27 Amendments of José Manuel GARCÍA-MARGALLO Y MARFIL related to 2009/0064(COD)
Amendment 337 #
Proposal for a directive
Article 2 – paragraph 1 b (new)
Article 2 – paragraph 1 b (new)
1b. Articles 31 to 33 shall not apply to the marketing of shares or units of AIF that are subject to a current offer to the public under a prospectus that has been drawn up and published in accordance with Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading1 1 OJ L 345, 31.12.2003, p. 64..
Amendment 405 #
Proposal for a directive
Article 2 – paragraph 2 – point g w (new)
Article 2 – paragraph 2 – point g w (new)
(gw) Internally-managed AIF which have legal personality, do not grant their shareholders any redemption or repurchase rights, invest predominantly in transferable securities, use no or only limited leverage and have their shares traded on a regulated market in the European Union;
Amendment 518 #
Proposal for a directive
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
1a. An AIFM may apply for authorisation under this Directive in order to market in the Union, in accordance with this Directive, AIF which were established before the deadline for the transposition of this Directive, subject to the provision to competent authorities of the information referred to in Articles 31 and 33 and to investors of the information referred to in Article 20.
Amendment 594 #
Proposal for a directive
Article 7 – paragraph 2 a (new)
Article 7 – paragraph 2 a (new)
In the case of internally managed AIF whose shares are admitted to trading on a regulated market, information on changes concerning AIFM shareholders with a qualifying holding will have to be notified to the competent authorities before implementation only when those shareholders are, or request to be, represented at the board of the AIF or otherwise exert, or attempt to exert, control or influence on the board or management of the AIF.
Amendment 678 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. Where the value of the portfolios of AIF managed by the AIFM exceeds EUR 250 million, the AIFM shall provide an additional amount of own funds; that additional amount of own funds shall be equal to 0.,02 % of the amount by which the value of the portfolios of AIF managed by the AIFM exceeds EUR 250 million.
Amendment 685 #
Proposal for a directive
Article 14 – paragraph 4 a (new)
Article 14 – paragraph 4 a (new)
4a. Notwithstanding paragraph 4, AIF portfolios meeting the following criteria shall be excluded from the calculation of the value of the portfolios of the AIFM, namely those that; (i) are not leveraged; (ii) have no redemption rights exercisable during a period of five years following the date of constitution of each AIF; and (iii) in accordance with their investment strategy and objectives, make investments and divestments infrequently. The Member States shall require that the initial capital of AIFM only managing AIF which fulfil the conditions set out in the first subparagraph is at least EUR 50 000.
Amendment 782 #
Proposal for a directive
Article 16 – paragraph 4 – subparagraph 1 a (new)
Article 16 – paragraph 4 – subparagraph 1 a (new)
However, in the case of internally managed AIF whose shares are admitted to trading on a regulated market in the European Union, the rules applicable to the valuation of assets, the preparation of accounts and, in general, any other transparency requirements will be those applicable to companies whose securities are admitted to trading on a regulated market.
Amendment 786 #
Proposal for a directive
Article 16 – paragraph 4 a (new)
Article 16 – paragraph 4 a (new)
4a. This Article shall not apply in respect of AIF which are private equity funds.
Amendment 847 #
Proposal for a directive
Article 17 – paragraph 1 a (new)
Article 17 – paragraph 1 a (new)
1a. An AIFM shall not, provided that the conditions as stated below are met, be required to appoint a depositary in respect of an AIF which has no redemption rights exercisable during a period of five years from the date of constitution of the AIF and which according to its investment strategy and objectives, makes investments and divestments on a non-frequent basis. The conditions referred to above are that: (a) the AIFM complies with the provisions of Articles 16 to 18 of Commission Directive 2006/73/EC implementing Directive 2004/39/EC of the European Parliament and of the Council as regards organisational requirements and operating conditions for investmente firms and defined terms for the purposes of that Directive 1 for the purposes of safeguarding the rights of AIF they manage and, where applicable, investors to financial instruments and funds belonging to them; and (b) the independent auditors of the AIF report their to the competent authorities of the home Member State on an annual basis as to whether: (i) payments made by investors on subscription of shares or units have been correctly booked; (ii) the AIFM has maintained systems adequate to enable to comply with the provisions referred to in Article 10 throughout the period since the last report and that the AIFM was in compliance with those provisions at the date of the report; (iii) the AIFM is able to demonstrate that the financial instruments which are reported to investors as held by or for the AIF are so held. 1 OJ L 241, 2.9.2006, p. 26.
Amendment 974 #
Proposal for a directive
Article 17 – paragraph 5 b (new)
Article 17 – paragraph 5 b (new)
5b. Internally-managed AIF with legal personality which do not grant their shareholders any redemption or repurchase rights, invest predominantly in transferable securities, use no or only limited leverage and have their shares traded on a regulated market in the European Union may be exempted from the application of this article by the competent authority of the Member State where they have their registered office, provided the AIF´s ownership of all its assets is subject to appropriate systems of control and is verified by an independent auditor at least annually.
