of the AIF managed by the AIFM. 2. The Commission shall adopt implementing measures further specifying the disclosure requirements with regard to leverage and the frequency of reporting to competent authorities and of disclosure to investors. Those measures, designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 49(3).deleted

2010/03/08
Committee: ECON

Proposal for a directive
Article 25 – paragraph 1

1. Member States shall ensure that the competent authorities of the home Member State ~~use the~~forward the aggregated information to be reported under Article 241 to the ESRB for the purposes of identifying the extent to which the use of leverage contributes to the build-up of systemic risk in the financial system or risks of disorderly markets.

2010/03/08
Committee: ECON

Proposal for a directive
Article 25 – paragraph 2

2. Home Member States shall ensure that all information received under Article 24, 1, aggregated in respect of all AIFM that ithey supervises, ~~are~~is made available to other competent authorities ~~through the procedure set out in Article 46 on supervisory co-operation. It~~within the Union and the ESMA. The competent authorities of the home Member States shall, without delay, ~~also~~ provide information through th~~is mechanism~~e procedure set out in Article 46 on supervisory co-operation, and bilaterally to other Member States directly concerned, if an AIFM under ~~its~~their responsibility could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institution in those other Member States.

2010/03/08
Committee: ECON

Wolf KLINZ, Sharon BOWLES, Carl HAGLUND

Proposal for a directive
Article 25 – paragraph 3

3. In order to ensure the stability and integrity of the financial system, the Commission shall adopt implementing measures setting limits to the level of leverage AIFM can employ. These limits should take into account, inter alia, the type of AIF, their strategy and the sources of their leverage. Those measures designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 49(3).deleted

2010/03/08
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 25 – paragraph 4

4. In exceptional circumstances and when this is required in order to ensure the stability and integrity of the financial system, the competent authorities of the home Member State ~~may impose additional~~of the AIFM may impose limits to the level of leverage that AIFM can employ. ~~Measures taken by the competent authorities of t~~The home Member State~~s shall have a temporary nature and should comply with the provisions adopted by the Commission pursuant to paragraph 3~~ of the AIF, the ESMA, the ESRB and the Commission shall be informed of any such measure.

2010/03/08
Committee: ECON

Proposal for a directive
Article 26 – paragraph 2

2. This section shall not apply where the ~~issuer or the~~ non-listed company concerned ~~are~~is a small and medium enterprises that either employs fewer than 250 persons, ~~have~~or has an annual turnover not exceeding 50 million euro and/or an annual balance sheet not exceeding EUR 43 million ~~euro~~.

2010/03/08
Committee: ECON

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

This notification shall be made, as soon as possible, but not later than f~~our trad~~ive working days the first of which being the day on which the AIFM has reached the position of being able to exercise 30 % of the voting rights.

2010/03/08
Committee: ECON

Proposal for a directive
Article 27 b (new)

Article 27b Obligations regarding investments in target companies Notwithstanding national legislation, in order to avoid asset stripping in regard to target companies in which AIFM managing AIF invest, each AIFM shall ensure a lock-in period of three years of the AIF investment in the target company.

2010/03/08
Committee: ECON

Proposal for a directive
Article 28 – title

Disclosure in case of acquisition of controlling influence in ~~issuers or~~ non- listed companies

2010/03/08
Committee: ECON

Proposal for a directive
Article 28 – paragraph 1 – subparagraph 1

1. In addition to Article 27, Member States shall ensure that where an AIFM acquires 30 % or more of the voting rights of ~~an issuer or~~ a non- listed company, that AIFM makes the information set out in the second and third subparagraphs available ~~to the issuer,~~as soon as possible to the non-listed company, their respective shareholders and representatives of employees or, where there are no such representatives, to the employees themselves.

2010/03/08
Committee: ECON

Proposal for a directive
Article 28 – paragraph 1 – subparagraph 2 – introductory part

~~With regard to issuers, the AIFM shall make available the following to the issuer concerned, its shareholders and representatives of employees:~~deleted

2010/03/08
Committee: ECON

Proposal for a directive
Article 28 – paragraph 1 – subparagraph 2 – point a

~~(a) the information referred to in Article 6(3) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids1; 1~~deleted OJ L 142, 30.4.2004, p. 12.

