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On the proposal for a directive of the European Parliament and of the Council amending Directives 2009/65/EC, 2011/61/EU and 2014/65/EU as regards the further development of capital market integration and supervision within the Union
Full title
On the proposal for a directive of the European Parliament and of the Council amending Directives 2009/65/EC, 2011/61/EU and 2014/65/EU as regards the further development of capital market integration and supervision within the Union
Document ECON-AM-791126 · COM(2025)0942 – C100327/2025 – 2025/0382(COD)
- Kind
- Amendment list ECON-AM-791126
- Date
- 27 July 2026
- Committee
- Committee on Economic and Monetary Affairs
- Dossier
- 2025-0382
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- COM(2025)0942 – C100327/2025 – 2025/0382(COD)
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| Text proposed by the Commission | Amendment |
|---|---|
| (47) the following Articles 110b to 110d are inserted: (…) | deleted |
The annual review duplicates ESMA's existing convergence tools and relies on data already available to ESMA and competent authorities. It thereby introduces a comprehensive new review cycle, new supervisory layers and new complexity without any added benefit.
| Text proposed by the Commission | Amendment |
|---|---|
| (47) the following Articles 110b to 110d are inserted: (…) | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (47) the following Articles 110b to 110d are inserted: (…) | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| Article 110b | deleted |
| (…) |
| Text proposed by the Commission | Amendment |
|---|---|
| Article 110b | deleted |
| (…) |
| Text proposed by the Commission | Amendment |
|---|---|
| Article 110 b | deleted |
| (…) |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA review of large EU groups of management companies and AIFMs | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA review of large EU groups of management companies and AIFMs | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA review of large EU groups of management companies and AIFMs | College of supervisors for large cross-border EU groups of management companies and AIFMs |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA review of large EU groups of management companies and AIFMs | Identification of large cross-border EU groups management companies and AIFMs |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA review of large EU groups of management companies and AIFMs | ESMA Coordination Mechanism |
| Text proposed by the Commission | Amendment |
|---|---|
| 1. By [please insert date = 12 months from entry into force] ESMA shall identify each EU group of management companies and AIFMs that meets all of the following conditions: | deleted |
| (a) the aggregate EU-wide net asset values of management companies and AIFMs within the group are above EUR 300 billion; | |
| (b) the management companies and AIFMs within the group are established in more than one Member States, or those management companies and AIFMs manage or market UCITS and AIFs in more than one Member State. | |
| ESMA shall publish a list of the EU groups of management companies and AIFMs identified in accordance with the first subparagraph and shall update that list every three years. |
| Text proposed by the Commission | Amendment |
|---|---|
| By [please insert date = 12 months from entry into force] ESMA shall identify each EU group of management companies and AIFMs that meets all of the following conditions: | deleted |
| (a) the aggregate EU-wide net asset values of management companies and AIFMs within the group are above EUR 300 billion; | |
| (b) the management companies and AIFMs within the group are established in more than one Member States, or those management companies and AIFMs manage or market UCITS and AIFs in more than one Member State. |
| Text proposed by the Commission | Amendment |
|---|---|
| By [please insert date = 12 months from entry into force] ESMA shall identify each EU group of management companies and AIFMs that meets all of the following conditions: | deleted |
| (a) the aggregate EU-wide net asset values of management companies and AIFMs within the group are above EUR 300 billion; | |
| (b) the management companies and AIFMs within the group are established in more than one Member States, or those management companies and AIFMs manage or market UCITS and AIFs in more than one Member State. |
| Text proposed by the Commission | Amendment |
|---|---|
| By [please insert date = 12 months from entry into force] ESMA shall identify each EU group of management companies and AIFMs that meets all of the following conditions: | By [please insert date = 12 months from entry into force] ESMA shall, in consultation with National Competent Authorities and industry, select a representative sample of AIFM and management company groups that are authorised in more than one Member State. |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the aggregate EU-wide net asset values of management companies and AIFMs within the group are above EUR 300 billion; | deleted |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the aggregate EU-wide net asset values of management companies and AIFMs within the group are above EUR 300 billion; | (a) the aggregate EU-wide assets under management of management companies and AIFMs within the group exceed EUR 300 billion; |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the aggregate EU-wide net asset values of management companies and AIFMs within the group are above EUR 300 billion; | (a) the aggregate EU-wide net asset values of management companies and AIFMs within the group are above EUR 150 billion; |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the management companies and AIFMs within the group are established in more than one Member States, or those management companies and AIFMs manage or market UCITS and AIFs in more than one Member State. | deleted |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the management companies and AIFMs within the group are established in more than one Member States, or those management companies and AIFMs manage or market UCITS and AIFs in more than one Member State. | (b) the management companies and AIFMs within the group carry out cross-border activities of material importance, with cross-border assets under management representing at least 20% of the aggregate EU-wide assets under management of the management companies and AIFMs within the group. |
