BETA

Activities of Mady DELVAUX related to 2018/0041(COD)

Plenary speeches (1)

2016/11/22
Dossiers: 2018/0041(COD)

Shadow reports (1)

2016/11/22
Committee: ECON
Dossiers: 2018/0041(COD)
Documents: PDF(609 KB) DOC(77 KB)

Amendments (26)

Proposal for a directive
Recital 8

(8) The absence of clear and uniform conditions for the discontinuation of marketing of units or shares of a UCITS or an EU AIF in a host Member State creates economic and legal uncertainty for the fund managers. Therefore, this proposal lays down clear conditions, including thresholds, under which deregistration could take place. The thresholds are indicative of when a fund manager may consider that its activities have become insignificant in a particular host Member State. The conditions are set in such a way that they balance, on the one hand, the interests of fund managers to be able to deregister marketed funds when the established conditions are met, and on the other hand, the interests of investors in the fund from the host Member State concerned. In order to guarantee the protection of retail investors, funds should not be allowed to de-notify if retail clients in the host Member State concerned hold units or shares of the fund.

2018/10/24
Committee: ECON

Proposal for a directive
Recital 11

(11) For pre-marketing to be recognised as such under this Directive, it should be addressed to a professional investor and concern an investment idea or strategy without having an ~~actual AIF already establish~~AIF or compartment already established, or an established AIF or compartment which is not yet notified for marketing in the Member state concerned. Accordingly, during the course of pre-marketing, investors are unable to subscribe to the units or shares of an AIF ~~because the fund does not exist yet, and no offering documents, even in a draft form,~~and no final versions of offering documents or any form of subscription documents should be permitted to be distributed to potential investors during this stage. However, when following the pre- marketing activities of the AIFM ~~offers for~~, an investor subject to these activities subscri~~ption~~bes to units or shares of an AIF or compartment with the features akin to the pre-marketed investment idea or to an AIF or compartment referred to during the pre-marketing activities, the appropriate marketing notification procedure should be observed and the AIFM should not be able to invoke reverse solicitation. To ensure that national competent authorities can exercise their control over pre-marketing activities in their Member State, AIFMs should send an informal letter or e-mail informing the competent authorities of their home Member State and the competent authorities of the Member State or Member States where they will engage in pre-marketing activities, mentioning in which Member State or Member States they will conduct pre- marketing activities. AIFMs should furthermore ensure that their pre- marketing activities are appropriately documented and made available, upon request, to the national competent authorities concerned.

2018/10/24
Committee: ECON

Proposal for a directive
Recital 11 a (new)

(11 a) The harmonised rules on pre- marketing should not disadvantage an EU AIFM vis-à-vis a Non-EU AIFM in any case. This concerns both the current situation in which Non-EU AIFMs do not have passporting rights yet, and the situation where the provisions on passporting in Directive 2011/61/EU become applicable. To ensure this, the Commission should conduct a thorough investigation of all provisions in the Directive 2011/61/EU in the light of their application in the scenario of a passporting regime for Non-EU AIFM, and, if appropriate, propose legislative changes before Articles 35 and Articles 37 to 41 of Directive 2011/61/EU become applicable.

2018/10/24
Committee: ECON

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

Directive 2009/65/EC
Article 92 – paragraph 3 – point a

(a) their tasks are performed in the official language or one of the official languages of the Member State where the UCITS is marketed or in a language approved by the competent authorities of that Member State;

2018/10/24
Committee: ECON

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

Directive 2009/65/EC
Article 93 – paragraph 8 – subparagraph 4

Where ~~the~~a changes referred to in the first subparagraph does not affect the compliance of the UCITS with this Directive, the competent authorities of the home Member State of the UCITS shall, without undue delay, and no later than within 10 working days, inform the competent authorities of the host Member State of the UCITS of those changes.

2018/10/24
Committee: ECON

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

Directive 2009/65/EU
Article 93a – paragraph 1– subparagraph 1 – point a

(a) no retail investor which ~~is domiciled or has a registered office in a~~to the best knowledge, upon reasonable inquiry, of the UCITS is domiciled in that Member State where the UCITS has notified its activities in accordance with Article 93 holds units of that UCITS, ~~or no more than 10 investors which~~and professional investors which to the best knowledge, upon reasonable inquiry, of the UCITS are domiciled or have a registered office in that Member State hold units of the UCITS representing less than 15 % of assets under management of that UCITS;

2018/10/24
Committee: ECON

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

Directive 2009/65/EC
Article 93a – paragraph 1 – subparagraph 2

The information referred to in points (b) and (c) shall be provided in the official language or one of the official languages of the Member State where the UCITS has been marketed or in a language approved by the competent authorities of that Member State.