2010/03/08
Committee: ECON

Proposal for a directive
Article 28 – paragraph 1 – subparagraph 2 – point b

~~(b) the policy for preventing and managing conflicts of interests, in particular between the AIFM and the issuer;~~ deleted Or. en Justification

2010/03/08
Committee: ECON

Proposal for a directive
Article 28 – paragraph 1 – subparagraph 2 – point c

~~(c) the policy for external and internal communication of the issuer in particular as regards employees.~~deleted

2010/03/08
Committee: ECON

Proposal for a directive
Article 28 – paragraph 1 – subparagraph 3 – point e

~~(e) the development plan for the non- listed company;~~deleted

2010/03/08
Committee: ECON

Proposal for a directive
Article 28 – paragraph 2

2. The Commission shall adopt implementing measures determining: (a) the detailed content of the information provided under paragraph 1; (b) the way the information shall be communicated. Those measures, designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 49(3).deleted

2010/03/08
Committee: ECON

Proposal for a directive
Article 29 – title

Specific provisions regarding the annual report of AIF exercising controlling influence in ~~issuers or~~ non-listed companies

2010/03/08
Committee: ECON

Proposal for a directive
Article 29 – paragraph 2 – subparagraph 1 - introductory part

2. The AIF annual report shall include the following additional information for each ~~issuer and~~ non listed company in which the AIF has ~~invested~~acquired a controlling influence :

2010/03/08
Committee: ECON

Proposal for a directive
Article 29 – paragraph 2 – subparagraph 1 - point a

(a) with regard to operational and financial developments, presentation of revenue and earnings by business segment, statement on the progress of company's activities and financial affairs, ~~assessment of expected progress on activities and financial affairs,~~ report on significant events in the financial year;

2010/03/08
Committee: ECON

Proposal for a directive
Article 29 – paragraph 2 – subparagraph 1 - point b

~~(b) with regard to financial and other risks at least financial risks associated with capital structure;~~deleted

2010/03/08
Committee: ECON

Proposal for a directive
Article 29 – paragraph 2 – subparagraph 2

In addition, the AIF annual report shall, for each issuer in which it has acquired a controlling influence, contain the information provided for in point (f) of Article 46a(1) of Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54 (3) (g) of the Treaty on the annual accounts of certain types of companies1 and an overview of the capital structure as referred to in points (a) and (d) of Article 10(1) of Directive 2004/25/EC.deleted

2010/03/08
Committee: ECON

Proposal for a directive
Article 29 – paragraph 2 – subparagraph 3

For each non-listed company in which it has acquired a controlling influence, the AIF report shall provide an overview of management arrangements and the information provided for in points (b), (c) and (e) to (h) of Article 3 of Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent1.deleted

2010/03/08
Committee: ECON

Proposal for a directive
Article 29 – paragraph 4

4. The Commission shall adopt implementing measures specifying the detailed content of the information to be provided under paragraphs 1 and 2. Those measures, designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 49(3).deleted

2010/03/08
Committee: ECON

Proposal for a directive
Article 30

Article 30 Specific provisions regarding companies whose shares are no longer admitted to trading on a regulated market Where, following an acquisition of 30 % or more of the voting rights of an issuer, the shares of that issuer are no longer admitted to trading on a regulated market, it shall nevertheless continue to comply with its obligations under Directive 2004/109/EC for two years from the date of withdrawal from the regulated market.deleted

2010/03/08
Committee: ECON

Proposal for a directive
Article 31 – paragraph 1

1. An authorised AIFM may market shares or units of AIF established in the Union to professional investors in the home Member State of the AIFM as soon as the conditions laid down in this Article are met.

2010/02/18
Committee: ECON

Proposal for a directive
Article 31 – paragraph 2 – point a

(a) identification of the AIF it intends to market and information on where the AIF ~~are domicil~~is established;

2010/02/18
Committee: ECON

Proposal for a directive
Article 31 – paragraph 3 – subparagraph 2

~~Subject to the implementing measures referred to in the third subparagraph, the competent authorities may impose restrictions or conditions on the marketing of AIF pursuant to this Article.~~deleted

2010/02/18
Committee: ECON

Proposal for a directive
Article 31 – paragraph 3 – subparagraph 3

The Commission shall adopt implementing measures specifying the types of restrictions or conditions that can be imposed on the marketing of AIF pursuant to the second subparagraph of this 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 49(3).deleted

2010/02/18
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 31 – paragraph 4a (new)

4a. Without prejudice to the provisions of Chapter VI, Member States may allow AIFM to market to professional investors on their territory shares or units of AIF that are either established in a third country or not covered by this Directive.

2010/02/18
Committee: ECON

Proposal for a directive
Article 33 – paragraph 1 – introductory part

1 Where an authorised AIFM intends to market to professional investors the units or shares of an AIF it manages and that is established in the Union in another Member State, it shall submit the following documents to the competent authorities of its home Member State:

2010/02/18
Committee: ECON

Proposal for a directive
Article 33 – paragraph 1 – subparagraph 1a (new)

The competent authorities of the host Member State shall not request any additional documents or information other than those listed in this Article.

2010/02/18
Committee: ECON

Proposal for a directive
Article 33 – paragraph 6 – subparagraph 1

6. In the event of a change in any of the particulars communicated in accordance with paragraph 2, an AIFM shall immediately give written notice of that change to the competent authorities of its home Member State ~~at least one month before implementing the change~~.

