Activities of Gunnar HÖKMARK related to 2009/0064(COD)
Plenary speeches (1)
Alternative investment fund managers (debate)
Amendments (44)
Amendment 172 #
Proposal for a directive
Recital 5
Recital 5
(5) The scope of this Directive should be confined to the management of collective investment undertakings which raise capital from a number of investors with a view to investing it in accordance with a defined investment policy on the principle of risk-spreading for the benefit of those investors. This Directive should not apply to the management of pension funds or managers of non-pooled investments such as endowments, sovereign wealth funds or assets hoeld on own account by credit institutions, insurance or reinsurance undertakings. This Directive should neither apply to actively managed investments in the form of securities, such as certificates, managed futures, or index-linked bonds. It should, however, cover managers of all collective investment undertakings which are not required to be authorised as UCITS. Investment firms authorised under Directive 2004/39/EC on Markets in Financial Instruments should not be required to obtain an authorisation under this Directive in order to provide investment services in respect of AIF. Investment firms can however only provide investment services in respect of AIF, if and to the extent the units or shares thereof can be marketed in accordance with this Directive. This Directive should not apply to industrial holding companies having their shares traded on an EU-regulated market insofar as they hold shares in their subsidiaries or associated companies over which they have a controlling influence for the purpose of carrying out an industrial business strategy.
Amendment 190 #
Proposal for a directive
Recital 6
Recital 6
(6) In order to avoid imposing excessive or disproportionate requirements, this Directive provides for an exemption for AIFM where the cumulative AIF under management fall below a threshold of EUR 1500 million. The activities of the AIFM concerned are unlikely to have significant consequences for financial stability or market efficiency. For AIFM which only manage unleveraged AIF and do not grant investors redemption rights during a period of five years a specific threshold of EUR 51 000 million applies. This specific threshold is justified by the fact that managers of unleveraged funds, specialised in long term investments, are even less likely to cause systemic risks. Furthermore, the five years lock-up of investors eliminates liquidity risks. AIFM which are exempt from this Directive should continue to be subject to any relevant national legislation. They should however be allowed to be treated as AIFM subject to the opt-in procedure foreseen by this Directive.
Amendment 286 #
Proposal for a directive
Recital 20
Recital 20
(20) It is appropriate to allow the AIFM to delegate administrative tasks to an entity established in a third country provided that necessary safeguards are in place. Similarly, a depositary may delegate some of its depositary tasks in respect of AIF domiciled in a third country to a depositary domiciled in that third country, provided that the legislation of that third country ensures a level of protection of investor interests which is equivalent to that in the CommunityUnion. Under certain conditions, it should also be possible for the AIFM to appoint an independent valuator established in a third country.
Amendment 347 #
Proposal for a directive
Article 2 – paragraph 2 – point a
Article 2 – paragraph 2 – point a
(a) AIFM which either directly or indirectly through a company with which the AIFM is linked by common management or control, or by a substantive direct or indirect holding, manage portfolios of AIF whosemanage AIF whose total assets under management, including any assets acquired through use of leverage, in total do not exceed a threshold of 1EUR 500 million Euro or 500 millions euros when the portfolio of AIF consists ofor EUR 1 billion when the AIF consists of holdings that (a) are not leveraged; and (b) do not have redemption rights exercisable during a period of 5 years following the date of constitution of the AIF. For the purposes of calculating such thresholds: (i) AIF managed by the AIFM or the management of which is delegated by the AIFM to an undertaking in the same group as the AIFM shall be aggregated; (ii) in relation to AIF that (a) are not leveraged; and with no(b) do not have redemption rights exercisable during a period of 5 years following the date of constitution of eachthe AIF, the thresholds shall be applied to the investors’ net capital interest in the AIF;.
Amendment 385 #
Proposal for a directive
Article 2 – paragraph 2 – point g k (new)
Article 2 – paragraph 2 – point g k (new)
(gk) industrial holding companies having their shares traded on an EU regulated market insofar as they hold shares in their subsidiaries or associated companies over which they have a controlling influence for the purpose of carrying out an industrial business strategy.