| Text proposed by the Commission | Amendment |
|---|---|
| For the purposes of this Article, an EU group may be identified irrespective of whether its ultimate parent undertaking is established within or outside the Union, provided that only entities forming part of the EU group in accordance with Article 2(1), point (v), are taken into account. |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall publish a list of the EU groups of management companies and AIFMs identified in accordance with the first subparagraph and shall update that list every three years. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall publish a list of the EU groups of management companies and AIFMs identified in accordance with the first subparagraph and shall update that list every three years. | ESMA shall publish the representative sample of management companies, AIFMs, investment firms, and credit institutions and shall select a new representative sample every three years. |
| Text proposed by the Commission | Amendment |
|---|---|
| 2. For the purposes of paragraph 1, first subparagraph, point (a), aggregate EU wide assets under management shall include EU assets under management within the scope of this Directive or of Directive 2011/61/EU. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 2. For the purposes of paragraph 1, first subparagraph, point (a), aggregate EU wide assets under management shall include EU assets under management within the scope of this Directive or of Directive 2011/61/EU. | deleted |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 2. For the purposes of paragraph 1, first subparagraph, point (a), aggregate EU wide assets under management shall include EU assets under management within the scope of this Directive or of Directive 2011/61/EU. | 2. For the purposes of paragraph 1, first subparagraph, point (a) and (b), aggregate EU wide assets under management shall include EU assets under management within the scope of this Directive or of Directive 2011/61/EU. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 3. ESMA shall, in cooperation with the competent authorities of the home Member States of the management companies and, where relevant, the competent authorities of the home Member States of the AIFMs that are part of the EU group, carry out at least annually a review of each EU group identified pursuant to paragraph 1. | deleted |
| During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2011/61/EU that are taken by the competent authorities of the management companies and, where relevant, AIFMs within each EU group. For the purpose of that review, ESMA shall use a methodology that ensures comparability and consistency of those supervisory approaches. |
| Text proposed by the Commission | Amendment |
|---|---|
| 3. ESMA shall, in cooperation with the competent authorities of the home Member States of the management companies and, where relevant, the competent authorities of the home Member States of the AIFMs that are part of the EU group, carry out at least annually a review of each EU group identified pursuant to paragraph 1. | deleted |
| During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2011/61/EU that are taken by the competent authorities of the management companies and, where relevant, AIFMs within each EU group. For the purpose of that review, ESMA shall use a methodology that ensures comparability and consistency of those supervisory approaches. |
| Text proposed by the Commission | Amendment |
|---|---|
| 3. ESMA shall, in cooperation with the competent authorities of the home Member States of the management companies and, where relevant, the competent authorities of the home Member States of the AIFMs that are part of the EU group, carry out at least annually a review of each EU group identified pursuant to paragraph 1. | deleted |
| During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2011/61/EU that are taken by the competent authorities of the management companies and, where relevant, AIFMs within each EU group. For the purpose of that review, ESMA shall use a methodology that ensures comparability and consistency of those supervisory approaches. |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall, in cooperation with the competent authorities of the home Member States of the management companies and, where relevant, the competent authorities of the home Member States of the AIFMs that are part of the EU group, carry out at least annually a review of each EU group identified pursuant to paragraph 1. | ESMA may, where necessary and proportionate on the basis of objective risk indicators, in cooperation with the competent authorities of the home Member States of the management companies and, where relevant, the competent authorities of the home Member States of the AIFMs that are part of the EU group, carry out a review of each EU group identified pursuant to paragraph 1. A review shall not be carried out more frequently than once every three years for the same EU group unless a material change in the structure, activities or risk profile of that EU group, or a reasoned request from a competent authority, justifies an earlier review. |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall, in cooperation with the competent authorities of the home Member States of the management companies and, where relevant, the competent authorities of the home Member States of the AIFMs that are part of the EU group, carry out at least annually a review of each EU group identified pursuant to paragraph 1. | For all the entities identified pursuant to paragraph 1 that do not fall under the direct supervision of ESMA pursuant to Article 97a, ESMA shall establish a college of supervisors. |
