51 Amendments of Jean-Pierre AUDY related to 2009/0064(COD)
Amendment 205 #
Proposal for a directive
Recital 9
Recital 9
(9) Without prejudice to the application of other instruments of CommunityEU law, Member States may impose stricter requirements on AIFM whenever AIFM market an AIF solely to retail investors or whenever AIFM market the same AIF both to professional and retail investors, irrespective of whether units or shares of this AIF are marketed on a domestic or cross-border basis. These two exceptions enable Member States to impose additional safeguards which they deem necessary for the protection of retail investors. This takes account of the fact that AIF are often illiquid and subject to high risk of substantial capital loss. Investment strategies in relation to AIF are generally not adapted to the investment profile or needs of retail investors. They are more suitable for professional investors and investors having a sufficiently large investment portfolio so as to be able to absorb the higher risks of loss associated with these investments. Nevertheless, Member States may allow the marketing of all or certain types of AIF managed by AIFM to retail investors on their territory. Consideration should, however, be given by the EU institutions and, in particular, by the Commission to whether a specific EU framework should be proposed to define common rules for the distribution of AIFs to retail investors in the EU. Against the background of paragraphs 4 and 5 of Article 19 of Directive 2004/39/EC, Member States should continue to ensure that appropriate provision is made whenever they permit the marketing of AIF to retail investors. Investment firms authorised in accordance with Directive 2004/39/EC which provide investment services to retail clients have to take into account these additional safeguards when assessing whether a certain AIF is suitable or appropriate for an individual retail client. Where a Member State allows the marketing of AIF to retail investors on its territory, this possibility should be available regardless of the Member State where the AIFM is established, and any additional provisions should apply on a non-discriminatory basis.
Amendment 220 #
Proposal for a directive
Recital 12
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 booking of 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, and the oversight of the AIF in the interests of its investors.
Amendment 241 #
Proposal for a directive
Recital 15 a (new)
Recital 15 a (new)
(15a) The financing provided to AIFM employing high levels of leverage in their investment strategies on a systematic basis should be closely monitored. To that end specific coordination should be put in place between the ESMA and the EBA to keep track of the level of financing provided to such AIFM by financial institutions involved in these activities.
Amendment 287 #
Proposal for a directive
Recital 20
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 some of 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 CommunityUnion. Under certain conditions, it should also be possible for the AIFM to appoint an independent valuator established in a third country.
Amendment 499 #
Proposal for a directive
Article 3 – point og (new)
Article 3 – point og (new)
(og) ‘safe-keeping’ means holding financial instruments in custody or through position-keeping on behalf of the AIF;
Amendment 517 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2a (new)
Article 4 – paragraph 1 – subparagraph 2a (new)
No AIFM may engage in activities other than the management of AIFs and the provision of discretionary portfolio management and investment advice regarding instruments listed in Annex I, Section C of Directive 2004/39/EC. Member States may authorize AIFM to provide also some administration and marketing services mentioned in the Annex to this Directive as non-core services.
Amendment 595 #
Proposal for a directive
Article 7 – paragraph 2 a (new)
Article 7 – paragraph 2 a (new)
The Commission shall adopt delegated acts in accordance with Articles 49a, 49b and 49c further specifying criteria for evaluating substantial changes to the conditions under which the authorisation was granted.
Amendment 737 #
Proposal for a directive
Article 16 – paragraph 1 a (new)
Article 16 – paragraph 1 a (new)
1a. The AIFM is responsible for the proper valuation of AIF assets as well as for the calculation of the net asset value of the AIF. This responsibility shall not be affected by the delegation of such functions to a third party.
Amendment 794 #
Proposal for a directive
Article 17 – paragraph 1 – introductory part
Article 17 – paragraph 1 – introductory part
1. For each AIF it manages, the AIFM shall ensure that a single depositary is appointed to fulfill, where relevant, the following taskfunctions:
Amendment 802 #
Proposal for a directive
Article 17 – paragraph 1 – point a
Article 17 – paragraph 1 – point a
(a) receive all payments made by investors when subscribing holds in deposit cash accounits or shares of an AIF managpened byin the AIFM and book them on behalf of the AIFM in a segregated accountbooks of the depositary;
Amendment 805 #
Proposal for a directive
Article 17 – paragraph 1 – point b
Article 17 – paragraph 1 – point b
(b) safe-keep any financial instruments which belong to the AIF, namely: (i) holding in custody all financial instruments that can be credited into securities accounts. For this purpose, the depositary appointed by the AIFM shall ensure the segregation of assets through the opening of separate accounts in its books in the name of each AIF; (ii) maintaining the records to verify the ownership of financial instruments that cannot be held in custody based on the information provided by the AIFM, including external evidence of the existence of the transaction;
Amendment 812 #
Proposal for a directive
Article 17 – paragraph 1 – point c
Article 17 – paragraph 1 – point c
(c) verify whether the AIF maintain the record the AIFM on behalf of the AIF has obtainedo evidence the ownership of all other assets by the AIF invests inbased on information provided by the AIFM or otherwise.
