BETA

50 Amendments of Sari ESSAYAH related to 2009/0064(COD)

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/…65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to the undertakings for collective investment in transferable securities (UCITS) (recast)1, irrespective of the legal or contractual manner in which the AIFM is entrusted with this responsibility. Such funds may include, inter alia, hedge funds, private equity funds, real estate funds, commodity funds and infrastructure funds. AIFM should not be entitled to manage UCITS within the meaning of Directive 2009/…65/EC on the basis of authorisation under this Directive. 1 OJ L ~~[…], […]~~302, 17.11.2009, p. ~~[…]~~32.

2010/02/12
Committee: ECON

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 pension funds or~~ managers of non-pooled investments such as endowments, sovereign wealth funds, central banks or assets hoeld on own account by credit institutions, pension funds, or insurance or reinsurance undertakings. This Directive should ~~nei~~furthermore not apply to ~~actively managed investments in the form of securities, such as certificates, managed futures, or index- linked bonds. It~~national, regional and local governments and government investment vehicles or bodies or institutions which manage funds supporting social security and pension systems, or to employee participation schemes. In order to benefit from the exemptions provided for in this Directive, the AIFM concerned should comply with the conditions to which those exemptions are subject on a continuous basis. This Directive should, however, cover managers of all collective investment undertakings which are not required to be authorised as UCITS. 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

Proposal for a directive
Recital 6

(6) In order to avoid imposing excessive or disproportionate requirements, this Directive provides for an exemption for AIFM where the cumulative AIF under management fall below a threshold of EUR 100 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 and should be subject at least to registration in their home Member States. 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 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~~ensure the appointment of 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.

2010/02/12
Committee: ECON

Proposal for a directive
Recital 15

(15) Given that an AIFM may employ~~ing high levels of leverage in their investment strategies~~ leverage, at the level of the AIF and may, under certain conditions, contribute to the build up of systemic risk or disorderly markets, special requirements should be imposed on AIFM ~~using certain techniques giving rise to particular risk~~employing leverage on a systemically significant basis. 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 requirements should apply to AIFM, which ~~consistently use high~~employ leverage at the levels of ~~leverage in their investment strategies. Those~~the AIF on a systemically significant basis. Such AIFM should be obliged to disclose information regarding their use and sources of leverage~~. That information~~ in their AIF. Information gathered by competent authorities should be aggregated and shared with other authorities in the ~~Community~~Union, so as to facilitate a collective analysis of the impact of the leverage of ~~those~~AIF managed by AIFM on the financial system in the ~~Community~~Union, as well as a common response.

2010/02/12
Committee: ECON

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 the Commission to impose limits on the level of leverage that AIFM could use, in particular in those cases where AIFM employ high levels of leverage on a systematic basisIt is considered necessary to allow the competent authorities of the home Member State of the AIFM to impose limits on the level of leverage that AIFM could employ in AIF where the stability and integrity of the financial system may be threatened. Those 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, as well as the market conditions in which the AIF operates. They should also take into account the essentially dynamic nature of the management of leverage by most AIFM using ~~a high level of~~ leverage~~. I~~ in this respect the limits to leverage could for 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)eir AIF and possible pro-cyclical effects.

2010/02/12
Committee: ECON

Proposal for a directive
Recital 19

(19) A~~IFM~~ Member State should ~~also~~ be able to ~~market AIF domiciled in third countries to professional investors both in the home~~allow AIFM to market in its territory AIF domiciled in third countries to investors in that Member State oif 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 Directiveappropriate cooperation arrangements are in place between the competent authorities of the AIFM home Member State and the supervisory authority of the relevant third country. Those cooperation arrangements should properly counter possible problems concerning tax evasion and money laundering.

2010/02/12
Committee: ECON

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

(d) the legal structure of the AIFM and, subject to Article 2(2), of the AIFM.