Amendment 457 #
Proposal for a directive
Article 3 – point c
Article 3 – point c
(c) ‘Valuator’ means any legal or natural person or companyperson authorised and supervised by a competent authority, including the AIFM, valuing the assets or establishing the value of the shares or units of an AIF;
Amendment 469 #
Proposal for a directive
Article 3 – point e
Article 3 – point e
(e) ‘Marketing’ means any general offering or placement at the initiative of the AIF or AIFM of units or shares in an AIF to or with investors domiciled in the Community, regardless of at whose initiative the offer or placement takes placeUnion;
Amendment 501 #
Proposal for a directive
Article 3 – point o g (new)
Article 3 – point o g (new)
(og) ‘safe-keeping’ means holding financial instruments in custody or through position-keeping on behalf of the AIF.
Amendment 503 #
Proposal for a directive
Article 3 – point o h (new)
Article 3 – point o h (new)
(oh) ‘industrial holding company’ means a company with controlling shareholdings in one or more other companies the business purpose of which is to carry out an industrial business strategy through its subsidiaries or associated companies and which is not established for the main purpose of generating returns for its investors by means of divestment of its subsidiaries or associated companies within a planned timeframe;
Amendment 505 #
Proposal for a directive
Article 3 – point o j (new)
Article 3 – point o j (new)
(oj) ‘controlling influence’ means any direct or indirect holding which represents 20% or more of the voting rights of a company.
Amendment 515 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2
Article 4 – paragraph 1 – subparagraph 2
Entities which are neither authorised in accordance with this Directive nor, in case of AIFM not covered by this Directive, in accordance with the national law of a Member State, shall not be allowed to provide management services to AIF or market units or shares thereof within the CommunityUnion, except as expressly provided by this Directive.
Amendment 527 #
Proposal for a directive
Article 4 – paragraph 2 a (new)
Article 4 – paragraph 2 a (new)
2a. A management or investment company pursuant to Directive 2009/65/EC shall be deemed as authorised also for the purpose of this Directive, and shall be allowed to manage nationally regulated collective investment undertakings not covered by Directive 2009/65/EC. When managing AIF, a management or investment company pursuant to Directive 2009/65/EC shall comply with the provisions of this Directive.
Amendment 674 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. AIFM shall have own funds of at least EUR 1275 000.
Amendment 676 #
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 2150 million, the AIFM shall provide an additional amount of own funds; that additional amount of own funds shall be equal to 0.02 equal to at least 0,01 % of the amount by which the value of the portfolios of the AIFM exceeds EUR 2150 million.
Amendment 694 #
Proposal for a directive
Article 14 – paragraph 4 a (new)
Article 14 – paragraph 4 a (new)
4a. Notwithstanding paragraph 1, an AIFM which is already authorised under Directive 2004/39/EC and/or subject to capital requirements under Directive 2006/49/EC or Directive 85/611/EEC shall not be required to meet additional requirements under this Directive.
Amendment 704 #
Proposal for a directive
Article 16 – paragraph 1 – subparagraph 1
Article 16 – paragraph 1 – subparagraph 1
1. An AIFM shall ensure that, for each AIF that it manages, aproper valuator is appointed which is independent of the AIFM to establish the value of assets acquired byions of the AIF’s assets are performed on an appropriate, timely and consistent basis so that the value of the shares or units of the AIF cand the value of the shares and units of the AIF be readily assessed by investors and other interested parties.
Amendment 718 #
Proposal for a directive
Article 16 – paragraph 1 – subparagraph 2
Article 16 – paragraph 1 – subparagraph 2
Amendment 736 #
Proposal for a directive
Article 16 – paragraph 1 a (new)
Article 16 – paragraph 1 a (new)
1a. The AIFM is responsible for the proper valuation of AIF assets as well as for the calculation of the net asset value of the AIF. This responsibility shall not be affected by the delegation of such functions to a third party.
