2021/0376(COD) | [ParlTrack]

Proposal for a directive
Recital 2

(2) A robust delegation regime, an equal treatment of custodians, coherence of supervisory reporting through the removal of duplications and redundant requirements and a harmonised approach to the use of LMTs are equally necessary for the management of undertakings for collective investment in transferable securities (‘UCITS’). Therefore, it is appropriate to also amend Directive 2009/65/EC of the European Parliament and of the Council26, which lays down rules regarding the authorisation and operation of UCITS, in the areas of delegation, asset safekeeping, supervisory reporting and liquidity risk management. __________________ 26 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 undertakings for collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009, p. 32).

Amendment 119 #

Proposal for a directive
Recital 2

(2) A robust delegation regime, an equal treatment of custodians, coherence of supervisory reporting and a harmonised approach to the use of LMTs are equally necessary for the management of undertakings for collective investment in transferable securities (‘UCITS’). Therefore, it is appropriate to also amend certain rules of Directive 2009/65/EC of the European Parliament and of the Council26~~, which lays down rules reg~~ in those areas, while bearding ~~the authorisation~~in mind the different nature and scope~~ration of UCITS, in the areas of delegation, asset safekeeping, supervisory reporting and liquidity risk management~~ of both directives, including the different supervisory reporting purposes. __________________ 26 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 undertakings for collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009, p. 32).

Amendment 120 #

Proposal for a directive
Recital 2 a (new)

(2 a) The alternative asset industry collectively invests over EUR 1.5 trillion in Europe. EU institutional investors invest over EUR 370 billion in alternative assets managers. The EU alternative asset industry in Europe provides over EUR 250 billion to European businesses in private credit and as matter of that Europeans are responsible for 30 % of global capital allocated to the whole industry but there is still room to grow by providing European institutional investors with greater choice and enhancing the competitiveness of Europe’s capital markets.

Amendment 121 #

Proposal for a directive
Recital 2 b (new)

(2 b) The size of EU AIFs continued to expand, increasing by 8 % from 2019 to 2022 that AIFs accounted for one-third of the EEA30 fund industry at the end of 2020. Professional investors own most of the shares of AIFs, yet retail investor share is significant at 14 % of the net asset value (NAV)1a. __________________ 1a ESMA Annual Statistical Report on EU Alternative Investment Funds, 2022.

Amendment 122 #

Proposal for a directive
Recital 3

(3) To increase the efficiency of AIFM activities, the list of authorised ancillary services set out in Article 6(4) of Directive 2011/61/EU should be extended to include benchmark administration governed by Regulation (EU) 2016/1011 of the European Parliament and of the Council27 and credit servicing governed by Directive 2021/…./EU of the European Parliament and of the Council.28 In particular, it should be possible for the AIFM to use customised benchmarks or indices for its managed AIFs as long as the requirements of Regulation (EU) 2016/1011 are met and the new benchmark is a combination of other publicly available benchmarks or indices. __________________ 27 Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014 (OJ L 171, 29.6.2016, p. 1–65). 28 OJ C , , p. .

Amendment 123 #

Proposal for a directive
Recital 3 a (new)

(3 a) To increase the efficiency of activities of a UCITS management company, the list of authorised ancillary services set out in Article 6(3) of Directive 2009/65/EC should be extended to include benchmark administration governed by Regulation (EU) 2016/1011 of the European Parliament and of the Council and credit servicing governed by Directive 2021/…./EU of the European Parliament and of the Council. In particular, it should be possible for the management company to use customised benchmarks or indices for its managed AIFs as long as the requirements of the Regulation (EU) 2016/1011 are met and the new benchmark is a combination of other publicly available benchmarks or indices.’

Amendment 124 #

Proposal for a directive
Recital 3 a (new)

(3 a) In order to enhance legal certainty, it should be clarified that the management of AIFs also comprises the activities of originating loans on behalf of an AIF and servicing securitisation special purposes vehicles referred to in points 3 and 4 of Annex I of Directive 2011/61/EU.

Amendment 125 #

Proposal for a directive
Recital 6

Amendment 126 #

Proposal for a directive
Recital 6

(6) To develop a reliable overview of delegation activities in the Union governed by Article 20 of Directive 2011/61/EU and to inform future policy decisions or supervisory actions, ~~competent authoritie~~AIFMs should provide the ~~European Securities and Markets Authority (‘ESMA’) with delegation notifications where an AIFM~~competent authorities of their home Member State with comprehensive and up-to-date information on delegat~~es more~~ion of portfolio management, or risk management functions ~~of the AIF, than it manages itself to entities located in third countries~~in a uniform way. National competent authorities should provide aggregated data on delegation of portfolio management or risk management functions to ESMA where appropriate.

Amendment 127 #

Proposal for a directive
Recital 6

(6) To develop a reliable overview of ~~delegation activities in the Union governed by~~compliance with Article 20 of Directive 2011/61/EU and to inform ~~future policy decisions or~~ supervisory actions, ~~competent authoritie~~AIFMs should provide the ~~European Securities and Markets Authority (‘ESMA’) with delegation notifications where an AIFM delegates more~~competent authorities of their home Member States with comprehensive and up-to-date information on delegation of portfolio management, or risk management functions ~~of the AIF, than it manages itself to entities located in third countries~~.

Amendment 128 #

Proposal for a directive
Recital 6

Amendment 129 #

Proposal for a directive
Recital 6

(6) To develop a reliable overview of delegation activities in the Union governed by Article 20 of Directive 2011/61/EU and to inform future policy decisions or supervisory actions, competent authorities should provide the European Securities and Markets Authority (‘ESMA’) with delegation notifications where an AIFM delegates more portfolio management, or risk management functions of the AIF, foster convergence in the supervision of delegation amongst the national competent authorities, ESMA should use information shared with it by the competent authorities to monitor the supervision of delegation and the development of the practice within the Union and to third countries. ESMA should, on a risk-based approach, use all means withain it ~~manages itself to entities located in third countr~~s competence to promote supervisory convergence, including conducting peer reviews.

Amendment 130 #

Proposal for a directive
Recital 7

(7) In order to ensure consistent harmonisation of the notification process in the area of delegation, power should be delegated to the Commission to adopt regulatory technical standards by means of delegated acts pursuant to Article 290 of the Treaty on the Functioning of the European Union (TFEU) in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council30 to specify the contents, forms and procedures to standardise the notification process of the AIFMs’ delegation arrangements. The notification form should contain data fields indicating the activities making up the risk and portfolio management functions in order to determine whether an AIFM has delegated more of such functions than it has retained. Those regulatory technical standards should be adopted on the basis of a draft developed by ESMA. __________________ 30 Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).deleted

Amendment 131 #

Proposal for a directive
Recital 7

Amendment 132 #

Proposal for a directive
Recital 7

Amendment 133 #

Proposal for a directive
Recital 7

(7) In order to ensure consistent harmonisation of the ~~notification process~~reporting requirement in the area of delegation, power should be delegated to the Commission to adopt regulatory technical standards by means of delegated acts pursuant to Article 290 of the Treaty on the Functioning of the European Union (TFEU) in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council30 to specify the contents, forms and procedures to standardise the notification process of the AIFMs’ delegation arrangements. The notification form should contain data fields indicating the activities making up the risk and portfolio management functions in order to determine whether an AIFM has delegated more of such functions than it has retained. Those regulatory technical standards should be adopted on the basis of a draft developed by ESMA. __________________ 30 Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).

Amendment 134 #

Proposal for a directive
Recital 7

(7) In order to ensure consistent harmonisation of the notification process in the area of delegation, power should be delegated to the Commission to adopt regulatory technical standards by means of delegated acts pursuant to Article 290 of the Treaty on the Functioning of the European Union (TFEU) in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council30 to specify the contents, forms and procedures to standardise the notification process of the AIFMs’ delegation arrangements. The notification form should contain qualitative and quantitative data fields indicating the activities making up the risk and portfolio management functions in order to determine whether an AIFM has delegated more of such functions than it has retained. Those regulatory technical standards should be adopted on the basis of a draft developed by ESMA. __________________ 30 Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).

Amendment 135 #

Proposal for a directive
Recital 7 a (new)

(7 a) Marketing of AIFs is not always conducted by the AIFM directly but by one or several distributors either on behalf of the AIFM or on their own behalf. There may also be cases where an independent financial advisor markets a fund without the AIFM’s knowledge. Most fund distributors are subject to regulatory requirements pursuant to Directive 2014/65/EU or Directive 2016/97/EU, which define the scope and extent of their responsibilities towards their own clients. Directive 2011/61/EU should therefore acknowledge the diversity of distribution arrangements and recognise the existing safeguards for the arrangements whereby a distributor acts on its own behalf when it markets the AIF, among others, under Directive 2014/65/EU or through life insurance based investment products in accordance with Directive 2016/97/EU, in which case the provisions of this Directive regarding delegation should not apply irrespective of any distribution agreement between the AIFM and the distributor.

Amendment 136 #

Proposal for a directive
Recital 7 a (new)

(7 a) The marketing of AIFs is not always conducted by the AIFM directly but by one or several distributors either on behalf of the AIFM or on their own behalf. There could also be cases where an independent financial advisor markets a fund without the AIFM’s knowledge. Most fund distributors are subject to regulatory requirements pursuant to Directive 2014/65/EU or Directive 2016/97/EU, which define the scope and extent of their responsibilities towards their own clients. Directive 2011/61/EU should therefore acknowledge the diversity of distribution arrangements and recognise the existing safeguards for the arrangements whereby a distributor acts on its own behalf when it markets the AIF under Directive 2014/65/EU or through life-insurance based investment products in accordance with Directive 2016/97/EU in which case the provisions of this Directive regarding delegation should not apply irrespective of any distribution agreement between the AIFM and the distributor.

Amendment 137 #

Proposal for a directive
Recital 7 a (new)

(7 a) The marketing of AIFs is not always conducted by the AIFM directly but by one or several distributors either on behalf of the AIFM or on their own behalf. There could also be cases where an independent financial advisor markets a fund without the AIFM’s knowledge. Most fund distributors are subject to regulatory requirements pursuant to Directive2014/65/EU or Directive 2016/97/EU, which define the scope and extent of their responsibilities towards their own clients. Directive 2011/61/EU should therefore acknowledge the diversity of distribution arrangements and distinguish between arrangements whereby a distributor operates on behalf of the AIFM, which should be considered to be a delegation arrangement, and arrangements whereby a distributor acts on its own behalf, in which case the provisions of that Directive regarding delegation should not apply.

Amendment 138 #

Proposal for a directive
Recital 8

(8) To enhance the uniform application of Directive 2011/61/EU it should be clarified that the delegation rules laid down in Article 20 apply to all functions listed in Annex I to that Directive and to the ancillary services referred to in Article 6(4) of that Directive. ESMA should be required to develop draft regulatory technical standards to ensure that notifications include both meaningful qualitative and quantitative information in the delegation notifications to help determine where an AIFM delegates more portfolio management or risk management functions than is retained. Quantitative information should include information concerning the level of portfolio and risk management that has been retained versus delegated to third parties, the level of fees retained versus paid to delegates, or the number of staff performing portfolio or risk managements tasks on a retained versus delegated basis.

Amendment 139 #

Proposal for a directive
Recital 8 a (new)

(8 a) Under the current AIFMD and UCITS delegation regime, fund managers may only delegate to entities in third countries, where there are cooperation arrangements in place between the home NCA of the fund manager and the NCA of the third-country delegate. While this mechanism provides for some minimum safeguards, there is still a strong risk of delegates being subject to largely very different regulatory regimes, which adds to regulatory complexity and potential investor protection concerns. An equivalence regime should be established under the AIFMD and UCITS for the purposes of delegation to ensure that delegates are subject to rules that are equivalent to those under UCITs and the AIFMD. Where third-country jurisdictions are subject to rules that are equivalent to those under UCITS/AIFMD, companies would be able to delegate functions to delegates based in equivalent jurisdictions.

Amendment 140 #

Proposal for a directive
Recital 8 a (new)

(8 a) White-label services, by their very nature, can entail a systematic risk of conflict of interest and moral hazard and therefore require a heightened level of supervision. AIFMs intending to provide such services should notify their intentions to the competent authority detailing the measures they intend to take to mitigate the conflict of interest and ensure a clear delineation of tasks and responsibilities.

Amendment 141 #

Proposal for a directive
Recital 8 a (new)

(8 a) Conflict of interests provisions should be amended to address issues potentially arising from white label services.

Amendment 142 #

Proposal for a directive
Recital 9

(9) Common rules should also be laid down to establish an efficient internal market for loan-originating AIFs, to ensure a uniform level of investor protection in the Union, to make it possible for AIFs to develop their activities by originating loans in all Member States of the Union and to facilitate the access to finance by EU companies, a key objective of the Capital Markets Union (‘CMU’).31 However, given the fast-growing private credit market, it is necessary to address the potential micro risks and macro prudential risks that loan originating AIFs could pose and spread to the broader financial system. The rules applicable to AIFMs managing loan- originating funds should be harmonised in order to improve risk management across the financial market and increase transparency for investors. The provisions laid down in this Directive that are applicable to AIFMs that manage loan- originating AIFs should not prevent Member States from implementing national product frameworks that define certain categories of AIFs and the applicable requirements. __________________ 31 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A Capital Markets Union for people and businesses-new action plan (COM/2020/590 final).

Amendment 143 #

Proposal for a directive
Recital 9

(9) Common rules should also be laid down to establish an efficient internal market for loan-originating AIFs, to ensure a uniform level of investor protection in the Union, to make it possible for AIFs to develop their activities by originating loans in all Member States of the Union and to facilitate the access to finance by EU companies, a key objective of the Capital Markets Union (‘CMU’).31 However, given the fast-growing private credit market, it is necessary to address the potential micro risks and macro prudential risks that loan originating AIFs could pose and spread to the broader financial system. The rules applicable to AIFMs managing loan- originating funds should be harmonised in order to improve risk management across the financial market and increase transparency for investors. The rules should take into account the specificities of impact and sustainable funds. __________________ 31 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A Capital Markets Union for people and businesses-new action plan (COM/2020/590 final).

Amendment 144 #

Proposal for a directive
Recital 9

(9) Common rules should also be laid down to establish an efficient internal market for loan-originating AIFs, to ensure a uniform level of investor protection in the Union, to make it possible for AIFs to develop their activities by originating loans in all Member States of the Union and to facilitate the access to finance by EU companies, a key objective of the Capital Markets Union (‘CMU’).31 However, given the fast-growing private credit market, it is necessary to address the potential micro risks and macro prudential risks that loan originating AIFs could pose and spread to the broader financial system. The rules applicable to AIFMs managing loan- originating funds should be risk-based and be harmonised in order to improve risk management across the financial market and increase transparency for investors. __________________ 31 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, A Capital Markets Union for people and businesses-new action plan (COM/2020/590 final).

Amendment 145 #

Alfred SANT

Proposal for a directive
Recital 9 a (new)

(9 a) In order to uphold the European Single Market and further advance the Capital Markets’ Union, a future review should assess the appropriateness of complementing this Directive with a depositary passport. The current location- related restriction is against the principle of free movement of services and capital in the Union. Moreover, the present lack could also lead to systemic and concentration risks, as the custody business is concentrated within a limited number of credit institutions. A depositary passport would allow such hurdles to be overcome. It would also benefit investors by promoting competition between depositories and possibly result in lower costs as a result of the availability of larger number of depositories.

Amendment 146 #

Proposal for a directive
Recital 13

(13) Directive 2011/61/EU should recognise the right of AIFs to originate loans and trade those loans on the secondary market. To avert moral hazard and maintain the general credit quality of loans, with the exception of shareholder loans, originated by AIF’s, such loans should be subject to risk retention requirements to avoid situations in which loans are originated with the sole purpose of selling them.

Amendment 147 #

Proposal for a directive
Recital 14

(14) Long-term, illiquid loans held by AIF may create liquidity mismatches if the AIFs open-ended structure allows investors to redeem their fund units or shares on a frequent basis. It is therefore necessary to mitigate risks related to maturity transformation by imposing a closed-ended structure for AIFs originating loans to a significant extent because close-ended funds would not be vulnerable to redemption demands and could hold originated loans to maturity. There should be a grace period for AIFs that reach the prescribed threshold for loan origination vis-a-vis the net asset value of the fund to allow the AIFM to take measures to restore the liquidity of the fund.

Amendment 148 #

Proposal for a directive
Recital 14

(14) Long-term, illiquid loans held by AIF may create liquidity mismatches if the AIFs open-ended structure allows investors to redeem their fund units or shares on a frequent basis. It is therefore necessary to mitigate risks related to maturity transformation by imposing a closed-ended structure for AIFs originating loans because close-ended funds would not be vulnerable to redemption demands and could hold originated loans to maturity. More stringent liquidity management rules are envisaged for smaller impact investment funds in order to allow them to keep their open-ended structure.

Amendment 149 #

Proposal for a directive
Recital 14

(14) Long-term, illiquid loans held by AIF mayight create liquidity mismatches if the AIFs open-ended structure allows investors to redeem their fund units or shares on a frequent basis. ~~It is therefore~~Therefore, where an AIFM is not able to demonstrate to the competent authorities of its home Member State that the AIF has liquidity robustness, it is necessary to mitigate risks related to maturity transformation by imposing a closed-ended structure for AIFs originating loans because close-ended funds would not be vulnerable to redemption demands and could hold originated loans to maturity.

Amendment 150 #

Proposal for a directive
Recital 14

(14) Long-term, illiquid loans ~~held by AIF~~ may create liquidity mismatches if the AIFs open-ended structure allows investors to redeem their fund units or shares on a frequent basis. ~~It is therefore necessary t~~To mitigate risks related to maturity transformation ~~by imposing a closed-ended structure for~~ AIFMs originating loans ~~because close-ended funds would not be vulnerable to redemption demands and could hold origin~~should demonstrate to their home Member State competent authority they have appropriated l~~oans to maturity~~iquidity risk management measures in place.

Amendment 151 #

Proposal for a directive
Recital 14 a (new)

(14 a) Funds with the purpose of directly investing in sustainable and social causes, in accordance with Article 2(17) and Article 9 of Regulation (EU) 2019/20881a should not be subject to a limitation on the extent of their loan origination activities. __________________ 1a Regulation (EU) 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainability- related disclosures in the financial services sector (OJ L 317, 9.12.2019, p. 1– 16).

Amendment 152 #

Proposal for a directive
Recital 16

(16) To support market monitoring by the supervisory authorities the information gathering and sharing through supervisory reporting could be improved. Duplicative reporting requirements that exist under Union and national legislation, in particular Regulation (EU) No 600/2014 of the European Parliament and of the Council35 , Regulation (EU) 2019/834 of the European Parliament and of the Council36 , Regulation (EU) No 1011/2012 of the European Central Bank37 and Regulation (EU) No 1073/2013 of the European Central Bank38 , could be eliminated to improve efficiency and reduce administrative burdens for AIFMs. The European supervisory authorities (‘ESAs’) and the European Central Bank (ECB), with the support of national competent authorities, where necessary, should assess the data needs of the different supervisory authorities so that the changes to the supervisory reporting template for AIFMs are effective. Reporting requirements need to remain as similar as possible, so as to not overburden AIFMs when reporting to different institutions. In order to achieve that objective, the reporting requirements on the obligation to report the information on the assets and liabilities of investment funds to national central bank should be aligned. __________________ 35 Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 Text with EEA relevance (OJ L 173, 12.6.2014, p. 84). 36 Regulation (EU) 2019/834 of the European Parliament and of the Council of 20 May 2019 amending Regulation (EU) No 648/2012 as regards the clearing obligation, the suspension of the clearing obligation, the reporting requirements, the risk-mitigation techniques for OTC derivative contracts not cleared by a central counterparty, the registration and supervision of trade repositories and the requirements for trade repositories (OJ L 141, 28.5.2019, p. 42). 37 Regulation (EU) No 1011/2012 of the European Central Bank of 17 October 2012 concerning statistics on holdings of securities (OJ L 305, 1.11.2012, p. 6). 38 Regulation (EU) No 1073/2013 of the European Central Bank of 18 October 2013 concerning statistics on the assets and liabilities of investment funds (OJ L 297, 7.11.2013, p. 73).

Amendment 153 #

Isabel BENJUMEA BENJUMEA, Danuta Maria HÜBNER

Proposal for a directive
Recital 17

(17) In preparation for the future changes to the supervisory reporting obligations the scope of the data that can be required from AIFMs should be widened by removing the limitations, which focus on major trades and exposures or counterparties. If ESMA determines that a full portfolio disclosure to supervisors on a periodic basis is warranted, the provisions of Directive 2011/61/EU should accommodate the necessary broadening of the reporting scope. Furthermore, ESMA should be mandated with drafting a report for the development of an integrated supervisory data collection that will be forwarded to the Commission.

Amendment 154 #

Proposal for a directive
Recital 18

(18) In order to ensure consistent harmonisation of the supervisory reporting obligations, power should be delegated to the Commission to adopt regulatory technical standards by means of delegated acts pursuant to Article 290 of the Treaty on the Functioning of the European Union (TFEU) in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council39 to set out the contents, forms and procedures to standardise the supervisory reporting process by AIFMs. The regulatory technical standards should set out the contents, forms and procedures to standardise the supervisory reporting process, thus replacing the reporting template laid down in the Commission Delegated Regulation (EU) 231/201340 . Those regulatory and implementing technical standards should be adopted on the basis of a draft developed by ESMA. The information to be reported on delegation arrangements should be clearly set out in the text of Directive 2011/61/EU. Regarding that information, the regulatory technical standards should remain limited to setting out the appropriate level of standardisation of the information to be reported as defined in Directive 2011/61/EU, without adding any elements that are not foreseen by the text of that Directive. __________________ 39 Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84). 40 Commission Delegated Regulation (EU) No 231/2013 of 19 December 2012 supplementing Directive 2011/61/EU of the European Parliament and of the Council with regard to exemptions, general operating conditions, depositaries, leverage, transparency and supervision (OJ L 83, 22.3.2013, p. 1–95).

Amendment 155 #

Proposal for a directive
Recital 21

(21) To enable managers of open-ended AIFs based in any Member State to deal with redemption pressures under stressed market conditions, they should be required to choose at least ~~one~~two LMTs from the harmonised list set out in the Annex, in addition to the possibility to suspend redemptions. ~~When a~~An AIFM ~~takes a decision to~~should, without delay, notify the competent authorities of its home Member States when activateing or deactivateing the ~~LMT, it should notify the supervisory authoriti~~suspension of redemptions and subscriptions or redemption gates. This would allow supervisory authorities to better handle potential spill-overs of liquidity tensions into the wider market. An AIFM should also notify the activation or deactivation of any other liquidity management tool when done so in a manner that is not in the ordinary course of business as envisaged in the fund documentation.

Amendment 156 #

Proposal for a directive
Recital 21

(21) To enable managers of open-ended AIFs based in any Member State to deal with redemption pressures under stressed market conditions, they should be required to ~~choose at least one LMT from the harmonised list set out in the Annex,~~make use of effective liquidity management tools in addition to the possibility to suspend redemptions. When an AIFM takes a decision to activate or deactivate the LMT, it should notify the supervisory authorities. This would allow supervisory authorities to better handle potential spill-overs of liquidity tensions into the wider market.