Amendment 1286 #
Proposal for a directive
Article 26
Article 26
Amendment 1310 #
Proposal for a directive
Article 27
Article 27
Amendment 1334 #
Proposal for a directive
Article 28
Article 28
Amendment 1389 #
Proposal for a directive
Article 29
Article 29
Amendment 1426 #
Proposal for a directive
Article 30
Article 30
Amendment 1510 #
Proposal for a directive
Article 35 – paragraph 1
Article 35 – paragraph 1
An AIFM may only market shares or units of an AIF domiciled in a third country to professional investors domiciled in a Member State, if the third country has signed an agreement with this Member State which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention and ensures an effective exchange of information in tax matters.
Amendment 1558 #
Proposal for a directive
Article 39 – paragraph 1 –introductory part
Article 39 – paragraph 1 –introductory part
1. Member States mayshall authorise, in accordance with this Directive, AIFM established in a third country to market units or shares of an AIF to professional investors in the CommunityUnion under the conditions of this Directive, provided that:
Amendment 1562 #
Proposal for a directive
Article 39 – paragraph 1 – point a
Article 39 – paragraph 1 – point a
(a) the AIFM is subject to authorisation or registration in the third country in which it is established and that third country is the subject of a decision taken pursuant to paragraph 3 (a) stating that its legislation regarding prudential regulation and on- going supervision is reasonably equivalent to the provisions of this Directive and is effectively enforced;
Amendment 1563 #
Proposal for a directive
Article 39 – paragraph 1 – point b
Article 39 – paragraph 1 – point b
Amendment 1570 #
Proposal for a directive
Article 39 – paragraph 1 – point d
Article 39 – paragraph 1 – point d
(d) the supervisor authority of the AIFM in the third country is a signatory to the IOSCO Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange Of Information or a cooperation-agreement between the competent authorities of that Member State and the supervisor of the AIFM exists which ensures an efficient exchange of all information that are relevant for monitoring the potential implications of the activities of the AIFM for the stability of systemically relevant financial institutions and the orderly functioning of markets in which the AIFM is active.;
Amendment 1575 #
Proposal for a directive
Article 39 – paragraph 1 – point e
Article 39 – paragraph 1 – point e
(e) the third country has signed an agreement with the Member State in which it applies for authorisation which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention and ensures an effective exchange of information in tax matters.;
Amendment 1579 #
Proposal for a directive
Article 39 – paragraph 2 – point a
Article 39 – paragraph 2 – point a
(a) general reasonable equivalence criteria for the equivalence and effective enforcement of third country legislation on prudential regulation and on-going supervision, based on the requirements laid down in Chapters III, IV and V. taking into consideration any international standards directly relating to the relevant type of AIFM or to the AIF that it manages which are issued by IOSCO or another international organisation in which the competent authority, the Member State, the Commission or the ESMA is a participant; the type and level of regulation and supervision may vary, in particular in accordance with the different types, size, or complexity of AIF and AIFM.
Amendment 1580 #
Proposal for a directive
Article 39 – paragraph 2 – point b
Article 39 – paragraph 2 – point b
Amendment 1587 #
Proposal for a directive
Article 39 – paragraph 3 – point a
Article 39 – paragraph 3 – point a
(a) that the legislation on prudential regulation and ongoing supervision of AIFM in a third country is reasonably equivalent to this Directive in accordance with the size, type or complexity of the AIFM or AIF and effectively enforced;
Amendment 1588 #
Proposal for a directive
Article 39 – paragraph 3 – point b
Article 39 – paragraph 3 – point b
Amendment 1590 #
Proposal for a directive
Article 39 – paragraph 3 a (new)
Article 39 – paragraph 3 a (new)
3a. The Member State that grants such authorisation to an AIFM established in a third country shall be deemed to be the home Member State of the AIFM for the purposes of this Directive. The authorisation shall be valid for all Member States in relation to the marketing of units or shares in AIF, and a third-country AIFM which has been authorised by a Member State under this Article shall have the same rights and be subject to the obligations set out in Articles 16 and 17 of Chapter III and in Chapters IV, V and VI in relation to such marketing as an AIFM which is authorised under Chapter II of this Directive.
Amendment 1640 #
Proposal for a directive – amending act
Article 51
Article 51
AIFM operatingestablished in the Community before [the deadline for the transposition of...* shall adopt all necessary measures to comply with this Directive] and shall adopt all necessary measusubmit an application for authorisation by ...**. AIFM shall not be requiresd to comply with this Directive and shallor submit an application for authorisation within one year of the deadline for the transposition of this Directivein order to provide management services in respect of AIF established by ...*. * OJ: please insert date: date referred to in Article 54. ** OJ: please insert date: three years from the date referred to in Article 54.