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 beyond any private placement exemptions allowed for AIF under the national law of a Member State;

2010/02/15
Committee: ECON

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

(ba) AIFM which provide management services exclusively for their parent undertakings, for their subsidiaries or for other subsidiaries of their parent undertakings;

2010/02/15
Committee: ECON

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

(gf) employee participation schemes.

2010/02/15
Committee: ECON

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

(gn) AIFM entitled under national law to provide management services to AIF marketed only in the home Member State;

2010/02/15
Committee: ECON

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

(go) AIFM managing only collective investment undertakings that invest solely in shares or other securities entitling to own capital of an unlisted company or similar listed securities, provided that it is committed to hold such listed securities for a minimum period of [one year].

2010/02/15
Committee: ECON

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

(gp) management companies authorised under national law which provide management services to nationally regulated collective investment undertakings which are only marketed in their home Member State; Or. en Justification

2010/02/15
Committee: ECON

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

(gq) national central banks;

2010/02/15
Committee: ECON

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

(gr) national, regional and local governments and government investment vehicles and bodies or institutions which manage funds supporting social security and pension systems, in case such institutions or organisations manage one or several AIFs;

2010/02/15
Committee: ECON

Proposal for a directive
Article 2 – paragraph 3

3. Member States shall ensure that AIFM not reaching the threshold set out in paragraph 2(a) are entitled to be treated as AIFM falling under the scope of this Directive and to market units or shares of an AIF to professional investors in the Union under this Directive, provided they are authorised in accordance with the national law of their home Member State and provide the competent authorities of that Member State with the information referred to in Articles 31 and 33 and investors with the information referred to in Article 20.

2010/02/15
Committee: ECON

Proposal for a directive
Article 2 – paragraph 3a (new)

3a. AIFM which reach the threshold set out in paragraph 2(a) shall in respect of AIF that (a) are not leveraged and (b) do not have redemption rights exercisable during a period of 5 years following the date of constitution of the AIF be subject to the provisions set out in Articles 1 to 10, 15, 19, 20, 21(3) and 31 to 34 and Chapters VIII and IX and to no other provisions of this Directive.

2010/02/15
Committee: ECON

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

4a. Without prejudice to the right granted under Article 18 to delegate functions, Member States shall ensure that each AIF managed within the scope of this Directive shall have a single AIFM which shall be responsible for ensuring compliance with the requirements of this Directive. The AIFM shall be an external manager which is the legal person appointed by the AIF or on behalf of the AIF (the appointed AIFM) and which through this appointment is responsible for managing the entire portfolio of the AIF.

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, wh~~ose object is the collective investment in assets and which does no~~ich raises capital by marketing shares or units in that collective undertaking to professional investors with a view to investing the proceeds in accordance with a defined investment policy on the principle of risk spreading for the benefit of those investors but which does not include any closed-end vehicle or any form of corporate vehicle, any entity that requires authorisation pursuant to Article 5 of Directive 2009/…65/EC [the UCITS Directive], any collective investment undertaking for which, under its constitutive documents, the role of manager is primarily the responsibility of the collective investment undertaking itself or of one of its members, or any collective investment undertaking whose investors are solely made up of other AIF;

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 investments whether through borrowing of cash or securities, or leverage embedded in derivative positions or; the level of leverage shall bye a~~ny other mean~~ssessed in all cases on an appropriately netted and risk-adjusted basis;

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 AIF or market units or shares thereof within the Community.deleted

2010/02/15
Committee: ECON

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

1. The competent authorities of the home Member State shall grant authorisation to act as AIFM only if they are satisfied that the AIFM will be able to fulfil the conditions of this Directive. The fund rules or other instruments referred to in Article 5(1)(d) shall not be subject to authorisation.

