Activities of Robert GOEBBELS related to 2009/0064(COD)
Plenary speeches (1)
Alternative investment fund managers (debate)
Amendments (131)
Amendment 144 #
Proposal for a directive
Title
Title
on Alternative Investment Fund Managers and amending Directives 2004/39/EC, 2009/…/EC and 2009/…3/6/EC
Amendment 147 #
Proposal for a directive
Recital 2
Recital 2
(2) The impact of AIFM on the markets in which they operate is largely beneficial, but rRecent financial difficulties have underlined how activities of AIFM may also serve to spread or amplify risks through the financial system and the economy. Uncoordinated national responses to these risks make the efficient management of these risks difficult. This Directive therefore aims at establishing common requirements governing the authorisation and supervision of AIFM in order to provide a coherent approach to the related risks and their impact on investors and markets in the CommunityUnion. As a matter of principle, there should be regulation in view of long-term sustainable growth and to promote social cohesion. Such regulation should address consumer and investor protection, market integrity and stability and it should prevent systemic risk and tackle social externalities.
Amendment 154 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
(3a) The purpose of this Directive should also be to create incentives towards the relocation of off-shore funds in the EU, bringing not only regulatory and investor protection advantages but also allowing for a proper taxation of revenues, at manager, fund and investor level.
Amendment 159 #
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 disproportionatefficult to regulate the structure or composition of the portfolios of the AIF managed by AIFM and it would be difficult to provide for such extensive harmonisation due to the very diverse types of AIF managed by AIFM.
Amendment 168 #
Proposal for a directive
Recital 5
Recital 5
(5) The scope of this Directive should be confined tocover 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 or discretionary investment policy on the principle of risk-spreading for the benefit of those investors. This Directive should notalso apply to the management of pension funds or managers of non-pooled investments such as endowments, sovereign wealth funds or assets single investor funds and leveraged managed accounts, in order to preserve a level playing field between similar types of investment vehicles. It should on own account by credit institutions, insurance or reinsurance undertakingnot apply to public interest entities. This Directive should neither apply to actively managed investments in the form of securities, such as certificates, managed futures, or index- linked bonds. Nor should this Directive apply to holding companies insofar as they hold shares in their subsidiaries, given that such holding companies are not established for the main purpose of generating returns for their investors by means of, in particular, the divestment of their subsidiaries within a set timeframe, but which are aimed at carrying out a business strategy through their subsidiaries. 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.
Amendment 179 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) Public interest entities, which solicit or hold funds received from the public, such as credit institutions, pension funds, insurance or reinsurance undertakings holding assets on their own account should be subject to their specific regime and their investment in funds be regulated in light of the specific characteristics of each category and the type of the funds. In this regard, the European Commission shall review 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), 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 provision1, 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 assurance2, Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance3 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/EC4reinsurance4 so as to ensure that the following principles are followed: due diligence requirements similar to those applicable to AIFM are imposed to public interest entities when investing and an appropriate framework is set regarding such investments (in the form in particular of capital requirements and capital reserves). 1 OJ L 235, 23.9.2003, p. 10. 2 OJ L 228, 16.8.1973, p. 3. 3 OJ L 345, 19.12.2002, p. 1. 4 OJ L 323, 9.12.2005, p. 1.
Amendment 185 #
Proposal for a directive
Recital 6
Recital 6
Amendment 195 #
Proposal for a directive
Recital 7
Recital 7
(7) This Directive aims at providing a harmonised and stringent regulatory and supervisory framework for the activities of AIFM. Authorisation in accordance with this Directive should cover the services of management and administration of AIF throughout the Community. In addition, authorised AIFM should be entitled to market AIF in the Community to professional investors, subject to a notification procedureUnion.
Amendment 214 #
Proposal for a directive
Recital 11
Recital 11
(11) It is necessary to provide for the application of minimum capital requirements to ensure the continuity and the regularity of the management services provided by the AIFM. The ongoing capital requirements should cover the potential exposure of AIFM to professional liability in respect of all their activities, including management services provided under delegation or on the basis of a mandate. Own funds should be invested in liquid assets or assets readily convertible to cash in the short-term and should not include speculative positions.
Amendment 225 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
(12a) In order to address the potentially detrimental effect of poorly designed remuneration structures on the sound management of risk and control of risk- taking behaviour by individuals, there should be an express obligation for AIFM to establish and maintain, for those categories of staff whose professional activities have a material impact on their risk profile or the risk profiles of AIF they manage, remuneration policies and practices that are consistent with effective risk management. Those categories of staff should at least include senior management, risk takers and control functions.
Amendment 226 #
Proposal for a directive
Recital 12 b (new)
Recital 12 b (new)
(12b) In order to avoid excessive risk taking and provide for a better alignment of interest, fund managers should commit some of their own money in the funds they manage.
Amendment 240 #
Proposal for a directive
Recital 15 a (new)
Recital 15 a (new)
(15a) In view of the general objective of financial stability and containment of systemic risk, particular attention should be paid to financial institutions such as lending institutions and prime brokers which are key partners to the AIF and are active in the building risk processes. Those institutions, in addition to complying with disclosure requirements towards competent authorities, should also be subject to specific capital requirements considering the risk they incur, depending on their links with AIF. Moreover, the conflict of interest arising when those institutions run AIF themselves in parallel of providing services to their customers should be addressed in the appropriate legislative texts as a matter of urgency.
Amendment 249 #
Proposal for a directive
Recital 16 a (new)
Recital 16 a (new)
(16a) Short selling is a widespread market practice extensively used by AIFM and other market participants. Although it may sometimes perform a useful role in keeping markets liquid, it also makes them more volatile and plays a part in destabilising them because of its pro- cyclical effect. In particular, the part played by short selling in accelerating a market downturn has long been documented whenever a financial market crisis occurs. In addition, short selling can encourage the spread of false rumours with a view to making a profit on a falling market. As the orderly operation and integrity of markets is vital to restoring the confidence of long-term investors, who are vital to finance the economy, and as the integration of financial markets demands common practices within the European Union in order to avoid regulatory shopping, Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) should be amended to provide a regulatory framework for short selling and should prohibit naked short selling. The Commission should take into consideration, when establishing and subsequently adapting rules, the provisions in place in the United States in order to achieve a common standard on both sides of the Atlantic and thus facilitate the orderly operation of global financial markets.
