16 Amendments of Alfred SANT related to 2021/0376(COD)
Amendment 127 #
Proposal for a directive
Recital 6
Recital 6
(6) To develop a reliable overview of delegation activities in the Union governed bycompliance with Article 20 of Directive 2011/61/EU and to inform future policy decisions or supervisory actions, competent authoritieAIFMs should provide the European Securities and Markets Authority (‘ESMA’) with delegation notifications where an AIFM delegates morecompetent 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 131 #
Proposal for a directive
Recital 7
Recital 7
Amendment 135 #
Proposal for a directive
Recital 7 a (new)
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 145 #
Proposal for a directive
Recital 9 a (new)
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 165 #
Proposal for a directive
Recital 28
Recital 28
(28) To support supervisory convergence in the area of delegation ESMA should conduct peer review on the supervisory practices wiget 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 adoprea 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 supportorder 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 effdirectiveness of the delegation regimes laid down in Directive 2011/61/EU regarding oversight and control over delegation arrangements and substance rules.
Amendment 169 #
Proposal for a directive
Recital 28 a (new)
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 188 #
Proposal for a directive
Recital 38
Recital 38
(38) To develop a reliable overview of delegation activities in the Union governed bycompliance with Article 13 of Directive 2009/65/EC and to inform future policy decisions or supervisory actions, competent authoritmanagement companies should provide ESMA with delegation notifications where a UCITS management companycompetent authorities of their home Member State with comprehensive and up-to-date information on delegates moreion, portfolio management or risk management functions, than it manages itself, to entities located in third countries.
Amendment 189 #
Proposal for a directive
Recital 39
Recital 39
Amendment 204 #
Proposal for a directive
Recital 50
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 231 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b
Article 1 – paragraph 1 – point 3 – point b
Directive 2011/61/EU
Article 7 – paragraph 5
Article 7 – paragraph 5
Amendment 306 #
Proposal for a directive
Article 1 – paragraph 1 – point 7 – point a a (new)
Article 1 – paragraph 1 – point 7 – point a a (new)
Directive 2011/61/EU
Article 20 – paragraph 1 a (new)
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 308 #
Proposal for a directive
Article 1 – paragraph 1 – point 7 – point b
Article 1 – paragraph 1 – point 7 – point b
Directive 2011/61/EU
Article 20 – paragraph 3
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 443 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c
Article 2 – paragraph 1 – point 3 – point c
Directive 2009/65/EC
Article 13 – paragraph 3
Article 13 – paragraph 3
Amendment 453 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c
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 455 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c
Article 2 – paragraph 1 – point 3 – point c
Directive 2009/65/EC
Article 13 – paragraph 4
Article 13 – paragraph 4
Amendment 462 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 – point c
Article 2 – paragraph 1 – point 3 – point c
Directive 2009/65/EC
Article 13 – paragraph 5
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 anda report analysing compliance with Articles 7 and 13.