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 13 – paragraph 1 – introductory part

~~In order~~Member States shall take all reasonable steps to ensure cross-sectoral consistency and to remove misalignment between the interest of firms that repackage loans into tradnsferable securities and other financial instruments (originators) and AIFM that invest in these securities or other financial instruments on behalf of one or more AIF~~, t~~. The Commission shall adopt ~~implementing measures~~delegated acts in accordance with Articles 49a, 49b and 49c laying down the requirements in the following areas:

2010/02/15
Committee: ECON

Proposal for a directive
Article 16 – paragraph 3

3. The rules applicable to the valuation of assets and the calculation of the net asset value per unit or share of the AIF shall be laid down in the law of the ~~country where the AIF is domiciled~~Member State where the AIF is domiciled or in the existing applicable valuation standards of the home Member State of the AIFM, including arrangements established by bodies appointed by public authorities or recognized by national law, or in the AIF rules or instruments of incorporation.

2010/02/15
Committee: ECON

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

1a. An AIFM shall not, provided that the conditions as stated below are met, be required to appoint a depositary in respect of an AIF which has no redemption rights exercisable during a period of five years from the date of constitution of the AIF and which according to its investment strategy and objectives, makes investments and divestments on a non-frequent basis. The conditions referred to above are that: (a) the AIFM complies with the provisions of Articles 16 to 18 of Commission Directive 2006/73/EC implementing Directive 2004/39/EC of the European Parliament and of the Council as regards organisational requirements and operating conditions for investmente firms and defined terms for the purposes of that Directive 1 for the purposes of safeguarding the rights of AIF they manage and, where applicable, investors to financial instruments and funds belonging to them provided that all financial instruments that can be kept by book-entry or otherwise and which are subject to trading on a regulated market as defined in Article 4(1)(14) of Directive 2004/39/EC or on other regulated markets within the Union or a third country or on a multilateral trading facility are safekept by an entity which qualifies to be a depositary under this Directive; and (b) the independent auditors of the AIF report to the competent authorities of the home Member State on an annual basis as to whether : (i) payments made by investors on subscription of shares or units have been correctly booked; (ii) the AIFM has maintained systems adequate to enable to comply with the provisions referred to in Article 10 throughout the period since the last report and that the AIFM was in compliance with those provisions at the date of the report; (iii) the AIFM is able to demonstrate that the financial instruments which are reported to investors as held by or for the AIF are so held. 1 OJ L 241, 2.9.2006, p. 26.

2010/02/15
Committee: ECON

Proposal for a directive
Article 17 – paragraph 3

3. The depositary shall be: (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).~~;

2010/02/15
Committee: ECON

Proposal for a directive
Article 17 – paragraph 3 – point a c (new)

(ac) an investment firm having its registered office in the Union and authorised in accordance with Directive 2004/39/EC;

2010/02/15
Committee: ECON

Proposal for a directive
Article 17 – paragraph 3 – point a h (new)

(ah) an institution subject to specific regulation and supervision in its country of incorporation in respect of the provision of safe-keeping services to others.

2010/02/15
Committee: ECON

Proposal for a directive
Article 17 – paragraph 4

4. Depositaries may delegate ~~their tasks to other depositaries~~functions to any other person other than the AIF or the AIFM or an associate of either of them, provided that the depositary exercises due care, skill and diligence in the selection, appointment and periodic review of that person and of its arrangements in respect of the matters delegated to it.

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 it~~hem~~ as a result of its unjustifiable failure to perform or of its improper performance of its obligations pursuant to this Directive.

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 19 – paragraph 2 – point c a (new)

(ca) the amount of remuneration, split into fixed and variable remuneration, paid by a systemically important AIFM and, where relevant, by any AIF managed by such an AIFM, to senior executives and other employees having a material impact on the firm’s risk exposure.