Amendment 818 #
Proposal for a directive
Article 17 – paragraph 1 a – introductory part (new)
Article 17 – paragraph 1 a – introductory part (new)
1a. In addition to the functions referred to in paragraph 1 points (a) and (b), the depositary shall verify ex post that:
Amendment 823 #
Proposal for a directive
Article 17 – paragraph 1 a – point a (new)
Article 17 – paragraph 1 a – point a (new)
(a) the sale, issue, re-purchase, redemption and cancellation of units effected on behalf of an AIF are carried out in accordance with the applicable national law and the AIF rules;
Amendment 827 #
Proposal for a directive
Article 17 – paragraph 1 a – point b (new)
Article 17 – paragraph 1 a – point b (new)
(b) the value of units is calculated in accordance with the applicable national law and the AIF rules;
Amendment 831 #
Proposal for a directive
Article 17 – paragraph 1 a – point c (new)
Article 17 – paragraph 1 a – point c (new)
(c) the instructions of the AIFM are carried out, unless they conflict with the applicable national law or the AIF rules;
Amendment 835 #
Proposal for a directive
Article 17 – paragraph 1 a – point d (new)
Article 17 – paragraph 1 a – point d (new)
(d) in transactions involving an AIF's assets any consideration is remitted to it within the usual time limits;
Amendment 838 #
Proposal for a directive
Article 17 – paragraph 1 a – point e (new)
Article 17 – paragraph 1 a – point e (new)
(e) the AIF's income is applied in accordance with the applicable national law and the AIF rules.
Amendment 871 #
Proposal for a directive
Article 17 – paragraph 3
Article 17 – paragraph 3
3. The depositary shall be either: (a) a credit institution having its registered office in the Community and be authorised in accordance with Directive 2006/48/EC of the European Parliament and Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast). ;
Amendment 880 #
Proposal for a directive
Article 17 – paragraph 3 – point a d (new)
Article 17 – paragraph 3 – point a d (new)
(ad) an investment firm authorised in accordance with Directive 2004/39/CE;
Amendment 887 #
Proposal for a directive
Article 17 – paragraph 3 – point a g (new)
Article 17 – paragraph 3 – point a g (new)
(ag) an institution which is subject to prudential regulation and on-going supervision and which can provide sufficient financial and professional guarantees to be able to effectively perform the relevant depositary functions and meet the commitments inherent to those functions.
Amendment 902 #
Proposal for a directive
Article 17 – paragraph 3 i (new)
Article 17 – paragraph 3 i (new)
3i. The Commission shall adopt delegated acts in accordance with Articles 49a, 49b and 49c specifying the conditions that institutions eligible as depositary should meet. Those acts, designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the procedure referred to in Article 290 of the Treaty on the Functioning of the European Union.
Amendment 918 #
Proposal for a directive
Article 17 – paragraph 4
Article 17 – paragraph 4
4. Depositaries may delegate their tasks to other depositaries, apart from functions of monitoring and oversight over their sub-custodians. A depositary shall not delegate its functions to the extent that it becomes a letter-box entity.
Amendment 934 #
Proposal for a directive
Article 17 – paragraph 5 – subparagraph 1 a (new)
Article 17 – paragraph 5 – subparagraph 1 a (new)
Any modification of the liability regime stated in this Directive as a result of a contractual arrangement between the AIFM and the depositary shall be disclosed to the investors in the AIF concerned before investment and to the competent authorities.
