47 Amendments of Carl HAGLUND 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 […], […], p. […]. 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 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

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

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 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 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 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

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 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 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 – point a

(a) whether the AIF is ~~domicil~~established inside or outside of the ~~Community~~Union;

2010/02/15
Committee: ECON

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

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

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

(ga) AIFM managing Private Equity funds or closed-ended funds;

2010/02/15
Committee: ECON

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

(ge) internally-managed companies which do not grant their shareholders any redemption or repurchase rights, invest for the longer term predominantly in transferable securities, use no or only limited leverage, and have their shares traded on an EU regulated market.

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 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

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

(gx) Internally-managed companies which do not grant their shareholders any redemption or repurchase rights, invest for the longer term predominantly in transferable securities, use no or only limited leverage and have their shares traded on an EU regulated market;

2010/02/15
Committee: ECON

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

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 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 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 11 – paragraph 1

1. The AIFM shall ensure that the functions of risk management and portfolio management are separated ~~and subject to separate review~~so far as is appropriate and proportionate in view of the nature, scale and complexity of the AIFM and the AIF it manages.

2010/02/15
Committee: ECON

Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1 a (new)

Where it is not considered to be appropriate or proportionate for an AIFM to establish and maintain a risk management function that is separated from the portfolio management, the AIFM must be able to demonstrate that the risk management process satisfies the requirements of this article.

2010/02/15
Committee: ECON

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

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 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 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).~~;

2010/02/15
Committee: ECON

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

(aa) an investment firm authorised in accordance with Directive 2004/39/EC to also provide the ancillary service of safe- keeping and administration of financial instruments for the account of clients in accordance with Section B(1) of Annex I to that Directive, having its registered office in the Union;

2010/02/15
Committee: ECON

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

(ae) a legal person which is authorised by the competent authorities of the home Member State of the AIFM to act as a depositary, which is subject to prudential regulation and ongoing supervision and which can provide sufficient financial and professional guarantees to be able to effectively perform the relevant depositary functions and meet the commitments inherent to those functions; or

2010/02/15
Committee: ECON

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

(ak) an entity which carries out depositary functions as part of professional or business activities in respect of which it is subject to mandatory professional registration recognised by law or to legal or regulatory provisions or rules of professional conduct 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.

2010/02/15
Committee: ECON

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

(h) a description of all fees, charges and expenses and of the maximum amounts or rates thereof which are directly or indirectly borne by investors;

2010/02/16
Committee: ECON

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 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

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

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

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 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 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 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 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

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

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

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