Amendment 254 #
Proposal for a directive
Recital 16 b (new)
Recital 16 b (new)
(16b) The European Central Bank and the High-Level Group on Financial Supervision chaired by Jacques De Larosière have proposed the setting up of a global credit register. The creation of a global directory of all trading positions should help identify systemic risk arising from credit and counterparty exposures and from herding and contagion in the financial markets. A register should thus be set up by CESR and all information collected on AIFM leverage should be filed there.
Amendment 255 #
Proposal for a directive
Recital 16 c (new)
Recital 16 c (new)
(16c) Improper conduct by AIFM, but also by other market players, through the use of certain techniques such as stealth purchases or empty voting, could have destabilising effects on Union markets. In order to curb stealth acquisitions, an appropriate disclosure regime should include both direct voting interest in terms of outright ownership shares as well as indirect interest acquired through derivatives transactions or financial instruments giving rights to newly issued shares. The practice of empty voting should be banned as it is detrimental to companies and to markets. In this context, the Commission should review Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market1, Commission Directive 2007/14/EC of 8 March 2007 laying down detailed rules for the implementation of certain provisions of Directive 2004/109/EC on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market2 and Directive 2007/36/EC of the European Parliament and of the Council of 11 July 2007 on the exercise of certain rights of shareholders in listed companies3. 1 OJ L 390 31.12.2004, p. 38. 2 OJ L 69, 9.3.2007, p. 27. 3 OJ L 184, 11.7.2007, p. 17.
Amendment 263 #
Proposal for a directive
Recital 17 a (new)
Recital 17 a (new)
(17a) There is no Union-wide database of standardised information on AIFM. As a result, there is an information gap that cannot be satisfactorily filled with information supplied by the industry itself. It is therefore of critical importance to create a statistical database compiling information on AIFM. That database should be set up and managed by the Commission.
Amendment 264 #
Proposal for a directive
Recital 17 b (new)
Recital 17 b (new)
(17b) AIFM controlling a company wishing to dispose of assets in order to repay a portion of the acquisition debt should be appropriately controlled. To that effect, in the event a company under private equity control wishes to sell company assets in any material respect, the management of both the target company and the acquisition vehicles should issue a statement as to why the sale is implemented and certifying that the proposed sale is in the best interest of the target company. In the event the proposed sale is connected to a repayment of the acquisition debt, the employees of the target company should be informed and consulted. In the event the company becomes insolvent after the asset stripping, the private equity firm should be held liable. More generally, management of companies under leverage buy-outs should be required to issue a statement that capital outflows, including fees paid, are in the long term interest of the company, including its long term growth and research and development needs.
Amendment 279 #
Proposal for a directive
Recital 19
Recital 19
(19) AIFM should also be able to market AIF domiciled in third countries to professional investors both in the home Member State of the AIFM and in other Member States. That right should be subject to notification procedures and the existence of a tax agreement with the third country concerned which ensures an efficient exchange of information with the tax authorities in the domicile of the Community investorthe signature of multilateral agreements on information exchange and tax cooperation between the third country and the Commission acting on behalf of Member States. Given the fact that such AIF and the third country in which they are domiciled have to meet additional requirements, some of which first have to be laid down in implementing measures, the rights granted under the Directive to market AIF domiciled in third countries to professional investors should only become effective three years after the transposition period. In the meantime Member States may allow or continue to allow AIFM to market AIF domiciled in third countries to professional investors on their territory subject to national law. During this period of three years, AIFM can however not market such AIF to professional investors in other Member States on the basis of rights granted under this Directive.
Amendment 301 #
Proposal for a directive
Recital 27
Recital 27
(27) In particular the Commission should be empowered to adopt the measuredelegated acts necessary for the implementation of this Directive. In this respect, the Commission should be able to adopt measures determining the procedures under which AIFM managing portfolios of AIF whose assets under management do not exceed the threshold set out in this Directive may exercise their right to be treated as AIFM covered by this Directive. These measures are also designed in accordance with Article 290 of the Treaty to specify the criteria to be used by competent authorities to assess whether AIFM comply with their obligations as regards their conduct of business, the type of conflicts of interests AIFM have to identify, as well as the reasonable steps AIFM are expected to take in terms of internal and organizsational procedures in order to identify, prevent, manage and disclose conflicts of interest. They arshould also be designed to specify the principles to be respected by AIFM in their remuneration policies and practises. They should also be designed to specify the risk management requirements to be employed by AIFM as a function of the risks which the AIFM incurs on behalf of the AIF that it manages as well as any arrangements needed to enable AIFM to manage the particular risks associated with short selling transactions, including any relevant restrictions that might be needed to protect the AIF from undue risk exposures. They arshould also be designed to specify the liquidity management requirements of this Directive and in particular the minimum liquidity requirements for AIF. They arshould also be designed to specify the requirements that originators of securitisation instruments have to meet in order for an AIFM to be allowed to invest in such instruments issued after 1 January 2011. They are as wellshould also be designed to specify the requirements that AIFM have to comply with when investing in such securitisation instruments. They arshould also be designed to lay down the requirements related to initial and on going capital of AIFM. They should also be designed to specify the criteria under which a valuator can be considered independent in the meaning of this Directive. They arshould also be designed to specify the conditions under which the delegation of AIFM functions should be approved and the conditions under which the manager could no longer be considered to be the manager of the AIF in case of excessive delegation. They arshould also be designed to specify the content and format of the annual report that AIFM have to make available for each AIF they manage and to specify the disclosure obligations of AIFM to investors and reporting requirements to competent authorities as well as their frequency. They arshould also be designed to specify the disclosure requirements imposed on AIFM as regards leverage and the frequency of reporting to competent authorities and of disclosure to investors. They arshould also be designed to setting limits to the level of leverage AIFM can employ when managing AIF. They arshould also be designed to determine the detailed content and the way AIFM acquiring controlling influence in issuers and non-listed companies should fulfil their information obligation towards issuers and non-listed companies and their respective shareholders and representatives of employees, including the information to be provided in the annual reports of the AIF they manage. They arshould also be designed to specify the detailed content of the statements to be provided in relation with value extraction. They should also be designed to specify the types of restrictions or conditions that can be imposed on the marketing of AIF to professional investor in the home Member State of the AIFM. They arshould also be designed to specify general criteria for assessing equivalence of valuation standards of third countries where the valuator is established in a third country, the equivalence of legislation of third countries regarding depositaries and, for the purpose of the authorisation of AIFM established in third countries, the equivalence of prudential regulation and ongoing supervision. They arshould also be designed to specify general criteria for assessing whether third countries grant CommunityUnion AIFM effective market access comparable to that granted by the CommunityUnion to AIFM from third countries. They arshould also be designed to specify the modalities, content and frequency of exchange of information regarding AIFM between the competent authorities of the home Member State of the AIFM and other competent authorities where the AIFM individually or collectively with other AIFM may have an impact on the stability of systemically relevant financial institutions and the orderly functioning of markets. They arshould also be designed to specify the procedures for on-the-spot verifications and investigations.