Amendment 948 #
Proposal for a directive
Article 17 – paragraph 5 – subparagraph 2 e (new)
Article 17 – paragraph 5 – subparagraph 2 e (new)
In the event of loss of financial instruments which the depositary holds in custody as referred to in paragraph 1 (b), the depositary shall return the assets to the AIF without undue delay. The depositary can discharge its own liability if it can prove that it has performed its due diligence duties as referred to in paragraph 4.
Amendment 956 #
Proposal for a directive
Article 17 – paragraph 5 – subparagraph 2 i (new)
Article 17 – paragraph 5 – subparagraph 2 i (new)
In the event of loss of financial instruments, where a contract exists that allows for the transfer to a third party selected by the AIFM and re-use of assets by the third party with prior consent from the AIFM, the depositary can discharge its own liability in accordance with the terms of the contract. Investors shall be informed of the existence of the contract.
Amendment 970 #
Proposal for a directive
Article 17 – paragraph 5 – subparagraph 3 c (new)
Article 17 – paragraph 5 – subparagraph 3 c (new)
The depositary's liability towards AIFM and investors shall not be affected by the fact that it has delegated a part of its tasks to an authorised third party which it has selected.
Amendment 986 #
Proposal for a directive
Article 18 – paragraph 1 – subparagraph 1
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 fromnotify the competent authorities of the home Member State for each delegation before the delegation arrangements become effective.
Amendment 996 #
Proposal for a directive
Article 18 – paragraph 1 – subparagraph 2 – point b
Article 18 – paragraph 1 – subparagraph 2 – point b
(b) where the delegation concerns the portfolio management or the risk management or liquidity management, the third party must also(i) be authorised as an AIFM to manage an AIF of the same type; ., or (ii) be an AIFM that is not domiciled within the Union but is authorized to manage AIFs of the same type in its country of domiciliation; Or. en
Amendment 1021 #
Proposal for a directive
Article 18 – paragraph 3
Article 18 – paragraph 3
3. The third party may not sub-delegate any of the functions delegated to it provided that the conditions laid down in paragraph 1 are fulfilled.
Amendment 1060 #
Proposal for a directive
Article 20 – paragraph 1 – point a
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, of any asset re-use and transfer arrangements and of custody arrangements if appropriate, any applicable investment restrictions, the circumstances in which the AIF may use leverage, the types and sources of leverage permitted and the associated risks and of any restrictions to the use of leverage;
Amendment 1069 #
Proposal for a directive
Article 20 – paragraph 1 – point d
Article 20 – paragraph 1 – point d
(d) the identity of the AIF's depositary, valuator, auditor, prime broker if appropriate and any other service providers and a description of their duties and the investors' rights should any failure arise;
Amendment 1103 #
Proposal for a directive
Article 20 – paragraph 1 – point j d (new)
Article 20 – paragraph 1 – point j d (new)
(jd) any modification of the liability regime stated in Article 17(5) as a result of a contractual arrangement between the AIFM and the depositary.
Amendment 1117 #
Proposal for a directive
Article 20 – paragraph 2 – point c a (new)
Article 20 – paragraph 2 – point c a (new)
(ca) significant changes in the custody arrangements;
Amendment 1118 #
Proposal for a directive
Article 20 – paragraph 2 – point c b (new)
Article 20 – paragraph 2 – point c b (new)
(cb) the percentage of the AIF’s assets which are subject to re-use or transfer if appropriate.
Amendment 1433 #
Proposal for a directive
Article 31 – title
Article 31 – title
Marketing of shares or units of AIF in the home Member Statedomiciled in the Union
Amendment 1436 #
Proposal for a directive
Article 31 – paragraph 1
Article 31 – paragraph 1
1. An authorised AIFM may market shares or units of AIFan AIF domiciled in the Union to professional investors in the home Member State and/or in any other Member State as soon as the conditions laid down in this Article are met. Or. en Justification
Amendment 1439 #
Proposal for a directive
Article 31 – paragraph 2 – subparagraph 1
Article 31 – paragraph 2 – subparagraph 1
2. TFor each AIF that it intends to market, the AIFM shall submit a notification to the competent authorities of its homthe Member State in respect of each AIF that it intends to marketwhere the AIF is domiciled.
