17 Amendments of Jonás FERNÁNDEZ related to 2021/0376(COD)
Amendment 178 #
Proposal for a directive
Recital 31 b (new)
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 205 #
Proposal for a directive
Recital 51 a (new)
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 244 #
Proposal for a directive
Article 1 – paragraph 1 – point 3 – point b a (new)
Article 1 – paragraph 1 – point 3 – point b a (new)
Directive 2011/61/EU
Article 7 – paragraph 6 – subparagraph 1
Article 7 – paragraph 6 – subparagraph 1
Amendment 259 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 c (new)
Article 1 – paragraph 1 – point 4 c (new)
Directive 2011/61/EU
Article 13 – paragraph 1
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 262 #
Proposal for a directive
Article 1 – paragraph 1 – point 4 d (new)
Article 1 – paragraph 1 – point 4 d (new)
Directive 2011/61/EU
Article 14a
Article 14a
Amendment 360 #
Proposal for a directive
Article 1 – paragraph 1 – point 11
Article 1 – paragraph 1 – point 11
Directive 2011/61/EU
Article 35 – paragraph 2 – point c
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 or Annex II to the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes54 .; __________________ 54 OJ C 64, 27.2.2020, p. 8.
Amendment 363 #
Proposal for a directive
Article 1 – paragraph 1 – point 12 – point b
Article 1 – paragraph 1 – point 12 – point b
Directive 2011/61/EU
Article 36 – paragraph 1 – point d
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 or Annex II to the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes.;
Amendment 368 #
Proposal for a directive
Article 1 – paragraph 1 – point 13
Article 1 – paragraph 1 – point 13
Directive 2011/61/EU
Article 37 – paragraph 7 – point f
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 or Annex II to the Council conclusions of 2020 on the revised EU list on non-cooperative jurisdictions for tax purposes.;
Amendment 378 #
Proposal for a directive
Article 1 – paragraph 1 – point 15
Article 1 – paragraph 1 – point 15
Directive 2011/61/EU
Article 40 – paragraph 2 – point c
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 or Annex II to the Council conclusions of 2020 on the revised EU list on non- cooperative jurisdictions for tax purposes.;
Amendment 382 #
Proposal for a directive
Article 1 – paragraph 1 – point 16 – point b
Article 1 – paragraph 1 – point 16 – point b
Directive 2011/61/EU
Article 42 – paragraph 1 – point d
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 or Annex II to the Council conclusions of 2020 on the revised EU list on non- cooperative jurisdictions for tax purposes.;
Amendment 429 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 a (new)
Article 2 – paragraph 1 – point 1 a (new)
Directive 2009/65/EC
Article 5 – paragraph 8
Article 5 – paragraph 8
Amendment 470 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 b (new)
Article 2 – paragraph 1 – point 3 b (new)
Directive 2009/65/EC
Article 14a – paragraph 1
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 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 c (new)
Article 2 – paragraph 1 – point 3 c (new)
Directive 2009/65/EC
Article 14b – paragraph 1
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 514 #
Proposal for a directive
Article 2 – paragraph 1 – point 7 a (new)
Article 2 – paragraph 1 – point 7 a (new)
Directive 2009/65/EC
Article 51 a (new)
Article 51 a (new)
(7a) the following Article is inserted: ‘Article 51a 1. A UCITS shall inform investors clearly in the prospectus of its intention to use efficient portfolio management techniques and instruments referred to in Article 51(2) of this Directive and Article 11 of Directive 2007/16/EC. This shall include a detailed description of the risks involved in these activities, including counterparty risk and potential conflicts of interest, and the impact they will have on the performance of the UCITS. The use of these techniques and instruments shall be in line with the best interests of the UCITS. 2. In accordance with Article 11 of Directive 2007/16/EC, UCITS employing efficient portfolio management techniques shall make sure that the risks arising from these activities are adequately captured by the risk management process of the UCITS. 3. The UCITS shall disclose in the prospectus the policy regarding direct and indirect operational costs/fees arising from efficient portfolio management techniques that may be deducted from the revenue delivered to the UCITS. These costs and fees shall not include hidden revenue. 4. All the revenues arising from efficient portfolio management techniques, net of direct and indirect operational costs, shall be returned to the UCITS. In any case, at least 90% of the revenues arising from efficient portfolio management techniques shall be returned to the UCITS. 5. A UCITS shall ensure that it is able at any time to recall any security that has been lent out or terminate any securities lending agreement into which it has entered. 6. A UCITS that enters into a reverse repurchase agreement shall ensure that it is able at any time to recall the full amount of cash or to terminate the reverse repurchase agreement on either an accrued basis or a mark-to-market basis. When the cash is recallable at any time on a mark-to-market basis, the mark-to- market value of the reverse repurchase agreement shall be used for the calculation of the net asset value of the UCITS. A UCITS that enters into a repurchase agreement shall ensure that it is able at any time to recall any securities subject to the repurchase agreement or to terminate the repurchase agreement into which it has entered. 7. Fixed-term repurchase and reverse repurchase agreements that do not exceed seven days shall be considered as arrangements on terms that allow the assets to be recalled at any time by the UCITS. 8. UCITS entering into efficient portfolio management transactions shall take into account these operations when developing their liquidity risk management process in order to ensure they are able to comply at any time with their redemption obligations.’
Amendment 533 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 a (new)
Article 2 – paragraph 1 – point 8 a (new)
Directive 2009/65/EC
Article 89a (new)
Article 89a (new)
Amendment 534 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 b (new)
Article 2 – paragraph 1 – point 8 b (new)
Directive 2009/65/EC
Article 90a (new)
Article 90a (new)
(8 b) The following article 90a is inserted: 'Article 90a Member States shall prohibit UCITS management companies from charging performance fees to its unit-holders, except where these performance fees are symmetric.'
Amendment 558 #
Proposal for a directive
Annex I a (new)
Annex I a (new)
Direcitve 2011/61/EU
Annex II – paragraph 1
Annex II – paragraph 1
Annex Ia Paragraph 1 of Annex II is amended as follows: (a) point (a) is replaced by: '(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 AIFs they manage;. (b) point (b) is replaced by: '(b) the remuneration policy is in line with the business and sustainability strategy, objectives, values, and interests of the AIFM and the AIFs it manages or the investors of such AIFs, and includes measures to avoid conflicts of interest; ' (c) point (g) is replaced by: '(g) where remuneration is performance related, the total amount of remuneration is based on a combination of the assessment of the performance of the individual and of the business unit or AIF concerned and of the overall results of the AIFM, and when assessing individual performance, financial as well asnd non-financial criteria are taken into account; in equal measure;' (d) point (l) is replaced by: '(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: '(r) variable remuneration is not paid through vehicles or methods that facilitate the avoidance of the requirements of this Directive. or that have the effect of reducing the tax liability of the employee.'