Amendment 311 #
Proposal for a directive
Article 1
Article 1
This Directive lays down the rules for the authorisation, ongoing operation and transparency of the managers of alternative investment funds (AIFM) which provide management services to one or more alternative investment funds (AIF).
Amendment 344 #
Proposal for a directive
Article 2 – paragraph 2 – point a
Article 2 – paragraph 2 – point a
Amendment 361 #
Proposal for a directive
Article 2 – paragraph 2 – point c
Article 2 – paragraph 2 – point c
Amendment 396 #
Proposal for a directive
Article 2 – paragraph 2 – point g q (new)
Article 2 – paragraph 2 – point g q (new)
(gq) national central banks;
Amendment 416 #
Proposal for a directive
Article 2 – paragraph 3
Article 2 – paragraph 3
Amendment 428 #
Proposal for a directive
Article 2 – paragraph 4
Article 2 – paragraph 4
Amendment 443 #
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 assets and, single investor funds and leveraged managed accounts, which does not require authorisation pursuant to Article 5 of Directive 2009/…65/EC [the UCITS Directive];
Amendment 471 #
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 CommunityUnion, regardless of at whose initiative the offer or placement takes place;
Amendment 487 #
Proposal for a directive
Article 3 – point l
Article 3 – point l
(l) ‘Leverage’ means any method by which the AIFM increases the exposure of an AIF it manages to a particular investment whether through borrowing of cash or securities, or leverage embedded in derivative positions or by any other means, including leverage used by funds or other legal entities controlled by the AIF, alone or jointly with other AIF;
Amendment 493 #
Proposal for a directive
Article 3 – point oa (new)
Article 3 – point oa (new)
(oa) ‘Leveraged managed account’ means an investment account that is managed by a third party who has the authority to do transactions without prior approval from the holder and in respect of which leverage is used in connection with such transactions.
Amendment 496 #
Proposal for a directive
Article 3 – point o d (new)
Article 3 – point o d (new)
(od)’short selling’ means the sale of a security that the seller does not own and any sale that is completed by the delivery of a security borrowed by, or for the account of, the seller;
Amendment 497 #
Proposal for a directive
Article 3 – point o e (new)
Article 3 – point o e (new)
(oe)’naked short selling’ means any abusive or manipulative transaction in which securities are sold by a counterpart which does not have the stock available in full ownership or through securities borrowing for delivery in compliance with the standard settlement cycle;
Amendment 551 #
Proposal for a directive
Article 5 – paragraph 1 - point b
Article 5 – paragraph 1 - point b
(b) a programme of activity, including information on how the AIFM intends to comply with its obligations under chapters III, IV and where applicable, V, VI and VII, and information on the Member States in which the AIFM intends to market the AIF it manages;
Amendment 566 #
Proposal for a directive
Article 5 – paragraph 1 - point g c (new)
Article 5 – paragraph 1 - point g c (new)
(gc) information on the track record of the AIFM and, when the AIFM is a legal person, information on the track record of the legal representatives, directors and key employees of the AIFM;
Amendment 568 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
Amendment 570 #
Proposal for a directive
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
The information provided to a competent authority pursuant to paragraph 1, as well as any amendment or addition thereto, shall be notified without delay by such authority to the Member States in which the AIFM intends to market the AIF it manages and filed without delay by such authority with the Committee of European Securities Regulators (CESR). The CESR shall set up and operate a specific database for this purpose, which shall be accessible to the competent authorities of all Member States.
Amendment 571 #
Proposal for a directive
Article 5 – paragraph 2a (new)
Article 5 – paragraph 2a (new)
2a. The competent authorities of the Member States in which the AIFM intends to market the AIF it manages shall, within six weeks of receipt of the notification, be entitled to: (a) require from the competent authority with which the AIFM has filed its application any additional information regarding the applicant AIFM that the latter competent authority is entitled to require; (b) provide information to the competent authority with which the AIFM has filed its application; (c) state any objection to the authorisation of the applicant and receive from the competent authority with which the AIFM has filed its application a detailed answer to such objections.
Amendment 576 #
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 1
Article 6 – paragraph 1 – subparagraph 1
1. The competent authorities of the home Member State shall grant authorisation only if they are satisfied that the AIFM will be able to fulfil the conditions of this Directive, after taking into account any objection received pursuant to Article 5(2a).
Amendment 585 #
Proposal for a directive
Article 6 – paragraph 4 – subparagraph 2
Article 6 – paragraph 4 – subparagraph 2
Reasons shall be given whenever an authorisation is refused or when restrictions are imposed. In case the competent authorities do not inform the applicant, such lack of response shall be deemed a rejection without justification of the requested authorisation.
Amendment 605 #
Proposal for a directive
Article 9 a (new)
Article 9 a (new)
Amendment 637 #
Proposal for a directive
Article 11 – paragraph 4
Article 11 – paragraph 4
4. In the case of AIFM which engage in short selling when investing on behalf of one or more AIF, Member States shall ensure that the AIFM operates procedures which provide it with access toNaked short selling of equity securities, including securities convertible into equity securities, is prohibited. In order to be able to deliver such securities on the settlement date of the transaction, the seller shall ensure access to securities available for borrowing (and control over these securities or other financial instruments at the date when the AIFM committed to deliver them, and that the AIFM implem) prior to undertaking short sales. AIFM engaged in short selling shall disclose information on significant short positions to the Member States competent authorities. In extreme market situations, the Member State competents a risk management procedure which allows the risks associated with tuthority can request AIFM to report all short positions and securities borrowed. The drelivery of short sold securities or other financial instruments to be adequately managed. evant Member State authority shall share information relating to short selling with the ESMA.
Amendment 661 #
Proposal for a directive
Article 13 – paragraph 1 - point a
Article 13 – paragraph 1 - point a
(a) the requirements that need to be met by the originator in order for an AIFM to be allowed to invest in securities or other financial instruments of this type issued after 1 January 2011 on behalf of one or more AIF, including requirements that ensure that the originator retains a net economic interest of not less than 510 per cent;
Amendment 669 #
Proposal for a directive
Chapter III – Section 2 – Title
Chapter III – Section 2 – Title
Amendment 677 #
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 %a specified percentage of the amount by which the value of the portfolios of the AIFM exceeds EUR 250 million.
