48 Amendments of Othmar KARAS related to 2009/0064(COD)
Amendment 142 #
Proposal for a directive
Title
Title
Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on Alternative Investment Funds and on Alternative Investment Fund Managers and amending Directives 2004/39/EC and 2009/…/EC
Amendment 158 #
Proposal for a directive
Recital 4
Recital 4
(4) The Directive lays down requirements regarding the way in which AIFM should manage alternative investment funds (AIF) under their responsibility. It would be disproportionate to regulate the structure or composition of the portfolios of the AIF managed by AIFM or the authorisation processes for AIF and it would be difficult to provide for such extensive harmonisation due to the very diverse types of AIF managed by AIFM.
Amendment 171 #
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 hold on own account by credit institutions, insurance or reinsurance undertakings, central banks or assets directly or indirectly held on own account by credit institutions, institutions for retirement provision, or insurance or reinsurance undertakings. It should also not apply to the management of collective investment undertakings which are authorised in accordance with national law and only marketed in their home Member State. This Directive should neith, however, apply to actively managed investments in the form of securities, such as certificates, managed futures, or index- linked bonds. It should, however, also 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.
Amendment 212 #
Proposal for a directive
Recital 10
Recital 10
Amendment 230 #
Proposal for a directive
Recital 13
Recital 13
(13) Reliable and objective asset valuation is crucial for the protection of investor interests. Different AIFM employ different methodologies and systems for valuing assets, depending on the assets and markets in which they predominantly invest. It is appropriate to recognise these differences but to, nevertheless, require the valuation of assets to. The valuation of assets and calculation of the net asset value (NAV) should be fundertaken by an entity which is independent of the AIFMctionally independent from the management functions of the AIFM. Where appropriate, the AIFM should be able to delegate or assign the valuation of assets and calculation of the NAV to a third party.
Amendment 366 #
Proposal for a directive
Article 2 – paragraph 2 – point e
Article 2 – paragraph 2 – point e
(e) an institutions which are covered by falling within Article 2 (1) of 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, including as it is applied by Article 3 of Directive 2003/41/EC, but excluding any institution within Article 2(2)(b) of Directive 2003/41/EC. In determining for the purposes of this Directive whether an institution is within Article 2(1) of Directive 2003/41/EC, any disapplication of the Directive by a Member State under Article 5 of Directive 2003/41/EC shall be ignored;
Amendment 394 #
Proposal for a directive
Article 2 – paragraph 2 – point g p (new)
Article 2 – paragraph 2 – point g p (new)
(gp) management companies authorised under national law which provide management services to nationally regulated collective investment undertakings which are only marketed in their home Member State;
Amendment 422 #
Proposal for a directive
Article 2 – paragraph 3
Article 2 – paragraph 3
3. Member States shall ensure that AIFM not reaching the threshold set out in paragraph 2(a) or excluded in accordance with paragraph 2(aa) are entitled to be treated as AIFM falling under the scope of this Directive.
Amendment 441 #
Proposal for a directive
Article 3 – point a
Article 3 – point a
(a) ‘Alternative investment fund’ or AIF means any collective investment undertaking, including investment compartments thereof whose object is the collective investment in asseto raise capital from a number of investors with a view to investing it in accordance with a defined investment policy for the benefit of those investors and which does not require authorisation pursuant to Article 5 of Directive 2009/…65/EC [the UCITS Directive];
Amendment 452 #
Proposal for a directive
Article 3 – point b
Article 3 – point b
(b) ‘manager of alternative investment funds ‘ or AIFM means any legal or natural person whose regular business is to manage one or several AIFperson that is responsible for the management of one or several AIF and that, depending on the legal form of the AIF, can be either the AIF itself or an external entity;
Amendment 460 #
Proposal for a directive
Article 3 – point d
Article 3 – point d
(d) ‘management services’ means the activities of managing and administering one or more AIF on behalf of one or more investorsmanagement activities defined in Article 4a and in the Annex;
Amendment 470 #
Proposal for a directive
Article 3 – point e
Article 3 – point e
(e) ‘Marketing’ means any general offering or placement 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 placedirect or indirect public offering or placement, at the initiative of the AIFM, of units or shares in an AIF to or with investors domiciled in the Union;
Amendment 478 #
Proposal for a directive
Article 3 – point j
Article 3 – point j
j) ‘Competent authorities’ means the national authorities which are empowered by law or regulation to supervise AIFM. Where an AIFM engages in AIF in more than three Member States, the European Securities and Markets Authority (ESMA) shall be the competent authority;
Amendment 488 #
Proposal for a directive
Article 3 – point l
Article 3 – point l
(l) ‘Leverage’ means any method by which the AIFM increases the existing exposure of an AIF it manages to a particular investment whether through borrowing of cash or securities, or leverage on the same specific investment embedded in derivative positions or by any other means; an AIF shall not fall into the scope of that definition if its investment strategy foresees the trade of a diversified future portfolio and comprises sufficient trade limits, and provided that no debt capital is added to increase the investment;
Amendment 536 #
Proposal for a directive
Article 4 – paragraph 2 d (new)
Article 4 – paragraph 2 d (new)
2d. Depending on their legal form, AIF may be internally managed or may appoint an external manager. Where an AIF has not designated an external manager as AIFM, the AIF itself shall be the AIFM.