2018/10/24
Committee: ECON

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

Directive 2009/65/EC
Article 93a – paragraph 5

5. Member States shall allow for the use of all electronic or other distance communication means for the purposes of paragraph 4, provided the information and communication means are available for investors in the official language or one of the official languages of the Member State where the investor is located or in a language approved by the competent authorities of that Member State.

2018/10/24
Committee: ECON

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

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

(aea) ‘‘pre-marketing’ means a direct or indirect provision of information or communication on investment strategies or investment ideas by an EU AIFM or on its behalf to potential professional investors domiciled or registered in the Union in order to test their interest in an AIF ~~which is not yet established~~, or in a compartment of an AIF, which is not yet established or which is established, but not yet notified for marketing in accordance with Article 32, in that Member State where the potential investors are domiciled or have their registered office, and which in each case does not amount to an offer or placement to the investor to invest in the units or shares of that AIF or compartment.

2018/10/24
Committee: ECON

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

Directive 2011/61/EU
Article 30a – paragraph 1 – point a

~~(a) relates to an established AIF;~~deleted

2018/10/24
Committee: ECON

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

Directive 2011/61/EU
Article 30a – paragraph 1 – point b

~~(b) contains reference to an established AIF;~~deleted

2018/10/24
Committee: ECON

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

Directive 2011/61/EU
Article 30a – paragraph 1 – point d

(d) amounts to the final form of a prospectus, constitutional documents or offering documents of a not-yet- established AIF, o~~ffering documents,~~r amounts to subscription forms or similar documents whether in a draft or a final form allowing investors to ~~take an investment decision~~invest in the units or shares of an AIF or compartment.

2018/10/24
Committee: ECON

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

Directive 2011/61/EU
Article 30a – paragraph 1 – subparagraph 1 a (new)

Where a draft prospectus or offering document as referred to in point (d) of the first subparagraph is provided, such documents shall not contain all relevant information allowing investors to take an investment decision and shall clearly state that the information presented is incomplete and should therefore not be relied upon, as well as that the document does not constitute an offer or an invitation to subscribe to units or shares of an AIF or compartment.

2018/10/24
Committee: ECON

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

Directive 2011/61/EU
Article 30a – paragraph 2

2. Member States shall ensure that ~~no requirement to notify the competent authoriti~~an EU AIFM sends a simple letter in paper form or by electronic means before it engages ofin pre-marketing activities ~~is necessary for an EU AIFM to engage in~~, stating the Member State or Member States in which it will conduct these activities, to the competent authorities of its home Member State with a copy to the competent authorities of the Member State or Member States in which it will undertake pre-marketing activities.

2018/10/24
Committee: ECON

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

Directive 2011/61/EU
Article 30a – paragraph 3

3. Subscription by professional investors t~~o units or shares of an AIF established following the~~hat were subject to pre- marketing ~~in accordance with paragraph 1 or to the units or shares of AIFs managed or marketed by the EU AIFM that had engaged in pre-marketing of a not-yet- established AIF with the similar featur~~, within 18 months after the AIFM engaged in pre-marketing, to units or shares of an AIF referred to in the information provided in the context of pre-marketing activities by the EU AIFM or on its behalf, or of an AIF established as a result of those pre-marketing activities, shall be considered the result of marketing and shall be subject to the applicable notification procedures referred to in Article 31 and 32.

2018/10/24
Committee: ECON

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

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

3 a. Member States shall ensure that an EU AIFM makes appropriate arrangements such that information relating to its pre-marketing activities is available, and provided upon request, to the competent authorities of its home Member State and to the competent authorities of the Member States in which it has engaged in pre-marketing activities. An EU AIFM shall ensure that its pre- marketing activities are adequately documented, including references to the Member States, the periods of time in which the pre-marketing activities took place, as well as a brief summary description of those activities, including the information on the investment strategies presented and, where relevant, a list of the AIFs and compartments of AIFs presented.