Amendment 696 #
Proposal for a directive
Article 14 – paragraph 4 a (new)
Article 14 – paragraph 4 a (new)
4a. The Commission shall adopt delegated acts laying down the specified percentage, which shall be set between 1 % and 5 % referred to in paragraph 2, in accordance with the risk profile of the AIF, and specifying the assets in which the own funds may be invested. Those acts, designed to amend non- essential elements of this Directive by supplementing it, shall be adopted in accordance with the procedure referred to in Article 290 of the Treaty on the Functioning of the European Union.
Amendment 697 #
Proposal for a directive
Article 14 – paragraph 4 b (new)
Article 14 – paragraph 4 b (new)
4b. The amount invested by AIFM in each AIF they manage shall be such that, on an annual basis, the AIFM hold a net economic exposure superior or equal to a specified percentage of the total amount invested by all the investors in that AIF.
Amendment 698 #
Proposal for a directive
Article 14 – paragraph 4 c (new)
Article 14 – paragraph 4 c (new)
4c. The Commission shall adopt delegated acts laying down the requirements in the following areas: (a) the specified percentage to be invested by the AIFM, which shall be set between 1 % and 5 % of the total amount invested by all the investors, in accordance with the risk profile of the AIF; (b) the manner in which the computation is to be made; (c) the process to be followed by the AIFM in order to comply with the above requirements. Those acts, designed to amend to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the procedure referred to in Article 290 of the Treaty on the Functioning of the European Union.
Amendment 699 #
Proposal for a directive
Article 14 – paragraph 4 d (new)
Article 14 – paragraph 4 d (new)
4d. Own funds shall be invested in liquid assets or assets readily convertible to cash in the short term and shall not include speculative positions.
Amendment 728 #
Proposal for a directive
Article 16 – paragraph 1 – subparagraph 2
Article 16 – paragraph 1 – subparagraph 2
The valuator shall ensure that the assets, shares and units are valued at least once a year, and each time shares or units of the AIF are issued or redeemed or management fees are paid (if such fees are based in whole or in part on the value of the assets) if this is more frequent.
Amendment 760 #
Proposal for a directive
Article 16 – paragraph 3
Article 16 – paragraph 3
3. The standards and rules applicable to the valuation of assets and the calculation of the net asset value per unit or share of the AIF shall be based on generally accepted valuation principles and shall comply with standards and rules laid down in the law of the countryMember State where the AIF is domiciled orand in the AIF rules or instruments of incorporation.
Amendment 778 #
Proposal for a directive
Article 16 – paragraph 4 – subparagraph 1
Article 16 – paragraph 4 – subparagraph 1
4. The Commission shall adopt implementing measuresdelegated acts in accordance with Articles 49a, 49b and 49c further specifying the criteria under which a valuator can be considered independent within the meaning of paragraph 1 and the generally accepted valuation principles to be applied pursuant to paragraph 3.
Amendment 919 #
Proposal for a directive
Article 17 – paragraph 4
Article 17 – paragraph 4
4. Depositaries may delegate their taskfunctions to other depositaries in accordance with Article 18.
Amendment 942 #
Proposal for a directive
Article 17 – paragraph 5 – subparagraph 2
Article 17 – paragraph 5 – subparagraph 2
In case of any loss of financial instruments which the depositary safe-keeps, the depositary can only discharge itself of its liability if it can prove that ithe loss has been caused by an external event, that it was not foreseeable and that the depositary could not have avoided the loss which has occurred.
Amendment 963 #
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.
Amendment 1035 #
Proposal for a directive
Article 19 – paragraph 2 – point c a (new)
Article 19 – paragraph 2 – point c a (new)
(ca) the information listed in Article 20, to the extent it has changed during the financial year covered by the report.
Amendment 1086 #
Proposal for a directive
Article 20 – paragraph 1 – point h
Article 20 – paragraph 1 – point h
(h) a description of all fees, charges and expenses and of the maximum amounts thereof which are directly or indirectly borne by investors, together with, if applicable, a description of fees, charges and expenses paid in the last twelve months;
Amendment 1101 #
Proposal for a directive
Article 20 – paragraph 1 – point j b (new)
Article 20 – paragraph 1 – point j b (new)
(jb) a description of the past performance of the AIF from its inception to the most recent assessment;
Amendment 1104 #
Proposal for a directive
Article 20 – paragraph 1 – point j e (new)
Article 20 – paragraph 1 – point j e (new)
(je) information on the identities of the AIFM shareholders or members, whether direct or indirect and whether natural or legal persons, that have qualifying holdings and on the amounts of those holdings;
Amendment 1105 #
Proposal for a directive
Article 20 – paragraph 1 – point j f (new)
Article 20 – paragraph 1 – point j f (new)
(jf) information on the track record of AIF managed by the AIFM, including performance data on on-going and wound up AIF, and, where the AIFM is a legal person, on the legal representatives, directors and key employees of the AIFM;
Amendment 1106 #
Proposal for a directive
Article 20 – paragraph 1 – point j g (new)
Article 20 – paragraph 1 – point j g (new)
(jg) a detailed description of the source, maturity and amount of funds raised by the AIF, including the share directly or indirectly contributed by the AIFM managing the AIF and its representatives, directors and employees;
Amendment 1114 #
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 investors:
Amendment 1115 #
Proposal for a directive
Article 20 – paragraph 2 – points a and b
Article 20 – paragraph 2 – points a and b
(a) on a periodic basis, the percentage of the AIF's assets which are subject to special arrangements arising from their illiquid nature; (b) on a periodic basis, any new arrangements for managing the liquidity of the AIF;
Amendment 1116 #
Proposal for a directive
Article 20 – paragraph 2 – point c
Article 20 – paragraph 2 – point c
(c) the current risk profile of the AIFon a periodic basis, but not less than every month, unless the information has not changed since the last disclosure, the current risk profile of the AIF, including the level of leverage used, and the risk management systems employed by the AIFM to manage these risks.
Amendment 1134 #
Proposal for a directive
Article 21 – paragraph 1 – subparagraph 2
Article 21 – paragraph 1 – subparagraph 2
It shall provide aggregated information on the main instruments in which it is trading, markets of which it is a member or where it actively trades, and on the principal exposures and most important concentrations of each of the AIF it manages.
