Activities of Burkhard BALZ related to 2009/0064(COD)
Plenary speeches (1)
Alternative investment fund managers (debate)
Amendments (46)
Amendment 166 #
Proposal for a directive
Recital 5
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. TNor should this Directive should neither apply to actively managed investments in the form of securities, such as certificates, managed futures, or index- linked bonds. Itapply to managers insofar as they manage AIF whose only investors are their parent undertakings, their subsidiaries or other subsidiaries of their parent undertaking and where those investors are not themselves AIF. 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.
Amendment 167 #
Proposal for a directive
Recital 5
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 neither apply to actively managed investments in the form of securities, such as certificates, managed futures, or index- linked bonds. ItIt should also not apply to the management of collective investment undertakings with a maximum of five investors, if they are authorised in accordance with national law and only marketed in their home Member State. 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.
Amendment 182 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) 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.
Amendment 211 #
Proposal for a directive
Recital 10
Recital 10
Amendment 388 #
Proposal for a directive
Article 2 – paragraph 2 – point g m (new)
Article 2 – paragraph 2 – point g m (new)
(gm) AIFM, insofar as they manage one or more AIF whose only investors are the parent undertakings or the subsidiaries of the AIFM or other subsidiaries of those parent undertakings, provided that none of those investors itself is an AIF.
Amendment 395 #
Proposal for a directive
Article 2 – paragraph 2 – point g p (new)
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 with a maximum of five investors which are only marketed in their home Member State;
Amendment 485 #
Proposal for a directive
Article 3 – point l
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 inthrough derivative positions or by any other mean; the level of leverage shall be assessed in all cases on an appropriately netted and risk-adjusted basis;
Amendment 633 #
Proposal for a directive
Article 11 – paragraph 4
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 managedprovisions governing short selling in Directive 2003/6/EC (market abuse) are met.
Amendment 711 #
Proposal for a directive
Article 16 – paragraph 1 – subparagraph 1
Article 16 – paragraph 1 – subparagraph 1
1. The AIFM shall ensure th, where appropriate, for each AIF that it manages, a valuator is appointed which isensure the functional independentce of the AIFM to establish the value of assets acquired by the AIF and the value of the shares and unvaluation function and the portfolio management function in view of the nature, scale and complexitsy of the AIFeach AIF that it manages.
Amendment 725 #
Proposal for a directive
Article 16 – paragraph 1 - subparagraph 2
Article 16 – paragraph 1 - subparagraph 2
The valuatorion procedures used shall ensure that the assets, and shares andor units are valued at least once a year, and each time shares or units of the AIF are issued or redeemed if this is more frequent. If the AIF is of the open-ended type, such valuations shall also be carried out at a frequency which is appropriate given the specificities of the underlying assets held by the fund and its issuance and redemption policy .
Amendment 747 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
Amendment 753 #
Proposal for a directive
Article 16 – paragraph 2 a (new)
Article 16 – paragraph 2 a (new)
2a. Where an external valuer is used, the AIFM must be able to demonstrate that such third party is qualified and capable of undertaking the functions in question, that it was selected with due care and that the AIFM is in a position to monitor effectively at any time the activity of the external valuer. The use of an external valuer shall not prevent the effectiveness of supervision by the AIFM, and, in particular, it must not prevent the AIFM from acting, or the AIF from being managed, in the best interests of its investors. Where an external valuer is not used, the competent authorities of the home Member State may require the AIFM to have its valuation procedures and/or valuations verified by an external valuer or, where appropriate, by an auditor. The home Member State may also require all valuation, whether carried out by the AIFM or by an external valuer, to be subject to oversight by the depositary.
Amendment 763 #
Proposal for a directive
Article 16 – paragraph 3
Article 16 – paragraph 3
3. The rules applicable to the valuation of assets and the calculation of the net asset value per unit or shareshare or unit of the AIF shall be laid down in the law of the countryMember State where the AIF is domiciled established and/or in the AIF rules or instruments of incorporation.