2018/10/24
Committee: ECON

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

Directive 2011/61/EU
Article 32 – paragraph 7 – subparagraph 2

If, pursuant to a planned change, the AIFM’s management of the AIF would no longer comply with this Directive or the AIFM would otherwise no longer comply with this Directive, the ~~relevant~~ competent authorities shall inform the AIFM within 2015 working days that it is not to implement the change. The competent authorities of the AIFM home Member State shall, without delay, inform the competent authorities of the AIFM host Member State about the planned change, its assessment of it and if it was implemented or not.

2018/10/24
Committee: ECON

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

Directive 2011/61/EU
Article 32 – paragraph 7– subparagraph 4

If the changes do not affect the compliance of the AIFM’s management of the AIF with this Directive, or the compliance by the AIFM with this Directive otherwise, the competent authorities of the home Member State of the AIFM shall, with~~in one month~~out undue delay, and no later than within 15 working days, inform the competent authorities of the host Member State of the AIFM of those changes.

2018/10/24
Committee: ECON

Proposal for a directive
Article 2 – paragraph 1 – point 5

Directive 2011/61/EU
Article 32a – paragraph 1 – introductory part

1. Member States shall ensure that an EU AIFM may d~~iscontinue marketing~~e-notify its marketing activities of units or shares of an EU AIF ~~that it manages in the~~in a Member State where a notification of its marketing activities has been transmitted in accordance with Article 32, where all of the following conditions are fulfilled:

2018/10/24
Committee: ECON

Proposal for a directive
Article 2 – paragraph 1 – point 5

Directive 2011/61/EU
Article 32a – paragraph 1 – point a

(a) no retail investor, ~~which is domiciled or has a registered office~~to the best knowledge, upon reasonable inquiry, of the AIFM, is domiciled in theat Member State, where a notification of its marketing activities has been transmitted in accordance with Article 32, holds units or shares of that AIF ~~or no more than 10 investors~~and professional investors, to the best knowledge, upon reasonable inquiry, of the AIFM, which are domiciled or have a registered office in that Member State, hold units or shares of the AIF representing less than 15 % of assets under management of that AIF;

2018/10/24
Committee: ECON

Proposal for a directive
Article 2 – paragraph 1 – point 7

Directive 2011/61/EU
Article 43a – paragraph 1 – point ea (new)

(e a) act as contact point for communication with the competent authorities.

2018/10/24
Committee: ECON

Proposal for a directive
Article 2 – paragraph 1 – point 7

(a) their tasks are performed in the official language or in one of the official languages of the Member State where the AIF is marketed or in a language approved by the competent authorities of that Member State;

2018/10/24
Committee: ECON

Proposal for a directive
Article 2 – paragraph 1 – point 7 a (new)

Directive 2011/61/EU
Annex IV – point 1 – point h a (new)

(7a) In Annex IV, the following point is added: '(ha) information and the address necessary for the invoicing or communicating of any applicable regulatory fees or charges;'

2018/10/24
Committee: ECON

Proposal for a directive
Article 2 – paragraph 1 – point 7

Directive 2011/61/EU
Annex IV – point 1 – point h b (new)

(7b) In Annex IV, the following point is added: '(hb) an indication of the facilities for performing the tasks referred to in Article 43a.'

2018/10/24
Committee: ECON

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

The Commission shall present a report, and if appropriate, legislative proposals, as a result of an investigation of all provisions in the Directive 2011/61/EU, in the context of their application in the scenario of a passporting regime for Non- EU AIFM, and before Article 35 and Articles 37 to 41 of Directive 2011/61/EU become applicable, especially focussing on the potential unlevel playing field between EU AIFMs and Non-EU AIFMs with the perspective that EU AIFMs should not be disadvantaged.

2018/10/24
Committee: ECON

Proposal for a directive
Article 4 a (new)

Article 4 a Review By ... [date to be at least 12 months after the evaluation under Article 4], the Commission shall present a report on the application of this Directive. That report shall assess, inter alia, the possibility of harmonising provisions applicable to UCITS concerning pre-marketing to professional investors, keeping in mind the fact that UCITS is a product designed for retail clients and that this character should be preserved.

2018/10/24
Committee: ECON