Amendment 543 #
Proposal for a directive
Article 4 a (new)
Article 4 a (new)
Article 4a Activities of an AIFM 1. Member States shall require that no externally appointed AIFM covered by this Directive shall engage in activities other than the management of one or more AIF in accordance with this Directive, with the exception of the activities referred to in points 2 and 3 of the Annex to this Directive, activities related to the underlying assets of AIF or to the issue and redemption of units or shares in the AIF, or of additional management of UCITS pursuant to authorisation under Directive 2009/65/EC, and of services according to Article 6(2) of Directive 2009/65/EC for which the AIFM is authorised. 2. Member States shall require that no internally managed AIF covered by this Directive shall engage in activities other than the internal management activities referred to in points 2 and 3 of the Annex of that AIF and activities related to the underlying assets of that AIF and to the issue and redemption of units or shares in the AIF. 3. By way of derogation from paragraph 1, Member States may authorise an externally appointed AIFM to provide, in addition to the management of one or more AIF, the following services: (a) management of portfolios of investments, including those owned by pension funds and institutions for occupational retirement provision in accordance with Article 19(1) of Directive 2003/41/EC, in accordance with mandates given by investors on a discretionary, client-by-client basis; (b) as non-core services: (i) investment advice; (ii) safe-keeping and administration in relation to units of collective investment undertakings. 4. AIFM shall not be authorised under this Directive to provide only the services referred to in paragraph 3 or to provide only the activities referred to in points 2 and 3 of Annex I to this Directive. 5. Article 2(2) and Articles 12, 13 and 19 of Directive 2004/39/EC shall apply to the provision by AIFM of the services referred to in paragraph 3 of this Article.
Amendment 580 #
Proposal for a directive
Article 6 – paragraph 3 – subparagraph 1
Article 6 – paragraph 3 – subparagraph 1
Amendment 583 #
Proposal for a directive
Article 6 – paragraph 3 – subparagraph 2 a (new)
Article 6 – paragraph 3 – subparagraph 2 a (new)
Particular attention shall be drawn at the risk classification of the AIF, which the AIFM is authorised to manage.
Amendment 589 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
AIFM shall, before implementation, notify the competent authorities of the home Member State of any change regarding the information provided in their initial application that may substantially affectmaterial changes to the conditions under which the initial authorisation has been granted, in particular material changes ofin the investment strategy and policprogramme of activity of anythe AIF managed by it, of the AIF rules or instruments of incorporation and the identity of any further AIF the AIFM intends to manageM, of the investment strategy and policy of any AIF managed by it.
Amendment 592 #
Proposal for a directive
Article 7 – paragraph 2
Article 7 – paragraph 2
Amendment 593 #
Proposal for a directive
Article 7 – paragraph 2 a (new)
Article 7 – paragraph 2 a (new)
Paragraphs 1 and 2 shall not apply if the changes solely constitute changes in the investment strategies and policies of AIF managed by the AIFM which have been marketed solely to professional investors. The AIFM shall inform the competent authorities in an appropriate manner about such changes.
Amendment 646 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. AIFM shall ensure that, for each AIF it manages has a redemption policy which is appropriate to, the investment strategy, the liquidity profile ofand the investments of the AIF and which must be laid down in the AIF rules or instruments of incorporationredemption policy are consistent.