Amendment 157 #

Proposal for a directive
Recital 23

(23) In order to ensure consistent harmonisation in the area of liquidity risk management by the managers of open- ended funds, power should be delegated to the Commission to adopt regulatory technical standards by means of delegated acts pursuant to Article 290 of the Treaty on the Functioning of the European Union (TFEU) in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council42 to specify the process for choosing and using LMTs to facilitate market and supervisory convergence. Those regulatory technical standards should be adopted on the basis of a draft developed by ESMA. ~~__________________~~ The RTS should reflect IOSCO’s recommendations for liquidity risk management for collective investment schemes from February 20181a and should recognise that the primary responsibility for liquidity risk management remains with the AIFM. __________________ 41a https://www.iosco.org/library/pubdocs/pdf /IOSCOPD590.pdf 42 Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).

Amendment 158 #

Proposal for a directive
Recital 23

(23) In order to ensure consistent harmonisation in the area of liquidity risk management by the managers of open- ended funds, ~~power~~ESMA should be delegated to the Commission to adopt regulatory technical standards by means of delegated acts pursuant to Article 290 of the Treaty on the Functioning of the European Union (TFEU) in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council42issue guidelines to specify the process for choosing and using LMTs to facilitate market and supervisory convergence. Those regulatory technical standards should be adopted on the basis of a draft developed by ESMA. Those guidelines should recognise that the primary responsibility for liquidity risk management remains with the AIFM. __________________ 42 Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).

Amendment 159 #

Proposal for a directive
Recital 24

(24) To ensure investor protection ~~and to address~~where there are financial stability risks, in exceptional circumstances and after consulting the manager concerned, the competent authorities should be able to request that a manager of an open-ended fund activates or deactivate ~~the appropriate LMT~~s certain LMTs recognising that the final decision remains the responsibility of the AIFM.

Amendment 160 #

Proposal for a directive
Recital 24

(24) To ensure investor protection and to address financial stability risks, in exceptional circumstances, the competent authorities should be able to request that a manager of an open-ended fund activate or deactivate the appropriate LMT.

Amendment 161 #

Proposal for a directive
Recital 24 a (new)

(24 a) The current AIFMD and UCITS Directives require AIFMs and UCITS management companies to establish and apply remuneration policies and practices that are consistent with, and promote, sound and effective risk management and that neither encourage risk taking which is inconsistent with the risk profiles, rules or instruments of incorporation of the funds that they manage nor impair compliance with the management company’s duty to act in the best interest of the funds. In addition to these requirements, AIFMs and UCITS management companies should also be required to ensure that their remuneration policies are consistent with long-term risks, including ESG risks and sustainability goals. AIFMs and UCITS management companies should integrate ESG risks into their remuneration policies. Where remuneration is performance-related, non-financial criteria such as ESG risks should be taken into account in equal measure as financial criteria.

Amendment 162 #

Proposal for a directive
Recital 24 a (new)

(24 a) Liquidity management tools should go hand in hand with stronger preventive measures to strengthen the ex- ante liquidity position of AIFs.

Amendment 163 #

Proposal for a directive
Recital 24 b (new)

(24 b) UCITS and AIF fund names should not be misleading, yet the use of terms such as ‘ESG’, ‘green’, ‘sustainable’, ‘social’, ‘ethical’, ‘impact’ or any other ESG-related terms is often used to give the impression of sustainability when in fact the product is not sustainably invested.1a Fund names, sustainable or not, should only be used in a way that is supported in a material way by evidence of characteristics or objectives that are fairly and consistently reflected in the funds investment objectives and policy and strategy described in the relevant fund documentation. A mandate should be given to the European Securities and Markets Authority (ESMA) to develop draft regulatory technical standards to specify the information that should be provided by national competent authorities in the application for authorisation of a UCITS or AIFMs, and to help identify situations where the name of a UCITS or AIF could be materially deceptive or misleading to investors. __________________ 1a https://www.esma.europa.eu/sites/default/f iles/library/esma34-45- 1427_supervisory_briefing_on_sustainabi lity_risks_and_disclosures.pdf

Amendment 164 #

Proposal for a directive
Recital 28

(28) To support supervisory convergence in the area of delegation, ESMA should conduct peer review on the supervisory practices with a particular focus on preventing the creation of letter- box entities. ESMA’s analysis of the peer reviews will feed into the review of the measures adopted in this Directive and inform the European Parliament, the Council and the Commissionget a better understanding of the application of the provisions of this Directive, including in the area of appropriate oversight and control of the delegation arrangements, in all the Member States. To that end, it should draw on reporting obligations to competent authorities, and on the exercise in the area of delegation of its supervisory convergence powers, before the next review of this Directive takes place. ESMA’s analysis of the data collected and of the results of the exercise of its supervisory convergence powers will feed in a report, to be provided before the start of the review, analysing market practices regarding delegation, substance rules, prevention of letter-box entities and compliance with related requirements of the Directive and informing of any additional measures that may be needed to support the effectiveness of the delegation regimes laid down in Directive 2011/61/EU.

Amendment 165 #

Proposal for a directive
Recital 28

(28) To support supervisory convergence in the area of delegation ESMA should ~~conduct peer review on the supervisory practices wi~~get a better understanding of the application of the provisions of this directive, including in the a ~~particular focus on preventing the creation of letter- box entities. ESMA’s analysis of the peer reviews will feed into the review of the measures adop~~rea of appropriate oversight and control over delegation arrangements, in all the Member States. To this effect, ESMA should, before the review of this Directive takes place, activate the tool at its disposal in the area of supervisory convergence that is most adequated in ~~this Directive and inform the European Parliament, the Council and the Commission of any additional measures that may be needed to support~~order to achieve the intended objective. ESMA’s analysis of the data collected during this supervisory convergence exercice will feed into a report, to be provided before the start of the review, analysing market practices regarding compliance with the requirements of the ~~eff~~directive~~ness of the delegation regimes laid down in Directive 2011/61/EU~~ regarding oversight and control over delegation arrangements and substance rules.

Amendment 166 #

Proposal for a directive
Recital 28

(28) To support supervisory convergence in the area of delegation ESMA should conduct peer review on the supervisory practices with a particular focus on preventing the creation of letter- box entities. ESMA’s analysis of the peer reviews will feed into the review of the measures adopted in this Directive and inform the European Parliament, the Council and the Commission of any additional measures that may be needed to support the effectiveness of the delegation regimes laid down in Directive 2011/61/EU. To ensure a homogeneous understanding of what defines a letter-box entity, ESMA is also empowered to develop regulatory technical standards to define the notion of letter-box entities.

Amendment 167 #

Proposal for a directive
Recital 28

(28) To support supervisory convergence in the area of delegation ESMA should ~~conduct peer review~~get a better understanding onf the ~~supervisory practices with a particular focus on prevent~~application of the provisions of this Directive, including in the careation of letter- box entities. ESMA’s analysis of the peer reviews will feed into the review of the measures adopted in this Directive and inform the European Parliament, the Council and the Commission of any additional measures that may be needed to support the effectiveness of the delegation regimes laid down in Directive 2011/61/EU of appropriate oversight and control of the delegation arrangements, in all the Member States. To this effect, ESMA should activate the tool at its disposal in the area of supervisory convergence that is most adequate in order to achieve the intended objective.

Amendment 168 #

Proposal for a directive
Recital 28 a (new)

(28 a) The marketing of UCITS is not always conducted by the management company directly but by one or several distributors either on behalf of the management company or on their own behalf. There could also be cases where an independent financial advisor markets a fund without the management company’s knowledge. Most fund distributors are subject to regulatory requirements pursuant to Directive 2014/65/EU or Directive2016/97/EU, which define the scope and extent of their responsibilities towards their own clients. Directive 2009/65/EC should therefore acknowledge the diversity of distribution arrangements and recognise the existing safeguards for the arrangements whereby a distributor acts on its own behalf when it markets the UCITS under Directive 2014/65/EU or through life-insurance based investment products in accordance with Directive 2016/97/EU in which case the provisions of this Directive regarding delegation should not apply irrespective of any distribution agreement between the management company and the distributor.

Amendment 169 #

Proposal for a directive
Recital 28 a (new)

(28 a) Marketing of UCITS is not always conducted by the management company directly but by one or several distributors either on behalf of the management company or on their own behalf. There may also be cases where an independent financial advisor markets a fund without the management company’s knowledge. Most fund distributors are subject to regulatory requirements pursuant to Directive 2014/65/EU or Directive 2016/97/EU, which define the scope and extent of their responsibilities towards their own clients. Directive 2009/65/EC should therefore acknowledge the diversity of distribution arrangements and recognise the existing safeguards for the arrangements whereby a distributor acts on its own behalf when it markets the AIF, among others, under Directive 2014/65/EU or through life insurance based investment products in accordance with Directive 2016/97/EU, in which case the provisions of this Directive regarding delegation should not apply irrespective of any distribution agreement between the management company and the distributor.

Amendment 170 #

Proposal for a directive
Recital 28 a (new)

(28 a) Marketing of UCITS is not always conducted by the management company directly but by one or several distributors either on behalf of the management company or on their own behalf. There may also be cases where an independent financial advisor markets a fund without the management company’s knowledge. Most fund distributors are subject to regulatory requirements pursuant to Directive 2014/65/EU or Directive2016/97/EU, which define the scope and extent of their responsibilities towards their own clients. Directive 2009/65/EC should therefore acknowledge the diversity of distribution arrangements and recognise the existing safeguards for the arrangements whereby a distributor acts on its own behalf when it markets the AIF, among others, under Directive 2014/65/EU or through life insurance based investment products in accordance with Directive 2016/97/EU, in which case the provisions of this Directive regarding delegation should not apply irrespective of any distribution agreement between the management company and the distributor.

Amendment 171 #

Proposal for a directive
Recital 28 a (new)

(28 a) General marketing and sales activities conducted by distributors on their own behalf should not be considered to be a delegation arrangement.

Amendment 172 #

Proposal for a directive
Recital 29

(29) Some concentrated markets lack a competitive supply of depositary services. To address this shortage of service providers that can lead to increased costs for AIFMs and a less efficient AIF market, Member States could authorise, on a case- by case basis, competent authorities ~~should be able~~ to permit AIFMs or AIFs to procure depositary services located in other Member States ~~while the Commission assesses, in the context of its review of Directive 2011/61/EU, whether it would be appropriate to propose measures to achieve a more integrated market~~(“Opt in clause”). To ensure that this possibility of authorising the appointment of a depositary in another Member States does not replicate a depositary passport before a thorough review of Directive 2011/61/EU is completed in this respect and before the EU law harmonisation reaches the necessary level to support the creation of an EU depository passport, it should only be utilised when conditions defined in this Directive are fulfilled and with prior approval of the competent authorities of the AIF. Such conditions restrict the type of jurisdictions that can use this possibility to Member States where supply of depositary services is limited and clarify the regulatory set-up and the applicable rules to the depositary.

Amendment 173 #

Antonio TAJANI, Herbert DORFMANN, Fulvio MARTUSCIELLO

Proposal for a directive
Recital 29

(29) Some concentrated markets lack a competitive supply of depositary services. To address this shortage of service providers that can lead to increased costs for AIFMs and a less efficient AIF market, Member States could authorise, on a case- by case basis, competent authorities ~~should be able~~ to permit AIFMs or AIFs to procure depositary services located in other Member States ~~while the Commission assesses, in the context of its review of Directive 2011/61/EU, whether it would be appropriate to propose measures to achieve a more integrated market.~~ . To ensure that this possibility of authorising the appointment of a depositary in another Member States does not replicate a depositary passport before a thorough review of Directive 2011/61/EU is completed in this respect and before the EU law harmonisation reaches the necessary level to support the creation of an EU depository passport, it should only be utilised when conditions defined in this directive are fulfilled and with prior approval of the competent authorities of the AIF. Such conditions restrict the type of jurisdictions that can use this possibility to Member States where supply of depositary services is limited and clarify the regulatory set-up and the applicable rules to the depositary.

Amendment 174 #

Proposal for a directive
Recital 29

(29) Some concentrated markets lack a competitive supply of depositary services. To address this shortage of service providers that can lead to increased costs for AIFMs and a less efficient AIF market, Member States could authorise, on a case- by case basis, competent authorities should be able to permit AIFMs or AIFs to procure depositary services located in other Member States ~~while the Commission assesses, in the context of its review of Directive 2011/61/EU, whether it would be appropriate to propose measures to achieve a more integrated market.~~ ("Opt in clause"). To make sure that this option of authorising the appointment of a depositary in another Member State does not replicate a depositary passport before a detailed review of Directive 2011/61/EU is completed in this respect and before the EU law harmonisation reaches the necessary level to support the creation of an EU depository passport, it should only be utilised when conditions defined in this directive are fulfilled and with prior approval of the competent authorities of the AIF. Such conditions restrict the kind of jurisdictions that can use this possibility to Member States where supply of depositary services is limited and clarify the regulatory set-up and applicable rules to the depositary.

Amendment 175 #

Proposal for a directive
Recital 29 a (new)

(29 a) There is a lack of regulatory homogeneity among various member states regarding depositary services. The creation and facilitation of a mechanism which allows cross-border operation of depositaries may allow AIF managers to assign the ask of depositary to an entity located in another member state, subject to the authorisation of the supervisory board of the home Member States; to promote the well-functioning of the Single market and a better access to cross-border services at EU level, there is a need to comprehensively study new formulas to address this topic. Such cross-border activity of depositaries will allow small markets to guarantee highly specialised services at lower prices, developing themselves and fostering a greater competition in a fair place in the AIFs markets. This cross-border operation of depositaries is an important step forward in the completion of a real Capital Markets Union, and for that reason it is essential that European asset managers should have access to a wide range of depositary services in their country.

Amendment 176 #

Proposal for a directive
Recital 31 a (new)

(31 a) Studies show that investment funds that charge ‘performance fees’ rarely outperform investment funds that do not charge performance fees. Performance fees charges do not appear to be in the best interest of fund investors. EU Member States should therefore prohibit UCITS management companies and AIFMs from charging ‘performance fees’. UCITS management companies and AIFMs should only be allowed to charge performance fees where these are symmetrical, such as fulcrum fees where the level of fees are adjusted up or down based on an investment fund either outperforming or underperforming its benchmark.

Amendment 177 #

Proposal for a directive
Recital 31 a (new)

(31 a) In order to better protect investors, undue costs being charged to the AIFs and its unit-holders must be avoided.

Amendment 178 #

Paul TANG, Eero HEINÄLUOMA, Jonás FERNÁNDEZ, René REPASI, Eva KAILI

Proposal for a directive
Recital 31 b (new)

(31 b) Member States should require UCITS management companies and AIFMs to act in such a way as to prevent undue costs from being charged to unit- holders. UCITS management companies and AIFMs should also be required to regularly carry out an annual assessment to demonstrate that they have not charged undue costs to their unit-holders. At the moment, divergent market and supervisory practices exist as what industry and supervisors may consider as ‘due’ or ‘undue’ costs. The lack of a consistent definition of the concept of ‘undue cost’ leaves room for regulatory arbitrage and risks of hampering competition between investment funds in the Union market. Furthermore, it may lead to different levels of investor protection depending on where an investment fund is domiciled. To ensure that UCITS management companies and AIFMs do not charge undue costs to investors, the European Securities and Markets Authority should be required to develop draft regulatory technical standards prescribing a definition of undue costs, including rules for AIFs and UCITS to assess on annual basis whether they have charged undue costs to their unit-holders.

Amendment 179 #

Proposal for a directive
Recital 32

(32) To increase market transparency and effectively employ available AIF market data, ESMA should be permitted to disclose the market data at its disposal in an aggregate or summary form and therefore the confidentiality standard should be relaxed to permit such data use.deleted

Amendment 180 #

Proposal for a directive
Recital 32 a (new)

(32 a) In order to fully understand the EU investment market and its position in the global market, to examine whether any regulatory action is required in relation to market reality, to understand the implications of planned policies, to effectively help to evidence-based policymaking and to improve the Union regulatory framework and practice, the Commission should periodically and impartially report to the European parliament and the Council about developments, areas for further improvement and best practices in the leading global markets for AIFs. Such data collection should not result in broadening the reporting obligations for AIFMs set out in this Directive. The frequency of providing the Commission report and of reviewing the regulatory framework, should be reasonable in order to support the Union policy certainty of keeping the legal framework stable for the foreseeable future creates legal certainty which supports the global attractiveness of AIFs.

Amendment 181 #

Proposal for a directive
Recital 33

(33) The requirements for third-country entities with access to the internal market should be aligned to the standards laid down in the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes43 and Directive (EU) 2015/849 of the European Parliament and of the Council.44 In addition, non-EU AIFs or non-EU AIFMs that are subject to national rules and that are active in individual Member States should satisfy the requirement that they are not located in a third country that is deemed un-cooperative in tax matters. Should a jurisdiction be added to the list of jurisdictions deemed uncooperative in tax matters, closed-ended funds should be afforded a two-year grace period before being deemed to be non-compliant with this Directive. __________________ 43 OJ C 64, 27.2.2020, p.8. 44 Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).

Amendment 182 #

Proposal for a directive
Recital 33

(33) The requirements for third-country entities with access to the internal market should be aligned to the standards laid down in the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes43 and Directive (EU) 2015/849 of the European Parliament and of the Council.44 In addition, non-EU AIFs or non-EU AIFMs that are subject to national rules and that are active in individual Member States should satisfy the requirement that they are not located in a third country that is deemed un-cooperative in tax matters at the time of the notification to the competent authorities of the AIFM home Member State. __________________ 43 OJ C 64, 27.2.2020, p.8. 44 Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).

Amendment 183 #

Proposal for a directive
Recital 33

(33) The requirements for third-country entities with access to the internal market should be aligned to the standards laid down in the relevant last updated version of the Council conclusions ~~of 2020~~ on the revised EU list on non-cooperative jurisdictions for tax purposes43 and Directive (EU) 2015/849 of the European Parliament and of the Council.44 In addition, non-EU AIFs or non-EU AIFMs that are subject to national rules and that are active in individual Member States should satisfy the requirement that they are not located in a third country that is deemed un-cooperative in tax matters. __________________ ~~43 OJ C 64, 27.2.2020, p.8.~~ 44 Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).

Amendment 184 #

Proposal for a directive
Recital 33 a (new)

(33 a) Better transparency needs to be ensured for investors to have clarity on the sustainability of their investments. To prevent greenwashing, a definition of "environmentally sustainable AIFs" based on the taxonomy regulation is introduced. ESMA is empowered to clarify where the name of an AIF or UCITS could be materially deceptive or misleading to the investor.

Amendment 185 #

Proposal for a directive
Recital 38

Amendment 186 #

Proposal for a directive
Recital 38

Amendment 187 #

Proposal for a directive
Recital 38

(38) To develop a reliable overview of delegation activities in the Union governed by Article 13 of Directive 2009/65/EC and to inform future policy decisions or supervisory actions, ~~competent authorit~~management companies should provide ~~ESMA with delegation notifications where a UCITS management company~~competent authorities of their home Member State with comprehensive and up-to-date information on delegat~~es more~~ion, portfolio management or risk management functions~~, than it manages itself, to entities located in third countries~~ in a uniform way. National competent authorities shall make aggregated date available to ESMA where appropriate.

Amendment 188 #

Proposal for a directive
Recital 38

(38) To develop a reliable overview of ~~delegation activities in the Union governed by~~compliance with Article 13 of Directive 2009/65/EC and to inform ~~future policy decisions or~~ supervisory actions, ~~competent authorit~~management companies should provide ~~ESMA with delegation notifications where a UCITS management company~~competent authorities of their home Member State with comprehensive and up-to-date information on delegat~~es more~~ion, portfolio management or risk management functions~~, than it manages itself, to entities located in third countries~~.

Amendment 189 #

Proposal for a directive
Recital 39

(39) In order to ensure consistent harmonisation of the notification process in the area of delegation, power should be delegated to the Commission to adopt regulatory technical standards by means of delegated acts pursuant to Article 290 of the Treaty on the Functioning of the European Union (TFEU) in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council45 to specify the contents, forms and procedures to standardise the notification process of UCITS delegation arrangements. The notification form should contain data fields indicating the activities making up the risk and portfolio management functions in order to determine whether a UCITS management company has delegated more of such functions than it has retained. Those regulatory technical standards should be adopted based on a draft developed by ESMA. __________________ 45 Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).deleted

Amendment 190 #

Proposal for a directive
Recital 39

Amendment 191 #

Proposal for a directive
Recital 39

Amendment 192 #

Proposal for a directive
Recital 39

(39) In order to ensure consistent harmonisation of the ~~notification proces~~reporting requirements in the area of delegation, power should be delegated to the Commission to adopt regulatory technical standards by means of delegated acts pursuant to Article 290 of the Treaty on the Functioning of the European Union (TFEU) in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council45 to specify the contents, forms and procedures to standardise the notification process of UCITS delegation arrangements. The notification form should contain data fields indicating the activities making up the risk and portfolio management functions in order to determine whether a UCITS management company has delegated more of such functions than it has retained. Those regulatory technical standards should be adopted based on a draft developed by ESMA. __________________ 45 Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).

Amendment 193 #

Proposal for a directive
Recital 39

Amendment 194 #

Proposal for a directive
Recital 39 a (new)

(39 a) The marketing of UCITS is not always conducted by the management company directly but by one or several distributors either on behalf of the management company or on their own behalf. There could also be cases where an independent financial advisor markets a fund without the management company’s knowledge. Most fund distributors are subject to regulatory requirements pursuant to Directive 2014/65/EU or Directive 2016/97/EU, which define the scope and extent of their responsibilities towards their own clients. Directive 2009/65/EU should therefore acknowledge the diversity of distribution arrangements and distinguish between arrangements whereby a distributor operates on behalf of the management company, which should be considered to be a delegation arrangement, and arrangements whereby a distributor acts on its own behalf, in which case the provisions of that Directive regarding delegation should not apply.

Amendment 195 #

Proposal for a directive
Recital 39 b (new)

(39 b) White-label services, by their very nature, can entail a systematic risk of conflict of interest and moral hazard and therefore require a heightened level of supervision. Management companies intending to provide such services should notify their intentions to the competent authority detailing the measures they intend to take to mitigate the conflict of interest and ensure a clear delineation of tasks and responsibilities.

Amendment 196 #

Proposal for a directive
Recital 42

(42) To enable UCITS management companies based in any Member State to deal with redemption pressures under stressed market conditions, they should be required to choose at least ~~one~~two LMTs from the harmonised list set out in the Annex in addition to the possibility to suspend redemptions. ~~When a~~A management company ~~takes a decision to~~should notify the competent authorities of its home Member State when activateing or deactivateing the ~~LMT, it should notify the supervisory authoriti~~suspension of redemptions or redemption gates. This would allow supervisory authorities to better handle potential spill-overs of liquidity tensions into the wider market. A management company should also notify the activation or deactivation of any other liquidity management tool when such action is taken in a manner that is not in the ordinary course of business as envisaged in the fund documentation.

Amendment 197 #

Proposal for a directive
Recital 44

(44) To ensure investor protection and to address financial stability risks, the competent authorities should be able to request that a UCITS management company activates or deactivates the appropriate LMT.deleted

Amendment 198 #

Proposal for a directive
Recital 44

(44) To ensure investor protection and to address financial stability risks, in exceptional circumstances, the competent authorities should be able to request that a UCITS management company activates or deactivates the appropriate LMT.