Amendment 792 #
Proposal for a directive
Article 17 – paragraph 1 – introductory part
Article 17 – paragraph 1 – introductory part
1. For each AIF it manages, the AIFM shall ensure that a single depositary is appointed to fulfill, where relevant, the following taskfunctions:
Amendment 800 #
Proposal for a directive
Article 17 – paragraph 1 – point a
Article 17 – paragraph 1 – point a
(a) receive all payments made by investors when subscribing holds in deposit cash accounits or shares of an AIF managpened byin the AIFM and book them on behalf of the AIFM in a segregated accountbooks of the depositary;
Amendment 804 #
Proposal for a directive
Article 17 – paragraph 1 – point b
Article 17 – paragraph 1 – point b
(b) safe-keep any financial instruments which belong to the AIF, namely: (i) holding in custody all financial instruments that can be credited into securities accounts. For this purpose, the depositary appointed by the AIFM shall ensure the segregation of assets through the opening of separate accounts in its books in the name of AIF. Notwithstanding this principle, Member States may allow segregation in so-called ‘omnibus accounts’, provided that each fund’s assets can be clearly identified as belonging to a given AIF at any moment; (ii) maintain the records to verify the ownership of financial instruments that cannot be held in custody based on the information provided by the AIFM, including external evidence of the existence of the transaction;
Amendment 814 #
Proposal for a directive
Article 17 – paragraph 1 – point c
Article 17 – paragraph 1 – point c
(c) verify whether the AIF maintain the record the AIFM on behalf of the AIF has obtainedo evidence the ownership of all other assets by the AIF invests inbased on information provided by the AIFM or otherwise.
Amendment 817 #
Proposal for a directive
Article 17 – paragraph 1 a – introductory part (new)
Article 17 – paragraph 1 a – introductory part (new)
1a. In addition to the functions referred to in paragraph 1 (a) and (b), the depositary shall where relevant verify on an ex post basis that:
Amendment 822 #
Proposal for a directive
Article 17 – paragraph 1 a – point a (new)
Article 17 – paragraph 1 a – point a (new)
(a) the sale, issue, re-purchase, redemption and cancellation of shares or units effected on behalf of an AIF are carried out in accordance with the applicable national law and the AIF rules;
Amendment 826 #
Proposal for a directive
Article 17 – paragraph 1 a – point b (new)
Article 17 – paragraph 1 a – point b (new)
(b) the value of units is calculated in accordance with the applicable national law and the AIF rules;
Amendment 830 #
Proposal for a directive
Article 17 – paragraph 1 a – point c (new)
Article 17 – paragraph 1 a – point c (new)
(c) the instructions of the AIFM are carried out, unless they conflict with the applicable national law or the AIF rules;
Amendment 834 #
Proposal for a directive
Article 17 – paragraph 1 a – point d (new)
Article 17 – paragraph 1 a – point d (new)
(d) in transactions involving an AIF's assets any consideration is remitted to it within the usual time limits;
Amendment 837 #
Proposal for a directive
Article 17 – paragraph 1 a – point e (new)
Article 17 – paragraph 1 a – point e (new)
(e) the AIF's income is applied in accordance with the applicable national law and the AIF rules.
Amendment 851 #
Proposal for a directive
Article 17 – paragraph 2 – subparagraph 1
Article 17 – paragraph 2 – subparagraph 1
2. An AIFM shall not act as depositary of an AIF of which it is the AIFM.
Amendment 856 #
Proposal for a directive
Article 17 – paragraph 2 – subparagraph 2
Article 17 – paragraph 2 – subparagraph 2
Amendment 867 #
Proposal for a directive
Article 17 – paragraph 3
Article 17 – paragraph 3
3. The depositary shall be either: (a) a credit institution having its registered office in the Community and be authorised in accordance with Directive 2006/48/EC of the European Parliament and Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast).;
Amendment 872 #
Proposal for a directive
Article 17 – paragraph 3 – point a a (new)
Article 17 – paragraph 3 – point a a (new)
(aa) an investment firm authorised in accordance with Directive 2004/39/EC to also provide the ancillary service of safe- keeping and administration of financial instruments for the account of clients in accordance with Section B(1) of Annex I to that Directive, having its registered office in the Union;
Amendment 881 #
Proposal for a directive
Article 17 – paragraph 3 – point a e (new)
Article 17 – paragraph 3 – point a e (new)
Amendment 890 #
Proposal for a directive
Article 17 – paragraph 3 – point a j (new)
Article 17 – paragraph 3 – point a j (new)
(aj) in addition to the provisions in points (a), (b) and (c) of paragraph 1, for AIF which have no assets which can be safe- kept in accordance with point (b)(i) of paragraph 1 or which are derivatives, the depositary may be an entity which carries out depositary functions as part of professional or business activities in respect of which it is subject to mandatory professional registration recognised by law or to legal or regulatory provisions or rules of professional conduct and which can provide sufficient financial and professional guarantees to be able to effectively perform the relevant depositary functions and meet the commitments inherent to those functions.