Amendment 1152 #
Proposal for a directive
Article 21 – paragraph 2 – point c
Article 21 – paragraph 2 – point c
(c) the actual risk profile of the AIF, including the level of leverage used, and the risk management tools employed by the AIFM to manage these risks;
Amendment 1155 #
Proposal for a directive
Article 21 – paragraph 2 – point e a (new)
Article 21 – paragraph 2 – point e a (new)
(ea) the structure of fees and the amounts paid to the AIFM;
Amendment 1156 #
Proposal for a directive
Article 21 – paragraph 2 – point e b (new)
Article 21 – paragraph 2 – point e b (new)
(eb) the list of investors;
Amendment 1157 #
Proposal for a directive
Article 21 – paragraph 2 – point e c (new)
Article 21 – paragraph 2 – point e c (new)
(ec) performance data of the AIF, including valuation of assets.
Amendment 1158 #
Proposal for a directive
Article 21 – paragraph 2 – subparagraph 1 a (new)
Article 21 – paragraph 2 – subparagraph 1 a (new)
In exceptional circumstances and where required in order to ensure the stability and integrity of the financial system, or to promote long term sustainable growth, the competent authorities of the home Member State and the Commission may impose additional reporting requirements.
Amendment 1171 #
Proposal for a directive
Article 21 – paragraph 3 b (new)
Article 21 – paragraph 3 b (new)
3b. Each competent authority shall periodically disclose aggregate figures to the public on information received pursuant to paragraphs 1 and 2.
Amendment 1178 #
Proposal for a directive
Article 21 – paragraph 4 – subparagraph 1
Article 21 – paragraph 4 – subparagraph 1
4. The Commission shall adopt implementing measuresdelegated acts in accordance with Articles 49a, 49b and 49c further specifying the reporting obligations referred to in paragraphs 1, 2 and 3, which may be adapted and complemented in view of evolving financial techniques, and their frequency.
Amendment 1179 #
Proposal for a directive
Article 21 – paragraph 4 – subparagraph 2
Article 21 – paragraph 4 – subparagraph 2
Those measuree Commission shall also adopt delegated acts regarding the type of information made public pursuant to paragraph 3a. Those acts, 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)Articles 49a, 49b and 49c.
Amendment 1202 #
Proposal for a directive
Article 22 – subparagraph 3
Article 22 – subparagraph 3
For the purposes of the second subparagraph, an AIF shall be deemed to employ high levels of leverage on a systematic basis where the combined gross leverage from all sources exceeds the value of the equity capital of the AIF in two out of the past four quarters.
Amendment 1212 #
Proposal for a directive
Article 23 – point b
Article 23 – point b
(b) quarterly disclose to investors the total amount of leverage employed by each AIF in the preceding quarter, the five largest sources of borrowed cash or securities and a break-down between leverage arising from borrowing of cash or securities and leverage embedded in financial derivatives.
Amendment 1243 #
Proposal for a directive
Article 25 – paragraph 2
Article 25 – paragraph 2
2. Home Member States shall ensure that all information received under Article 24, aggregated in respect of all AIFM that it supervises, are is made available to other competent authorities through the procedure set out in Article 46 on supervisory co-operation. It shall, without delay, also provide information through this mechanism, and bilaterally to other Member States directly concerned, if an AIFM under its responsibility could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institution in other Member States. The information provided under this paragraph shall be filed at the ESMA. The ESMA shall set up and operate a specific database for the purpose of such filing, which shall be accessible to the competent authorities of all Member States.
Amendment 1254 #
Proposal for a directive
Article 25 – paragraph 3 – subparagraph 1
Article 25 – paragraph 3 – subparagraph 1
3. In order to ensure the stability and integrity of the financial system, the Commission shall adopt implementing measures and to promote long-term sustainable growth of the economy, the Commission shall adopt delegated acts in accordance with Articles 49a, 49b and 49c setting limits to the level of gross leverage AIFM can employ. Those limits shall not exceed five times the value of the equity capital of each AIF, except for specific categories of AIF for which a higher multiple would be permitted on the basis of their business model and to the extent that such multiple does not increase the systemic risk, is compatible with the risk profile of the related type of AIF and is not likely to lead to a disproportionate impact of the related type of AIF on the market on which they operate. These limits should take into account, inter alia, the type of AIF, their strategy and the sources of their leverage. The Commission shall also specify the level of aggregation of the information transmitted pursuant to paragraph 2.
Amendment 1277 #
Proposal for a directive
Article 25 – paragraph 4
Article 25 – paragraph 4
4. In exceptional circumstances and when this is required in order to ensure the stability and integrity of the financial system, or to protect long-term sustainable growth of the economy the competent authorities of the home Member State and the Commission may impose additional limits to the level of leverage that AIFM can employ. Measures taken by the competent authorities of the home Member States shall have a temporary nature and should comply with the provisions adopted by the Commission pursuant to paragraph 3.
Amendment 1285 #
Proposal for a directive
Chapter V – Section 2 – Title
Chapter V – Section 2 – Title
OBLIGATIONS FOR AIFM MANAGING AIF WHICH ACQUIRE A SIGNIFICANT INTEREST OR A CONTROLLING INFLUENCE IN COMPANIES
Amendment 1290 #
Proposal for a directive
Article 26 – paragraph 1 – point a
Article 26 – paragraph 1 – point a
(a) AIFM managing one or more AIF which either individually or in aggregation acquires 310 %, 20 %, 30 % and 50 % or more of the voting rights of an issuer or of a non-listed company domiciled in the CommunityUnion, as appropriate;
Amendment 1295 #
Proposal for a directive
Article 26 – paragraph 1 – point b
Article 26 – paragraph 1 – point b
(b) AIFM havacting in concluded an agreemenert with one or more other AIFM which would allow the AIF managed by these AIFM to acquire 3regarding the acquisition or exercise of voting rights by the AIF managed by these AIFM where such AIFM manages one or more AIF which either individually or in aggregation acquires 10 %, 20 %, 30 % and 50 % or more of the voting rights of the issuer or the non-listed company, as appropriate.
Amendment 1302 #
Proposal for a directive
Article 26 – paragraph 2
Article 26 – paragraph 2
Amendment 1314 #
Proposal for a directive
Article 27 – title
Article 27 – title
Notification of the acquisition of controlling influencea significant interest in non-listed companies and issuers
Amendment 1315 #
Proposal for a directive
Article 27 – paragraph 1
Article 27 – paragraph 1
1. Member States shall ensure that whenre an AIFM is in a position to exercise, acting alone or in concert with another AIFM, acquires, through one or several AIF that it manages, 10 %, 20 %, 30 % or more50 % of the voting rights of an issuer or a non-listed company, such AIFM notifiesit shall notify the issuer or the non- listed company, and all other share- holderss appropriate, its employee representatives or, where there are no such representatives, the employees themselves, the competent authority of the AIFM and the competent authority of the Member State where the issuer or the non-listed company is established, 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 reachacquired, the positirough one of being able to exercise 3r several AIF that it manages, 10 %, 20 %, 30 % or 50 % of the voting rights.