| The college of supervisors shall consist of: | |
| - ESMA, which chairs the College of supervisors meetings, | |
| - the competent authorities of the home Member States of the management companies and AIFM; | |
| - the competent authorities of the host Member States of the management companies and AIFMs that are part of the EU group; | |
| - the ESRB as an observer. |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall, in cooperation with the competent authorities of the home Member States of the management companies and, where relevant, the competent authorities of the home Member States of the AIFMs that are part of the EU group, carry out at least annually a review of each EU group identified pursuant to paragraph 1. | ESMA shall, in cooperation with the competent authorities of the home Member States, carry out the supervision of each EU group identified pursuant to paragraph 1 through the establishment of a Coordinated Supervisory Team (CST). The CST shall be chaired by ESMA and shall include staff from the relevant national competent authorities. The practical arrangements for the JST, including information-sharing and operational coordination, shall be established in accordance with Article 8a of Regulation (EU) No 1095/2010. |
This amendment transforms the Commission’s proposal for periodic "reviews" into a model of continuous and integrated supervision for the Union’s largest asset management groups . By establishing CSTs chaired by ESMA, the framework ensures a single interlocutor for supervised entities and a uniform application of EU law across borders. This architecture leverages national expertise and proximity to local ecosystems by integrating NCA staff, effectively eliminating the "blind spots" and duplications inherent in fragmented national supervision.
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall, in cooperation with the competent authorities of the home Member States of the management companies and, where relevant, the competent authorities of the home Member States of the AIFMs that are part of the EU group, carry out at least annually a review of each EU group identified pursuant to paragraph 1. | ESMA shall, in cooperation with the competent authorities of the home Member States of the management companies and, where relevant, the competent authorities of the home Member States of the AIFMs that are part of the representative sample, carry out every three years a review of the representative sample identified pursuant to paragraph 1. |
| Text proposed by the Commission | Amendment |
|---|---|
| During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2011/61/EU that are taken by the competent authorities of the management companies and, where relevant, AIFMs within each EU group. For the purpose of that review, ESMA shall use a methodology that ensures comparability and consistency of those supervisory approaches. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2011/61/EU that are taken by the competent authorities of the management companies and, where relevant, AIFMs within each EU group. For the purpose of that review, ESMA shall use a methodology that ensures comparability and consistency of those supervisory approaches. | The college of supervisors referred to in the first subparagraph shall meet at least once a year and upon request of any of its members and exchange information, discuss and agree on the supervisory approaches in the application of the requirements of this Directive and of Directive 2011/61/EU that are taken by the competent authorities of the management companies and, where relevant, AIFMs within each EU group. Members of the college of supervisors shall ensure comparability and consistency of those supervisory approaches. |
| Text proposed by the Commission | Amendment |
|---|---|
| During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2011/61/EU that are taken by the competent authorities of the management companies and, where relevant, AIFMs within each EU group. For the purpose of that review, ESMA shall use a methodology that ensures comparability and consistency of those supervisory approaches. | During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2011/61/EU that are taken by the competent authorities of the management companies and, where relevant, AIFMs within each EU group. For the purpose of that review, ESMA shall use a methodology that ensures comparability and consistency of those supervisory approaches and that is transparent, proportionate and limited to comparing supervisory approaches under this Directive and Directive 2011/61/EU. |
| Text proposed by the Commission | Amendment |
|---|---|
| During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2011/61/EU that are taken by the competent authorities of the management companies and, where relevant, AIFMs within each EU group. For the purpose of that review, ESMA shall use a methodology that ensures comparability and consistency of those supervisory approaches. | During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2011/61/EU that are taken by the competent authorities of the management companies and, where relevant, AIFMs within the representative sample. |
| Text proposed by the Commission | Amendment |