Amendment 1441 #
Proposal for a directive
Article 31 – paragraph 2 – subparagraph 2 - point a
Article 31 – paragraph 2 – subparagraph 2 - point a
(a) idena notification ofletter, including a programme of operations identifying the AIF it intends to market and information on where the AIF areis domiciled;
Amendment 1443 #
Proposal for a directive
Article 31 – paragraph 2 – point a a (new)
Article 31 – paragraph 2 – point a a (new)
(aa) an attestation that the AIFM concerned is authorized;
Amendment 1444 #
Proposal for a directive
Article 31 – paragraph 2 – point c a (new)
Article 31 – paragraph 2 – point c a (new)
(ca) the list of the Member States in which the AIFM intends to market the units or shares of an AIF under its management to professional investors;
Amendment 1445 #
Proposal for a directive
Article 31 – paragraph 2 – point d
Article 31 – paragraph 2 – point d
(d) information on the arrangements established to prevent units or shares of that AIF from being marketed to retail investors, including in the case where the AIFM relies on activities of independent entities to provide investment services in respect of its AIF, where relevant.
Amendment 1446 #
Proposal for a directive
Article 31 – paragraph 2 a (new)
Article 31 – paragraph 2 a (new)
2a. The competent authorities of the Member State where the AIF is domiciled shall without delay transmit the notification referred to in paragraph 2 to: (a) the competent authorities of the AIFM home Member State when the AIF is not domiciled in the same Member State; and (b) the competent authorities of the Member States where the AIFM intends to market the AIF.
Amendment 1447 #
Proposal for a directive
Article 31 – paragraph 3
Article 31 – paragraph 3
3. NThe competent authorities of the Member State where the AIF is domiciled shall, no later than ten working days after the date of receipt of athe complete notification pursuant to paragraph 2,by the competent authorities of the AIFM home Member State when the AIF is not domiciled in the same Member State and the competent authorities of the home Member State shalls where the AIFM intends to market the AIF, inform the AIFM whether it may start marketing the AIF identified in the notification referred to in paragraph 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. 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)The competent authorities of the Member State where the AIF is domiciled shall also inform the competent authorities of the AIFM home Member State when the AIF is not domiciled in the same Member State and the competent authorities of the Member States where the AIFM intends to market the AIF that the AIFM may start marketing shares or units of the AIF.
Amendment 1453 #
Proposal for a directive
Article 31 – paragraph 4
Article 31 – paragraph 4
4. Without prejudice to Article 32(1), Member States shall ensure thatThe competent authorities of the Member State where the AIF is domiciled may only prevent the marketing of the AIF if information provided in the notification shows that the AIFM’s managed by AIFM are only marketed toment of the AIF will not be in accordance with one or more profesvisional investorss of this Directive.
Amendment 1459 #
Proposal for a directive
Article 31 – paragraph 4a (new)
Article 31 – paragraph 4a (new)
4a. Arrangements referred to in point (f) of paragraph 2 shall be subject to the laws and the supervision of the Member State where the AIF will be marketed.
Amendment 1460 #
Proposal for a directive
Article 31 – paragraph 4b (new)
Article 31 – paragraph 4b (new)
4b. Member States shall ensure that the notification and the attestation referred to in paragraph 2 are provided in a language customary in the sphere of international finance. Member States shall also ensure that electronic transmission and filing of the documents referred to in paragraph 3 is accepted by their competent authorities.
Amendment 1461 #
Proposal for a directive
Article 31 – paragraph 4c (new)
Article 31 – paragraph 4c (new)
4c. In the event of a change in any of the particulars communicated in accordance with paragraph 3, an AIFM shall give written notice of that change to the competent authorities of the Member State where the AIF is domiciled at least one month before implementing the change. The competent authorities of the Member State where the AIF is domiciled shall without delay inform of those changes the competent authorities of the AIFM home Member State when the AIF is not domiciled in the same Member State and the competent authorities of the Member States where the AIF is marketed.
Amendment 1462 #
Proposal for a directive
Article 31 – paragraph 4d (new)
Article 31 – paragraph 4d (new)
4d. Without prejudice to Article 32(1), Member States shall ensure that AIF managed by AIFM are only marketed to professional investors.
Amendment 1463 #
Proposal for a directive
Article 31 – paragraph 4e (new)
Article 31 – paragraph 4e (new)
4e. The Commission shall, in accordance with the procedure referred to in Article 49(2), adopt implementing measures specifying the following: (a) the form and content of a standard model of the notification letter; (b) the form and content of a standard model of attestation.
Amendment 1479 #
Proposal for a directive
Article 33
Article 33