Amendment 916 #
Proposal for a directive
Article 17 – paragraph 4
Article 17 – paragraph 4
4. Depositaries may delegate their tasks to other depositaries, apart from functions of monitoring and oversight over their sub-custodians. A depositary shall not delegate its functions to the extent that it becomes a letter-box entity.
Amendment 947 #
Proposal for a directive
Article 17 – paragraph 5 – subparagraph 2 d (new)
Article 17 – paragraph 5 – subparagraph 2 d (new)
In the event of loss of financial instruments which the depositary holds in custody as referred to in paragraph 1 (b), the depositary shall return the assets to the AIF without undue delay. The depositary can discharge itself of its own liability if it can prove that it has performed its due diligence duties as referred to in paragraph 4.
Amendment 955 #
Proposal for a directive
Article 17 – paragraph 5 – subparagraph 2 k (new)
Article 17 – paragraph 5 – subparagraph 2 k (new)
In the event of loss of financial instruments for which it is liable in accordance with subparagraph 2d, where a contract exists that allows for the transfer to a third party selected by the AIFM and re-use of assets by the third party with prior consent from the AIFM, the depositary can discharge itself of its own liability in accordance with the terms of the contract. Investors shall be informed of the existence of the contract. The depositary shall not be liable for any act or omission by (or insolvency of) any Central Securities Depositary (CSD).
Amendment 969 #
Proposal for a directive
Article 17 – paragraph 5 – subparagraph 3 c (new)
Article 17 – paragraph 5 – subparagraph 3 c (new)
The depositary's liability towards AIFM and investors shall not be affected by the fact that it has delegated a part of its tasks to an authorised third party which it has selected.
Amendment 1008 #
Proposal for a directive
Article 18 – paragraph 1 – subparagraph 3
Article 18 – paragraph 1 – subparagraph 3
No delegation of portfolio management shall be given to the depositary, the valuator, or to any other undertaking whose interests may conflict with those of the AIF or its investorsunless those conflicts can be managed.
Amendment 1062 #
Proposal for a directive
Article 20 – paragraph 1 – point a
Article 20 – paragraph 1 – point a
(a) a description of the investment strategy and objectives of the AIF, all thethe type of assets which the AIF canmay invest in and of the techniques it may employ and of all associated risks, any applicable investment restrictions, the circumstances in which the AIF may use leverage, the types and sources of leverage permitted and the associated risks and of any restrictions to the use of leverage;
Amendment 1089 #
Proposal for a directive
Article 20 – paragraph 1 – point i
Article 20 – paragraph 1 – point i
(i) whenever an investor obtains aa description of any preferential treatment or the right to obtain preferential treatment, the identity of the investor and a description of that preferential treatment;
Amendment 1458 #
Proposal for a directive
Article 31 – paragraph 4a (new)
Article 31 – paragraph 4a (new)
4a. Member States may allow an authorised AIFM, which manages an AIF established in a third country, to market shares or units of such AIF to professional investors on their territory.
Amendment 1500 #
Proposal for a directive
Article 35
Article 35
Amendment 1515 #
Proposal for a directive
Article 35 a (new)
Article 35 a (new)
Article 35a Third-country AIF Member States shall not prevent professional investors domiciled in a Member State from investing in an AIF domiciled in a third country.