Amendment 199 #

Proposal for a directive
Recital 45

(45) In order to ensure consistent harmonisation in the area of liquidity risk management by the managers of UCITS, power should be delegated to the Commission to adopt regulatory technical standards by means of delegated acts pursuant to Article 290 of the Treaty on the Functioning of the European Union (TFEU) in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council48 to specify the process for choosing and using LMTs to facilitate market and supervisory convergence. Those regulatory technical standards should be adopted on the basis of a draft developed by ESMA. Those guidelines should recognise that the primary responsibility for liquidity risk management remains with the UCITS manager. __________________ 48 Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).

Amendment 200 #

Isabel BENJUMEA BENJUMEA, Danuta Maria HÜBNER

Proposal for a directive
Recital 46 a (new)

(46 a) To facilitate timely monitoring of risks in stressed conditions, it is necessary for national competent authorities to have access to a harmonised and concise set of indicators, which could be requested at a high frequency. Especially in crisis scenarios, authorities require up-to-date and high-frequency data to monitor risks and to inform policy decisions. These data should be harmonised and easily accessible to all relevant authorities, allowing timely action by and coordination among authorities. ESMA should be empowered to draft technical standards with a minimum set of indicators that would be relevant for AIFs to provide in exceptional circumstances.

Amendment 201 #

Proposal for a directive
Recital 47

(47) In order to ensure consistent harmonisation of the supervisory reporting obligations, power should be delegated to the Commission to adopt regulatory technical standards by means of delegated acts pursuant to Article 290 of the Treaty on the Functioning of the European Union (TFEU) in accordance with Articles 10 to 14 and Article 15 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council49 to set out the contents, forms and procedures to standardise the supervisory reporting process by UCITS. Those regulatory technical standards should be adopted on the basis of a draft developed by ESMA. The information to be reported on delegation arrangements should be clearly set out in the text of Directive 2009/65/EC. Regarding that information, the regulatory technical standards should remain limited to setting out the appropriate level of standardisation of the information to be reported as defined in Directive 2009/65/EC, without adding any elements that are not foreseen by the text of that Directive. __________________ 49 Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).

Amendment 202 #

Proposal for a directive
Recital 48

(48) To standardise the supervisory reporting process the Commission should also be empowered to adopt implementing technical standards developed by ESMA as regards the forms and data standards, reporting frequency and timing to reporting by UCITS. The Commission should adopt those implementing technical standards by means of implementing acts pursuant to Article 291 TFEU and in accordance with Article 15 of Regulation (EU) No 1095/2010.deleted

Amendment 203 #

Proposal for a directive
Recital 50

(50) To support supervisory convergence in the area of delegation, ESMA should conduct peer reviews on the supervisory practices particularly focusing on preventing creation of letter-box entities. ESMA’s analysis of the peer reviews would feed into the review of the measures adopted in this Directive and inform the European Parliament, the Council and the Commission whatget a better understanding of the application of the provisions of this Directive, including in the area of appropriate oversight and control of the delegation arrangements, in all the Member States. To that end, it should draw on reporting obligations to competent authorities and on the exercise in the area of delegation of its supervisory convergence powers before the next review of this Directive takes place. ESMA’s analysis of the data collected and of the results of the exercise of its supervisory convergence powers will feed into a report, to be provided before the start of the review, analysing market practices regarding delegation, substance rules, prevention of letter-box entities and compliance with related requirements of the Directive and informing of any additional measures that may be needed to support the effectiveness of the delegation regimes laid down in Directive 2009/65/EC.

Amendment 204 #

Proposal for a directive
Recital 50

(50) To support supervisory convergence in the area of delegation ESMA should conduct peer reviews on the supervisory practices particularly focusing on preventing creation of letter-box entities. ESMA’s analysis of the peer reviews would feed into the review of the measures adopget a better understanding of the application of the provisions of this directive, including in the area of appropriate oversight and control over delegation arrangements, in all the Member States. To this effect, ESMA should, before the review of this Directive takes place, activate the tool at its disposal in the area of supervisory convergence that is most adequated in this Directive and inform the European Parliament, the Council and the Commission what additional measures may be needed to support effectiveness of the delegation regime laid down in Directive 2009/65/ECorder to achieve the intended objective. ESMA’s analysis of the data collected during this supervisory convergence exercise would feed into a report, to be provided before the start of the review, analysing market practices regarding compliance with the requirements of the directive regarding oversight and control over delegation arrangements and substance rules.

Amendment 205 #

Paul TANG, Jonás FERNÁNDEZ, René REPASI, Eva KAILI

Proposal for a directive
Recital 51 a (new)

(51 a) UCITS management companies should be permitted to engage in efficient portfolio management techniques, such as securities lending, as well as repurchase agreement and reverse repurchase agreement transactions in order to reduce risk, or generate additional capital or income for investors. The use of efficient portfolio management techniques, in particular those concluded with or involving related parties, can lead to conflicts of interests that could result in investors in UCITS investment funds being effectively overcharged. UCITS management companies should be required to return to the UCITS all of the revenues arising from efficient portfolio management techniques, net of direct and indirect operational costs. In any case, at a minimum, at least 90% of the revenues arising from efficient portfolio management techniques should be returned to the UCITS.

Amendment 206 #

Proposal for a directive
Recital 52

(52) Furthermore, to improve supervisory cooperation, ESMA should be able to request that a competent authority presents a case before the ESMA, where that case has cross-border implications and may affect investor protection or financial stability. Competent authorities of the host Member State should remain adequately updated on the evolution of the case. ESMA analyses of such cases will give other competent authorities a better understanding of the discussed issues and will contribute to preventing similar instances in the future and protect the integrity of the UCITS markets.

Amendment 207 #

Stéphanie YON-COURTIN, Billy KELLEHER, Gilles BOYER

Proposal for a directive
Recital 52 a (new)

(52 a) In order to give managers or management companies sufficient time to adapt to the new requirements, managers or management companies of existing AIFs or UCTIS should be subject to a grandfathering clause.

Amendment 208 #

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

Directive 2011/61/EU
Article 2 – paragraph 3 – point f

(-1) In Article 2(3), point f is replaced by the following: ‘(f) employee participation schemes or employee savings schemes; for which marketing dispositions of articles 31 and 43 shall not apply to AIFs constituted exclusively for the purpose of purchasing company shares and proposed to employees of these companies within the framework of employee savings schemes’; Or. en (Directive 2011/61/EU)

Amendment 209 #

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

Directive 2011/61/EU
Article 4 – paragraph 1 – point ap a (new)

(ap a) ‘portfolio management’ as an investment management function listed in Annex II, first indent, means organisational units or persons who have the discretion to make or execute investment decisions on behalf of the UCITS, in particular the purchase and sale of assets within the investment and risk limits, employing techniques and instruments relating to transferable securities or reinvesting of collateral.

Amendment 210 #

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

Directive 2011/61/EU
Article 4 – paragraph 1 – point ap a (new)

(ap a) ‘AIFM marketed as environmentally sustainable’ means an AIF where the fund manager provides investors with a commitment or any form of pre-contractual claim that the fund will invest in economic activities that contribute to an environmental objective as defined in Regulation (EU) 2020/852

Amendment 211 #

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

Directive 2011/61/EU
Article 4 – paragraph 1 – point ap a (new)

(ap a) ‘shareholder loan’ means a loan granted by an AIF to an undertaking in which it holds directly or indirectly at least 5 % of the capital or voting rights, where the loan cannot be sold to third parties independently of the capital instruments held by the AIF in the same undertaking.

Amendment 212 #

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

Directive 2011/61/EU
Article 4 – paragraph 1 – point ap a (new)

(ap a) ‘leveraged AIF’ means an AIF whose exposures are increased by the managing AIFM, whether through borrowing of cash or securities, or leverage embedded in derivative positions or by any other means.

Amendment 213 #

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

Directive 2011/61/EU
Article 4 – paragraph 1 – point ap a (new)

(ap a) ‘loan-originating AIF’ means an AIF whose notional value of its originated loans exceeds 60% of its net asset value.

Amendment 214 #

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

Directive 2011/61/EU
Article 4 – paragraph 1 point ap a (new)

(ap a) ‘loan origination’ means the granting of a loan by an AIF as the original lender;

Amendment 215 #

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

Directive 2011/61/EU
Article 4 – paragraph 1 – point ap a (new)

(apa) ‘loan origination’ means the granting of loans by an AIF as the original lender;

Amendment 216 #

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

Directive 2011/61/EU
Article 4 – paragraph 1 – point ap b (new)

(ap b) ‘tied agent’ means a natural or legal person who, under the full and unconditional responsibility of only one AIFM on whose behalf it acts, promotes investment and/or non-core services as defined in Article 6(4) to clients or prospective clients, receives and transmits instructions or orders from clients in respect of investment services or financial instruments, places financial instruments or provides advice to clients or prospective clients in respect of those financial instruments or services;

Amendment 217 #

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

Directive 2011/61/EU
Article 4 – paragraph 1 – point ap b (new)

(ap b) ‘shareholder loan’ means: - a loan granted by an AIFs to an undertaking in which it holds directly or indirectly at least 5 % of the capital or voting rights and which cannot be sold to third-parties independently of the capital instruments held by the AIF in the same undertaking; or - a loan issued as interim financing to a company with a view to convert it to an equity investment in the next financing round of the company, and which is subordinated to any other debt of the company;

Amendment 218 #

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

Directive 2011/61/EU
Article 4 – paragraph 1 – point ap b

(ap b) 'risk management’ as an investment management function listed in Annex II, first indent, means organisational units or persons who are independent from portfolio management and responsible for identification, measurement, control, monitoring and communication of risks.

Amendment 219 #

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

Directive 2011/61 EU
Article 4 – paragraph 1 – point ap b (new)

(ap b) ‘leveraged AIF’ means an AIF whose exposures are increased by the managing AIFM, whether through borrowing of cash or securities, or leverage embedded in derivative positions or by any other means.

Amendment 220 #

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

Directive 2011/61/EU
Article 4 – paragraph 1 – point ap c (new)

(ap c) ‘capital’ means aggregate capital contributions and uncalled committed capital, calculated on the basis of amounts investible after deduction of all fees, charges and expenses that are directly or indirectly borne by investors;

Amendment 221 #

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

Directive 2011/61/EU
Article 4 – paragraph 1 – point ap c (new)

(ap c) ‘loan-originating AIF’ means an AIF whose principal activity, in line with its core investment policy, as specified in the relevant AIF’s rules or instrument of incorporation, is to originate loans.

Amendment 222 #

Proposal for a directive
Article 1 – paragraph 1 – point -1 (new)

Directive 2011/61/EU
Article 4 – paragraph 1 – point ag

(-1) in Article 4(1), point (ag) is replaced by the following: ‘(ag) ‘professional investor’ means an investor that fulfils any of the following requirements: - the investor is considered to be a professional client or may, on request, be treated as a professional client within the meaning of Annex II of Directive 2014/65/EC; - the investor has invested or has committed to invest at least EUR 100 000 and has been informed in writing about the associated risks of the investment; or - the investor is a member of staff of the AIF and can therefore deemed to have sufficient knowledge about the AIF concerned;

Amendment 223 #

Proposal for a directive
Article 1 – paragraph 1 – point - a (new)

Directive 2011/61/EU
Article 6 – paragraph 3 – subparagraph 1 a (new)

(- a) the following subparagraph is added to paragraph 3: ‘Member States shall allow management companies to appoint tied agents for the purpose of promoting the services mentioned in this paragraph.’

Amendment 224 #

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

Directive 2011/61/EU
Article 6 – paragraph 4 – subparagraph 1 a (new)

(a a) the following subparagraph is added to paragraph 4: Member States shall allow AIFMs to appoint tied agents for the purpose of promoting the services mentioned in this paragraph.

Amendment 225 #

Proposal for a directive
Article 1 – paragraph 1 – point 2 – point b

Directive 2011/61/EU
Article 6 – paragraph 6

6. Articles 2(2), Article 15, Article 16 except for the first subparagraph of paragraph (5), and Articles 23, 24 and 25 of Directive 2014/65/EU, and Article 26 of Regulation (EU) No 600/2014 shall apply where the services referred to in paragraph 4, points (a) and (b), are provided by AIFMs.;

Amendment 226 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point a

Directive 2011/61/EU
Article 7 – paragraph 2 – point a – point i

(i) a ~~detailed~~ description of their role, title and level of seniority;

Amendment 227 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point a

Directive 2011/61 EU
Article 7 – paragraph 2 – point a – point i a (new)

(i a) a description of its current and previous fund management history and any other experience relevant for the management of the AIF;

Amendment 228 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point a

(c) a programme of activity setting out the organisational structure of the AIFM, including information on how the AIFM intends to comply with its obligations under Chapters II, III, IV, and, where applicable, Chapters V, VI, VII and VIII of this Directive, and with its obligations under Regulation (EU) 2019/2088 and a detailed description of the appropriate human and technical resources that will be used by the AIFM to this effect;

Amendment 229 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point a

Directive 2011/61/EU
Article 7 – paragraph 2 – point e

(e) the following information on arrangements made for the delegation and sub-delegation to ~~third parties of functions as referred to in Article 20 and a detailed~~third parties of functions: a. the legal name and, where available, legal entity identifier (LEI) of the AIFM; b. the legal name and, where available, LEI of the AIF and its investment strategy; c. the legal name and, where available, LEI of each delegate, its jurisdiction of establishment and, where relevant, its supervisory authority; d. a brief description of the delegated risk management functions, including whether each such delegation amounts to a partial or full delegation; e. a brief description of the delegated portfolio management functions, by investment strategy and relevant geographies, including whether each such delegation amounts to a partial or full delegation; f. a brief description of other functions listed in Annex I which the AIFM additionally performs; and a description of the human and technical resources to be used by the AIFM for monitoring and controlling the delegate.;

Amendment 230 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point a

Directive 2011/61/EU
Article 7 – paragraph 2 – point e

(e) information on arrangements made for the delegation and sub-delegation to third parties of functions as referred to in Article 20 ~~and a detailed~~, including: (i) information on the delegate, specifying the delegate’s domicile and whether it is a regulated entity or not; (ii) a description of the delegated portfolio management and risk management functions; (iii) a description of the retained portfolio management and risk management functions; (iv) a description of the human and technical resources ~~to be us~~employed by or committed byto the AIFM for monitoring and controlling the delegate.; and (v) an explanation of the added value of the delegation to the investor;

Amendment 231 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b

Directive 2011/61/EU
Article 7 – paragraph 5

(b) paragraph 5 is replaced by the following: ‘5. The competent authorities shall, on a quarterly basis, inform ESMA of authorisations granted or withdrawn in accordance with this Chapter. ESMA shall keep a central public register identifying each AIFM authorised under this Directive, a list of the AIFs managed and/deleted information on the AIFM and the infor marketed in the Union by such AIFMs and the competent authority for each such AIFM. The register shall be made available in electronic format. Where an AIFM delegates more portfolio management or risk management functions to entities located in third countries than it retains, the competent authotion on the delegate, a description of the delegated a descripties shall, on an annual basis, notify ESMA of all such delegations (‘delegation notifications’). The delegation notifications shall include the following: (a) AIF concerned; (b) specifying the delegate’s domicile and whether it is a regulated entity or not; (c) portfolio management and risk management functions; (d) portfolio management and risk management functions; (e) analyse the delegation arrangements; (f) authorities’ supervisory activities, including desk-based reviews and on-site inspections and the results of such activities; (g) between the competent authority of the AIFM and the supervisory authority of the delegate.’on of the retained any other information necessary to a description of the competent any details on the cooperation

Amendment 232 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b

Directive 2011/61/EU
Article 7 – paragraph 5

(b) paragraph 5 is replaced by the following: ‘5. The competent authorities shall, on a quarterly basis, inform ESMA of authorisations granted or withdrawn in accordance with this Chapter. ESMA shall keep a central public register identifying each AIFM authorised under this Directive, a list of the AIFs managed and/or marketed in the Union by such AIFMs and the competent authority for each such AIFM. The register shall be made available in electronic format. Where an AIFM delegates more portfolio management or risk management functions to entities located in third countries than it retains, the competent authorities shall, on an annual basis, notify ESMA of all such delegations (‘delegation notifications’). The delegation notifications shall include the following: (a) information on the AIFM and the AIF concerned; (b) specifying the delegate’s domicile and whether it is a regulated entity or not; (c) portfolio management and risk management functions; (d) portfolio management and risk management functions; (e) any other information necessary to analyse the delegation arrangements; (f) authorities’ supervisory activities, including desk-based reviews and on-site inspections and the results of such activities; (g) between the competent authority of the AIFM and the supervisory authority of the delegate.’deleted information on the delegate, a description of the delegated a description of the retained a description of the competent any details on the cooperation

Amendment 233 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b

Directive 2011/61/EU
Article 7 – paragraph 5 – subparagraph 1

The competent authorities shall, on a ~~quarterly~~n annual basis, inform ESMA of authorisations granted or withdrawn in accordance with this Chapter, and any changes in the scope of the authorisation by the relevant competent authority, in particular material changes to the information provided in accordance with paragraphs 2 and 3 of this Article.

Amendment 234 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b

Directive 2011/61/EU
Article 7 – paragraph 5 – subparagraph 1

The competent authorities shall, on a quarterly basis, inform ESMA of authorisations granted or withdrawn or denied in accordance with this Chapter.

Amendment 235 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b

Directive 2011/61/EU
Article 7 – paragraph 5 – subparagraph 3

Where an AIFM delegates more portfolio management or risk management functions to entities located in third countries than it retains, in terms of assets under management, number of staff performing relevant day-to-day operational activities and the amount of fees generated by the AIFM or paid to the delegate, the competent authorities shall, on an annual basis, notify ESMA of all such delegations (‘delegation notifications’).

Amendment 236 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b

Where an AIFM delegates more portfolio management or risk management functions to entities located in third countries than it retains in terms of assets under management or number of staff performing relevant day-to-day operational activities, the competent authorities shall, on an annual basis, notify ESMA of all such delegations (‘delegation notifications’).

Amendment 237 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b

Directive 2011/61/EU
Article 7 – paragraph 5 – subparagraph 4 – point d a (new)

(d a) a description of the assets under management for which portfolio/risk management has been retained and delegated;

Amendment 238 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b

(d b) a description of the number of staff performing day-to-day portfolio or risk management tasks within the AIFM versus the number of staff performing these services on a delegated basis;

Amendment 239 #

Paul TANG, Eero HEINÄLUOMA, René REPASI, Eva KAILI

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b

Directive 2011/61/EU
Article 7 – paragraph 5 – subparagraph 4 – point d c (new)

(d c) the amount of fees generated by the AIFM and the amount of fees paid to the delegate;

Amendment 240 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b

(g a) the share of total assets under management that have been delegated to third parties;

Amendment 241 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b

Directive 2011/61/EU
Article 7 – paragraph 5 – subparagraph 4 – point g b (new)

(g b) share of staff performing day-to- day portfolio/risk management tasks within the licensed entity;

Amendment 242 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b

Directive 2011/61/EU
Article 7 – paragraph 5 – subparagraph 4 – point g c (new)

(g c) the share of fees generated by licensed entities vis-à-vis forwarded or paid to the delegates.

Amendment 243 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b a (new)

Directive 2011/61/EU
Article 7 – paragraph 6

(b a) In paragraph 6, the first subparagraph is replaced by the following: "6. In order to ensure consistent harmonisation of this Article, ESMA may develop draft regulatory technical standards to specify the information to be provided to the competent authorities in the application for the authorisation of the AIFM, including the programme of activity~~. lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:174:0001:0073:EN:PDF)~~, and to specify situations where the name of the AIFs it intends to manage could be materially deceptive or misleading to the investor. Or. en (https://eur-

Amendment 244 #

Paul TANG, Jonás FERNÁNDEZ, René REPASI, Eva KAILI

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b a (new)

Directive 2011/61/EU
Article 7 – paragraph 6 – subparagraph 1

~~6. In order to ensure consistent harmonisation of this Article, ESMA may~~(b a) the first subparagraph of paragraph 6 is replaced by the following: "6. In order to ensure consistent harmonisation of this Article, ESMA shall by ... [12 months after the entry into force of this Directive] develop draft regulatory technical standards to specify the information to be provided to the competent authorities in the application for the authorisation of the AIFM, including the programme of activity, and to specify situations where the name of the AIFs it intends to manage could be materially deceptive or misleading to the investor. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. Or. en (https://eur-lex.europa.eu/legal- content/EN/TXT/?uri=uriserv:OJ.L_.2011.174.01.0001.01.ENG)

Amendment 245 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point c

Directive 2011/61/EU
Article 7 – paragraphs 8 and 9

(c) the following paragraphs 8 and 9 are added: 8. regulatory technical standards to determine the content of the delegation notifications and the standard forms, templates and procedures for the transmission of the delegation notifications in a language customary to the sphere of finance. The standard forms and templates shall include information fields covering all information referred to in paragraph 5, fourth subparagraph. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. 9. ESMA shall provide the European Parliament, the Council and the Commission with regular reports, at least every two years, analysing market practices regarding delegation to entities located in third countries and compliance with Articles 7 and 20.;deleted ESMA shall develop draft

Amendment 246 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point c

Directive 2011/61/EU
Article 7 – paragraph 8

8. ESMA shall develop draft regulatory technical standards to determine the content of the delegation notifications and the standard forms, templates and procedures for the transmission of the delegation notifications in a language customary to the sphere of finance. The standard forms and templates shall include information fields covering all information referred to in paragraph 5, fourth subparagraph. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.deleted

Amendment 247 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point c

Directive 2011/61/EU
Article 7 – paragraph 8

8. ESMA shall develop draft regulatory technical standards to: (a) develop quantitative criteria to determine where an AIFM delegates more portfolio management or risk management functions than it retains; (b) determine the content of the delegation notifications and the standard forms, templates and procedures for the transmission of the delegation notifications in a language customary to the sphere of finance. The standard forms and templates shall include information fields covering at least all information referred to in paragraph 5, fourth subparagraph.

Amendment 248 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point c

2011/61/EU
Article 7 – paragraph 8

8. ESMA shall develop draft regulatory technical standards to determine the content of the ~~delegation notifications~~reporting and the standard forms, templates and procedures for the transmission of the ~~delegation notifications~~reporting in a language customary to the sphere of finance. The standard forms and templates shall include information fields covering all information referred to in paragraph 5, fourth subparagraph.