Amendment 1326 #
Proposal for a directive
Article 27 – paragraph 2 – point b
Article 27 – paragraph 2 – point b
(b) the conditions under which the 30 % threshold has been reached, including information about the full identityfication of the different AIFM, AIF and shareholders involved and of persons acting in concert with them, any natural person or legal entity entitled to exercise voting rights on their behalf and, if applicable, the chain of undertakings through which voting rights are effectively held;
Amendment 1328 #
Proposal for a directive
Article 27 – paragraph 2 – point c a (new)
Article 27 – paragraph 2 – point c a (new)
(ca) the intent of the AIFM regarding the further acquisition of voting rights, the intent to acquire control, the extent of leverage used to finance the acquisition and the planned investment horizon of the acquisition.
Amendment 1329 #
Proposal for a directive
Article 27 – paragraph 2 a (new)
Article 27 – paragraph 2 a (new)
2a. In the event of a material change to the information notified, the AIFM shall notify the updated information in accordance with the procedure set forth in paragraph 1.
Amendment 1339 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 1
Article 28 – paragraph 1 – subparagraph 1
1. In addition to Article 27, Member States shall ensure that where an AIFM, acquirting alone or in concert with other AIFM, comes to hold through one or several AIF it manages 30 % or more of the voting rights of an issuer or a non-listed company or otherwise holds a controlling influence in such AIF, that AIFM maknotifies 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, the competent authority of the AIFM and the competent authority of the Member State where the issuer or the non-listed company is established.
Amendment 1347 #
Proposal for a directive
Article 28 – paragraph 1– subparagraph 2– introductory part
Article 28 – paragraph 1– subparagraph 2– introductory part
With regard to issuers, the AIFM shall make available the following to the issuer concerned, its shareholders and representatives of employees:out prejudice to Article 6(3) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids1, the notification required under subparagraph 1 shall contain the following information: 1 OJ L 142, 304.2004, p .12.
Amendment 1352 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 2 – point a
Article 28 – paragraph 1 – subparagraph 2 – point a
(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 bids1AIFM’s intentions with regard to the future business of the issuer or the non-listed company, the safeguarding of the jobs of their employees and management, including any material change in the conditions of employment, and in particular the AIFM’s strategic or development plan and the likely repercussions on employment and the locations of the companies' places of business of such plan;
Amendment 1353 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 2 – point aa (new)
Article 28 – paragraph 1 – subparagraph 2 – point aa (new)
Amendment 1363 #
Proposal for a directive
Article 28 – paragraph 1 – subparagraph 3
Article 28 – paragraph 1 – subparagraph 3
Amendment 1380 #
Proposal for a directive
Article 28 – paragraph 1 a (new)
Article 28 – paragraph 1 a (new)
1a. The information of the employee representatives or the employees pursuant to paragraph 1 shall be subject to Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employee’s rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses 1. 1 OJ L 82, 22.3.2001, p. 16.
Amendment 1383 #
Proposal for a directive
Article 28 – paragraph 2 – point a
Article 28 – paragraph 2 – point a
(a) the detailed content of the information provided under paragraph 1this Article;
Amendment 1397 #
Proposal for a directive
Article 29 – paragraph 2 – introductory part
Article 29 – paragraph 2 – introductory part
2. The AIF annual report shall include the following additional information for each issuer and non listed company in which thean AIF has investedM exercises a controlling influence within the meaning of Article 28 :
Amendment 1399 #
Proposal for a directive
Article 29 – paragraph 2 – subparagraph 1 - point a
Article 29 – paragraph 2 – subparagraph 1 - point a
(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, research and development efforts;
Amendment 1403 #
Proposal for a directive
Article 29 – paragraph 2 – point c
Article 29 – paragraph 2 – point c
(c) with regard to employee matters, turnover, terminations, recruitment., remuneration policy and other conditions of employment;
Amendment 1404 #
Proposal for a directive
Article 29 – paragraph 2 – subparagraph 1 - point d
Article 29 – paragraph 2 – subparagraph 1 - point d
(d) statement on realized, ongoing or planned significant divestment of assets.;
Amendment 1407 #
Proposal for a directive
Article 29 – paragraph 2 – subparagraph 1 - point da (new)
Article 29 – paragraph 2 – subparagraph 1 - point da (new)
(da) the environment policy;
Amendment 1408 #
Proposal for a directive
Article 29 – paragraph 2 – subparagraph 1 - point db (new)
Article 29 – paragraph 2 – subparagraph 1 - point db (new)
(db) financing of the acquisition, plan for refinancing post acquisition;
Amendment 1409 #
Proposal for a directive
Article 29 – paragraph 2 – subparagraph 1 - point dc (new)
Article 29 – paragraph 2 – subparagraph 1 - point dc (new)
(dc) management compensation package;
Amendment 1410 #
Proposal for a directive
Article 29 – paragraph 2 – subparagraph 1 - point dd (new)
Article 29 – paragraph 2 – subparagraph 1 - point dd (new)
(dd) acquisition and resale price;
Amendment 1411 #
Proposal for a directive
Article 29 – paragraph 2 – subparagraph 1 - point de (new)
Article 29 – paragraph 2 – subparagraph 1 - point de (new)
(de) material changes to the locations of the issuer’s or private company’s places of business.
Amendment 1413 #
Proposal for a directive
Article 29 – paragraph 2 – subparagraph 2
Article 29 – paragraph 2 – subparagraph 2
In addition, the AIF annual report shall, for each issuer in which it has acquiredan AIFM exercises a controlling influence, contain the information provided for in point within the meaning or Article 28, contain: (a) the composition and operation of the administrative, management and supervisory bodies and their committees; and (fb) 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 companies2 and an overview of the capital structure as referred to in points (a) and (d) of Article 10(1) of Directive 2004/25/EC. 1 OJ L 222, 14.8.1978, p. 11. 2 OJ L 222, 14.8.1978, p. 11. an overview of the capital structure, including securities which are not admitted to trading on a regulated market in a Member State, where appropriate with an indication of the different classes of shares and, for each class of shares, the rights and obligations attaching to them and the percentage of total share capital that they represent, and detailed information on the holders of any securities with special control rights and a description of those rights.
Amendment 1415 #
Proposal for a directive
Article 29 – paragraph 2 – subparagraph 3
Article 29 – paragraph 2 – subparagraph 3
For each non-listed company in which it has acquiredan AIFM exercises a controlling influence within the meaning of Article 28, the AIF report shall provide an overview of the following 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: (a) the nominal value of the shares subscribed and, at least once a year, the number thereof; (b) the number of shares subscribed without stating the nominal value, where such shares may be issued under national law; (c) where there are several classes of shares, the information under (a) and (b) for each class and the rights attaching to the intesharests 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 equivalent2. 1 OJ L 26, 31.1.1977, p. 1. 2 OJ L 26, 31.1.1977, p. 1. each class; (d) whether the shares are registered or to the bearer, where national law provides for both types, and any provisions relating to the conversion of such shares unless the procedure is laid down by law; (e) the amount of the subscribed capital paid up at the time the company is incorporated or is authorized to commence business; (f) the nominal value of the shares or, where there is no nominal value, the number of shares issued for a consideration other than in cash, together with the nature of the consideration and the name of the person providing such consideration;
Amendment 1416 #
Proposal for a directive
Article 29 – paragraph 3
Article 29 – paragraph 3
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, to the competent authority of the AIFM and to the competent authority of the Member State where the issuer or the non-listed company is established, within the period referred to in Article 19 (1) .
Amendment 1423 #
Proposal for a directive
Article 29 c (new)
Article 29 c (new)
Article 29c Specific provisions regarding value extraction 1. Where an AIFM, which exercises a controlling influence within the meaning of Article 28 on an issuer or a non-listed company, wishes to dispose of company assets in any material respect, the following principles shall be applicable: (a) The legal representatives of both the issuer or non-listed company and the AIF shall issue a statement as to why the disposal is implemented and certifying that the proposed disposal is, to their reasonable knowledge and belief, after due consideration, in the best interest of the issuer or non-listed company. The statement shall be reproduced in the annual report; (b) In the event the proposed sale is connected to a repayment of the acquisition debt, the employee representatives of the issuer or non-listed company shall be informed and consulted; (c) In the event the issuer or non-listed company becomes insolvent as a result of the disposal, the AIFM shall be held liable of any consequence thereof. 2. Where an AIFM exercises a controlling influence within the meaning of Article 28 on an issuer or a non-listed company, the legal representative of the issuer or non-listed company shall be required to issue a statement in the annual report that all capital outflows (including management fees) are in the long term interest of the issuer or non-listed company. 3. The Commission shall adopt delegated acts in accordance with Articles 49a, 49b and 49c specifying the detailed content of the statements to be provided under paragraphs 1 and 2 and the conditions under which the liability of the AIFM may be called pursuant to paragraph 1.
Amendment 1424 #
Proposal for a directive
Article 29 d (new)
Article 29 d (new)
Article 29d Specific provisions regarding the leverage of companies or issuers further to acquisition 1. In addition to the limitations set forth in article 29c, an AIFM exercising a controlling influence within the meaning of Article 28 on an issuer or a non-listed company shall not increase the leverage used by such issuer or company in connection with a distribution paid to the AIF or any subsidiary thereof by more than 20% as compared to the situation before the acquisition if, as a result of such increase, the leverage of such issuer or company exceeds 1.5 times the average of industry leverage applicable to this issuer or company, or the leverage of such issuer or company exceeds three times the value of its equity capital. 2. The Commission shall adopt delegated acts in accordance with Articles 49a, 49b and 49c regarding leverage, distribution, average of industry leverage and process.
Amendment 1425 #
Proposal for a directive
Article 29 e (new)
Article 29 e (new)
Article 29e Specific provisions regarding the lock-in period 1. Where an AIFM exercises a controlling influence within the meaning of Article 28 on an issuer or a non-listed company through an AIF, such issuer or company shall not be entitled to distribute directly or indirectly to such AIF or any subsidiary thereof an amount in excess of 50% of the value of its initial investment regarding such issuer or company before the end of a period expiring either on the fifth anniversary of the completion of the investment or on the sale of its interest in such company or issuer, whichever is earlier. 2. The Commission shall adopt delegated acts in accordance with Articles 49a, 49b and 49c implementing paragraph 1.
Amendment 1448 #
Proposal for a directive
Article 31 – paragraph 3 – subparagraph 1
Article 31 – paragraph 3 – subparagraph 1
3. No later than twenty working days after receipt of a complete notification pursuant to paragraph 2, the competent authorities of the home Member State shall inform the AIFM whether it may start marketing the AIF identified in the notification referred to in paragraph 2.
Amendment 1486 #
Proposal for a directive
Article 33 – paragraph 2
Article 33 – paragraph 2
2. The competent authorities of the home Member State shall, no later than twenty working days after the date of receipt of the complete documentation, transmit the complete documentation referred to in paragraph 1 to the competent authorities of the Member State where the AIF will be marketed. They shall enclose an attestation that the AIFM concerned is authorised. The procedure set forth in Article 5(3) shall apply.
Amendment 1487 #
Proposal for a directive
Article 33 – paragraph 3
Article 33 – paragraph 3
3. Upon transmission of the documentation, the competent authorities of the home Member State shall without delay notify the AIFM about the transmission. The AIFM may start the marketing of AIF in the host Member State as of the date of that notificationNo later than twenty working days after this transmission, and after taking into consideration any objection received from the competent authorities of host Member States, the competent authorities of the home Member State shall inform the AIFM whether it may start marketing as proposed in the notification submitted pursuant to paragraph 1.
Amendment 1491 #
Proposal for a directive
Article 34 – paragraph 4 – subparagraph 1
Article 34 – paragraph 4 – subparagraph 1
4. The competent authorities of the home Member State shall, no later than ten working daywo months after the date of receipt of the complete documentation, transmit the complete documentation referred to in paragraph 2, and where relevant 3, to the competent authorities of the Member State where the management services will be provided and an attestation that they have authorised the AIFM concerned. They shall immediately notify the AIFM about the transmission. The procedure set forth in Article 5(3) shall apply.