2010/02/16
Committee: ECON

Proposal for a directive
Article 22

Article 22 Scope This section shall apply only to AIFM which manage one or more AIF employing high levels of leverage on a systematic basis. 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. 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

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

Proposal for a directive
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 2

2. HThe competent authorities of the home Member States shall ensure that all information ~~receiv~~gathered under Article 241, aggregated in respect of all AIFM that ithey supervises, ~~are~~is made available to other competent authorities of the other Member States, to ESMA and to ESRB through the procedure set out in Article 46 on supervisory co-operation. ItThey shall, without delay, also provide information through this mechanism, and bilaterally to the competent authorities of other Member States directly concerned, if an AIFM under ~~its~~their responsibility, or an AIF managed by that AIFM, 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

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

Proposal for a directive
Article 25 – paragraph 3 a (new)

3a. The competent authorities shall assess the systemic risks that the use of leverage by an AIFM with respect to the AIF it manages could entail, and when it is deemed necessary in order to ensure the stability and integrity of the financial system, the competent authorities of the home Member State of the AIFM shall impose limits on the level of leverage that an AIFM may employ with respect to the AIF under its management. The competent authorities of the home Member State of the AIFM shall duly inform CESR and the competent authorities of the home Member State of the AIF of actions taken in that respect.

2010/03/08
Committee: ECON

Proposal for a directive
Article 25 – paragraph 3 b (new)

3b. The Commission shall adopt delegated acts in accordance with Articles 49a, 49b and 49c setting out principles clarifying the circumstances in which competent authorities should implement the provisions in paragraph 3a, taking into account different strategies of AIF, different market conditions in which AIF operate and possible pro-cyclical effects following from exercising the provisions.

2010/03/08
Committee: ECON

Proposal for a directive
Article 25 – paragraph 3 c (new)

3c. The Commission shall adopt delegated acts in accordance with Articles 49a, 49b and 49c with a view to clarifying the methods of leverage as defined in point (l) of Article 3 and for the purposes of Article 21(4), specifying when leverage is considered to be employed on a systemically significant basis and how leverage is to be calculated.

2010/03/08
Committee: ECON

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 limits to the level of leverage that AIFM can employ. Measures taken by the competent authorities of the home Member States shall have a temporary nature and should comply with the provisions adopted by the Commission pursuant to paragraph 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 4a (new)

4a. Without prejudice to this Directive, Member States may allow or continue to allow the marketing of any alternative investment funds not covered by this Directive to professional investors on their territory subject to national law.

2010/02/18
Committee: ECON

Proposal for a directive
Article 35 – paragraph 1

A~~n 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 may allow AIFM to market on its own territory shares or units of an AIF domiciled in a third country if appropriate cooperation arrangements are in place between the competent authorities of the home 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~~of the AIFM and the supervisory authority of that third country. Those third countries must have proper legislation against possible tax evasion and money laundering.

2010/02/18
Committee: ECON

Proposal for a directive
Article 35 b (new)

Article 35b Third-country AIF Member States may allow or continue to allow professional investors domiciled in their territory to invest in any AIF, including those from third countries, subject to national law. Those third countries must have proper legislation against possible tax evasion and money laundering.

2010/02/18
Committee: ECON

Proposal for a directive
Article 40 – paragraph 2 a (new)

The competent authorities shall be public authorities, bodies appointed by public authorities or bodies recognised by national law. Or. en Justification

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 ...**. In the event that new units or shares in a particular AIF are not issued or marketed after ...* this requirement shall not apply with regard to management of such AIF. * OJ: please insert date: date referred to in Article 54. ** OJ: please insert date: one year from the date referred to in Article 54.

2010/02/18
Committee: ECON

Proposal for a directive – amending act
Article 53 Directive 2009/65/ECArticle 50a - introductory part

~~In order~~Member States shall take all reasonable steps to ensure cross-sectoral consistency and to remove misalignment between the interest of firms that 'repackage' loans into tradensferable securities and other financial instruments (originators) and UCITS that invest in these securities or other financial instruments~~, t~~. The Commission shall adopt implementing measures laying down the requirements in the following areas:

2010/02/18
Committee: ECON