Amendment 649 #
Proposal for a directive
Article 12 – paragraph 3
Article 12 – paragraph 3
Amendment 713 #
Proposal for a directive
Article 16 – paragraph 1 – subparagraph 1
Article 16 – paragraph 1 – subparagraph 1
1. The AIFM shall ensure that, for eachwhere it performs the valuation function for an AIF that it manages, athe valuator is appointed which iion function operates independently of the AIFM to establish the value of assets acquired by the AIF and the value of the shares and units of the AIFinvestment management function. Any third party assigned to perform valuation functions shall also ensure the independence of those functions.
Amendment 731 #
Proposal for a directive
Article 16 – paragraph 1 – subparagraph 2
Article 16 – paragraph 1 – subparagraph 2
2. The valuatorAIFM shall ensure that the assets, shares and units are value of an AIF it manages are valued at an appropriate frequency and at least once a year, and each timthe shares orand units of the AIF are issvalued or redeemed if this is more frequenteach time they are issued or redeemed.
Amendment 735 #
Proposal for a directive
Article 16 – paragraph 1 a (new)
Article 16 – paragraph 1 a (new)
1a. Both the AIFM and the depositary shall ensure that the AIF assets are properly valued and the net asset value of the AIF is correctly calculated.
Amendment 745 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. The AIFM shall ensure that the valuator has, for each AIF that it manages, appropriate and consistent procedures to value the asseare established to perform a proper valuation of AIF assets and a calculation of the value of the shares and units of the AIF, in accordance with existing applicable valuation standards and rules, in order to reflect the net asset value of the shares or units of the AIF.
Amendment 754 #
Proposal for a directive
Article 16 – paragraph 2 a (new)
Article 16 – paragraph 2 a (new)
2a. 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. By way of derogation from paragraph 1, Member States may allow AIFM to assign some or all of the valuation functions as well as the responsibility thereof to a third party, in accordance with the national law of the Member State where the AIF is domiciled.
Amendment 771 #
Proposal for a directive
Article 16 – paragraph 4
Article 16 – paragraph 4
Amendment 921 #
Proposal for a directive
Article 17 – paragraph 4 a (new)
Article 17 – paragraph 4 a (new)
4a. Where the home Member State of the AIFM is not the home Member State of the AIF, the depositary shall sign a written agreement with the AIFM regulating the flow of information deemed necessary to allow it to perform the functions set out in this Article and in other laws, regulations or administrative provisions which are relevant for depositaries in the home Member State of the AIF.
Amendment 928 #
Proposal for a directive
Article 17 – paragraph 5 – subparagraph 1
Article 17 – paragraph 5 – subparagraph 1
5. The depositary shall, in accordance with the national law of the home Member State of the AIFM, be liable to the AIFM and the investors of the AIF for any losses suffered by them as a result of its failure to perform or of its improper performance of its obligations pursuant to this Directive.
Amendment 950 #
Proposal for a directive
Article 17 – paragraph 5 – subparagraph 2 g (new)
Article 17 – paragraph 5 – subparagraph 2 g (new)
Where a depositary is legally prevented by the law of the country where the AIFM operates on behalf of the AIF to exercise its custodial functions, its liability towards the AIFM and investors may be shifted to the authorised third party that has been entrusted to carry out its custodial task. The shift shall be the object of a written agreement between the depositary and the third party. The general contract between the AIFM and the depositary shall entitle the AIFM to be informed of every such agreement but shall not entitle it to object to the agreement.
Amendment 951 #
Proposal for a directive
Article 17 – paragraph 5 – subparagraph 2 h (new)
Article 17 – paragraph 5 – subparagraph 2 h (new)
Where a third country depositary is the subject of the decisions taken pursuant to paragraph 3d, the written agreement referred to in paragraph 5(2g) shall not be required, though it can be concluded.
Amendment 964 #
Proposal for a directive
Article 17 – paragraph 5 – subparagraph 3
Article 17 – paragraph 5 – subparagraph 3
Liability to AIF investors may be invoked either directly or indirectly through the AIFM, depending on the legal nature of the relationship between the depositary, the AIFM and the investors. The depositary's liability shall not be affected by any delegation referred to in paragraph 4. In such cases, the depositary’s liability shall be limited to the reasonable care with the choice of the relevant sub-custodian.