Amendment 1493 #
Proposal for a directive
Article 34 – paragraph 4 – subparagraph 2
Article 34 – paragraph 4 – subparagraph 2
Amendment 1496 #
Proposal for a directive
Article 34 – paragraph 6 a (new)
Article 34 – paragraph 6 a (new)
Amendment 1507 #
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 anis bound by a multi-lateral agreement with thisall Member State which fully complies with the standards laid down ins signed by the Commission on their behalf, providing for: (a) an effective exchange of information in tax matters, on the basis of Article 26 of the OECD Model Tax Convention, and ensures(b) an effective exchange of information in tax matterswith competent authorities regarding information referred to in Article 5 and Chapters IV and V.
Amendment 1532 #
Proposal for a directive
Article 36 – point c
Article 36 – point c
(c) there is an appropriate and effective co- operation agreement between the competent authorityies of the AIFM and the supervisory authority of the entityMember States, signed by the Commission acting on their behalf, with the supervisory authority of the entity, in accordance with the standards defined by the Commission in accordance with Article 39b.
Amendment 1541 #
Proposal for a directive
Article 37 – paragraph 1 – point b a (new)
Article 37 – paragraph 1 – point b a (new)
(ba) there is an appropriate and effective cooperation agreement between the competent authorities of the Member States, signed by the Commission acting on their behalf, with the supervisory authority of the entity, in accordance with the standards defined by the Commission under Article 39a.
Amendment 1549 #
Proposal for a directive
Article 38 – paragraph 1 – point b
Article 38 – paragraph 1 – point b
(b) an appropriate and effective co- operation agreement between the hcome Member State and the relevantpetent authorities of the Member States, signed by the Commission acting on their behalf, with the supervisory authoritiesy of the third country is sufficiently ensured;entity, in accordance with the standards defined by the Commission under Article 39a.
Amendment 1571 #
Proposal for a directive
Article 39 – paragraph 1 – point d
Article 39 – paragraph 1 – point d
(d) athe competent authority of the third country where the AIFM is established is bound with a multi-lateral cooperation- agreement betweenwith the competent authorities of thate Member State and the supervisor of the AIFM exists whichs where the AIFM intends to market the shares or units of AIF. In accordance with Article 35, that agreement shall 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. as referred to in Article 5 and Chapters IV and V, in accordance with the standards defined by the Commission under Article 39a.
Amendment 1574 #
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 Commission, acting on behalf of the Member State in which ithe AIFM has appliesd for authorisation which fully complies with, on the basis of the standards laid down in Article 26 of the OECD Model Tax Convention and, ensuresing an effective exchange of information in tax matters, in accordance with the standards defined by the Commission under Article 39a.
Amendment 1592 #
Proposal for a directive
Article 39 a (new)
Article 39 a (new)
Article 39a Application and review of conventions The Commission shall adopt and regularly review the standards applicable to the agreements signed with third countries pursuant to this Chapter. The Commission shall periodically review with Member States the agreements signed with third countries pursuant to this Chapter in order to check whether those third countries effectively comply with such conventions. The Commission shall notify a report on the result of the reviews to the Member Sates, which shall take them into account when assessing whether authorisations issued or to be issued under this Directive should be granted, suspended or withdrawn. The Commission shall, in accordance with Articles 49a, 49b and 49c, adopt delegated acts in order to specify the procedure to be followed for the adoption and review of the standards, the compliance reviews and the conditions for ensuring effective cooperation, and the consequences of the report on authorisations.
Amendment 1600 #
Proposal for a directive
Article 41 – paragraph 2 – introductory part
Article 41 – paragraph 2 – introductory part
2. The competent authorities shall have at least the following powers of investigation: , which shall be exercisable at any time: Or. en Justification
Amendment 1604 #
Proposal for a directive
Article 42 – paragraph 1 – introductory part
Article 42 – paragraph 1 – introductory part
1. The home Member State shall ensure that the competent authorities may takeshall have at least the following measurepowers:
Amendment 1606 #
Proposal for a directive
Article 43 – paragraph 1
Article 43 – paragraph 1
1. Member States shall lay down the rules on measures and sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that those rules are enforced. Without prejudice to the procedures for the withdrawal of authorisation or to the right of Member States to impose criminal sanctions, Member States shall ensure, in conformity with their national law, that the appropriate administrative measures can be taken or administrative sanctions be imposed against the persons responsible where the provisions adopted in the implementation of this Directive have not been complied with. Member States shall ensure that these measures are effective, proportionate and dissuasive.
Amendment 1612 #
Proposal for a directive
Article 46 – title
Article 46 – title
Exchange of information relating to the potential systemic consequences of AIFM activity
Amendment 1617 #
Proposal for a directive
Article 46 – paragraph 2 a (new)
Article 46 – paragraph 2 a (new)
2a. All information received by competent authorities and relating to AIFM shall be communicated, upon request, to the Commission, which shall periodically issue statistical reports in relation thereto.
Amendment 1618 #
Proposal for a directive
Article 46 – paragraph 3
Article 46 – paragraph 3
3. The Commission shall adopt implementing measures specifying the modalities, content and frequency of the information to be exchanged pursuant to paragraph 1 and communicated to the Commission pursuant to paragraph 1.
Amendment 1627 #
Proposal for a directive
Article 48 – paragraph 2
Article 48 – paragraph 2
2. In case of disagreement between competent authorities on an assessment, action or omission of one of the competent authorities concerned under this Directive, competent authorities shall refer the matter to the CESR, where discussion will take place in order to reach a rapid and effective solution. The competent authorities shall duly consider the advice of thebe bound by the ruling of CESR.
Amendment 1635 #
Proposal for a directive – amending act
Article 50 – paragraph 1
Article 50 – paragraph 1
Two years after the date referred to in Article 54, the Commission shall, by ...*, on the basis of public consultation, taking into account national tax regimes, and in the light of the discussions with competent authorities, review the application and the scope of this Directive. This review shall also take due account of developments at international level and discussions with third countries and international organisations. * OJ please3 insert date: two years after the date referred to in Article 54,
Amendment 1637 #
Proposal for a directive – amending act
Article 50 – paragraph 2 a (new)
Article 50 – paragraph 2 a (new)
Before reviewing the application and the scope of this Directive, the Commission shall put forward proposals for amendments to Directives 2006/48/EC and 2006/49/EC to ensure an appropriate level of capital requirements for those financial institutions involved in business with AIF, taking into account the risk incurred, financial stability at large and potential conflicts of interest.
Amendment 1659 #
Proposal for a directive – amending act
Article 53 a (new)Directive 2003/6/EC
Article 53 a (new)Directive 2003/6/EC
Article 1 – paragraph 1 – points 7 a and 7 b (new) and Article 5 a (new)
Amendment 1668 #
Proposal for a directive – amending act
Annex I a (new)
Annex I a (new)