Amendment 249 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point c

Directive 2011/61/EU
Article 7 – paragraph 9

9. ESMA shall provide the European Parliament, the Council and the Commission with regular reports, at least every two years, analysing market practices regarding delegation to entities located in third countries and compliance with Articles 7 and 20.;deleted

Amendment 250 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point c

Directive 2011/61/EU
Article 7 – paragraph 9

9. By 30 June 2027 and then every 6 years, ESMA shall provide the European Parliament, the Council and the Commission with re~~gular reports, at least every two year~~ports, analysing market practices regarding delegation to entities located in third countries and compliance with Articles 7 and 20.;

Amendment 251 #

Proposal for a directive
Article 1 – paragraph 1 – point 3 – point c

Directive 2011/61/EU
Article 7 – paragraph 9

9. By … [12 months before the date of the review referred to in Article 69b] ESMA shall provide the European Parliament, the Council and the Commission with ~~regular reports, at least every two years,~~a report analysing market practices regarding delegation ~~to entities located in third countries~~ and compliance with Articles 7 and 20.;

Amendment 252 #

Proposal for a directive
Article 1 – paragraph 1 – point 4 – introductory part

Directive 2011/61/EU
Article 8 – paragraph 1 – point c

(4) in Article 8(1), is amended as follows (a) point (c) is replaced by the following:

Amendment 253 #

Paul TANG, Eva KAILI

Proposal for a directive
Article 1 – paragraph 1 – point 4

Directive 2011/61/EU
Article 8 – paragraph 1 – point c

(c) the persons who effectively conduct the business of the AIFM are of sufficiently good repute and are sufficiently experienced also in relation to the investment strategies pursued by the AIF managed by the AIFM, the names of those persons and of every person succeeding them in the office being communicated forthwith to the competent authorities of the home Member States of the AIFM and the conduct of the business of the AIFM being decided by at least twohree natural persons who are either employed full-time by that AIFM or who are committed full-time to conduct the business of that AIFM and who are resident in the Union meeting such conditions;, one of whom shall be an independent director;

Amendment 254 #

Proposal for a directive
Article 1 – paragraph 1 – point 4

Directive 2011/61/EU
Article 8 – paragraph 1 – point c

(c) the persons who effectively conduct the business of the AIFM are of sufficiently good repute and are sufficiently experienced also in relation to the investment strategies pursued by the AIF managed by the AIFM, the names of those persons and of every person succeeding them in the office being communicated forthwith to the competent authorities of the home Member States of the AIFM and the conduct of the business of the AIFM being decided by at least two ~~natural~~ persons who are either employed full-time by that AIFM or who are committed full- time or on a full-time equivalent basis to conduct the business of that AIFM and who are resident in the Union meeting such conditions;;

Amendment 255 #

Proposal for a directive
Article 1 – paragraph 1 – point 4 – point b (new)

Directive 2011/61/EU
Article 8 – paragraph 1 – point e a (new)

(b) the following point (e a) is added: (e a) they are satisfied that the AIFM has sufficient expertise and resources to meet the requirements of Regulation (EU) 2019/2088.

Amendment 256 #

Proposal for a directive
Article 1 – paragraph 1 – point 4 – point a (new)

(a) in Article 8, the following paragraph is added: ‘(6a) The competent authority of the AIFM shall communicate to the fund the reason for its refusal to grant authorisation as an AIF. The competent authority of the AIF shall also communicate its decision to the ESMA which shall keep record of rejected applications. ESMA shall provide information regarding fund managers whose authorisation has been denied to competent authorities upon request.’

Amendment 257 #

Proposal for a directive
Article 1 – paragraph 1 – point 4 a (new)

Directive 2011/61/EU
Article 11 – paragraph 1 – point f a (new)

(4 a) In Article 11, the following point is added: (f a) has seriously or systemically infringed the provisions adopted pursuant to Regulation (EU) 2018/2088

Amendment 258 #

Proposal for a directive
Article 1 – paragraph 1 – point 4 b (new)

Directive 2011/61/EU
Article 12 – paragraph 1

(4 b) Article 12 is amended as follows: (a) in paragraph (1), point (ba) is inserted: (ba) take account of climate and transition risks in their investment decisions (b) the following paragraph 4 is added: '4. ESMA shall develop draft regulatory technical standards specifying the framework according to which climate and transition risks shall be taken account in investment decisions as mandated by paragraph 1(ba). ESMA shall specifically outline which asset classes have a high risk of being subject to such risks and the timeframe in which such risks may materialise. ESMA shall submit those draft regulatory technical standards to the Commission by ... [18 months after the entry into force of this Directive]. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 or Regulation (EU) No 1095/2010'.

Amendment 259 #

Paul TANG, Eero HEINÄLUOMA, Jonás FERNÁNDEZ, René REPASI, Eva KAILI

Proposal for a directive
Article 1 – paragraph 1 – point 4 c (new)

Directive 2011/61/EU
Article 13 – paragraph 1

(4 c) the first subparagraph of Article 13(1) is replaced by the following: '1. Member States shall require AIFMs to have remuneration policies and practices for those categories of staff, including senior management, risk takers, control functions, and any employees receiving total remuneration that takes them into the ~~same~~ remuneration bracket as senior management and risk takers, whose professional activities have a material impact on the risk profiles of the AIFMs or of the AIFs they manage, that are consistent with and promote sound and effective risk management, including ESG risks, and do not encourage risk-taking which is inconsistent with the risk profiles, rules or instruments of incorporation of the AIFs they manage'.

Amendment 260 #

Proposal for a directive
Article 1 – paragraph 1 – point 4 a (new)

Directive 2011/61/EU
Article 14

(4 a) Article 14 is amended as follows: (a) paragraph 2a is added: 2a. AIFMs intending to provide White-Label services shall submit to the competent authorities of their home Member State detailed explanations and evidence on their compliance with paragraphs 1 and 2. In particular, they shall specify how they prevent systematic conflicts of interest or any other material conflicts of interest arising from their White-Label business activities and how any existing or potential conflicts are effectively managed in the best interest of investors and this is clearly and comprehensively disclosed to investors. (b) paragraph 5 is added: 5. In order to ensure uniform conditions of application of this Article, ESMA shall develop draft regulatory technical standards to specify: (a) the types of White-Label services and conflicts of interest as referred to in paragraph 2a; (b) the steps AIFMs are expected to take in terms of structures and organisational and administrative procedures in order to identify, prevent, manage, monitor and disclose conflicts of interest arising from the provision of White-Label services; (c) criteria to be used by the relevant competent authorities to assess whether AIFMs comply with their obligations under paragraph 2a. Power is conferred on the Commission to adopt the regulatory technical standards referred to in this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.

Amendment 261 #

Proposal for a directive
Article 1 – paragraph 1 – point 4 a (new)

Directive 2011/61/EU
Article 14

(4 a) Article 14 is replaced by the following: "1. Member States shall require AIFMs to take all reasonable steps to identify conflicts of interest that arise in the course of managing AIFs between: (a)the AIFM, including its managers, employees or any person directly or indirectly linked to the AIFM by control, and the AIF managed by the AIFM or the investors in that AIF; (b)the AIF or the investors in that AIF, and another AIF or the investors in that AIF;(c)the AIF or the investors in that AIF, and another client of the AIFM; (d)the AIF or the investors in that AIF, and a UCITS managed by the AIFM or the investors in that UCITS; or (e)two clients of the AIFM. AIFMs shall maintain and operate effective organisational and administrative arrangements with a view to taking all reasonable steps designed to identify, prevent, manage and monitor conflicts of interest in order to prevent them from adversely affecting the interests of the AIFs and their investors. AIFMs shall segregate, within their own operating environment, tasks and responsibilities which may be regarded as incompatible with each other or which may potentially generate systematic conflicts of interest. AIFMs shall assess whether their operating conditions may involve any other material conflicts of interest and disclose them to the investors of the AIFs. 2. Where organisational arrangements made by the AIFM to identify, prevent, manage and monitor conflicts of interest are not sufficient to ensure, with reasonable confidence, that risks of damage to investors’ interests will be prevented, the AIFM shall clearly disclose the general nature or sources of conflicts of interest to the investors before undertaking business on their behalf, and develop appropriate policies and procedures. 2a. AIFMs intending to provide White- Label services shall submit to the competent authorities of their home Member State detailed explanations and evidence on their compliance with paragraphs 1 and 2. In particular, they shall specify how they prevent systematic conflicts of interest or any other material conflicts of interest arising from their White-Label business activities and how any existing or potential conflicts are effectively managed in the best interest of investors and this is clearly and comprehensively disclosed to investors 3. Where the AIFM on behalf of an AIF uses the services of a prime broker, the terms shall be set out in a written contract. In particular any possibility of transfer and reuse of AIF assets shall be provided for in that contract and shall comply with the AIF rules or instruments of incorporation. The contract shall provide that the depositary be informed of the contract. AIFMs shall exercise due skill, care and diligence in the selection and appointment of prime brokers with whom a contract is to be concluded. 4. The Commission shall adopt, by means of delegated acts in accordance with Article 56 and subject to the conditions of Articles 57 and 58, measures specifying: (a) the types of conflicts of interest as referred to in paragraph 1; (b) the reasonable steps AIFMs are expected to take in terms of structures and organisational and administrative procedures in order to identify, prevent, manage, monitor and disclose conflicts of interest. 5. In order to ensure uniform conditions of application of this Article, ESMA shall develop draft regulatory technical standards to specify: (a) the types of White-Label services and conflicts of interest as referred to in paragraph 2a; (b) the steps AIFMs are expected to take in terms of structures and organisational and administrative procedures in order to identify, prevent, manage, monitor and disclose conflicts of interest arising from the provision of White-Label services; (c) criteria to be used by the relevant competent authorities to assess whether AIFMs comply with their obligations under paragraph 2a. Power is conferred on the Commission to adopt the regulatory technical standards referred to in this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. Or. en (32011L0061)

Amendment 262 #

Paul TANG, Eero HEINÄLUOMA, Jonás FERNÁNDEZ, René REPASI, Eva KAILI

Proposal for a directive
Article 1 – paragraph 1 – point 4 d (new)

Directive 2011/61/EU
Article 14a

(4 d) The following Article 14a is inserted: 'Article 14c Fees and undue costs 1. Member States shall prohibit AIFMs from charging performance fees to its unit-holders, except where these performance fees are symmetric 2. Member States shall require AIFMs to act in such a way as to prevent undue costs being charged to the AIFs that they manage. 3. Member States shall require AIFMs to carry out an annual assessment to demonstrate that they have not charged undue costs to the AIF and its unit- holders, including by having regard to at least the following elements: (a) the range and quality of services provided to unit-holders, including where these are provided by third parties; (b) the performance of the AIF, including with reference to other comparable AIF investment funds with similar risk profiles and investment strategies available on the market; (c) the level of charges and cost borne by unitholders, including with reference to other comparable AIF investment funds with similar risk profiles and investment strategies available on the market; (d) whether the AIF management company is able to achieve savings and benefits from economies of scale; 4. In order to ensure a consistent harmonisation and implementation of this Article by Member States, ESMA should be required to develop by ... [12 months after the entry into force of this Directive] draft regulatory technical standards to specify the scope of the ban on performance-related fees, a definition for undue costs and the procedures for the purpose of carrying out the assessment on undue costs in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.

Amendment 263 #

Proposal for a directive
Article 1 – paragraph 1 – point 5 – point a

Directive 2011/61/EU
Article 15 – paragraph 3 – point d

(d) for loan ~~gran~~originating activities, other than in respect of shareholder loans or venture capital convertible loans where such loans do not exceed in aggregate 150% of the capital of the AIF, implement effective policies, procedures and processes for the granting of credit, for assessing the credit risk and for administering and monitoring their credit portfolio, keep those policies, procedures and processes up to date and effective and review them regularly and at least once a year.;

Amendment 264 #

Proposal for a directive
Article 1 – paragraph 1 – point 5 – point a

Directive 2011/61/EU
Article 15 – paragraph 3 – point d

(d) for loan ~~gran~~originating activities, other than in respect of shareholder loans where such loans do not exceed in aggregate 150% of the net asset value of the AIF, implement effective policies, procedures and processes for the granting of credit, for assessing the credit risk and for administering and monitoring their credit portfolio, keep those policies, procedures and processes up to date and effective and review them regularly and at least once a year.;

Amendment 265 #

Proposal for a directive
Article 1 – paragraph 1 – point 5 – point a

Direcitve 2011/61/EU
Article 15 – paragraph 3 – point d

(d) for loan ~~gran~~originating activities, other than in respect of shareholder loans where such loans do not exceed in aggregate 150% of the capital of the AIF, implement effective policies, procedures and processes for the granting of credit, for assessing the credit risk and for administering and monitoring their credit portfolio, keep those policies, procedures and processes up to date and effective and review them regularly and at least once a year.;

Amendment 266 #

Proposal for a directive
Article 1 – paragraph 1 – point 5 – point b

Directive 2011/61/EU
Article 15 – paragraph 4 b

4b. The investment limit of 20 % laid down in paragraph 4a shall: (a) rules or instruments of incorporation of the AIF; (b) to sell assets in order to redeem investors' units or shares after the end of the life of the AIF; (c) 12 months where the AIF raises additional capital or reduces its existing capital.deleted apply by the date specified in the cease to apply once the AIF starts be temporarily suspended for up to

Amendment 267 #

Proposal for a directive
Article 1 – paragraph 1 – point 5 – point b

Directive 2011/61/EU
Article 15 – paragraph 4 c

4c. The application date referred to in paragraph 4b, point (a), shall take account of the particular features and characteristics of the assets to be invested by the AIF, and shall be no later than half the life of the AIF as indicated in the AIF’s constitutive documents. In exceptional circumstances, the competent authority of the AIFM, upon submission of a duly justified investment plan, may approve an extension of this time limit by no more than one additional year.deleted

Amendment 268 #

Proposal for a directive
Article 1 – paragraph 1 – point 5 – point b

Directive 2011/61/EU
Article 15 – paragraph 4 c a (new)

4c a. An AIFM shall ensure that the leverage of a loan-originating AIF it manages represents no more than 100 % of the net asset value of the AIF. The leverage shall be expressed as the ratio between the exposure of an AIF, calculated according to the commitment method as defined by means of the delegated acts referred to in Article 4(3), and its net asset value. Borrowing arrangements which are temporary in nature and are fully covered by contractual capital commitments from investors in the AIF shall not be considered to constitute leverage for the purposes of this paragraph. The requirements set out in the first subparagraph shall apply to AIFs that gain exposure to a loan through a special purpose vehicle which originates a loan for or on behalf of the AIF or AIFM in respect of the AIF.

Amendment 269 #

Proposal for a directive
Article 1 – paragraph 1 – point 5 – point b

Directive 2011/61/EU
Article 15 – paragraph 4 d – point a a (new)

(a a) an entity within the same group as the AIFM;

Amendment 270 #

Proposal for a directive
Article 1 – paragraph 1 – point 5 – point b

Directive 2011/61/EU
Article 15 – paragraph 4d – point a a (new)

(a a) an entity within the same group as defined in Article 2(11) of Directive 2013/34/EU of the European Parliament and the Council, except where that entity is a financial undertaking that exclusively finances borrowers that are not mentioned in points (a) to (c) of this paragraph.

Amendment 271 #

Proposal for a directive
Article 1 – paragraph 1 – point 5 – point b

(c a) an entity within the same group as defined in Article 2(11) of Directive 2013/34/EU, except where that entity is a financial undertaking that only finances borrowers not stipulated in points (a) to (c a) of this paragraph.

Amendment 272 #

Proposal for a directive
Article 1 – paragraph 1 – point 5 – point b

Directive 2011/61/EU
Article 15 – paragraph 4 d a (new)

4d a. The proceeds of the loan, minus the fees for the administration of the loan, shall be attributed to the fund in full. All costs and expenses linked to the administration of the loan shall be clearly disclosed in accordance with Article 23 of this Directive.

Amendment 273 #

Proposal for a directive
Article 1 – paragraph 1 – point 5 – point b

Directive 2011/61/EU
Article 15 – paragraph 4e

4e. An AIFM shall ensure that the AIF it manages retains, on an ongoing basis, 5% of the notional value of the loans it has originated and subsequently sold on the secondary market. The requirement set out in the first subparagraph does not apply to the loans that the AIF has purchased on the secondary market.’;deleted

Amendment 274 #

Proposal for a directive
Article 1 – paragraph 1 – point 5 – point b

Directive 2011/61/EU
Article 15 – paragraph 4e – subparagraph 1

An AIFM shall ensure that the AIF it manages retains, on an ongoing basis, 510% of the notional value of the loans it has originated and subsequently sold on the secondary market.

Amendment 275 #

Proposal for a directive
Article 1 – paragraph 1 – point 5 – point b

Directive 2011/61/EU
Article 15 – paragraph 4 e – subparagraph 1

An AIFM shall ensure that the AIF it manages retains, on an ongoing basis, 510% of the notional value of the loans it has originated and subsequently sold on the secondary market.

Amendment 276 #

Proposal for a directive
Article 1 – paragraph 1 – point 5 – point b

Directive 2011/61/EU
Article 15 – paragraph 4 e – subparagraph 2

The requirement set out in the first subparagraph ~~does~~shall not apply to: - shareholder loans, provided that these shareholder loans do not exceed 100% of the AIF’s capital; and - the loans that the AIF has purchased on the secondary market.’;

Amendment 277 #

Proposal for a directive
Article 1 – paragraph 1 – point 5 – point b

4e a. All the revenues arising from efficient portfolio management techniques, net of direct and indirect operational costs, shall be returned to the AIF. Those costs and fees shall not include hidden revenue for the AIFM or affiliated parties.

Amendment 278 #

Proposal for a directive
Article 1 – paragraph 1 – point 6 – introductory part

Directive 2011/61/EU
Article 16

(6) in Article 16, is amended as follows: (a) the following paragraphs 2a to 2h are inserted:

Amendment 279 #

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

Directive 2011/61/EU
Article 16 – paragraph 2a – subparagraph 1

An AIFM shall ensure that the AIF it manages is closed-ended if the notional value of its originated loans exceeds 60 % of its net asset value for a continuous period of 15 days.

Amendment 280 #

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

Directive 2011/61/EU
Article 16 – paragraph 2a – subparagraph 1

An AIFM shall ensure that the AIF it manages is closed-ended if the ~~notional value of its originated loans exceeds 60 % of its net asset value~~AIFM is not able to demonstrate sound liquidity risk management.

Amendment 281 #

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

Directive 2011/61/EU
Article 16 – paragraph 2a a (new)

2a a. By way of derogation from paragraph 2a, a loan originating AIF may be open-ended, subject to the approval of the competent authorities and based on a demonstration by the AIF manager of the compatibility of its liquidity management system with its redemption policy, which must meet at least the following criteria: (a) the debt-to-equity ratio should not be higher than 1:1; (b) the AIF has as its primary objective the active management of the loans it originates and as such it retains, on an ongoing basis, a portion of the originated loans until the end of their maturity which is at most equal to 50% of its net asset value; (c) the AIF invests at least 5% of its assets in cash or other liquid assets that qualify as cash equivalents within the meaning of the applicable accounting framework; (d) the AIF offers its investors redemption rights at most on a quarterly basis; (e) the AIFM clearly communicates the application of redemption schedules or gates, if applicable, to its investors in the disclosures referred to in Article 23(1); (f) the assets under management of the AIF do not exceed EUR 3 billion.

Amendment 282 #

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

Directive 2011/61/EU
Article 16 – paragraph 2a a (new)

2a a. By way of derogation from paragraph 2a, a loan-originating AIF may be open-ended, subject to the approval of the competent authorities and based on a demonstration by the AIFM of the compatibility of its liquidity management system with its redemption policy, which must meet at least the following criteria: i. the level of leverage employed by an AIFM with respect to the AIF shall not exceed 100%; ii. the AIF has as its primary objective the active management of the loans it originates and as such it retains, on an ongoing basis, a portion of the originated loans until the end of their maturity which is at least equal to 50 % of its net asset value; iii. the AIF invests at least 5 % of its assets in cash or other liquid assets that qualify as cash equivalents within the meaning of the applicable accounting framework; iv. the AIF offers its investors redemption rights at least on a quarterly basis; v. the AIFM clearly communicates the application of redemption schedules or gates, if applicable, to its investors in the disclosures referred to in Article 23(1); and vi. the assets under management of the AIF do not exceed EUR 3 billion.

Amendment 283 #

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

Directive 2011/61/EU
Article 16 – paragraph 2a a (new)

2a a. The threshold set out in paragraph 2a shall not apply to funds that: - have sustainable investment as their objective, in accordance with Article 2(17) and Article 9 of Regulation (EU) 2019/2088 on sustainability-related disclosures in the financial services sector (SHRD); and, - do not exceed EUR 3 billion assets under management.

Amendment 284 #

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

Directive 2011/61/EU
Article 16 – paragraph 2b

2b. After assessing the suitability in relation to the pursued investment strategy, the liquidity profile and the redemption policy, an AIFM that manages an open- ended AIF shall select at least ~~one~~two appropriate liquidity management tools from the list set out in Annex V, points 2 ~~to 4~~, 4,5 6 and 8, for possible use in the interest of the AIF’s investors. The AIFM shall implement detailed policies and procedures for the activation and deactivation of any selected liquidity management tools and the operational and administrative arrangements for the use of such tools.

Amendment 285 #

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

Directive 2011/61/EU
Article 16 – paragraph 2b

2b. After assessing the suitability in relation to the pursued investment strategy, the liquidity profile and the redemption policy, an AIFM that manages an open- ended AIF shall select at least one appropriate liquidity management tool from the list set out in Annex V, points 2 to 48, for possible use in the interest of the AIF’s investors. The AIFM shall implement detailed policies and procedures for the activation and deactivation of any selected liquidity management tool and the operational and administrative arrangements for the use of such tool.

Amendment 286 #

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

Directive 2011/61/EU
Article 16 – paragraph 2c

2c. An AIFM that manages an open- ended AIF may, in the interest of AIF investors, temporarily suspend the repurchase or redemption of the AIF units or activate other liquidity management tools selected from the list set out in Annex V, points 2 ~~to 4,~~, 4,5,6 and 8 and included in the fund rules or the instruments of incorporation of the AIFM.

Amendment 287 #

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

Directives 2011/61/EU
Article 16 – paragraph 2c

2c. An AIFM that manages an open- ended AIF may, in the interest of AIF investors, temporarily suspend the repurchase or redemption of the AIF units or activate other liquidity management tools selected from the list set out in Annex V, points 2 to 48, and included in the fund rules or the instruments of incorporation of the AIFM.

Amendment 288 #

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

Directive 2011/61/EU
Article 16 – paragraph 2d

2d. ~~An AIFM shall, without delay, notify the competent authorities of its home Member State when activating or deactivating a liquidity management tool mentioned in 2b.~~ Where, in situations of liquidity stress, an AIFM activates or deactivates one of the liquidity management tools listed in points 1 to 2 of the list set out in Annex V it shall, without delay, notify the competent authorities of its home Member State. An AIFM shall notify the same competent authorities when activating or deactivating side pockets as referred to in point 8 of that Annex, in a reasonable timeframe prior to the activation or deactivation of that liquidity management tool.

Amendment 289 #

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

Directive 2011/61/EU
Article 16 – paragraph 2d

2d. An AIFM shall, without delay, notify the competent authorities of its home Member State when activating or deactivating ~~a liquidity management tool mentioned in 2b~~the suspension of redemptions and subscriptions or redemption gates. An AIFM shall also notify the activation or deactivation of any other liquidity management tool when done so in a manner that is not in the ordinary course of business as envisaged in the fund documentation.

Amendment 290 #

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

Directive 2011/61/EU
Article 16 – paragraph 2d

2d. An AIFM shall, without delay, notify the competent authorities of its home Member State when activating or deactivating a liquidity management tool ~~mentioned in 2b~~set out in points 1 to 4 in Annex V.

Amendment 291 #

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

Directive 2011/61/EU
Article 16 – Paragraph 2d

2d. An AIFM shall, without delay, notify the competent authorities of its home Member State when activating or deactivating aone of the liquidity management tool ~~mentioned in 2b~~s set out in points (1) or (2) of Annex V.