Amendment 776 #
Proposal for a directive
Article 16 – paragraph 4 – subparagraph 1
Article 16 – paragraph 4 – subparagraph 1
4. The Commission shall adopt implementing measures further specifying the criteria under which a valuator can be considered independent in the meaning ofdelegated acts in accordance with Articles 49a, 49b and 49c further specifying the criteria concerning the procedures for the proper valuation of the assets and shares or units of AIF and the appropriate level of functional independence of the valuation function. Such acts shall also specify the appropriate frequency of valuation to be carried out by open-ended funds given the underlying assets held by the fund and its issuance and redemption policy. The Commission shall also adopt delegated acts in accordance with Articles 49a, 49b and 49c further specifying the criteria where there is a need for external verification as referred to in paragraph 12a.
Amendment 859 #
Proposal for a directive
Article 17 – paragraph 2 – subparagraph 2
Article 17 – paragraph 2 – subparagraph 2
The depositary shall act independently and solely in the interest of AIF investors.
Amendment 914 #
Proposal for a directive
Article 17 – paragraph 4
Article 17 – paragraph 4
4. Depositaries may delegate their tasks to other depositaries. If the task consists in safe-keeping financial instruments pursuant to Article 17(1)(b), it may also be delegated to a depositary in a third country which meets the conditions laid down in points (a) to (c) of the second subparagraph of Article 38(1).
Amendment 938 #
Proposal for a directive
Article 17 – paragraph 5 – subparagraph 2
Article 17 – paragraph 5 – subparagraph 2
Amendment 971 #
Proposal for a directive
Article 17 – paragraph 5 – subparagraph 3 d (new)
Article 17 – paragraph 5 – subparagraph 3 d (new)
If the assets are held in sub-custody in a third country pursuant to paragraph 3, it may limit liability to negligent selection and negligence in issuing instructions.
Amendment 990 #
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, the third party must also be authorised as an AIFM to manage an AIF of the same type; , (i) the mandate shall only be given to undertakings which are authorised or registered for the purpose of asset management and subject to prudential supervision; and (ii) where the third party is domiciled in a third country, supervisory structures equivalent to those in the EU must exist. The Commission shall adopt delegated acts in accordance with Articles 49a, 49b and 49c specifying the criteria for assessing the equivalence of the supervisory structures in third party countries;
Amendment 1009 #
Proposal for a directive
Article 18 – paragraph 1 – subparagraph 3
Article 18 – paragraph 1 – subparagraph 3
No delegation of portfolio management shall be given to the depositary, the valuator, or to any other undertaking whose interests may conflict with those of the AIF or its investors.
Amendment 1016 #
Proposal for a directive
Article 18 – paragraph 3
Article 18 – paragraph 3
Amendment 1032 #
Proposal for a directive
Article 19 – paragraph 1
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.
Amendment 1039 #
Proposal for a directive
Article 19 – paragraph 3
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.
Amendment 1047 #
Proposal for a directive
Article 19 – paragraph 4 – subparagraph 1
Article 19 – paragraph 4 – subparagraph 1
4. The Commission shall adopt implementing measuredelegated acts further specifying the content and format of the annual report. These measuresose 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.
Amendment 1054 #
Proposal for a directive
Article 20 – paragraph 1 – introductory part
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:
Amendment 1064 #
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 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;
Amendment 1070 #
Proposal for a directive
Article 20 – paragraph 1 – point d
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;
Amendment 1079 #
Proposal for a directive
Article 20 – paragraph 1 – point e
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;
Amendment 1082 #
Proposal for a directive
Article 20 – paragraph 1 – point g
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;
Amendment 1092 #
Proposal for a directive
Article 20 – paragraph 1 – point i
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;
Amendment 1098 #
Proposal for a directive
Article 20 – paragraph 1 – point j
Article 20 – paragraph 1 – point j
(j) the latest annual report if there is such a report in relation to the AIF.
Amendment 1107 #
Proposal for a directive
Article 20 – paragraph 2 – introductory part
Article 20 – paragraph 2 – introductory part
2. For each AIF that an AIFM manages and in respect of which redemption rights are exercisable, it shall periodically disclose to investors:
Amendment 1125 #
Proposal for a directive
Article 20 – paragraph 3 – subparagraph 1
Article 20 – paragraph 3 – subparagraph 1
3. The Commission shall adopt implementing measuredelegated acts further specifying the disclosure obligations of AIFM and the frequency of the disclosure referred to in paragraph 2.These measureacts 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.
Amendment 1136 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 2
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.
Amendment 1140 #
Proposal for a directive
Article 21 – paragraph 2 – introductory part
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:
Amendment 1168 #
Proposal for a directive
Article 21 – paragraph 3 – point a
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;
Amendment 1175 #
Proposal for a directive
Article 21 – paragraph 4 – subparagraph 1
Article 21 – paragraph 4 – subparagraph 1
4. The Commission shall adopt implementing measuresdelegated 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, inter alia, of the different size, resources, complexity, nature, investments, investment strategies and techniques, structures and investors of different types of AIFM.
Amendment 1454 #
Proposal for a directive
Article 31 – paragraph 4a (new)
Article 31 – paragraph 4a (new)
Amendment 1504 #
Proposal for a directive
Article 35 – paragraph 1
Article 35 – paragraph 1
Amendment 1511 #
Proposal for a directive
Article 35 – paragraph 2
Article 35 – paragraph 2
Amendment 1556 #
Proposal for a directive
Article 39 – paragraph 1 –introductory part
Article 39 – paragraph 1 –introductory part
1. Member States may 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 CommunityUnion under the conditions of this Directive, provided that: (a) the third country is the subject of a decision taken pursuant to paragraph 3 (a) stating that its legislation regarding prudential regulation and on-going supervision is equivalent to the provisions of this Directive and is effectively enforced; (b) decision taken pursuant to paragraph 3 (b) stating that it grants Community AIFM effective market access comparable to that granted by the Community to AIFM from that third country; (c) authorities of the Member State in which it applies for authorisation with the information referred to in Articles 5 and 31 ; (d) the competent authorities of that Member State and the supervisor of the AIFM exists which ensures an efficient exchange of all information that are relevant for monitoring the potential implications of the activities of the AIFM for the stability of systemically relevant financial institutions and the orderly functioning of markets in which the AIFM is active. (e) agreement with the Member State in which it applies for authorisation which fully complies wi they are subject to comparable supervision and regulation in their home countries. the third country is the subject of a the AIFM provides the competent a cooperation-agreement between the the standards laid down in Article 26 of the OECD Model Tax Convention and ensures an effective exchange of information in tax matters.ird country has signed an
Amendment 1581 #
Proposal for a directive
Article 39 – paragraph 2 – point b
Article 39 – paragraph 2 – point b
Amendment 1582 #
Proposal for a directive
Article 39 – paragraph 2 – subparagraph 2
Article 39 – paragraph 2 – subparagraph 2
Amendment 1585 #
Proposal for a directive
Article 39 – paragraph 3
Article 39 – paragraph 3
Amendment 1639 #
Proposal for a directive – amending act
Article 51
Article 51
AIFM operatingestablished in the Community before [the deadline for the transposition of...* shall adopt all necessary measures to comply with this Directive] and shall adopt all necessary measusubmit an application for authorisation by ...** in their home Member State. AIFM shall not be requiresd to comply with this Directive and shallor submit an application for authorisation within one year of the deadline for the transposition of this Directivein order to provide management services in respect of AIF established before ... * * OJ: please insert date: date referred to in Article 54. ** OJ: please insert date: three years from the date referred to in Article 54.
Amendment 1645 #
Proposal for a directive – amending act
Article 51 – paragraph 1 a (new)
Article 51 – paragraph 1 a (new)
An AIFM may apply for authorisation under this Directive in order to market in the Union, in accordance with this Directive, AIF which were established before ...*, subject to the provision to competent authorities of the information referred to in Articles 31 and 33 and to investors of the information referred to in Article 20. * OJ: please insert date: date referred to in Article 54.