Changes from plenary report to adopted text

Removed‘7. ESMA shall develop draft regulatory technical standards indicating in which situations the competent authorities may exercise the powers set out in Article 46(2), point (j) and in which situations they may put forward the requests referred to in paragraphs 5b and 5f. When developing those standards, ESMA shall consider the potential implications of such supervisory intervention for reasonable and efficient investor protection and the financial stability in another Member State or in the Union. Those standards shall recognise that the primary responsibility for liquidity risk management remains with the AIFM and that intervention by the competent authorities is a last resort.

RemovedPower is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’;

Removed(20) ▌Article 61 is amended as follows:,

Removed(a) paragraph 5 is deleted:

Removed‘5.▌

Removed(b) the following paragraph is added:

Removed‘5a. AIFMs in so far as they manage AIFs that originate loans and that have been constituted before ... [date of entry into force of this amending Directive] may continue to manage such AIFs without complying with Article 16(2a) of this Directive until ... [5 years + date of entry into force of this amending Directive]. By way of derogation, loan-originating AIFs constituted before ... [date of entry into force of this amending Directive] and that do not raise additional capital after ... [5 years + date of entry into force of this amending Directive] shall be deemed to comply with the above-mentioned Articles’

Removed(21) the following Article 69b is inserted:

Removed‘ Article 69b

RemovedReview

Removed1. By [Please insert date = 60 months after the entry into force of this Directive] and following the peer reviews by ESMA referred to in Article 38a and reports produced by ESMA in accordance with Article 7(9), the Commission shall initiate a review of the functioning of the rules laid down in this Directive and the experience acquired in applying them. That review shall include an assessment of the following aspects:

Removed(a) the impact on financial stability of the availability and activation of liquidity management tools by AIFMs;

Removed(b) the effectiveness of the AIFM authorisation requirements in Articles 7 and 8 and delegation regime laid down in Article 20 of this Directive with regard to preventing the creation of letter-box entities in the Union;

Removed(c) the appropriateness of the requirements applicable to AIFMs managing loan-originating AIFs laid down in Article 15;

Removed(d) the effectiveness and the impact on financial stability of the depositary passport.

Removed(da) the appropriateness of the requirements applicable to AIFMs managing AIFs on behalf of a third party as laid down in Article 14(2a).

Removed1a. For the purposes of point (d) of paragraph 1, the Commission shall by ... [24 months after the entry into force of this amending Directive] carry out a comprehensive study on the potential benefits and risks of introducing an EU depositary passport.

Removed2. By [Please insert date = 24 months after the entry into force of this Directive], ESMA shall submit to the Commission a report for the development of an integrated supervisory data collection, which shall focus on how to:

Removed(a) reduce areas of duplications and inconsistencies between the reporting frameworks in the asset management sector and other sectors of the financial industry;

Removed(b) data standardisation and efficient sharing and use of data already reported within any Union reporting framework by any relevant competent authority, at Union or national level.

Removed3. When preparing the report referred to in paragraph 2, ESMA shall work in close cooperation with the European Central Bank (ECB), the other European Supervisory Authorities and, where relevant, the national competent authorities.

Removed4. Following the review referred to in paragraph 1, and after consulting ESMA, the Commission shall submit a report to the European Parliament and to the Council presenting the conclusions of that review.

RemovedThe Commission shall gather information for that report without broadening reporting obligations, including for AIFMs, and by using information from all relevant and reliable sources, including Union institutions, national competent authorities or internationally recognised bodies and organisations.’;

Removed(22) Annex I is amended as set out in Annex I to this Directive;

Removed(23) The text in Annex II to this Directive is added as Annex V.

RemovedAmendments to Directive 2009/65/EC

RemovedDirective 2009/65/EC is amended as follows:

Removed(1) in Article 2(1), the following point (u) is added:

Removed‘(u) central securities depository’ means a central securities depository as defined in Article 2(1), point (1), of Regulation (EU) No 909/2014 of the European Parliament and of the Council*.’