Amendment 981 #
Proposal for a directive
Article 18 – paragraph 1 – subparagraph 1
Article 18 – paragraph 1 – subparagraph 1
1. AIFM which intend to delegate to third parties the task of carrying out on their behalf one or more of their functions shall request prior authorisation froinform the competent authorities of their home Member State for each delegationin an appropriate manner.
Amendment 987 #
Proposal for a directive
Article 18 – paragraph 1 – subparagraph 2 – point a
Article 18 – paragraph 1 – subparagraph 2 – point a
(a) the third party must be creditworthy and the persons who effectively conduct the business of the third party must be of sufficiently good repute and sufficiently experienced;
Amendment 992 #
Proposal for a directive
Article 18 – paragraph 1 – subparagraph 2 – point b
Article 18 – paragraph 1 – subparagraph 2 – point b
(b) where the delegation concerns the portfolio management or the risk management, the third party must also be authorised as an AIFM to manage an AIF of the same typ, the mandate shall be given only to undertakings which are authorised or registered for the purpose of asset management and subject to prudential supervision; where this condition cannot be satisfied, delegation may only be given on the condition of prior authorisation by the competent authorities of the home Member State;
Amendment 1005 #
Proposal for a directive
Article 18 – paragraph 1 – subparagraph 3
Article 18 – paragraph 1 – subparagraph 3
No delegation shall be given to the depositary, the valuator, or to any other undertaking whose interests may conflict with those of the AIF or its investors.
Amendment 1014 #
Proposal for a directive
Article 18 – paragraph 3
Article 18 – paragraph 3
Amendment 1050 #
Proposal for a directive
Article 20 – paragraph 1 – introductory part
Article 20 – paragraph 1 – introductory part
1. AIFM shall ensure thatmake available to retail AIF investors receive the following information before they invest in the AIF, as well as any changes thereof:
Amendment 1102 #
Proposal for a directive
Article 20 – paragraph 1 – point j c (new)
Article 20 – paragraph 1 – point j c (new)
(jc) information about the correlation of the applied investment approach vis-à-vis traditional investment strategies (such as stocks or bonds).
Amendment 1111 #
Proposal for a directive
Article 20 – paragraph 2 – introductory part
Article 20 – paragraph 2 – introductory part
2. For each AIF that an AIFM manages, it shall periodically disclose to retail investors:
Amendment 1306 #
Proposal for a directive
Article 26 – paragraph 2
Article 26 – paragraph 2
2. This section shall not apply where the issuer or the non-listed companyies concerned are small and medium enterprises that employ fewer than 250 persons, have an annual turnover not exceeding 50 million euro and/or an annueither special purpose vehicles (SPV) or small and medium enterprises. For the purposes of this section, (a) SPV means companies which, in accordance with their articles of association and the national law applicable, are entitled to acquire, hold or sell only assets or interests in other SPV, which in accordance with the AIF rules or instruments of incorporation and national law may be acquired, held or sold directly for or by the AIF; (b) small and medium enterprises means companies which, according to their last annual or consolidated accounts, meet at least two of the following criteria: (i) an average number of employees in the Union during the financial year of fewer than 250 persons; (ii) a total balance sheet not exceeding EUR 43 million euro; (iii) an annual net turnover not exceeding EUR 50 million.
Amendment 1483 #
Proposal for a directive
Article 33 – paragraph 1 – point e
Article 33 – paragraph 1 – point e
Amendment 1528 #
Proposal for a directive
Article 36 – introductory part
Article 36 – introductory part
Member States shall only allow an AIFM to delegate administrative and management services to entities established in a third country, provided that all of the following conditions are met:
Amendment 1530 #
Proposal for a directive
Article 36 – point b
Article 36 – point b
(b) the entity is authorised to provide administration or management services or registered in the third country in which it is established and is subject to prudential supervision;
Amendment 1533 #
Proposal for a directive
Article 36 – point c a (new)
Article 36 – point c a (new)
(ca) the services are under direct control of an AIFM registered in a Member State and executed under its responsibility.
Amendment 1665 #
Proposal for a directive – amending act
Annex I a (new)
Annex I a (new)