Amendment 292 #

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

Directive 2011/61/EU
Article 16 – paragraph 2f

~~2f. ESMA shall develop draft regulatory technical standards to specify the characteristics of the liquidity management tools set out in Annex V.~~deleted

Amendment 293 #

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

~~2f. ESMA shall develop draft regulatory technical standards to specify the characteristics of the liquidity management tools set out in Annex V.~~deleted

Amendment 294 #

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

Directive 2011/61/EU
Article 16 – paragraph 2g

2g. ESMA shall develop ~~draft regulatory technical standard~~recommendations on criteria for the selection and use of suitable liquidity management tools by the AIFMs for liquidity risk management, including appropriate disclosures to investors, taking into account the capability of such tools to reduce undue advantages for investors that redeem their investments first, and to mitigate financial stability risks. Those recommendations shall recognise that the primary responsibility for liquidity risk management remains with the AIFM. They shall allow adequate time for adaptation before they apply, in particular for existing AIFs.

Amendment 295 #

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

Directive 2011/61/EU
Article 16 – paragraph 2g

2g. ESMA shall develop draft ~~regulatory technical standard~~guidelines on criteria for the selection and use of suitable liquidity management tools by the AIFMs for liquidity risk management, including appropriate disclosures to investors, taking into account the capability of such tools to reduce undue advantages for investors that redeem their investments first, and to mitigate financial stability risks. Those guidelines shall recognise that the primary responsibility for liquidity risk management remains with the AIFM. They shall allow adequate time for adaptation before they apply, in particular for existing AIFs.

Amendment 296 #

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

Directive 2011/61/EU
Article 16 – paragraph 2g

2g. ESMA shall develop draft regulatory technical standards on ~~criteria for the selection and use of suitable liquidity management tools by the AIFMs for liquidity risk management, including appropriat~~with regards to the disclosures to the investors~~, taking into account the capability of such tools to reduce undue adv~~ of information related to the use of liquidity mantage~~s for investors that redeem their investments first,~~ment tools for to manage liquidity and to mitigate financial stability risks by the AIFMs.

Amendment 297 #

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

Directive 2011/61/EU
Article 16 – paragraph 2g

2g. By ... [12 months after entry into force of this Directive] ESMA shall develop draft regulatory technical standards on criteria for the selection and use of suitable liquidity management tools by the AIFMs for liquidity risk management, including appropriate disclosures to investors, taking into account the capability of such tools to reduce undue advantages for investors that redeem their investments first, and to mitigate financial stability risks.

Amendment 298 #

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

Directive 2011/61/EU
Article 16 – paragraph 2g

2g. ESMA shall develop ~~draft regulatory technical standards on criteria for the selection and use of suitable liquidity management tools by the AIFMs for liquidity risk management, including~~guidelines on appropriate disclosures to investors, taking into account the capability of ~~such~~liquidity management tools to reduce undue advantages for investors that redeem their investments first, and to mitigate financial stability risks. The AIFMD shall be primarily responsible for liquidity risk management.

Amendment 299 #

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

Directive 2011/61/EU
Article 16 – paragraph 2h

~~2h. Power is~~ delegated ~~to the Commission to adopt the regulatory technical standards referred to in paragraphs 2f and 2g of this Article in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.;~~

Amendment 300 #

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

Directive 2011/61/EU
Article 16 – paragraph 2h a (new)

2h a. AIFMs shall, for each open-ended AIF investing in inherently less liquid assets that they manage, demonstrate that the investment strategy can be maintained in all foreseeable market conditions. ESMA shall develop draft regulatory technical standards to specify inherently less liquid assets and to ensure uniform conditions of application of this paragraph. ESMA shall submit those draft regulatory technical standards to the Commission by ... [36 months after the entry into force of this Directive]. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the second subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’

Amendment 301 #

Proposal for a directive
Article 1 – paragraph 1 – point 6 – point a (new)

Directive 2011/61/EU
Article 16 – paragraph 3 a (new)

a) The following paragraph is added: 3a. AIFMs shall, for each open-ended AIF that they manage investing into inherently less liquid assets, demonstrate that the investment strategy can be maintained in all foreseeable market conditions. ESMA shall develop draft regulatory technical standards to specify a list of inherently less liquid assets and to ensure uniform conditions of application of this paragraph. ESMA shall submit those draft regulatory technical standards to the Commission by ... [36 months after the entry into force of this Directive]. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the second subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’

Amendment 302 #

Proposal for a directive
Article 1 – paragraph 1 – point 6 a (new)

Directive 2011/61/EU
Article 18 – paragraph 10 a (new)

(6a) In Article 18, the following paragraph 10a is inserted: ‘Member States shall require management companies to act in such a way as to prevent undue costs being charged to the AIFs and its unit-holders. ESMA shall develop draft regulatory technical standards to establish the definition of undue costs.’

Amendment 303 #

Proposal for a directive
Article 1 – paragraph 1 – point 7 – point a

Directive 2011/61/EU
Article 20 – paragraph 1

(a) paragraph 1 is ~~amended as follows: “(a) the introductory phrase is~~ replaced by the following: deleted “1. AIFMs, which intend to delegate to third parties the task of carrying out, on their behalf, one or more of the functions listed in Annex I or of the services referred to in Article 6(4), shall notify the competent authorities of their home Member State before the delegation arrangements become effective. The ~~following conditions shall be met:;”~~ notification of delegation of portfolio management or risk management functions shall include at least the following:” (a) information on the AIF concerned; (b) the name of the delegate and the delegate’s country of domicile; (c) information on whether the delegate is authorised or registered for the purpose of portfolio or risk management and is subject to supervision. In these cases, the AIFM shall indicate the competent supervisory authority and the respective authorisation or registration number of the delegate. Insofar as the competent foreign supervisory authority does not issue such authorisation or registration numbers, the AIFM may provide evidence of the authorisation or registration of the delegate in another suitable manner; (d) a description of the delegated portfolio management and risk management functions; (e) a description of the retained portfolio management and risk management functions; (f) an indication of the date on which the delegation becomes effective; (g) a description of the objective reasons for the delegation. AIFMs shall notify the competent authorities of their home Member State of the termination and significant changes to delegation arrangements regarding portfolio management and risk management functions that could also affect the conditions for authorisation.

Amendment 304 #

Proposal for a directive
Article 1 – paragraph 1 – point 7 – point a – point a

Directive 2011/61/EU
Article 20 – paragraph 1 – introductory part

1. AIFMs, which are entrusted with a function or service and which intend to delegate to third parties the task of carrying out, on their behalf, one or more of the functions listed in Annex I or of the services referred to in Article 6(4), shall notify the competent authorities of their home Member State before the delegation arrangements become effective. The following conditions shall be met:;

Amendment 305 #

Proposal for a directive
Article 1 – paragraph 1 – point 7 – point a – point a a (new)

Directive 2011/61/EU
Article 20 – paragraph 1 – point d

(a a) point (d) is replaced by the following: '(d) where the delegation concerns portfolio management or risk management and is conferred on a third-country undertaking, in addition to the requirements in point (c), until ... [70 months after the publication of this Directive in the O.J.] cooperation between the competent authorities of the home Member State of the AIFM and the supervisory authority of the undertaking must be ensured;. After ... [70 months after the publication of this Directive in the O.J.], the third-country undertaking shall be located in a jurisdiction for which the Commission has adopted an equivalence decision in accordance with Article 20a.'

Amendment 306 #

Proposal for a directive
Article 1 – paragraph 1 – point 7 – point a a (new)

Directive 2011/61/EU
Article 20 – paragraph 1 a (new)

(a a) The following paragraph 1a is inserted: 1a. Where the delegation relates to portfolio management or risk management functions, the AIFM shall, on a yearly basis, inform the competent authority of the following: (a) information on the entities to which such functions have been delegated (name and legal entity identifier of each delegate, its jurisdiction of establishment and, where relevant, its supervisory authority); (b) information on the function delegated (portfolio management or risk management), type of delegation (full or partial), and the date of the delegation agreement or contract; (c) where sub-delegation arrangements are in place, the same information in respect of the sub-delegates and the functions sub-delegated; (d) the date of conclusion of the delegation and sub-delegation arrangements; (e) description of periodic due diligence measures carried out by the AIFM to oversee, monitor and control the delegate, including the date of performance of these measures, the issues identified and, where relevant, the measures and timeline adopted to address these issues.

Amendment 307 #

Proposal for a directive
Article 1 – paragraph 1 – point 7 – point b

Directive 2011/61/EU
Article 20 – paragraph 3

3. The AIFM’s liability towards its clients, the AIF and its investors shall not be affected by the fact that the AIFM has delegated functions to a third party, or by any further sub-delegation, nor shall the AIFM delegate its functions to the extent that, in essence, it can no longer be considered to be the manager of the AIF or the provider of the services and to the extent that it becomes a letter-box entity.; ESMA shall provide draft regulatory technical standards on the notion of ‘letter-box entity’, specifying quantitative criteria referred to in this paragraph.

Amendment 308 #

Proposal for a directive
Article 1 – paragraph 1 – point 7 – point b

Directive 2011/61/EU
Article 20 – paragraph 3

3. The AIFM’s liability towards its clients, the AIF and its investors shall not be affected by the fact that the AIFM has delegated functions to a third party, or by any further sub-delegation, nor shall the AIFM delegate its functions to the extent that, in essence, it can no longer be considered to be the manager of the AIF ~~or the provider of the services~~ and to the extent that it becomes a letter- box entity.;

Amendment 309 #

Proposal for a directive
Article 1 – paragraph 1 – point 7 – point b

Directive 2011/61/EU
Article 20 – paragraph 3

3. The AIFM’s liability towards its clients, the AIF and its investors shall not be affected by the fact that the AIFM has delegated functions to a third party, or by any further sub-delegation, nor shall the AIFM delegate its functions to the extent that, in essence, it can no longer be considered to be the manager of the AIF ~~or the provider of the services~~ and to the extent that it becomes a letter- box entity.;

Amendment 310 #

Proposal for a directive
Article 1 – paragraph 1 – point 7 – point b a (new)

Directive 2011/61/EU
Article 20 – paragrah 3a (new)

(b a) the following paragraph 3a is inserted: 3a. the delegates and any of the sub- delegates shall be subject to all relevant rules and requirements of this Directive in their execution of the delegated functions, irrespective of the delegates' legal status or national regulatory framework

Amendment 311 #

Proposal for a directive
Article 1 – paragraph 1 – point 7 – point c a (new)

Directive 2011/61/EU
Article 20 – paragraph 6 a (new)

(c a) the following paragraph 6a is inserted: ‘(6a) By way of derogation from the paragraphs 1 to 6 of this Article, where the marketing function as referred in Annex I, paragraph 2(b), is performed by one or several distributors which are acting on their own behalf and which market the AIF under Directive 2014/65/EU or through insurance-based investment products in accordance with Directive2016/97/EU, such function shall not be considered a delegation subject to the requirements laid down in paragraphs 1 to 6 of this Article irrespective of any distribution agreement between the AIFM and the distributor.’

Amendment 312 #

Proposal for a directive
Article 1 – paragraph 1 – point 7 – point c a (new)

Directive 2011/61/EU
Article 20 – paragraphs 7 a and 7 b (new)

(c a) The following paragraphs are added: '7a. ESMA or the competent authority of the home Member State of AIFM may, at their own initiative or at the request of the competent authority of another Member State, declare that the conditions of Article 3 are no longer met and: (a) require the identification of another AIFMs as the manager of an AIF with immediate effect; or (b) give the AIFM a 12-month period to regain control over the AIFs, after which period the fund will be liquidated if no AIFM can be identified as effective manager of the AIF 7b. By ... [12 months after entry into force of this regulation] ESMA shall develop draft regulatory technical standards specifying the procedure stipulated in paragraph 7a for identifying whether an AIFM can no longer be considered to be the manager of the AIF. In doing so it shall take into account both qualitative and quantitative factors in order to properly identify the location of effective control over an AIF. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.'

Amendment 313 #

Proposal for a directive
Article 1 – paragraph 1 – point 7 a (new)

Directive 2011/61/EU
Article 20 a (new)

(7 a) The following Article 20a is inserted: ' Article 20a Equivalence regime 1. The Commission shall be able to adopt equivalence decisions stating that the legal framework and supervisory practice of a third country ensure that: (a) undertakings authorised or registered in that third country comply with binding requirements which are equivalent to the requirements under this Directive; (b) the binding requirements are subject to effective supervision and enforcement on an on-going basis in that third country. 2. Third-country jurisdictions shall request the Commission to adopt an equivalence decision by submitting an application as referred to in paragraph 3 of this article. After receiving an application, the Commission shall have 12 months to, in consultation with ESMA, either adopt or not adopt an equivalence decision taking the form of a delegated act adopted in accordance with Article 56 and subject to the conditions of Articles 57 and 58. 3. By ... [48 months after publication of this Directive in the O.J.] the ESMA shall develop draft regulatory technical standards to stipulating the content and form of the application referred to in paragraph 2 of this article. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.'

Amendment 314 #

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point -a (new)

Directive 2011/61/EU
Article 21 – paragraph 1

(-a) paragraph 1 is replaced by the following: "1. For each AIF it manages, the AIFM shall ensure that a single depositary is appointed, independently of where the depositary and the AIF are established, in accordance with this Article. " Or. en (Directive 2011/61/EU)

Amendment 315 #

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point -a a (new)

Directive 2011/61/EU
Article 21 – paragraph 5 – point (a)

(~~a) for EU AIFs, in the home Member State of the AIF~~ -aa) point (a) of paragraph 5 is replaced by the following: (a) for EU AIFs, in the home Member State of the AIF; or in any Member State for depositary entities registered as Union credit institutions as defined in Directive 2006/48/EC1a __________________ 1a Directive (EU) 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (OJ L 177, 30.6.2006, p.1). Or. en (Directive 2011/61/EU)

Amendment 316 #

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point -a (new)

Directive 2011/61/EU
Article 21 – paragraph 5 – subparagraphs 1 a to 1 d (new)

(-a) the following subparagraphs are added: The home Member State of an AIF may entitle the national competent authorities of an AIF to allow, following a case-by- case assessment, institutions referred to in point (a) of Article 21(3) and established in another Member State to be appointed as a depositary, provided that the following conditions are fulfilled: (i) the competent authorities have received a motivated request by the AIFM which shall demonstrate the lack of the relevant depositary services, in line with the investment strategy of the AIF, for the appointment of a depositary in another Member State; and (ii) the national depositary market of the home Member State of the AIF fulfils at least one of the following conditions: - such market consists of fewer than a number of depositaries defined in RTS and less than 7 depositaries. These depositaries provide depositary services to EU AIFs (authorised under Article 4 (k) (i)) of this Directive) and managed by an EU AIFMs (authorised under Article 7(1)). Each of these depositaries has AIF assets under safekeeping below the threshold defined in RTS which is below EUR 1 billion or the equivalent in any other currency. This threshold excludes depositaries acting under Article 36(1a) of this Directive and the own assets of the depositary; - the aggregate amount in such market of assets under safekeeping on behalf of EU AIFs (authorised under Article 4 (k) (i) of this Directive) and managed by an EU AIFMs (authorised under Article 7(1) of this Directive) does not exceed the amount defined in RTS and shall not exceed EUR 30 billion or the equivalent in any other currency. This threshold excludes depositaries acting under Article 36(1a) of this Directive and the own assets of the depositary. ESMA should develop draft regulatory standards to specify this threshold. The NCAs shall notify ESMA when the option is activated. ESMA should develop draft regulatory standards to specify this maximum number of depositaries and the maximum amount of assets to be safekept by each depositary. Power is delegated to the commission to adopt the regulatory standards referred to in the previous subparagraph in accordance with Articles 10 to 14 of Regulation EU No 1095/2010. The authorisation to allow the appointment of a depositary in another Member State shall be granted on a case- by-case basis. When allowing the appointment of a depositary in another Member States on a case-by case basis, the competent authorities shall notify ESMA. This provision shall be without prejudice to the full application of Article 21, with the exception of point (a) of paragraph 5 of that Article on the place where the depositary is to be established.

Amendment 317 #

Antonio TAJANI, Herbert DORFMANN, Fulvio MARTUSCIELLO

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point –a (new)

Directive 2011/61/EU
Article 21 – paragraph 5 – subparagraphs 1 a to 1 e (new)

(-a) in paragraph 5, the following subparagraphs are added: The home Member State of an AIF may entitle the national competent authorities of an AIF to allow, following a case-by- case assessment, institutions referred to in point (a) of Article 21(3) and established in another Member State to be appointed as a depositary, provided that the following conditions are fulfilled: (i) the competent authorities have received a motivated request by the AIFM which shall demonstrate the lack of the relevant depositary services, in line with the investment strategy of the AIF, for the appointment of a depositary in another Member State; and (ii) the national depositary market of the home Member State of the AIF fulfils at least one of the following conditions: - such market consists of fewer than a number of depositaries defined in RTS and less than 7 depositaries. These depositaries provide depositary services to EU AIFs (authorised under Article 4 (k) (i)) of this Directive) and managed by an EU AIFMs (authorised under Article 7(1)). Each of these depositaries has AIF assets under safekeeping below the threshold defined in RTS which is below EUR 3 billion or the equivalent in any other currency. This threshold excludes depositaries acting under Article 36(1)(a) of this Directive and the own assets of the depositary; ESMA shall develop draft regulatory standards to specify the maximum number of depositaries referred to in the first indent above and the maximum amount of assets to be safekept by each depositary; - the aggregate amount in such market of assets under safekeeping on behalf of EU AIFs (authorised under Article 4 (k) (i) of this Directive) and managed by an EU AIFMs (authorised under Article 7(1) of this Directive) does not exceed the amount defined in RTS and shall not exceed EUR 60 billion or the equivalent in any other currency. This threshold excludes depositaries acting under Article 36 (1)(a) of this Directive and the own assets of the depositary. ESMA should develop draft regulatory standards to specify this threshold. The NCAs shall notify ESMA when the option is activated. Power is delegated to the Commission to adopt the regulatory standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation EU No 1095/2010. The authorisation to allow the appointment of a depositary in another Member State shall be granted on a case- by-case basis. When allowing the appointment of a depositary in another Member States on a case-by case basis, the competent authorities shall notify ESMA. This provision shall be without prejudice to the full application of Article 21, with the exception of point (a) of paragraph 5 of that Article on the place where the depositary is to be established.

Amendment 318 #

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point -a (new)

Directive 2011/61/EU
Article 21 – paragraph 5 – subparagraphs 1 a to 1 e (new)

(-a) In paragraph 5, the following subparagraphs are added: The home Member State of an AIF may entitle the national competent authorities of an AIF to allow, following a case-by- case assessment, institutions referred to in point (a) of Article 21(3) and established in another Member State to be appointed as a depositary, provided that the following conditions are fulfilled: (i) the competent authorities have received a motivated request by the AIFM which shall demonstrate the lack of the relevant depositary services, in line with the investment strategy of the AIF, for the appointment of a depositary in another Member State; and (ii) the national depositary market of the home Member State of the AIF fulfils at least one of the following conditions: - such market consists of fewer than a number of depositaries defined in RTS and less than 7 depositaries. These depositaries provide depositary services to EU AIFs (authorised under Article 4 (k) (i)) of this Directive) and managed by an EU AIFMs (authorised under Article 7(1)). Each of these depositaries has AIF assets under safekeeping below the threshold defined in RTS which is below EUR1 billion or the equivalent in any other currency. This threshold excludes depositaries acting under Article 36(1a) of this Directive and the own assets of the depositary. ESMA should develop draft regulatory standards to specify this maximum number of depositaries and the maximum amount of assets to be safekept by each depositary; - the aggregate amount in such market of assets under safekeeping on behalf of EUAIFs (authorised under Article 4 (k) (i) of this Directive) and managed by an EU AIFMs (authorised under Article 7(1) of this Directive) does not exceed the amount defined in RTS and shall not exceed EUR 30 billion or the equivalent in any other currency. This threshold excludes depositaries acting under Article 36 (1a) of this Directive and the own assets of the depositary. ESMA should develop draft regulatory standards to specify this threshold. The NCAs shall notify ESMA when the option is activated. Power is delegated to the commission to adopt the regulatory standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation EU No1095/2010. The authorisation to allow the appointment of a depositary in another Member State shall be granted on a case-by-case basis. When allowing the appointment of a depositary in another Member States on a case-by case basis, the competent authorities shall notify ESMA. This provision shall be without prejudice to the full application of Article 21, with the exception of point (a) of paragraph 5 of that Article on the place where the depositary is to be established.

Amendment 319 #

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point -a (new)

Directive 2011/61/EU
Article 21 – paragraph 5a (new)

(-a) The following paragraph 5a is inserted: ‘5a. The home Member State of an AIF may entitle its national competent authorities to allow, following a case-by- case assessment, institutions referred to in point (a) of Article 21(3) and established in another Member State to be appointed as a depositary, provided that the following conditions are fulfilled: (i) the competent authorities have received a motivated request by the AIFM which shall demonstrate the lack of the relevant depositary services, in line with the investment strategy of the AIF, for the appointment of a depositary in another Member State; and (ii) the national depositary market of the home Member State of the AIF fulfils at least one of the following conditions: - such market consists of fewer than 7 depositaries providing depositary services to EU AIFs (authorised under Article 4 (k) (i)) of this Directive) and managed by an EU AIFMs (authorised under Article 7(1)) and where no depositary has the AIF assets safekept in the meaning of Article 21(8) points (a) and (b) which for each depositary does not exceed EUR 1 billion or the equivalent in any other currency. This threshold excludes depositaries acting under Article 36(1a) of this Directive and the own assets of the depositary; - the aggregate amount in such market of assets safekept in the meaning of Article 21(8) points (a) and (b) on behalf of EU AIFs (authorised under Article 4 (k) (i) of this Directive) and managed by an EU AIFMs (authorised under Article 7(1) of this Directive) does not exceed the amount of EUR 30 billion or the equivalent in any other currency. This threshold excludes depositaries acting under Article 36 (1)(a) of this Directive and the own assets of the depositary.

Amendment 320 #

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point -a b (new)

Directive 2011/61/EU
Article 21 – paragraph 5 a (new)

(-ab) the following paragraph 5a is inserted: 5a. If a depositary is established in a Member State and complies with requirements laid down in the Directive, it shall be able to perform its services in any other Member States from its home Member State.

Amendment 321 #

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point a

(c) the third country where the depositary is established is not identified as a high-risk third country pursuant to Article 9(2) of Directive (EU) 2015/849 applicable at the time of the notification to the competent authorities of the AIFM's home Member State;’;

Amendment 322 #

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point a

Directive 2011/61/EU
Article 21 – paragraph 6 – point d

(d) the Member States in which the units or shares of the non-EU AIF are intended to be marketed, and, in so far as different, the home Member State of the AIFM, have signed an agreement with the third country where the depositary is established which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters including any multilateral tax agreements and the third country is not mentioned in Annex I to the relevant last updated version of the Council conclusions ~~of 2020~~ on the revised EU list on non-cooperative jurisdictions for tax purposes53 ;’; ~~__________________ 53 OJ C 64, 27.2.2020, p. 8.~~

Amendment 323 #

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point a a (new)

Directive 2011/61/EU
Article 21 – paragraph 6 a (new)

(a a) the following paragraph 6a is inserted: ‘6a. By way of derogation from paragraphs 1 to 6 of this Article, where the marketing function as referred in point (b) of Annex I, paragraph 2, is performed by one or several distributors which are not acting on behalf of the AIFM, pursuant to an agreement between the AIFM and that distributor or those distributors, such function shall not be considered to be a delegation subject to the requirements set out in paragraphs 1 to 6 of this Article.’

Amendment 324 #

Lídia PEREIRA

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point b – point ii

Directive 2011/61/EU
Article 21 – paragraph 11 – subparagraph 5

(ii) the fifth subparagraph is replaced by the following: ‘For the purposes of this paragraph, the provision of services by a central securities depository acting in the capacity of an issuer CSD as defined in Article 1, point (e) of Commission Delegated Regulation (EU) 2017/392 shall not be considered a delegation of the depositary’s custody functions.’;deleted

Amendment 325 #

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point b – point ii

Directive 2011/61/EU
Article 21 – paragraph 11 – subparagraph 5

For the purposes of this ~~paragraph~~Article, the provision of services by a central securities depository acting in the capacity of an issuer CSD as defined in Article 1, point (e) of Commission Delegated Regulation (EU) 2017/392 shall not be considered a delegation of the depositary’s custody functions. For the purposes of this paragraph, the provision of services by a central securities depositary acting in the capacity of an investor CSD as defined in Article 1, point (f), of Commission Delegated Regulation (EU) 2017/392 shall be considered a delegation of the depositary’s custody functions.;

Amendment 326 #

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point b – point ii

Directive 2011/61/EU
Article 21 – paragraph 11 – subparagraph 5

For the purposes of this ~~paragraph~~Article, the provision of services by a central securities depository acting in the capacity of an issuer CSD as defined in Article 1, point (e) of Commission Delegated Regulation (EU) 2017/392 shall not be considered a delegation of the depositary’s custody functions. ;For the purposes of this paragraph, the provision of services by a central securities depositary acting in the capacity of an investor CSD as defined in Article 1, point (f), of Commission Delegated Regulation (EU) 2017/392 shall be considered a delegation of the depositary’s custody functions.

Amendment 327 #

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point c

Directive 2011/61/EU
Article 21 – paragraph 16

16. The depositary shall make available to its competent authorities, to the competent authorities of the AIF that has appointed it as a depositary and to the competent authorities of the AIFM that manages that AIF, on request, all information that it has obtained while performing its duties and that may be necessary for the competent authorities of the AIF or the AIFM. If the competent authorities of the AIF or the AIFM are different from those of the depositary, i) the competent authorities of the depositary shall share the information received without delay with the competent authorities of the AIF and the AIFM.; ii) the competent authorities of the AIF shall share without delay any information relevant for the exercise of the supervisory powers by the competent authorities of the depositary.

Amendment 328 #

Proposal for a directive
Article 1 – paragraph 1 – point 8 – point c

Directive 2011/61/EU
Article 21 – paragraph 16

16. The depositary shall make available to its competent authorities, to the competent authorities of the AIF that has appointed it as a depositary and to the competent authorities of the AIFM that manages that AIF, on request, all information that it has obtained while performing its duties and that may be necessary for the competent authorities of the AIF or the AIFM. If the competent authorities of the AIF or the AIFM are different from those of the depositary, i) the competent authorities of the depositary shall share the information received without delay with the competent authorities of the AIF and the AIFM, and ii) the competent authorities of the AIF shall share without delay any information relevant for the exercise of the supervisory powers by the competent authorities of the depositary.;

Amendment 329 #

Proposal for a directive
Article 1 – paragraph 1 – point 8 a (new)

Directive 2011/61/EU
Article 22 – paragraph 2 – point f a (new)

(8 a) Article 22 is amended as follows: The following point (f a) is added to paragraph 2: (f a) The share of assets complying with the criteria laid down in the delegated acts adopted pursuant to Articles 10(3), 11(3), 12(2), 13(2), 14(2) or 15(2) of Regulation 2020/852 in which the AIFM invested.

Amendment 330 #

Proposal for a directive
Article 1 – paragraph 1 – point 9 – point a – point ii

Directive 2011/61/EU
Article 23 – paragraph 1 – point i a

~~(ia) a list of fees and charges that will be applied in connection with the operation of the AIF and that will be borne by the AIFM or its affiliates.;~~deleted

Amendment 331 #

Proposal for a directive
Article 1 – paragraph 1 – point 9 – point a – point ii a (new)

Directive 2011/61/EU
Article 23 – paragraph 1 – point ii a (new)

(ii a) information on the alignment of the AIFM investment decisions with the Green Deal objectives, including the share of its investments effectively allocated to assets that meet the taxonomy requirements as laid down in the delegated acts adopted pursuant to Articles 10(3), 11(3), 12(2), 13(2), 14(2) or 15(2) of Regulation (EU) 2020/852

Amendment 332 #

Proposal for a directive
Article 1 – paragraph 1 – point 9 – point b

Directive 2011/61/EU
Article 23 – paragraph 4 – point d

(d) the aggregated amount of the originated loan portfolio;

Amendment 333 #

Proposal for a directive
Article 1 – paragraph 1 – point 9 – point b

Directive 2011/61/EU
Article 23 – paragraph 4 – point e

(e) on a ~~quarterly~~n annual basis, all direct and indirect fees and charges that were directly or indirectly charged ~~or allocated to the AIF or to any of its investments~~to the AIF;

Amendment 334 #

Proposal for a directive
Article 1 – paragraph 1 – point 9 – point b

Directive 2011/61/EU
Article 23 – paragraph 4 – point f

(f) on a ~~quarterly~~n annual basis, any parent company, subsidiary or special purpose entity established in relation to the AIF’s investments by the AIFM~~, the staff of the AIFM or the AIFM’s direct or indirect affiliates~~.;

Amendment 335 #

Proposal for a directive
Article 1 – paragraph 1 – point 9 – point b

Directive 2011/61/EU
Article 23 – parargraph 4 – point f

(f) on a ~~quarterly~~n annual basis, any parent company, subsidiary or special purpose entity established in relation to the AIF’s investments by the AIFM, ~~the staff of~~any parties to an employment relationship with the AIFM or the AIFM’s direct or indirect affiliates.;

Amendment 336 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point a

Directive 2011/61/EU
Article 24 – paragraph 1 – subparagraph 2a (new)

An AIFM shall report to the competent authority any material changes that may affect the scope of the authorisation by that authority

Amendment 337 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point b

Direcitive 2011/61/EU
Article 24 – paragraph 2 – point d

(b) in paragraph 2, point (d) is ~~deleted;~~replaced by the following: '(d) the exposure of the AIF to climate and transition risks'

Amendment 338 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point b a (new)

Directive 2011/61/EU
Article 24 – paragraph 2 – point ea and eb (new)

(b a) in paragraph 2, the following points are added: ‘(ea) the total amount of leverage of the net asset value employed by the AIF; (eb) with respect to each AIF managed or marketed in the Union by an authorised AIFM, information regarding delegation arrangements concerning portfolio management or risk management functions and in particular: (i) information on the entities to which such functions have been delegated (name and LEI of each delegate, its jurisdiction of establishment and, where relevant, its supervisory authority); (ii) information on the function delegated, the type of delegation (full or partial), and the date of the delegation agreement or contract; (iii) where sub-delegation arrangements are in place, the same information in respect of the sub-delegates and the functions sub-delegated; (iv) the date of conclusion and expiration of the delegation and sub-delegation arrangements; (v) confirmation that the AIFM has implemented periodic due diligence measures to oversee, monitor and control the delegate, and kept records of issues identified and, where relevant, the measures adopted to address those issues.

Amendment 339 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point b a (new)

Directive 2011/61/EU
Article 24 – paragraph 2 – point e a (new)

(b a) in paragraph 2, the following point is added: (e a ) the leverage employed by the AIF, calculated as a percentage of the capital of the AIF using the commitment approach;

Amendment 340 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point b b (new)

Directive 2011/61/EU
Article 24 – paragraph 2 – point e b (new)

(e b) any modification on the arrangements of the delegation and sub- delegation to third parties provided at the time of authorisation;

Amendment 341 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point b a (new)

Directive 2011/61/EU
Article 24 – paragraph 5 – subparagraph 1

(b a) the first subaragraph of paragraph 5 is replaced by the following "Where necessary for the effective monitoring of systemic risk, the competent authorities of the home Member State may requ~~ire~~est information in addition to that ~~describ~~required in this Article, on a periodic as well as on an ad-hoc basis. The competent authorities shall inform ESMA and the ESRB about the additional information requirements. Or. en (32011L0061)

Amendment 342 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point b a (new)

Directive 2011/61/EU
Article 24 – paragraph 5 – subparagraph 2

(b a) the second subparagraph of paragraph 5 is replaced by the following: ‘In exceptional circumstances and where required in order to ensure the stability and integrity of the financial system, or to promote long-term sustainable growth, ESMA after consulting the ESRB may request the competent authorities of the home Member State to impose additional reporting requirements.'

Amendment 343 #

Isabel BENJUMEA BENJUMEA, Danuta Maria HÜBNER

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point b a (new)

Directive 2011/61/EU
Article 24 – paragraph 5 – subparagraph 2

(b a) the second subparagraph of paragraph 5 is replaced by the following: In exceptional circumstances and where required in order to ensure the stability and integrity of the financial system, or to promote long-term sustainable growth, ESMA after consulting the ESRB may request the competent authorities of the home Member State to impose additional reporting requirements. ’ Or. en (https://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:174:0001:0073:EN:PDF)

Amendment 344 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point c

Directive 2011/61/EU
Article 24 – paragraph 6 – subparagraph 1

ESMA shall develop draft regulatory technical standards specifying the details to be reported according to paragraphs 1 and 2.points (a) to (ea) of paragraph 2. These draft regulatory technical standards shall also set out the appropriate level of standardisation of the information to be reported according to paragraph 2, point (eb), without introducing additional reporting obligations. In order to reduce duplication and inconsistencies between reporting frameworks, ESMA shall take into account other reporting requirements to which the AIFMs are subject and the report issued in accordance with paragraph 2 of Article 69b.

Amendment 345 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point c

Directive 2011/61/EU
Article 24 – paragraph 6 – subparagraph 1

ESMA shall develop draft regulatory technical standards specifying the details to be reported according to paragraphs 1 and 2. ESMA shall take into account: (a) other reporting requirements to which the AIFMs are subject, and (b) the report issued in accordance with paragraph 2 of Article 69b so as to reduce areas of duplication and inconsistencies between the reporting frameworks in the asset management sector and other sectors of the financial industry.

Amendment 346 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point c

Directive 2011/61/EU
Article 24 – paragraph 6 – subparagraph 1

ESMA shall develop draft regulatory technical standards specifying the details to be reported according to paragraphs 1 and 2. Regulatory technical standards shall set out the appropriate level of standardisation of the information to be reported without broadening existing or introducing additional reporting elements not stipulated in this Directive. To avoid reporting duplication, ESMA shall take into account other reporting requirements to which the AIFMs are subject and the report issued in accordance with paragraph 2 of Article 69b.

Amendment 347 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point c

Directive 2011/61/EU
Article 24 – paragraph 6 – subparagraph 1

ESMA shall develop draft regulatory technical standards specifying the details to be reported according to paragraphs 1 and points (a) to (c) and (e) to (f) of paragraph 2. ESMA shall take into account other reporting requirements to which the AIFMs are subject and the report issued in accordance with paragraph 2 of Article 69b.

Amendment 348 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point c

Directive 2011/61/EU
Article 24 – paragraph 6 – subparagraph 1

ESMA shall develop draft regulatory technical standards specifying the details to be reported according to paragraphs 1 and points (a) to (ea) of paragraph 2. ESMA shall take into account other reporting requirements to which the AIFMs are subject and the report issued in accordance with paragraph 2 of Article 69b.

Amendment 349 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point d

Directive 2011/61/EU
Article 24 – paragraph 7 – subparagraph 1 – point a

(a) the format and data standards for the reports referred to in paragraphs 1 and 2, which shall include in particular global legal entity identifiers (LEIs) and international securities indentification numbers (ISINs). In developing those draft technical standards, ESMA shall take into account international developments and standards agreed at Union or global level;

Amendment 350 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point d

Directive 2011/61/EU
Article 24 – paragraph 7 – subparagraph 1 – point a

(a) the format and data standards for the reports referred to in paragraphs 1 and 2, which shall include in particular global legal entity identifiers (LEIs) and international securities identification numbers (ISINs). In developing those draft technical standards, ESMA shall take into account international developments and standards agreed at Union or global level;

Amendment 351 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point d

Directive 2011/61/EU
Article 24 – paragraph 7 – subparagraph 1 – point b a (new)

(b a) the reporting template that includes a minimum set of indicators that would be relevant in exceptional circumstances referred to in paragraph 5.

Amendment 352 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point d

Directive 2011/61/EU
Article 24 – paragraph 7 – subparagraph 1 – point b a (new)

(b a) a minimum set of indicators that would be relevant for AIFs to provide in exceptional circumstances referred to in paragraph 5;

Amendment 353 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point d

Directive 2011/61/EU
Article 24 – paragraph 7 – subparagraph 1 – point b b (new)

(b b) methods and arrangements for submitting the reports referred to in paragraphs 1 and 2, including methods and arrangements to improve data standardisation and efficient sharing and use of data already reported within any Union reporting framework by any relevant competent authority, at Union or national level, taking into account the findings of the report issued in accordance with paragraph 2 of Article 69b.

Amendment 354 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 – point d

Directive 2011/61/EU
Article 24 – paragraph 7 – subparagraph 1 – point b b (new)

Amendment 355 #

Proposal for a directive
Article 1 – paragraph 1 – point 10 a (new)

Directive 2011/61/EU
Article 25 – paragraph 3a (new)

(10 a) In Article 25, the following paragraph 3a is inserted: '3a. Limits to the level of leverage referred to in paragraph 3 shall be based on the leverage measures specified in accordance with Article 4(3) of this Directive.'

Amendment 356 #

Paul TANG, Eero HEINÄLUOMA, René REPASI, Eva KAILI

Proposal for a directive
Article 1 – paragraph 1 – point 10 b (new)

Directive 2011/61/EU
Article 30 – paragraph 3 a (new)

(10 b) In Article 30, the following paragraph is added: '3a. The Commission shall adopt benchmarks for long-term financial solvency of target companies that are subject to leveraged buy-out operations by AIF. The benchmarks shall contain a combination of four indicators, which consist of: (a) debt service cover (the ratio of cash flow to total debt service); (b) total leverage “dynamic gearing 1” (the ratio of consolidated EBITDA to net cash interest); (c) dynamic gearing 2 (the ratio of net debt to free cash flow); (d) equity ratio (the ratio of equity to total capital). Target companies shall comply with all four indicators and shall conduct regular solvency tests. Dividend payouts shall be limited to one disbursement per year and shall not exceed earnings. In the event of negative solvency there shall be no dividend payout. '

Amendment 357 #

Proposal for a directive
Article 1 – paragraph 1 – point 11

Directive 2011/61/EU
Article 35 – paragraph 2 – point c

(c) the third country where the non-EU AIF is established has signed an agreement with the home Member State of the authorised AIFM and with each other Member State in which the units or shares of the non-EU AIF are intended to be marketed, which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements, and the third country is not mentioned in Annex I to the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes54 applicable at the time of the notification to the competent authorities of the AIFM's home Member State.; If a third-country where the non-EU AIF is established is added to Annex I to the Council’s conclusions of 2020 on the revised EU liston non-cooperative jurisdictions for tax purposed after the time of the notification to the competent authorities, closed-ended funds shall continue to be considered to meet the criteria in this paragraph for a period of 2 years.; __________________ 54 OJ C 64, 27.2.2020, p. 8.

Amendment 358 #

Proposal for a directive
Article 1 – paragraph 1 – point 11

Directive 2011/61/EU
Article 35 – paragraph 2 – point c

Amendment 359 #

Proposal for a directive
Article 1 – paragraph 1 – point 11

Directive 2011/61/EU
Article 35 – paragraph 2 – point c

Amendment 360 #

Paul TANG, Eero HEINÄLUOMA, Jonás FERNÁNDEZ, René REPASI, Eva KAILI

Proposal for a directive
Article 1 – paragraph 1 – point 11

Directive 2011/61/EU
Article 35 – paragraph 2 – point c

Amendment 361 #

Proposal for a directive
Article 1 – paragraph 1 – point 12 – point b

Directive 2011/61/EU
Article 36 – paragraph 1 – point d

(d) the third country where the non-EU AIF is established has signed an agreement with the home Member State of the authorised AIFM and with each other Member State in which the units or shares of the non-EU AIF are intended to be marketed, which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements, and that third country is not mentioned in Annex I to the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes.; applicable at the time of the notification to the competent authorities of the AIFM home Member State. If a third-country where the non-EU AIF is established is added to Annex I to the Council’s conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposed after the time of the notification to the competent authorities, closed-ended funds shall continue to be considered to meet the criteria in this paragraph for a period of 2 years.

Amendment 362 #

Proposal for a directive
Article 1 – paragraph 1 – point 12 – point b

Directive 2011/61/EU
Article 36 – paragraph 1 – point d

Amendment 363 #

Paul TANG, Eero HEINÄLUOMA, Jonás FERNÁNDEZ, René REPASI, Eva KAILI

Proposal for a directive
Article 1 – paragraph 1 – point 12 – point b

Directive 2011/61/EU
Article 36 – paragraph 1 – point d

Amendment 364 #

Proposal for a directive
Article 1 – paragraph 1 – point 13

Directive 2011/61/EU
Article 37 – paragraph 7 – point e

(e) the third country where the non-EU AIFM is established is not identified as a high-risk third country pursuant to Article 9(2) of Directive (EU) 2015/849 at the time of the notification to the competent authorities of the AIFM home Member State;

Amendment 365 #

Proposal for a directive
Article 1 – paragraph 1 – point 13

Directive 2011/61/EU
Article 37 – paragraph 7 – point f

(f) the third country where the non-EU AIFM is established has signed an agreement with the Member State of reference, which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements and the third country is not mentioned in Annex I to the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes applicable at the time of the notification to the competent authorities of the AIFM home Member State. If a third-country where the non-EU AIF is established is added to Annex I to the Council’s conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes after the time of the notification to the competent authorities, closed-ended funds shall continue to be considered to meet the criteria in this paragraph for a period of 2 years.;

Amendment 366 #

Proposal for a directive
Article 1 – paragraph 1 – point 13

Amendment 367 #

Proposal for a directive
Article 1 – paragraph 1 – point 13

Directive 2011//61/EU
Article 37 – paragraph 7 – point f

Amendment 368 #

Paul TANG, Eero HEINÄLUOMA, Jonás FERNÁNDEZ, René REPASI, Eva KAILI

Proposal for a directive
Article 1 – paragraph 1 – point 13

Directive 2011/61/EU
Article 37 – paragraph 7 – point f

Amendment 369 #

Proposal for a directive
Article 1 – paragraph 1 – point 14

Directive 2011/61/EU
Article 38a

(14) the following Article 38a is inserted: 1. and at least every two years, conduct a peer review analysis of the supervisory activities of the competent authorities in relation to the application of Article 20. That peer review analysis shall focus on the measures taken to prevent that AIFMs, which delegate performance of portfolio management or risk management to third parties located in third countries, become letter-box entities. 2. analysis, ESMA shall use transparent methods to ensure an objective assessment and comparison between the competent authoritiesdeleted Article 38a Peer review of application of the delegation regime ESMA shall, on a regular basis When conducting the peer review~~ed.;~~

Amendment 370 #

Proposal for a directive
Article 1 – paragraph 1 – point 14

Directive 2011/61/EU
Article 38a

(14) the following Article 38a is inserted: 1. and at least every two years, conduct a peer review analysis of the supervisory activities of the competent authorities in relation to the application of Article 20. That peer review analysis shall focus on the measures taken to prevent that AIFMs, which delegate performance of portfolio management or risk management to third parties located in third countries, become letter-box entities. 2. When conducting the peer review analysis, ESMA shall use transparent methods to ensure an objective assessment and comparison between the competent authorities reviewed.;deleted Article 38a Peer review of application of the delegation regime ESMA shall, on a regular basis

Amendment 371 #

Proposal for a directive
Article 1 – paragraph 1 – point 14

Directive 2011/61/EU
Article 38a – paragraph 1

1. ESMA shall, ~~on a regular basis and at least every two years, conduct a~~before the review of this Directive, conduct a one-off comprehensive peer review analysis of the supervisory activities of the competent authorities in relation to the application of Article 20. That peer review analysis shall focus on the measures taken to prevent that AIFMs, which delegate performance of portfolio management or risk management to third parties located in third countries, become letter-box entities.

Amendment 372 #

Proposal for a directive
Article 1 – paragraph 1 – point 14

Directive 2011/61/EU
Article 38a – paragraph 1

1. ~~ESMA shall, on a regular basis and at least every two years,~~By ... [18 months after entry into force of the Directive] ESMA shall conduct a peer review analysis of the supervisory activities of the competent authorities in relation to the application of Article 20. That peer review analysis shall focus on the measures taken to prevent that AIFMs, which delegate performance of portfolio management or risk management to third parties located in third countries, become letter-box entities.

Amendment 373 #

Proposal for a directive
Article 1 – paragraph 1 – point 14

Directive 2011/61/EU
Article 38a – paragraph 1

1. ~~ESMA shall, on a regular basis and at least~~By 30 June 2027 and then every ~~two~~6 years, ESMA shall conduct a peer review analysis of the supervisory activities of the competent authorities in relation to the application of Article 20. That peer review analysis shall focus on the measures taken to prevent that AIFMs, which delegate performance of portfolio management or risk management to third parties located in third countries, become letter-box entities.

Amendment 374 #

Proposal for a directive
Article 1 – paragraph 1 – point 15

Directive 2011/61/EU
Article 40 – paragraph 2 – point b

(b) the third country where the non-EU AIF is established is not identified as a high-risk third country pursuant to Article 9(2) of Directive (EU) 2015/849 at the time of the notification to the competent authorities of the AIFM home Member State and;

Amendment 375 #

Proposal for a directive
Article 1 – paragraph 1 – point 15

Directive 2011/61/EU
Article 40 – paragraph 2 – point c

(c) the third country where the non-EU AIF is established has signed an agreement with the Member State of reference and with each other Member State in which the units or shares of the non-EU AIF are intended to be marketed which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters including any multilateral tax agreements, and the third country is not mentioned in Annex I to the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes applicable at the time of the notification to the competent authorities of the AIFM home Member State. If a third-country where the non-EU AIF is established is added to Annex I to the Council's conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposed after the time of the notification to the competent authorities, closed-ended funds shall continue to be considered to meet the criteria in this paragraph for a period of 2 years.;

Amendment 376 #

Proposal for a directive
Article 1 – paragraph 1 – point 15

Directive 2011/61/EU
Article 40 – paragraph 2 – point c

Amendment 377 #

Proposal for a directive
Article 1 – paragraph 1 – point 15

Directive 2011//61/EU
Article 40 – paragraph 2 – point c

Amendment 378 #

Paul TANG, Eero HEINÄLUOMA, Jonás FERNÁNDEZ, René REPASI, Eva KAILI

Proposal for a directive
Article 1 – paragraph 1 – point 15

Directive 2011/61/EU
Article 40 – paragraph 2 – point c

Amendment 379 #

Proposal for a directive
Article 1 – paragraph 1 – point 16 – point b

Directive 2011/61/EU
Article 42 – paragraph 1 – point d

(d) the third country where the non-EU AIF or non-EU AIFM is established has signed an agreement with the Member State in which the units or shares of the non-EU AIF are intended to be marketed, which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements, and that third country is not mentioned in Annex I to the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes applicable at the time of the notification to the competent authorities of the AIFM home Member State. If a third-country where the non-EU AIF is established is added to Annex I to the Council's conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes after the time of the notification to the competent authorities, closed-ended funds shall continue to be considered to meet the criteria in this paragraph for a period of 2 years.;

Amendment 380 #

Proposal for a directive
Article 1 – paragraph 1 – point 16 – point b

Directive 2011/61/EU
Article 42 – paragraph 1 – point d

Amendment 381 #

Proposal for a directive
Article 1 – paragraph 1 – point 16 – point b

Directive 2011/61/EU
Article 42 – paragraph 1 – point d

Amendment 382 #

Paul TANG, Eero HEINÄLUOMA, Jonás FERNÁNDEZ, René REPASI, Eva KAILI

Proposal for a directive
Article 1 – paragraph 1 – point 16 – point b

Directive 2011/61/EU
Article 42 – paragraph 1 – point d

Amendment 383 #

Proposal for a directive
Article 1 – paragraph 1 – point 16 a (new)

Directive 2011/61/EU
Article 43

(16 a) Article 43 is amended as follows: The following paragraph is inserted: 1a. For investment vehicles that are distributed to retail investors, both directly and indirectly, Member States must impose EU independent members – with equal powers – in the board of directors or executive management of the fund to ensure proactive behaviour towards acting in the best interests of clients. The following paragraph is added: 2a. An AIF marketed as environmentally sustainable shall avoid principal adverse impacts and invest at least 60% in assets that meet the taxonomy requirements as laid down in the delegated acts adopted pursuant to Articles 10(3), 11(3), 12(2), 13(2), 14(2) or 15(2) of Regulation (EU) 2020/852.

Amendment 384 #

Proposal for a directive
Article 1 – paragraph 1 – point 17

Directive 2011/61/EU
Article 46 – paragraph 2 – point j

(j) in the interest of investors or of the public, require AIFMs to activate or deactivate a liquidity management tool referred to in point 1 or 2 of Annex V or selected by the AIFM in accordance with Article 16(2b), whichever is more suitable considering the type of open-ended AIF or group of open-ended AIFs concernedsuspend the issue, repurchase or redemption if units and investor protection or financial stability risks that necessitate this requirement.;

Amendment 385 #

Proposal for a directive
Article 1 – paragraph 1 – point 17

Directive 2011/61/EU
Article 46 – paragraph 2 – point j

(j) in the interest of investors or of the public, in exceptional circumstances and after proper consultation with the AIFM, require AIFMs to activate or deactivate a liquidity management tool referred to in point 1 or 2 of Annex V or selected by the AIFM in accordance with Article 16(2b), whichever is more suitable considering the type of open-ended AIF or group of open- ended AIFs concerned and reasonable and balanced investor protection or financial stability risks that necessitate this requirement.;

Amendment 386 #

Proposal for a directive
Article 1 – paragraph 1 – point 17

Directive 2011/61/EU
Article 46 – paragraph 2 – point j

(j) in the interest of investors or of the public, in exceptional circumstances and after consulting the AIFM, require AIFMs to activate or deactivate a liquidity management tool referred to in point 1 or 2 of Annex V or selected by the AIFM in accordance with Article 16(2b), whichever is more suitable considering the type of open-ended AIF or group of open-ended AIFs concerned and investor protection or financial stability risks that necessitate this requirement.;

Amendment 387 #

Proposal for a directive
Article 1 – paragraph 1 – point 17

Directive 2011/61/EU
Article 46 – paragraph 2 – point j

(j) in the interest of investors or of the public, require AIFMs to activate or deactivate a liquidity management tool referred to in point 1 or 2 of Annex V ~~or selected by the AIFM in accordance with Article 16(2b)~~, whichever is more suitable considering the type of open-ended AIF or group of open- ended AIFs concerned and investor protection or financial stability risks that necessitate this requirement.;

Amendment 388 #

Proposal for a directive
Article 1 – paragraph 1 – point 18 – point a

Directive 2011/61/EU
Article 47 – paragraph 3 – point a

~~(a) where ESMA or the competent authority or another authority or body concerned states at the time of communication that such information may be disclosed;~~deleted

Amendment 389 #

Proposal for a directive
Article 1 – paragraph 1 – point 18 – point b

Directive 2011/61/EU
Article 47 – paragraph 4 – point d

(d) require non-EU AIFMs that are marketing in the Union AIFs that they manage or EU AIFMs managing non-EU AIFs to activate or deactivate a liquidity management tool referred to in point 1 or 2 of Annex V or selected by the AIFM, whichever is more suitable considering the type of open-ended AIF concerned and the investor protection or financial stability risks that necessitate this requirement.;deleted

Amendment 390 #

Proposal for a directive
Article 1 – paragraph 1 – point 18 – point b

Directive 2011/61/EU
Article 47 – paragraph 4 – point d

(d) require non-EU AIFMs that are marketing in the Union AIFs that they manage or EU AIFMs managing non-EU AIFs to ~~activate or deactivate a liquidity management tool referred to in point 1 or 2 of Annex V or selected by the AIFM, whichever is more suitable considering the type of open-ended AIF concerned and th~~suspend, repurchase or redemption of units if there are investor protection or financial stability risks that necessitate this requirement.;

Amendment 391 #

Proposal for a directive
Article 1 – paragraph 1 – point 19 – point a

Directive 2011/61/EU
Article 50 – paragraph 5

5. Where the competent authorities of one Member State have ~~reason~~clear and demonstrable grounds to suspect that acts contrary to this Directive are being or have been carried out by an AIFM not subject to supervision of those competent authorities, they shall notify ESMA and the competent authorities of the home and host Member States of the AIFM concerned thereof in as specific a manner as possible. The recipient authorities shall take appropriate action, shall inform ESMA and the notifying competent authorities of the outcome of that action and, to the extent possible, of significant interim developments. This paragraph shall be without prejudice to the competences of the notifying competent authority.;

Amendment 392 #

Proposal for a directive
Article 1 – paragraph 1 – point 19 – point a

Directive 2011/61/EU
Article 50 – paragraph 5

Amendment 393 #

Proposal for a directive
Article 1 – paragraph 1 – point 19 – point a

Directive 2011/61/EU
Article 50 – paragraph 5

Amendment 394 #

Proposal for a directive
Article 1 – paragraph 1 – point 19 – point b

Directive 2011/61/EU
Article 50 – paragraph 5d

5d. Based on the information received in accordance with paragraphs 5b and 5c, ESMA shall issue an opinion to the competent authorities of the home Member State of the AIFM on exercising powers laid down in Article 46(2), point (j) or Article 47(4), point (d). The opinion shall be communicated to the authority of the host Member State.

Amendment 395 #

Proposal for a directive
Article 1 – paragraph 1 – point 19 – point b

Directive 2011/61/EU
Article 50 – paragraph 5e

5e. Where the competent authority does not act in accordance or does not intend to comply with ESMA’s opinion referred to in paragraph 5d, it shall inform ESMA and the competent authority of the host Member State, stating its reasons for the non- compliance or intention. ESMA may publish the fact that a competent authority does not comply or intend to comply with its advice~~. ESMA may also decide, on a case-by-case basis, to publish the reasons provided by the competent authority in this regard~~ together with the reasons stated by the competent authority for the non-compliance or intention, unless such publication is in conflict with the legitimate interest of the share or unit- holders or of the public, or could seriously jeopardise the orderly functioning and integrity of financial markets or the stability of the whole or part of the financial system of the Union. ESMA shall give the competent authorities advance notice about such publication.

Amendment 396 #

Proposal for a directive
Article 1 – paragraph 1 – point 19 – point b

Directive 2011/61/EU
article 50 – paragraph 5e

5e. Where the competent authority does not act in accordance or does not intend to comply with ESMA’s opinion referred to in paragraph 5d, it shall inform ESMA, stating its reasons for the non- compliance or intention. In the event of a serious threat to investor protection, a threat to the orderly functioning and integrity of financial markets or a risk to the stability of the whole or part of the financial system in the Union, ESMA may publish the fact that a competent authority does not comply or intend to comply with its advice. ESMA may also decide, on a case-by-case basis, to publish the reasons provided by the competent authority in this regard. ESMA shall give the competent authorities advance notice about such publication.

Amendment 397 #

Proposal for a directive
Article 1 – paragraph 1 – point 19 – point b

Directive 2011/61/EU
Article 50 – paragraph 5e

Amendment 398 #

Proposal for a directive
Article 1 – paragraph 1 – point 19 – point b

Directive 2011/61/EU
Article 50 – paragraph 5f – subparagraph 1

The competent authority of the host Member State of an AIFM may, where it has good reasons to suspect that acts contrary to this Directive are being or have been carried out by the AIFM, request the competent authority of the home Member State of the AIFM to exercise, without delay, powers laid down in Article 46(2), specifying the reasons for its request in as specific a manner as possible and notifying ESMA and, if there are potential risks to the stability and integrity of the financial system, the ESRB thereof.

Amendment 399 #

Proposal for a directive
Article 1 – paragraph 1 – point 19 – point b

Directive 2011/61/EU
Article 50 – paragraph 5f – subparagraph 1

The competent authority of the host Member State of an AIFM may, where it has good reasons to suspect that acts contrary to this Directive are being or have been carried out by the AIFM, request the competent authority of the home Member State of the AIFM to exercise, without delay, powers laid down in Article 46(2), specifying the reasons for its request and notifying ESMA and, if there are potential risks to the stability and integrity of the financial system, the ESRB thereof.

Amendment 400 #

Proposal for a directive
Article 1 – paragraph 1 – point 19 – point b

Directive 2011/61/EU
Article 50 – paragraph 5f – subparagraph 2

The competent authority of the home Member State of the AIFM shall, without unreasonable delay, inform the competent authority of the host Member State of the AIFM, ESMA and, if there are potential risks to stability and integrity of the financial system, the ESRB of the powers exercised and its findings.

Amendment 401 #

Proposal for a directive
Article 1 – paragraph 1 – point 19 – point b

Directive 2011/61/EU
Article 50 – paragraph 5f a (new)

(5f a) Where a Member States has exercised the option provided for in the second subparagraph of Article 21(5): (i) the rules applicable to the depositary in the provision of its services shall be those of the Member State where the AIF is established. These applicable and updated rules as well as the updated rules applicable to the AIF shall be made available by the competent authorities of the Member State where the AIF is established well in advance on a website in written form and in a language customary in the sphere of international finance to the depositary and its competent authority; (ii) where the competent authorities of the home Member State of an AIF have reasonable grounds to suspect that acts contrary to this Directive are being or have been carried out by a depositary not subject to supervision of those competent authorities, such competent authorities shall without delay notify ESMA and the competent authorities of the depositary concerned thereof in a manner as specific as possible. The recipient authorities shall take appropriate action, shall inform ESMA and the notifying competent authorities of the outcome of that action. This paragraph shall be without prejudice to the competences of the notifying competent authorities.

Amendment 402 #

Proposal for a directive
Article 1 – paragraph 1 – point 19 – point b

Directive 2011/61/EU
Article 50 – paragraph 5g

5g. ESMA may request the competent authority to submit explanations to ESMA in a reasonable time frame in relation to specific cases, which ~~have cross-border implications, concern investor protection issues or pose risks to the financial stability~~raise a serious threat to investor protection, threaten the orderly functioning and integrity of financial markets or pose risks to the stability of the whole or part of the financial system in the Union.

Amendment 403 #

Proposal for a directive
Article 1 – paragraph 1 – point 19 – point b

Directive 2011/61/EU
Article 50 – paragraph 5g

5g. ESMA may request the competent authority to submit explanations to ESMA in relation to specific cases, which ~~have cross-border implications, concern investor protection issues or pose risks to the financial stability~~raise a serious threat to investor protection, threaten the orderly functioning and integrity of financial markets or pose risks to the stability of the whole or part of the financial system in the Union.

Amendment 404 #

Proposal for a directive
Article 1 – paragraph 1 – point 19 – point b

Directive 2011/61/EU
Article 50 – paragraph 5g

5g. ESMA may request the competent authority to submit explanations to ESMA in relation to specific cases, which have cross-border implications, concern investor protection issues or pose risks to the financial stability. within a reasonable timeframe.

Amendment 405 #

Proposal for a directive
Article 1 – paragraph 1 – point 19 – point c

Directive 2011/61/EU
Article 50 – paragraph 7 – subparagraph 1

ESMA shall develop draft regulatory technical standards indicating in which situations the competent authorities may exercise the powers set out in Article 46(2), point (j) and in which situations they may put forward the requests referred to in paragraphs 5b and 5f. When developing those standards, ESMA shall consider the potential implications of such supervisory intervention for reasonable and efficient investor protection and the financial stability in another Member State or in the Union. The AIFM shall be primary responsible for liquidity risk management and such intervention by the competent authorities is a last resort.

Amendment 406 #

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

Directive 2011/61/EU
Article 61 – paragraph 5

~~(20) in Article 61, paragraph 5 is replaced by the following: 5. home Member State of an AIF or in case where the AIF is not regula~~deleted tThe competent authorities of the home Member State of an AIFM may allow institutions referred to in point (a) of Article 21(3) and established in another Member State to be appointed as a depositary. This provision shall be without prejudice to the full application of Article 21, with the exception of point (a) of paragraph 5 of that Article on the place where the depositary is to be established.;

Amendment 407 #

Antonio TAJANI, Herbert DORFMANN, Fulvio MARTUSCIELLO

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

Directive 2011/61/EU
Article 61 – paragraph 5

Amendment 408 #

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

Directive 2011/61/EU
Article 61 – paragraph 5

Amendment 409 #

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

Directive 2011/61/EU
Article 61 – paragraph 5

5. The ~~competent authorities of the home Member State of an AIF or in case where the AIF is not regulated the competent authorities of the home Member State of an AIFM may~~home Member State of an AIF may entitle its competent authorities to allow institutions referred to in point (a) of Article 21(3) and established in another Member State to be appointed as a depositary, subject to an application demonstrating the need for the AIFM to appoint a depositary in another Member State. This provision shall be without prejudice to the full application of Article 21, with the exception of point (a) of paragraph 5 of that Article on the place where the depositary is to be established.;

Amendment 410 #

Proposal for a directive
Article 1 – paragraph 1 – point 20 a (new)

Directive 2011/61/EU
Article 61 – paragraph 5a (new)

(20a) The following paragraph is added to Article 61: 5a. AIFMs in so far as they manage AIFs that originate loans and that have been constituted before ... [date of adoption of this Directive] may continue to manage such AIFs without complying with point (d) of Article 15(3), paragraphs 4a to 4f of Article 15 and Article 16(2a) of this Directive until ... [5 years + date of adoption of this Directive]. By way of derogation, loan-originating AIFs constituted before ... [date of adoption of this Directive] and that do not raise additional capital after ... [5 years + date of adoption of this Directive] shall be deemed to comply with the above- mentioned Articles.

Amendment 411 #

Proposal for a directive
Article 1 – paragraph 1 – point 21

1. By [Please insert date = 60 months after the entry into force of this Directive] and following the peer reviews by ESMA referred to in Article 38a and reports produced by ESMA in accordance with Article 7(9), the Commission shall initiate a review of the functioning of the rules laid down in this Directive and the experience acquired in applying them. That review shall include an assessment of the following aspects: (a) the impact on financial stability of the availability and activation of liquidity management tools by AIFMs; (b) authorisation requirements in Articles 7 and 8 and delegation regime laid down in Article 20 of this Directive with regard to preventing the creation of letter-box entities in the Union; (c) the appropriateness of the requirements applicable to AIFMs managing loan-originating AIFs laid down in Article 15; (d) the appropriateness of complementing this Directive with a depositary passport.deleted the effectiveness of the AIFM

Amendment 412 #

Proposal for a directive
Article 1 – paragraph 1 – point 21

Directive 2011/61/EU
Article 69b – paragraph 1 – introductory part

1. By [Please insert date = 60 months after the entry into force of this Directive] and following the ~~peer reviews by ESMA referred to in Article 38a and~~ reports produced by ESMA in accordance with Article 7(9), the Commission shall initiate a review of the functioning of the rules laid down in this Directive and the experience acquired in applying them. That review shall include an assessment of the following aspects:

Amendment 413 #

Proposal for a directive
Article 1 – paragraph 1 – point 21

Directive 2011/61/EU
Article 69b – paragraph 1 – introductory part

1. By ~~[Please insert date = 60 months after the entry into force~~... [7 years after the day of the transposition of this Directive] and following the peer reviews by ESMA referred to in Article 38a and reports produced by ESMA in accordance with Article 7(9), the Commission shall initiate a review of the functioning of the rules laid down in this Directive and the experience acquired in applying them. That review shall include an assessment of the following aspects:

Amendment 414 #

Proposal for a directive
Article 1 – paragraph 1 – point 21

Directive 2011/61/EU
Article 69 b – paragraph 1 – point d

(d) the functioning and appropriateness of ~~complementing this Directive with a depositary passport~~the power of competent authorities to allow the appointment of a depositary in another Member State as set out in the second subparagraph of Article 21(5), including the relevance of the quantitative criteria laid down in point (ii) of that subparagraph.

Amendment 415 #

Proposal for a directive
Article 1 – paragraph 1 – point 21

Directive 2011/61/EU
Article 69b – paragraph 1 – point d

(d) the functioning and appropriateness of ~~complementing this Directive with a depositary passport~~the power of competent authorities to allow the appointment of a depositary in another Member State as set out in Article 21(5), point (c), including the relevance of the quantitative criteria laid down in Article 21(5), third subparagraph, point (ii);.

Amendment 416 #

Proposal for a directive
Article 1 – paragraph 1 – point 21

(d) the ~~appropriateness of complementing this Directive with a~~effectiveness and the impact on financial stability of the depositary passport.

Amendment 417 #

Proposal for a directive
Article 1 – paragraph 1 – point 21

Directive 2011/61/EU
Article 69b – paragraph 2 – introductory part

2. By ~~[Please insert date = 24 month~~... [5 years after the entry into force of this Directive], ESMA shall submit to the Commission a report for the development of an integrated supervisory data collection, which shall focus on how to:

Amendment 418 #

Proposal for a directive
Article 1 – paragraph 1 – point 21

Directive 2011/61/EU
Article 69b – paragraph 4

4. FBy 30 June 2030 and then every 7 years, following the review referred to in paragraph 1, and after consulting ESMA, the Commission shall submit a report to the European Parliament and to the Council presenting the conclusions of that review.;

Amendment 419 #

Proposal for a directive
Article 1 – paragraph 1 – point 21

Directive 2011/61/EU
Article 69b – paragraph 4 – subparagraph 1 a (new) – introductory part (new)

That report shall further include information on:

Amendment 420 #

Proposal for a directive
Article 1 – paragraph 1 – point 21

Directive 2011/61/EU
Article 69b – paragraph 4 – subparagraph 1 a (new) – points a to c (new)

(a) cooperation and data exchange about AIFs and AIFMs between various monitoring and supervisory authorities both, on the Union and national level and possible weaknesses in information sharing; (b) the quality of funds supervision and level of enforcement in each Member state; (c) the benefits of the delegation rules in terms of competitiveness and Union investor access to a global and pool of investment opportunities;

Amendment 421 #

Proposal for a directive
Article 1 – paragraph 1 – point 21

Directive 2011/61/EU
Article 69b – paragraph 4 – subparagraph 1 a (new) – points d to f (new)

(d) the functioning of the market for AIFs in the Union, including market and regulatory development and trends, taking into account supervisory experience; (e) information about the number of AIFs registered per year and their market share, as well as the impact of this Directive on the Union market share in comparison to the global AIFs market share; (f) the necessity and proportionality of subjecting AIFs to reporting obligation according to this Directive;

Amendment 422 #

Proposal for a directive
Article 1 – paragraph 1 – point 21

Directive 2011/61/EU
Article 69b – paragraph 4 – subparagraph 1 a (new) – points g and h (new)

(g) information about volumes of the cross-border provision of AIFs per Member State per year and year-on-year trends in volume; (h) information about market share of AIFMs authorised according to this Directive in the global AIFs market and the year-on-year trends in market share;

Amendment 423 #

Proposal for a directive
Article 1 – paragraph 1 – point 21

Directive 2011/61/EU
Article 69b – paragraph 4 – subparagraph 1 a (new) – points i to k (new)

(i) the costs of complying with this Directive for AIFMs differentiated according to their size; (j) the potential regulatory conflict between the Union and the leading AIFs markets; (k) types and trends of fraudulent behaviour of investors, AIFMs and third parties occurring in relation to this Directive.

Amendment 424 #

Proposal for a directive
Article 1 – paragraph 1 – point 21

Directive 2011/61/EU
Article 69b – paragraph 4 – subparagraph 1 b (new)

The Commission shall gather information for this report without broadening reporting obligation, including for AIFMs, using information from all relevant and reliable sources, including European institutions, national competent authorities or internationally recognised bodies and organisations.

Amendment 425 #

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

Directive 2009/65/EC
Article 2 – paragraph 1 – point u a (new)

(u a) ‘tied agent’ means a natural or legal person who, under the full and unconditional responsibility of only one management company on whose behalf it acts, promotes investment and/or non- core services as defined in Article 6(3) to clients or prospective clients, receives and transmits instructions or orders from clients in respect of investment services or financial instruments, places financial instruments or provides advice to clients or prospective clients in respect of those financial instruments or services;

Amendment 426 #

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

Directive 2009/65/EC
Article 2 – paragraph 1 – point u a (new)

(u a) ‘portfolio management’ as an investment management function listed in Annex II, first indent, means organisational units or persons who have the discretion to make or execute investment decisions on behalf of the UCITS, in particular the purchase and sale of assets within the investment and risk limits, employing techniques and instruments relating to transferable securities or reinvesting of collateral.

Amendment 427 #

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

Directive 2009/65/EC
Article 2 – paragraph 1 – point u b (new)

(u b) ‘risk management’ as an investment management function listed in Annex II, first indent, means organisational units or persons who are independent from portfolio management and responsible for identification, measurement, control, monitoring and communication of risks.

Amendment 428 #

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

Directive 2009/65/EC
Article 5 – paragraph 8

(1a) In Article 5, paragraph 8 is replaced by the following "In order to ensure consistent harmonisation of this Article the European Supervisory Authority (European Securities and Markets Authority) (hereinafter ‘ESMA’), established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council ~~( 13 )~~ may develop draft regulatory technical standards to specify the information to be provided to the competent authorities in the application for authorisation of a UCITS~~. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A02009L0065-20140917)~~ and situations where the name of a UCITS could be materially deceptive or misleading to the investor. Or. en

Amendment 429 #

Paul TANG, Jonás FERNÁNDEZ, René REPASI, Eva KAILI

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

Directive 2009/65/EC
Article 5 – paragraph 8

In order to ensure consistent harmonisation of this Article the European Supervisory Authority (European Securities and Markets Authority) (hereinafter ‘ESMA’), established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council ( 4 ) may(1a) the first subparagraph of Article 5(8) is replaced by the following: "In order to ensure consistent harmonisation of this Article, ESMA shall by ... [12 months after the entry into force of this amending Directive] develop draft regulatory technical standards to specify the information to be provided to the competent authorities in the application for the authorisation of ~~a UCITS~~the AIFM, including the programme of activity, and to specify situations where the name of the AIFs it intends to manage could be materially deceptive or misleading to the investor. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with the procedure laid down in Articles 10 to 14 of Regulation (EU) No 1095/2010. ~~(https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02009L0065-20210802)~~Or. en

Amendment 430 #

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

Directive 2009/65/EC
Article 6 – paragraph 3 – point c

(1 a) In Article 6, paragraph 3 the following point (c) is added: '(c) benchmark administration in accordance with Regulation (EU) 2016/1011';

Amendment 431 #

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

Directive 2009/65/EC
Article 6 – paragraph 4

(1b) Article 6(4) is replaced by the following "4. Article 2(2) and Articles 12, 13 and 19 of Directive 2004/39/EC and Article 26 of Regulation (EU) No 600/2014 shall apply to the provision of the services referred to in paragraph 3 of this Article by management companies. ~~(https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02009L0065-20210802)~~Or. en

Amendment 432 #

Paul TANG, Eva KAILI

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

Directive 2009/65/EC
Article 7 – paragraph 1 – point b

(b) the persons who effectively conduct the business of a management company are of sufficiently good repute and are sufficiently experienced also in relation to the type of UCITS managed by the management company, the names of those persons and of every person succeeding them in office being communicated forthwith to the competent authorities and the conduct of the business of a management company being decided by at least twohree natural persons who are either employed full-time by that management company or who are committed full-time to conduct the business of that management company and who are resident in the Union meeting such conditions, one of whom shall be an independent director;

Amendment 433 #

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

Directive 2009/65/EC
Article 7 – paragraph 1 – point b

(b) the persons who effectively conduct the business of a management company are of sufficiently good repute and are sufficiently experienced also in relation to the type of UCITS managed by the management company, the names of those persons and of every person succeeding them in office being communicated forthwith to the competent authorities and the conduct of the business of a management company being decided by at least two ~~natural~~ persons who are either employed full-time or on a full-time equivalent basis by that management company or who are committed full-time to conduct the business of that management company and who are resident in the Union meeting such conditions;

Amendment 434 #

Proposal for a directive
Article 2 – paragraph 1 – point 2 – point b

Directive 2009/65/EC
Article 7 – paragraph 1 – point e

(e) information is provided by the management company on arrangements made for the delegation to third parties of functions in accordance with Article 13 ~~and a detailed presenta~~, including: (i) information on the delegate, specifying the delegate’s domicile and whether it is a regulated entity or not; (ii) a description of the delegated portfolio management and risk management functions; (iii) a description of the retained portfolio management and risk management functions; (iv) a description of the human and technical resources ~~to be used by the management company~~employed by or committed to the AIFM for monitoring and controlling the delegate.; and (v) an explanation of the added value of the delegation to the investor.

Amendment 435 #

Proposal for a directive
Article 2 – paragraph 1 – point 2 – point b

Directive 2009/65/EC
Article 7 – paragraph 1 – point e a (new)

(e a) the management company has sufficient expertise and resources to adhere to the requirements of Regulation (EU) 2019/2088.

Amendment 436 #

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

Directive 2005/65/EC
Article 7 – paragraph 5 – point f a (new)

(2 a) In Article 7(5) the following point (f a) is added: (f a) has seriously or systemically infringed the provisions adopted pursuant to Regulation (EU) 2019/2088.

Amendment 437 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point a – point i

Directive 2009/65/EC
Article 13 – paragraph 1

(a) paragraph 1 is ~~amended as~~replaced by the followsing: 1. Management companies, which intend to delegate to third parties the task of carrying out, on their behalf, one or more of the functions listed in Annex II and the services referred to in Article 6(3), shall notify the competent authorities of their home Member State before the delegation arrangements become effective. The ~~following conditions shall be met:;~~ notification of delegation of portfolio management or risk management functions should contain at least the following: (a) information on the UCITS concerned; (b) the name of the delegate and the delegate’s country of domicile; (c) information on whether the delegate is authorised or registered for the purpose of portfolio or risk management and is subject to supervision. In these cases, the management company shall indicate the competent supervisory authority and the respective authorisation or registration number of the delegate. Insofar as the competent foreign supervisory authority does not issue such authorisation or registration numbers, the management company may provide evidence of the authorisation or registration of the delegate in another suitable manner; (d) a description of the delegated portfolio management and risk management functions; (e) a description of the retained portfolio management and risk management functions; (f) an indication of the date on which the delegation becomes effective; (g) a description of the objective reasons for the delegation. Management companies shall notify the competent authorities of their home Member State of the termination and significant changes to delegation arrangements regarding portfolio management and risk management functions that could also affect the conditions for authorisation.

Amendment 438 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point a – point ii a (new)

Directive 2009/65/EC
Article 13 – paragraph 1 – point d

(ii a) point (d) is replaced by the following: '(d) where the mandate concerns the investment management and is given to a third-country undertaking, ~~cooperation between the supervisory authorities concerned must be ensured;~~until ... [70 months after the publication of this Directive in the O.J.] cooperation between the competent authorities of the home Member State of the AIFM and the supervisory authority of the undertaking must be ensured. After ... [70 months after the publication of this Directive in the O.J.], the third-country undertaking shall be located in a jurisdiction for which the Commission has adopted an equivalence decision in accordance with Article 13a'

Amendment 439 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point b a (new)

Directive 2009/65/EU
Article 13 – paragraph 2a (new)

(b a) the following paragraph 2a is inserted: ‘2a. By way of derogation from the paragraphs 1 and 2 of this Article, where the marketing function, as referred in Annex II, is performed by one or several distributors which are acting on their own behalf and which market the UCITS under Directive 2014/65/EU or through insurance-based investment products in accordance with Directive 2016/97/EU, such function shall not be considered a delegation subject to the requirements laid down in the abovementioned paragraphs irrespective of any distribution agreement between the management company and the distributor.’

Amendment 440 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point b a (new)

Directive 2009/65/EC
Article 13 – paragraph 2a (new)

(b a) the following paragraph 2a is added: Management companies intending to provide White-Label services shall submit to the competent authorities of their home Member State detailed explanations and evidence on their compliance with paragraphs 1 and 2. In particular, they shall specify how they prevent systematic conflicts of interest or any other material conflicts of interest arising from their White-Label business activities and how any existing or potential conflicts are effectively managed in the best interest of investors and this is clearly and comprehensively disclosed to investors.

Amendment 441 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point b a (new)

Directive 2009/65/EC
Article 13 – paragraph 2a (new)

(b a) the following paragraph 2a is inserted: 2a. The delegates and any of the sub- delegates shall be subject to all relevant rules and requirements of this Directive in their execution of the delegated functions, irrespective of the delegates' legal status or national regulatory framework.

Amendment 442 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 3

3. Where a management company delegates more portfolio management or risk management functions to entities located in third countries than it retains, the competent authorities shall, on an annual basis, notify ESMA of all such delegations (‘delegation notifications’). The delegation notifications shall include the following: (a) management company concerned; (b) specifying the delegate’s domicile and whether it is a regulated entity or not; (c) portfolio management and risk management functions; (d) portfolio management and risk management functions; (e) analyse the delegation arrangements; (f) authorities’ supervisory activities, including desk-based reviews and on-site inspections and the results of such activities; (g) between the competent authority and the supervisory authority of the delegate.deleted information on the UCITS and its information on the delegate, a description of the delegated a description of the retained any other information necessary to a description of the competent any details on the cooperation

Amendment 443 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 3

3. Where a management company delegates more portfolio management or risk management functions to entities located in third countries than it retains, the competent authorities shall, on an annual basis, notify ESMA of all such delegations (‘delegation notifications’). The delegation notifications shall include the following: (a) information on the UCITS and its management company concerned; (b) specifying the delegate’s domicile and whether it is a regulated entity or not; (c) portfolio management and risk management functions; (d) portfolio management and risk management functions; (e) any other information necessary to analyse the delegation arrangements; (f) authorities’ supervisory activities, including desk-based reviews and on-site inspections and the results of such activities; (g) any details on the cooperation between the competent authority and the supervisory authority of the delegate.deleted information on the delegate, a description of the delegated a description of the retained a description of the competent

Amendment 444 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 3

Amendment 445 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 3 – subparagraph 1

Where a management company delegates more portfolio management or risk management functions to entities located in third countries than it retains, in terms of assets under management, number of staff performing relevant day-to-day operational activities and the amount of fees generated by the management company or the delegate, the competent authorities shall, on an annual basis, notify ESMA of all such delegations (‘delegation notifications’).

Amendment 446 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 3 – subparagraph 1

Where a management company delegates more portfolio management or risk management functions to entities located in third countries than it retains in terms of assets under management or number of staff performing relevant day-to-day operational activities, the competent authorities shall, on an annual basis, notify ESMA of all such delegations (‘delegation notifications’).

Amendment 447 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 3 – subparagraph 2 – point d a (new)

(d a) a description of the assets under management for which portfolio and risk management has been retained and delegated

Amendment 448 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 3 – subparagraph 2 – point d b (new)

(d b) a description of the number of staff performing day-to-day portfolio or risk management tasks within the management company versus the number of staff performing these services on a delegated basis

Amendment 449 #

Paul TANG, Eero HEINÄLUOMA, René REPASI, Eva KAILI

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 3 – subparagraph 2 – point d c (new)

(d c) The amount of fees generated by the management company and the amount of fees paid to the delegate

Amendment 450 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 3 – subparagraph 2 – point g a (new)

(g a) the share of total assets under management that have been delegated to third parties

Amendment 451 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 3 – subparagraph 2 – point g b (new)

(g b) share of staff performing day-to- day portfolio/risk management tasks within the licensed entity

Amendment 452 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 3 – subparagraph 2 – point g c (new)

(g c) the share of fees generated by licensed entities vis-à-vis forwarded or paid to the delegates.

Amendment 453 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

3 a. Where the delegation relates to portfolio management or risk management functions, the management company shall, on a yearly basis, inform the competent authority of the following: (a) information on the entities to which such functions have been delegated (name and legal entity identifier of each delegate, its jurisdiction of establishment and, where relevant, its supervisory authority); (b) information on the function delegated (portfolio management or risk management), type of delegation (full or partial), and the date of the delegation agreement or contract; (c) where sub-delegation arrangements are in place, the same information in respect of the sub-delegates and the functions sub-delegated; (d) the date of conclusion of the delegation and sub-delegation arrangements; (e) description of periodic due diligence measures carried out by the AIFM to oversee, monitor and control the delegate, including the date of performance of these measures, the issues identified and, where relevant, the measures and timeline adopted to address these issues.

Amendment 454 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 4

4. ESMA shall develop draft regulatory technical standards to determine the content of the delegation notifications and the standard forms, templates and procedures for the transmission of the delegation notifications in a language customary to the sphere of finance. The standard forms and templates shall include information fields covering all information referred to in paragraph 3. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.deleted

Amendment 455 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 4

Amendment 456 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 4

Amendment 457 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 4 – subparagraph 1

ESMA shall develop draft regulatory technical standards to determine: (a) the content of the ~~delegation notifications~~reporting and the standard forms, templates and procedures for the transmission of the ~~delegation notifications~~reporting in a language customary to the sphere of finance. The standard forms and templates shall include information fields covering all information referred to in paragraph 3; and (b) the types of white-label services and conflicts of interest as referred to in paragraph 2a and the steps Management Companies are expected to take in terms of structures and organisational and administrative procedures in order to identify, prevent, manage, monitor and disclose conflicts of interest arising from the provision of White-Label service.

Amendment 458 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 4 – subparagraph 1

ESMA shall develop draft regulatory technical standards to: (a) develop quantitative criteria to determine where a management company delegates more portfolio management or risk management functions than it retains; (b) determine the content of the delegation notifications and the standard forms, templates and procedures for the transmission of the delegation notifications in a language customary to the sphere of finance. The standard forms and templates shall include information fields covering at least all information referred to in paragraph 3.

Amendment 459 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 5

5. ESMA shall provide the European Parliament, the Council and the Commission with regular reports, at least every two years, analysing market practices regarding delegation to entities located in third countries and compliance with Articles 7 and 13.deleted

Amendment 460 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 5

Amendment 461 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 5

5. ESMA shall provide the European Parliament, the Council and the Commission with regular reports, at least every two years, analysing ~~market practices regarding delegation to entities located in third countries and~~ compliance with Articles 7 and 13.

Amendment 462 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 5

5. By … [12 months before the date of the review referred to in Article 110a], ESMA shall provide the European Parliament, the Council and the Commission with ~~regular reports, at least every two years, analysing market practices regarding delegation to entities located in third countries and~~a report analysing compliance with Articles 7 and 13.

Amendment 463 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EU
Article 15 – paragraph 5

5. By … [12 months before the date of the review referred to in Article 110a] ESMA shall provide the European Parliament, the Council and the Commission with ~~regular reports, at least every two years,~~a report analysing market practices regarding delegation ~~to entities located in third countries~~ and compliance with Articles 7 and 13.

Amendment 464 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

Directive 2009/65/EC
Article 13 – paragraph 5

5. By 30 June 2027 and every 6 years, ESMA shall provide the European Parliament, the Council and the Commission with re~~gular reports, at least every two years,~~ports analysing market practices regarding delegation to entities located in third countries and compliance with Articles 7 and 13.

Amendment 465 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c

~~6. The Commission shall adopt, by means of~~ delegated acts in accordance with Article 112a, measures specifying: (a) requirements set out in paragraph 1; (b) management company of UCITS shall be deemed to have delegated its functions to the extent that it becomes a letter-box entity and can no longer be considered to be the manager of the UCITS as set out in paragraph 2.;the conditions for fulfilling the the conditions under which the

Amendment 466 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c a (new)

Directive 2009/65/EC
Article 13 – paragraphs 6 a and 6 b (new)

(c a) The following paragraphs are added: '6a. ESMA or the competent authority of the home Member State of a management company may, at their own initiative or at the request of the competent authority of another Member State, declare that the conditions of paragraph 2 are no longer met and: (a) require the identification of another management company as the manager of a UCITS with immediate effect; or (b) give the management company a 12 month period to regain control over the UCITS, after which period the fund will be liquidated if no management company can be identified as effective manager of the UCITS. 6b. By ... [12 months after entry into force of this Directive] ESMA shall develop draft regulatory technical standards specifying the procedure stipulated in Article 8 for identifying whether a management company can no longer be considered to be the manager of the UCITS. In doing so it shall take into account both qualitative and quantitative factors in order to properly identify the location of effective control over a UCITS. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.'

Amendment 467 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 d (new)

Directive 2009/65/EC
Article 13a

(3 d) The following Article 13a is inserted 'Article 13a Equivalence regime 1. The Commission is empowered to adopt equivalence decisions stating that the legal framework and supervisory practice of a third country ensures that: (a) undertakings authorised or registered in that third country comply with binding requirements which are equivalent to the requirements under this Regulation; (b) the binding requirements are subject to effective supervision and enforcement on an on-going basis in that third country. 2. Third country jurisdictions shall request the Commission to adopt an equivalence decision by submitting an application as referred to in paragraph 3 of this Article. After receiving an application, the Commission shall have 12 months to, in consultation with ESMA, either adopt or not adopt an equivalence decision taking the form of a delegated act adopted in accordance with Article 112a. 3. By ... [48 months after publication of this Directive in the O.J.] the ESMA shall develop draft regulatory technical standards to stipulating the content and form of the application referred to in paragraph 2 of this Article. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.'

Amendment 468 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 a (new)

(3a) Article 14 is amended as follows: (a) paragraph 3a is added: 3a. Management Companies intending to provide White-Label services shall submit to the competent authorities of their home Member State detailed explanations and evidence on their compliance with paragraph 1. In particular, they shall specify how they prevent systematic conflicts of interest or any other material conflicts of interest arising from their White-Label business activities and how any existing or potential conflicts are effectively managed in the best interest of investors and this is clearly and comprehensively disclosed to investors. (b) paragraph 3 b is added: 3b. In order to ensure uniform conditions of application of this Article, ESMA shall develop draft regulatory technical standards to specify: (a) the types of White-Label services and conflicts of interest as referred to in paragraph 1; (b) the steps management companies are expected to take in terms of structures and organisational and administrative procedures in order to identify, prevent, manage, monitor and disclose conflicts of interest arising from the provision of White-Label services; (c) criteria to be used by the relevant competent authorities to assess whether management companies comply with their obligations under paragraph 2a. Power is conferred on the Commission to adopt the regulatory technical standards referred to in this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.

Amendment 469 #

Proposal for a directive
Article 2 – paragraph 1 – point 3 a (new)

Directive 2009/65/EC
Article 14

(3 a) Article 14 is amended as follows: (a) in paragraph (1), point (ba) is inserted: (ba) take account of climate and transition risks in their investment decisions (b) the following paragraph 4 is added: '4. ESMA shall develop draft regulatory technical standards specifying the framework according to which climate and transition risks shall be taken account in investment decisions as mandated by point ba of paragraph 1. ESMA shall specifically outline which asset classes have a high risk of being subject to such risks and the timeframe in which such risks may materialise. ESMA shall submit those draft regulatory technical standards to the Commission by ... [18 months after the entry into force of this Directive]. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 or Regulation (EU) No 1095/2010'

Amendment 470 #

Paul TANG, Eero HEINÄLUOMA, Jonás FERNÁNDEZ, René REPASI, Eva KAILI

Proposal for a directive
Article 2 – paragraph 1 – point 3 b (new)

Directive 2009/65/EC
Article 14a – paragraph 1

(3 b) Article 14a(1) is replaced by '1. Member States shall require management companies to establish and apply remuneration policies and practices that are consistent with, and promote, sound and effective risk management, including ESG risks, and that neither encourage risk taking which is inconsistent with the risk profiles, rules or instruments of incorporation of the UCITS that they manage nor impair compliance with the management company’s duty to act in the best interest of the UCITS.

Amendment 471 #

Paul TANG, Eero HEINÄLUOMA, Jonás FERNÁNDEZ, René REPASI, Eva KAILI

Proposal for a directive
Article 2 – paragraph 1 – point 3 c (new)

Directive 2009/65/EC
Article 14b – paragraph 1

(3 c) Article 14b(1) is amended as follows: (a) point (a) is replaced by the following: '(a) the remuneration policy is consistent with and promotes sound and effective risk management, including ESG risks, and does not encourage risk taking which is inconsistent with the risk profiles, rules or instruments of incorporation of the UCITS that the management company manages; ' (b) point (b) is replaced by the following: '(b) the remuneration policy is in line with the business and sustainability strategy, objectives, values and interests of the management company and the UCITS that it manages and of the investors in such UCITS, and includes measures to avoid conflicts of interest; ' (c) point (g) is replaced by the following: '(g) where remuneration is performance- related, the total amount of remuneration is based on a combination of the assessment as to the performance of the individual and of the business unit or UCITS concerned and as to their risks and of the overall results of the management company when assessing individual performance, taking into account financial and non-financial criteria; in equal measure;' (d) point (l) is replaced by the following: '(l) the measurement of performance used to calculate variable remuneration components or pools of variable remuneration components includes a comprehensive adjustment mechanism to integrate all relevant types of current and future risks; , including climate and transition risks;' (e) point (r) is replaced by the following: '(r) variable remuneration is not paid through vehicles or methods that facilitate the avoidance of the requirements laid down in this Directive. or have the effect of reducing the tax liability of the employee'

Amendment 472 #

Proposal for a directive
Article 2 – paragraph 1 – point 4

Directive 2009/65/EC
Article 18a – paragraph 2

2. After assessing the suitability in relation to the pursued investment strategy, the liquidity profile and the redemption policy, a management company shall select at least ~~one~~two appropriate liquidity management tools from the list set out in Annex IIA, points 2 ~~to 4,~~, 4, 5, 6 and 8 and include in the fund rules or the instruments of incorporation of the investment company for possible use in the interest of the UCITS’ investors. The management company shall implement detailed policies and procedures for the activation and deactivation of any selected liquidity management tools and the operational and administrative arrangements for the use of such tools.

Amendment 473 #

Proposal for a directive
Article 2 – paragraph 1 – point 4

Directive 2009/65/EC
Article 18a – paragraph 2

2. After assessing the suitability in relation to the pursued investment strategy, the liquidity profile and the redemption policy, a management company shall select at least one appropriate liquidity management tool from the list set out in Annex IIA, points 2 to 48, and include in the fund rules or the instruments of incorporation of the investment company for possible use in the interest of the UCITS’ investors. The management company shall implement detailed policies and procedures for the activation and deactivation of any selected liquidity management tool and the operational and administrative arrangements for the use of such tool.

Amendment 474 #

Proposal for a directive
Article 2 – paragraph 1 – point 4

Directive 2009/65/EC
Article 18a – paragraph 3

~~3. ESMA shall develop draft regulatory technical standards to define and specify the characteristics of the liquidity management tools set out in Annex IIA.~~deleted

Amendment 475 #

Proposal for a directive
Article 2 – paragraph 1 – point 4

Directive 2009/65/EC
Article 18 – paragraph 3

~~3. ESMA shall develop draft regulatory technical standards to define and specify the characteristics of the liquidity management tools set out in Annex IIA.~~deleted

Amendment 476 #

Proposal for a directive
Article 2 – paragraph 1 – point 4

Directive 2009/65/EC
Article 18a – paragraph 4

4. ESMA shall develop draft regulatory technical standards on criteria for the selection and use of suitable liquidity management tools by the management companies for liquidity risk management, including appropriate disclosures to investors, taking into account the capability of such tools to reduce undue advantages for investors that redeem their investments first, and to mitigate financial stability risks. Those guidelines shall recognise IOSCO’s recommendations for liquidity risk management for collective investment schemes from February 2018 and that the primary responsibility for liquidity risk management remains with the management company.

Amendment 477 #

Proposal for a directive
Article 2 – paragraph 1 – point 4

Directive 2009/65/EC
Article 18 – paragraph 4

4. ESMA shall develop ~~draft regulatory technical standards on criteria~~guidelines for the selection and use of suitable liquidity management tools by the management companies for liquidity risk management, including appropriate disclosures to investors, taking into account the capability of such tools to reduce undue advantages for investors that redeem their investments first, and to mitigate financial stability risks. Those guidelines shall recognise that the primary responsibility for liquidity risk management remains with the UCITS. They shall allow adequate time for adaptation before they apply, in particular for existing UCITS.

Amendment 478 #

Proposal for a directive
Article 2 – paragraph 1 – point 4

Directive 2009/65/EC
Article 18a – paragraph 4

4. ESMA shall develop draft regulatory technical standards on criteria for the selection and use of suitable liquidity management tools by the management companies for liquidity risk management, including appropriate disclosures to investors, taking into account the capability of such tools to reduce undue advantages for investors that redeem their investments first, and to mitigate financial stability risks. The UCITSs shall be primarily responsible for liquidity risk management, including their selection and use of liquidity management tools.

Amendment 479 #