Removed* Regulation (EU) No 909/2014 of the European Parliament and of the Council of 23 July 2014 on improving securities settlement in the European Union and on central securities depositories and amending Directives 98/26/EC and 2014/65/EU and Regulation (EU) No 236/2012 (OJ L 257, 28.8.2014, p. 1);’

Removed(1a) in Article 5, paragraph 8 is replaced by the following:

Removed‘(8) In order to ensure consistent harmonisation of this Article, the European Supervisory Authority (European Securities and Markets Authority) ( ESMA), established by Regulation (EU) No 1095/2010 of the European Parliament and of the Council 1▌shall develop draft regulatory technical standards to specify the information to be provided to the competent authorities in the application for authorisation of a UCITS, including the programme of activity, and situations where the name of a UCITS could be materially deceptive or misleading to the investor.’;

Removed(1b) in Article 6(3), the following point is inserted:

Removed‘(ba) benchmark administration in accordance with Regulation (EU) 2016/1011.’

Removed(2) Article 7(1) is amended as follows:

Removed(a) points (b) and (c) are replaced by the following:

Removed‘(b) the persons who effectively conduct the business of a management company are of sufficiently good repute and are sufficiently experienced also in relation to the type of UCITS managed by the management company, the names of those persons and of every person succeeding them in office being communicated forthwith to the competent authorities and the conduct of the business of a management company being decided by at least two persons who are either employed full-time or on a full-time equivalent basis by that management company or who are committed full-time to conduct the business of that management company and who are resident in the Union meeting such conditions;

Removed(ba) the management company ensures that at least one member of its governing body is a non-executive director. The management company, in appointing a non-executive director of its governing body, shall determine whether such a member is independent in character and judgement and whether there are relationships or circumstances, which are likely to affect that member’s judgement. The management company shall take reasonable steps to ensure that any non-executive directors appointed to its governing body have sufficient expertise and experience to be able to make judgements on whether the management company is managing UCITS in the best interest of investors. Non-executive directors shall contribute to ensuring that the management company complies with the requirements regarding conflicts of interests and acting in the best interests of the UCITS and their investors, as specified in this Directive;

Removed(c) the application for authorisation is accompanied by a programme of activity setting out, at least, the organisational structure of the management company, specifying technical and human resources that will be used to conduct the business of the management company, information about the persons effectively conducting the business of that management company, including:

Removed(i) a detailed description of their role, title and level of seniority;

Removed(ii) a description of their reporting lines and responsibilities inside and outside of the management company;

Removed(iii) an overview of their time allocated to each responsibility;

Removed(iiia) information on how the management company intends to comply with its obligations under this Directive, and with its obligations under Regulation (EU) 2019/2088 and a detailed description of the appropriate human and technical resources that will be used by the management company to this effect;’

Removed(b) the following point (e) is added:

Removed‘(e) information is provided by the management company on arrangements made for the delegation to third parties of functions in accordance with Article 13, including:

Removed(i) the legal name and relevant legal identifier of the management company;

Removed(ii) the legal name and relevant legal identifier of the UCITS and its investment strategy;

Removed(iii) the legal name and relevant legal identifier of each delegate, its jurisdiction of establishment and, where relevant, its supervisory authority;

Removed(iv) a brief description of the delegated risk management functions, including whether each such delegation amounts to a partial or full delegation;

Removed(v) a brief description of the delegated portfolio management functions, by investment strategy and relevant geographies, including whether each such delegation amounts to a partial or full delegation;

Removed(vi) a brief description of other functions listed in Annex II which the management company additionally performs; and

Removed(vii) for each of the following, a detailed description of the human and technical resources:

Removed- employed by or committed to the management company for performing day-to-day portfolio or risk management tasks within the management company;

Removed- employed by or committed to the delegate for performing those services on a delegated basis; and

Removed- employed by or committed to the management company for monitoring and controlling the delegate;

Removed(viii) an explanation of the added value of the delegation to the investor.’;

Removed(2a) in Article 7, the following paragraph is inserted:

Removed‘1a. A management company shall report to the competent authority any material changes that may affect the scope of the authorisation by that authority and in particular any modification on the arrangements of the delegation and sub-delegation to third parties provided at the time of authorisation.’;

Removed(3) Article 13 is amended as follows:

Removed(a) paragraph 1 is amended as follows: