[ParlTrack]

Proposal for a directive
Recital 25 a (new)

(25a) This Directive should provide for a single AIFM for each AIF managed within the scope of the Directive, which should be responsible for the compliance with the requirements of this Directive.

2010/02/12
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

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

(e) ~~institutions which are covered by Directive 2003/41/EC of the European Parliament and the Council of 3 June 2003 on the activities and supervision~~national, regional and local governments and bodies ofr institutions ~~for occupational retirement provision~~which manage funds supporting social security and pension systems;

2010/02/15
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER, Enikő GYŐRI

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 several AIF~~person that manages one or several AIF and is responsible for the compliance with the requirements of this Directive and which, depending on the legal form of the AIF, can be either the AIF itself or an external entity;

2010/02/15
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

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

4a.The above paragraphs shall not apply to AIFM only managing AIF: (a) which are not leveraged; (b) which have no redemption rights exercisable during a period of five years following the date of constitution of each AIF; (c) which have fixed capital commitments; (d) where fees are based on capital commitments; (e) where investors have the right to change the AIFM; and (f) where specific provisions are included in the contractual agreement regarding the winding-up of an AIFM to protect investors during a transition.

2010/02/15
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

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

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

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

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

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

(af) a legal person which carries out depository functions as part of professional or business activities in respect of which it 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 depository functions and meet the commitments inherent to those functions.

2010/02/15
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER, Enikő GYŐRI

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 circumstances where information is required from third parties, such as the audit of any underlying investments of the AIF, no later than six months following the end of the financial year.

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 19 – paragraph 3

3. The accounting information given in the annual report shall be prepared in accordance with the accounting standards or principles required by the applicable AIF rules or instruments of incorporation or formation and audited by one or more persons empowered by law to audit accounts in accordance with Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC. The auditor's report, including any qualifications, shall be reproduced in full in the annual report.

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 19 – paragraph 4 – subparagraph 1

4. The Commission shall adopt ~~implementing measure~~delegated acts further specifying the content and format of the annual report. Th~~ese measures~~ose acts shall be appropriate and proportionate and shall be adapted to the type of AIFM to which they apply and the AIF to which the report relates, taking account of the different size, resources, complexity, nature, investments, investment strategies and techniques, structures and investors of different types of AIFM and the AIF that they manage.

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

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

1. AIFM shall ensure that, insofar as applicable to the AIF concerned, AIF investors receive the following information before they invest in the AIF, as well as any changes thereof:

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER, Enikő GYŐRI

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

(a) a description of the investment strategy and objectives of the AIF, all the types of 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 and the associated risks and of any restrictions to the use of leverage;

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

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

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

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

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

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

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

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

(g) where the AIF has exercisable redemption rights, a description of the AIF's liquidity risk management, including the redemption rights both in normal and exceptional circumstances, existing redemption arrangements with investors, and how the AIFM ensures a fair treatment of investors;

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER, Enikő GYŐRI

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

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

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER, Enikő GYŐRI

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, and whether there is any connection between the AIFM and that investor;

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER, Enikő GYŐRI

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

(j) the latest annual report if there is such a report in relation to the AIF.

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 20 – paragraph 3 – subparagraph 1

3. The Commission shall adopt ~~implementing measure~~delegated acts further specifying the disclosure obligations of AIFM and the frequency of the disclosure referred to in paragraph 2.These ~~measure~~acts shall be adapted to the type of AIFM to which they apply and be proportionate, taking account, inter alia, of the different size, resources, complexity, nature, investments, investment strategies and techniques, structures and investors of different types of AIFM.

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 21 – paragraph 1 – subparagraph 2

It shall provide aggregated information on the main instruments in which it is trading, markets of which it is a member or where it actively trades, and on the principal trading exposures and most important resulting concentrations of each of the AIF it manages.

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 21 – paragraph 2 – introductory part

2. For each AIF an AIFM manages~~, it~~ and in respect of which redemption rights are exercisable, the AIFM shall periodically report the following to the competent authorities of its home Member State:

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER, Enikő GYŐRI

Proposal for a directive
Article 21 – paragraph 3 – point a

(a) an annual report of each AIF managed by the AIFM for each financial year, within four months from the end of the periods to which it relates or, in circumstances where information is required from third parties (such as the audit of any underlying investments of the AIF), no later than six months from the end of the financial year;

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 21 – paragraph 4 – subparagraph 1

4. The Commission shall adopt ~~implementing measures~~delegated acts in accordance with Articles 49a, 49b and 49c further specifying the reporting obligations referred to in paragraphs 1, 2 and 3 and their frequency. Such acts shall be appropriate and proportionate and adapted to the type of AIFM and AIF to which they apply, taking account, interalia, of the different size, resources, complexity, nature, investments, investment strategies and techniques, structures and investors of different types of AIFM.

2010/02/16
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER, Enikő GYŐRI

Proposal for a directive
Article 26

Article 26 Scope 1. This section shall apply to the following: (a) AIFM managing one or more AIF which either individually or in aggregation acquires 30 % or more of the voting rights of an issuer or of a non- listed company domiciled in the Community, as appropriate; (b) AIFM having concluded an agreement with one or more other AIFM which would allow the AIF managed by these AIFM to acquire 30 % or more of the voting rights of the issuer or the non- listed company, as appropriate. 2. This section shall not apply where the issuer or the non-listed company concerned are small and medium enterprises that employ fewer than 250 persons, have an annual turnover not exceeding 50 million euro and/or an annual balance sheet not exceeding 43 million euro.deleted

2010/03/08
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 27

Article 27 Notification of the acquisition of controlling influence in non-listed companies 1. Member States shall ensure that when an AIFM is in a position to exercise 30 % or more of the voting rights of a non- listed company, such AIFM notifies the non-listed company and all other share- holders the information provided in paragraph 2. This notification shall be made, as soon as possible, but not later than four trading 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. 2. The notification required under paragraph 1 shall contain the following information: (a) the resulting situation in terms of voting rights; (b) the conditions under which the 30% threshold has been reached, including information about the identity of the different shareholders involved; (c) the date on which the threshold was reached or exceeded.deleted

2010/03/08
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER, Enikő GYŐRI

Proposal for a directive
Article 28

Article 28 Disclosure in case of acquisition of controlling influence in issuers or non- listed companies 1. 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, the non-listed company, their respective shareholders and representatives of employees or, where there are no such representatives, to the employees themselves. With regard to issuers, deleted In addition to Article 27, Member the policy for preventing and the policy for external and internal (d) the identity of the AIFM which either individually or in agreement with other AIFM shall make available the following to the issuer concerned, its shareholders and representatives of employees: (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; (b) managing conflicts of interests, in particular between the AIFM and the issuer; (c) communication of the issuer in particular as regards employees. With regard to non-listed companies, the AIFM shall make available the following to the non-listed company concerned, its shareholders and representatives of employees: 2. implementing measures determining: Those measures, designed to amenve reached the 30 % threshold; (e) the development plan for the non-listed company; (f) the policy for preventing and managing conflicts of interests, in particular between the AIFM and the non-listed company; (g) the policy for external and internal communication of the issuer or non-listed company, in particular as regards employees. The Commission shall adopt (a) the detailed ncon~~- 1 essential elem~~tents of th~~is Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 49(3)~~e information provided under paragraph 1; (b) the way the information shall be communicated. OJ L 142, 30.4.2004, p.12.

2010/03/08
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER, Enikő GYŐRI

Proposal for a directive
Article 29

Article 29 Specific provisions regarding the annual report of AIF exercising controlling influence in issuers or non-listed companies Member States shall ensure that AIFM include in the annual report provided for in Article 19 for each AIF that they manage, the additional information provided in paragraph 2 of this Article. The AIF annual report shall include the following additional information for each issuer and non listed company in which the AIF has invested: (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 1 OJ L 222, 14.8.1978, p. 11. 2 OJ L 26, 31.1.1977, p. 1. significant events in the financial year; (b) with regard to financial and other risks at least financial risks associated with capital structure; (c )with regard to employee matters, turnover, terminations, recruitment. (d) statement on significant divestment of assets. 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. 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 equivalent2. 3.The AIFM shall, for each AIF it manages and for which it is subject to this section, provide the information referred to in paragraph 2 above to all representatives of employees of the company concerned referred to in paragraph 1 of Article 26 within the period referred to in Article 19 (1) 4. 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 The Commission shall adopt

2010/03/08
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER, Enikő GYŐRI

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

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER, Enikő GYŐRI

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

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER, Enikő GYŐRI

Proposal for a directive
Article 38

Delegation of the depositary tasks in respect of AIF domiciled 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) 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) Member State and the relevant authorities of the third country is sufficiently ensured; (c) 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.Article 38 deleted By way of derogation from Article the third country is the subject of a co-operation between the home the third country is the subject of a The depositary's liability towards The Commission shall adopt On the basis of the criteria

2010/02/18
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 39 – paragraph 1 –introductory part

1. Member States ~~may~~shall authorise, in accordance with this Directive, AIFM established in a third country to market units or shares of an AIF to professional investors in the ~~Community~~Union under the conditions of this Directive, provided that:

2010/02/18
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 39 – paragraph 1 – point a

(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;deleted

2010/02/18
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 39 – paragraph 1 – point b

(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;deleted

2010/02/18
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 39 – paragraph 1 – point d

(d) ~~a cooperation-agreement between the competent authorities of that Member State~~the AIFM is subject to authorisation or registration in the third country in which it is established and ~~the~~its supervisor ~~of the AIFM exists which ensures an efficient e~~is a signatory to the IOSCO Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange oOf ~~all i~~Information that are relevant for monitoring the potential implications of the activities of the AIFM for the stability of systemically relevant financial institutions and the orderly functioning of markets in which the AIFM is active.or another appropriate cooperation-agreement between the competent authorities of that Member State and the supervisor of the AIFM exists;

2010/02/18
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 39 – paragraph 1 – point e

(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.deleted

2010/02/18
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 39 – paragraph 1 a (new)

1a. The competent authorities of the Member State to which an application is made by an AIFM established in a third country to market units or shares of an AIF to professional investors in the Union under the conditions of this Directive shall grant authorisation only if they are satisfied that the AIFM will be able to fulfil the conditions of this Directive in relation to such marketing. The Member State which grants such authorisation to an AIFM established in a third country shall be deemed to be the home Member State of the AIFM for the purposes of this Directive. The authorisation shall be valid for all Member States in relation to marketing the units or shares in AIF and a third country AIFM which has been authorised by a Member State under this Article shall have the same rights and be subject to the same obligations under Chapters IV, V and VI.

2010/02/18
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 39 – paragraph 2

2. The Commission shall adopt implementing measures aimed at 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).deleted

2010/02/18
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 39 – paragraph 3

3. On the basis of the criteria 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.deleted

2010/02/18
Committee: ECON

Danuta JAZŁOWIECKA, Danuta Maria HÜBNER

Proposal for a directive
Article 39 - paragraph 3 b (new)

3b. Notwithstanding any authorisation of AIFM established in third countries under Article 39(1) and (2), Member States may permit marketing of AIF managed by third-country AIFM in accordance with their national laws.

2010/02/18
Committee: ECON

39 Amendments of Danuta Maria HÜBNER related to 2009/0064(COD)

ParlTrack - 2011-2024