2010/02/18
Committee: ECON

Proposal for a directive
Article 34 – paragraph 6 – subparagraph 1

6. In the event of a change in any of the particulars communicated in accordance with paragraph 2, and where relevant 3, an AIFM shall immediately give written notice of that change to the competent authorities of its home Member State ~~at least one month before implementing the change~~.

2010/02/18
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 35

Article 35 Conditions for the marketing in the Community of AIF domiciled in third countries An AIFM may only market shares or units of an AIF domiciled in a third country to professional investors domiciled in a Member State, if the third country has signed an agreement with this Member State which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention and ensures an effective exchange of information in tax matters. Where AIFM market shares or units of AIF domiciled in a third country the home Member States may prolong the period referred to in Article 31(3), when this is necessary to check whether the conditions of this Directive are met. Before allowing AIFM to market shares or units of AIF domiciled in a third country, the home Member State shall have particular regard to the arrangements made by the AIFM in accordance with Article 38, where relevant.deleted

2010/02/18
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 36

Article 36 Delegation by the AIFM of administrative tasks to an entity established in a third country Member States shall only allow an AIFM to delegate administrative services to entities established in a third country, provided that all of the following conditions are met: (a) the requirements set out in Article 18 are fulfilled; (b) the entity is authorised to provide administration services or registered in the third country in which it is established and is subject to prudential supervision; (c) there is an appropriate co-operation agreement between the competent authority of the AIFM and the supervisory authority of the entity.deleted

2010/02/18
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 37

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

2010/02/18
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 38

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

2010/02/18
Committee: ECON

Wolf KLINZ, Carl HAGLUND

Proposal for a directive
Article 39

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

2010/02/18
Committee: ECON

Proposal for a directive
Article 46 – paragraph 1

1. The competent authorities responsible for the authorisation and supervision of AIFM under this Directive shall communicate information to the competent authorities of other Member States where this is relevant for monitoring and responding to the potential implications of the activities of individual AIFM or AIFM collectively for the stability of systemically relevant financial institutions and the orderly functioning of markets on which AIFM are active. The ~~Committee of European Securities Regulators (CESR) established by Commission Decision 2009/77/EC of 23 January 20091~~ESMA and the ESRB shall also be informed and shall forward this information to the competent authorities of the other Member States. 1OJ L 25, 29.01.2009, p. 18.

2010/02/18
Committee: ECON

Proposal for a directive – amending act
Article 50 – paragraph 1 a (new)

The Commission shall, by ...*, put forward a proposal to revise this Directive, which introduces the criteria for establishing equivalence with third countries. The Commission shall assess under which conditions an AIFM established in the Union is permitted to market shares or units of an AIF established in a third country in the whole Union, subject to notification procedures. Furthermore, the Commission shall assess under which conditions an AIFM established in a third country may market units or shares of an AIF to professional investors in the Union. The Commission shall seek to establish equivalence with third countries. Requirements for equivalence shall incorporate regulatory and supervisory equivalence, reciprocity of access to markets and an information sharing agreement between the competent authorities of the AIFM home Member State and the competent authority of the third country. *OJ: please insert date: five years after the date referred to in Article 54.

2010/02/18
Committee: ECON

Proposal for a directive – amending act
Article 51

AIFM operating in the Community before ~~[the deadline for the transposition of this Directive]~~...* shall adopt all necessary measures to comply with this Directive and shall submit an application for authorisation ~~within one year of the deadline for the transposition of this Directive~~by...**. * OJ: please insert date: date referred to in Article 54. ** OJ: please insert date: two years from the date referred to in Article 54.

2010/02/18
Committee: ECON

Proposal for a directive – amending act
Article 53

Directive 2009/65/EC
Article 50a

Amendment of Directive 2009/…/EC Directive 2009/XX EC shall be amended as follows: The following new Article 50a shall be inserted: "In order to ensure cross-sectoral consistency and to remove misalignment between the interest of firms that 'repackage' loans into tradeable securities and other financial instruments (originators) and UCITS that invest in these securities or other financial instruments, the Commission shall adopt implementing measures laying down the requirements in the following areas: (a) the requirements that need to be met by the originator in order for a UCITS to be allowed to invest in securities or other financial instruments of this type issued after 1 January 2011, including requirements that ensure that the originator retains a net economic interest of not less than 5 per cent; (b) qualitative requirements that must be met by UCITS which invest in these securities or other financial instruments. Those measures, designed to amend this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 107(2)."rticle 53 deleted

2010/02/18
Committee: ECON

Wolf KLINZ, Olle SCHMIDT, Carl HAGLUND, Dirk STERCKX

Proposal for a directive
–

The European Parliament rejects the Commission proposal.

2010/02/25
Committee: ECON