BETA

33 Amendments of Luis de GRANDES PASCUAL related to 2009/0064(COD)

Luis de GRANDES PASCUAL

Proposal for a directive
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 whose assets under management, including any assets acquired through use of leverage, in total do not exceed a threshold of 100 million Euro or 500 millions euros when the portfolio of AIF consists of AIF that are not leveraged and with no redemption rights exercisable during a period of 5 years following the date of constitution of each AIF;deleted

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

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

~~(b) AIFM established in the Community which do not provide management services to AIF domiciled in the Community and do not market AIF in the Community;~~deleted

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

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

(c) UCITS or their management or investment companies authorised in accordance with Directive 2009/…/EC [the UCITS Directive] in so far as those management or investment companies do not manage AIF;

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

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

(d) credit institutions which are covered by Directive 2006/48/EC of the European Parliament and the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (recast);deleted

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

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

(e) institutions which are covered by Directive 2003/41/EC of the European Parliament and the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision;deleted

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

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

(f) institutions which are covered by the First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance, Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance and Directive 2005/68/EC of the European Parliament and Council of 16 November 2005 on reinsurance and amending Council Directives 73/239/EEC, 92/49/EEC as well as Directives 98/78/EC and 2002/83/EC;deleted

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

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

(ga) national central banks;

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 2 – paragraph 2 – point g b (new)

(gb) national, regional and local governments and bodies or institutions which manage funds supporting social security and pension systems.

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 2 – paragraph 3

~~3. Member States shall ensure that AIFM not reaching the threshold set out in paragraph 2(a) are entitled to be treated as AIFM falling under the scope of this Directive.~~deleted

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 2 – paragraph 4

4. The Commission shall adopt implementing measures with a view to determining the procedures under which AIFM managing portfolios of AIF whose assets under management do not exceed the threshold set out in paragraph 2(a) may exercise their right under paragraph 3. Those measures, designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 49(3).deleted

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 14 – subparagraph 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 the AIFM exceeds EUR 250 million. However, the required total of the initial capital and the additional amount must not exceed EUR 10 million.

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 14 – subparagraph 4 – point b a (new)

(ba) notwithstanding points (a) and (b) above, portfolios of AIF meeting the following criteria shall be excluded from the calculation of the value of the portfolios of the AIFM: AIF which (i) are not leveraged; (ii) have no redemption rights exercisable during a period of five years following the date of setting-up of each AIF; and (iii) according to their investment strategy and objectives, make investments and divestments solely on a non-frequent basis. Member States shall require that the initial capital of AIFM managing solely AIF which fulfil the conditions of the point (ba) is at least EUR 50 000.

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 16 – paragraph 4 a (new)

4a. This Article shall not apply in respect of an AIF which is a private equity fund.

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 17 – paragraph 5 a (new)

5a. Provided the conditions set out below are met, an AIFM shall not 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 setting-up of the AIF and which, in accordance with 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 of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the Council as regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of that Directive1 for the purposes of safeguarding the rights of AIF they manage and, where applicable, investors in financial instruments and funds belonging to them; and (b) the independent auditors of the AIF report 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 it to comply with the provisions referred to in Article 10 throughout the period since the last report and 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.

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 26

1. This section shall apply to the following: (a) AIFM managing one or more AIF which either individually or in aggregation acquires 30 % or more of the voting rights of an issuer or of a non- listed company domiciled in the Community, as appropriate; (b) AIFM having concluded an agreement with one or more other AIFM which would allow the AIF managed by these AIFM to acquire 30 % or more of the voting rights of the issuer or the non- listed company, as appropriate. 2. This section shall not apply where the issuer or the non-lisArticle 26 deleted Sco~~mpany concerned are small and medium enterprises that employ fewer than 250 persons, have an annual turnover not exceeding 50 million euro and/or an annual balance sheet not exceeding 43 million euro.~~pe

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 27

1. Member States shall ensure that when an AIFM is in a position to exercise 30 % or more of the voting rights of a non- listed company, such AIFM notifies the non-listed company and all other share- holders the information provided in paragraph 2. This notification shall be made, as soon as possible, but not later than four trading days the first of which being the day on which the AIFM has reached the position of being able to exercise 30% of the voting rights. 2. The notification required under paragraph 1 shall contain the fArticle 27 deleted Notification of the acquisition of controllowing information: (a) the resulting situation in terms of voting rights; (b) the conditions under which the 30% threshold has been reached, including information about the identity of the different shareholders involved; (c) the date on which the threshold was reached or exceeded.luence in non-listed companies

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 28

controlling influence in issuers or non- 1. In addition to Article 27, Member States shall ensure that where an AIFM acquires 30 % or more of the voting rights of an issuer or a non-listed company, that AIFM makes the information set out in the second and third subparagraphs available to the issuer, the non-listed company, their respective shareholders and representatives of employees or, where there are no such representatives, to the employees themselves. With regard to issuers, the AIFM shall make available the following to the issuer concerned, its shareholders and representatives of employees: (a) the information referred to in Article 6(3) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids; (b) the policy for preventing and managing conflicts of interests, in particular between the AIFM and the issuer; (c) the policy for external and internal communication of the issuer in particular as regards employees. With regard to non-listed companies, the AIFM shall make available the following to the non-listed company concerned, its shareholders and representatives of employees: (d) the identity of the AIFM which either individually or in agreement with other AIFM have reached the 30 % threshold; (e) the development plan for the non- listed company; (f) the policy for preventing and managing conflicts of interests, in particular between the AIFM and the non-listed company; (g) the policy for external and internal communication of the issuer or non-listed company, in particular as regards employees. 2. The Commission shall adopt implementing measures determining: (a) the detailed content of the information provided under paragraph 1; (b) the way the information shall be communicated. Those measures, designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 49(3).Article 28 deleted Disclosure in case of acquisition of listed companies

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 29

Specific provisions regarding the annual report of AIF exercising controlling 1. Member States shall ensure that AIFM include in the annual report provided for in Article 19 for each AIF that they manage, the additional information provided in paragraph 2 of this Article. 2. The AIF annual report shall include the following additional information for each issuer and non listed company in which the AIF has invested: (a) with regard to operational and financial developments, presentation of revenue and earnings by business segment, statement on the progress of company's activities and financial affairs, assessment of expected progress on activities and financial affairs, report on significant events in the financial year; (b) with regard to financial and other risks at least financial risks associated with capital structure; (c) with regard to employee matters, turnover, terminations, recruitment. (d) statement on significant divestment of assets. In addition, the AIF annual report shall, for each issuer in which it has acquired a controlling influence, contain the information provided for in point (f) of Article 46a(1) of Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54 (3) (g) of the Treaty on the annual accounts of certain types of companies and an overview of the capital structure as referred to in points (a) and (d) of Article 10(1) of Directive 2004/25/EC. For each non-listed company in which it has acquired a controlling influence, the AIF report shall provide an overview of management arrangements and the information provided for in points (b), (c) and (e) to (h) of Article 3 of Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent. 3. The AIFM shall, for each AIF it manages and for which it is subject to this section, provide the information referred to in paragraph 2 above to all representatives of employees of the company concerned referred to in paragraph 1 of Article 26 within the period referred to in Article 19 (1) 4. The Commission shall adopt implementing measures specifying the detailed content of the information to be provided under paragraphs 1 and 2. Those measures, designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 49(3).Article 29 deleted influence in issuers or non-listed companies

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 30

Specific provisions regarding companies whose shares are no longer admitted to trading on a regulated market Where, following an acquisition of 30 % or more of the voting rights of an issuer, the shares of that issuer are no longer admitted to trading on a regulated market, it shall nevertheless continue to comply with its obligations under Directive 2004/109/EC for two years from the date of withdrawal from the regulated market.Article 30 deleted

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 35 – paragraph 1 – subparagraph 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.

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 39 – paragraph 1 – introductory wording

1. Member States ~~may~~shall 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 Community under the conditions of this Directive, provided that:

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
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 the 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;

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 39 – paragraph 1 – point b

(b) the third country is the subject of a decision taken pursuant to paragraph 3(b) stating that it grants Community AIFM effective market access comparable to that granted by the Community to AIFM from that third country;deleted

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 39 – paragraph 1 – point d

(d) the supervisory 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~~is 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.;

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
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.

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 39 – paragraph 2 – subparagraph 1 – point a

(a) reasonable general 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 it manages which are issued by IOSCO or another international organisation in which the competent authority, the Member State, the Commission or the European Securities and Markets Authority is a participant and taking account of the fact that the type and level of regulation and supervision may vary and in particular that AIF and AIFM of different types, sizes and complexity may be subject to different types and levels of regulation and supervision.

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 39 – paragraph 2 – subparagraph 1 – point b

~~(b) general criteria for assessing whether third countries grant Community AIFM effective market access comparable to that granted by the Community to AIFM from those third countries.~~deleted

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
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 with respect to AIFM and AIF of a given size, type or complexity and effectively enforced;

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 39 – paragraph 3 – point b

~~(b) that a third country grant Community AIFM effective market access at least comparable to that granted by the Community to AIFM from that third country.~~deleted

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 39 – paragraph 3 a (new)

3 a. The Member State which 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 marketing the 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 same obligations under Chapters IV, V, VI and Articles 16 and 17 of Chapter III of this Directive in relation to such marketing as an AIFM which is authorised under Chapter II of this Directive.

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 51

AIFM ~~operating~~established in the Community before [the deadline for the transposition of this Directive] shall adopt all necessary measures to comply with this Directive and shall submit an application for authorisation within ~~one year of~~three years of the transposition of this Directive. AIFM shall not be required to comply with this Directive or submit an application for authorisation to provide management services in respect of AIF established before the deadline for the transposition of this Directive.

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 51 – paragraph 1 a (new)

1a. An AIFM may apply for authorisation under this Directive in order to market in the Community in accordance with this Directive AIF which were established before the deadline for the transposition of this Directive subject to the provision to the competent authorities of the information referred to in Articles 31 and 33 and to investors of the information referred to in Article 20.

2010/03/01
Committee: JURI

Luis de GRANDES PASCUAL

Proposal for a directive
Article 51 – paragraph 1 b (new)

1b. Articles 31 to 33 of this Directive 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.

2010/03/01
Committee: JURI