|---|---|
| 4. The review referred to in paragraph 3 shall, in particular, assess the supervisory approaches regarding each EU group’s: | deleted |
| (a) organisational structure and governance arrangements; | |
| (b) resources and their allocation inside and outside the EU group, including the functions of the persons effectively conducting the business of the management companies and, where relevant, AIFMs, within the EU group; | |
| (c) risk management systems. |
| Text proposed by the Commission | Amendment |
|---|---|
| 4. The review referred to in paragraph 3 shall, in particular, assess the supervisory approaches regarding each EU group’s: | deleted |
| (a) organisational structure and governance arrangements; | |
| (b) resources and their allocation inside and outside the EU group, including the functions of the persons effectively conducting the business of the management companies and, where relevant, AIFMs, within the EU group; | |
| (c) risk management systems. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 4. The review referred to in paragraph 3 shall, in particular, assess the supervisory approaches regarding each EU group’s: | deleted |
| (a) organisational structure and governance arrangements; | |
| (b) resources and their allocation inside and outside the EU group, including the functions of the persons effectively conducting the business of the management companies and, where relevant, AIFMs, within the EU group; | |
| (c) risk management systems. |
| Text proposed by the Commission | Amendment |
|---|---|
| 4. The review referred to in paragraph 3 shall, in particular, assess the supervisory approaches regarding each EU group’s: | deleted |
| (a) organisational structure and governance arrangements; | |
| (b) resources and their allocation inside and outside the EU group, including the functions of the persons effectively conducting the business of the management companies and, where relevant, AIFMs, within the EU group; | |
| (c) risk management systems. |
| Text proposed by the Commission | Amendment |
|---|---|
| 4. The review referred to in paragraph 3 shall, in particular, assess the supervisory approaches regarding each EU group’s: | 4. The college of supervisors referred to in paragraph 3 shall, in particular, exchange information and assess EU group’s: |
| Text proposed by the Commission | Amendment |
|---|---|
| (c) risk management systems. | (c) risk management systems and investment policies. |
| Text proposed by the Commission | Amendment |
|---|---|
| (ca) exposure to systemic and cross-border contagion risks, as identified in coordination with the ESRB. |
This addition integrates an explicit macroprudential mandate into the supervisory framework, addressing specific concerns regarding systemic vulnerabilities in the asset management sector . By requiring coordination with the ESRB, the amendment ensures that ESMA’s oversight is not merely organizational but actively monitors liquidity mismatches and leverage-related risks in large cross-border groups. This is an essential safeguard to prevent market integration from inadvertently increasing the transmission of financial shocks across Member States.
| Text proposed by the Commission | Amendment |
|---|---|
| (ca) liquidity risks; |
| Text proposed by the Commission | Amendment |
|---|---|
| (cb) climate and sustainability related risks. |
| Text proposed by the Commission | Amendment |
|---|---|
| 4a. In addition to the supervisory assessment referred to in paragraph 4, ESMA shall use the information gathered during its reviews to identify potential risks to market diversity and competition within the Union. ESMA shall publish annual anonymised statistics on market concentration, barriers to entry, fee levels, and distribution patterns. Where ESMA identifies material risks to the competitive structure of the market, it shall transmit a reasoned report to the Commission to facilitate the exercise of the Commission’s powers under Union competition law. |
This amendment ensures that the supervisory insights gained during the review of large cross-border groups are utilized to identify structural failures that hinder the integration of the single market. By tasking ESMA with identifying risks to market diversity and monitoring distribution patterns, the proposal creates a data-driven mechanism to verify if the intended scale benefits of the Savings and Investments Union are effectively reaching end-investors through competitive fee structures. The provision respects the institutional division of labour by positioning ESMA as a technical risk identifier that supports the Commission in the exercise of its competition powers. This reporting bridge prevents the siloing of supervisory data and ensures that material risks to market structure—such as increased concentration or entry barriers for smaller providers—are flagged for formal antitrust assessment. Furthermore, the requirement for annual anonymized statistics on fees and market participation provides the transparency necessary to monitor the health of the single market and prevent the emergence of a closed market structure dominated by a few systemic players.
| Text proposed by the Commission | Amendment |
|---|---|
| 5. For the purposes of the review referred to in paragraph 3, ESMA shall compile and consolidate at group level: | deleted |
| (a) all data relevant to the review that are already available to it or to competent authorities; | |
| (b) the programmes of activities of the management companies and, where relevant, AIFMs within the EU group. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 5. For the purposes of the review referred to in paragraph 3, ESMA shall compile and consolidate at group level: | deleted |
| (a) all data relevant to the review that are already available to it or to competent authorities; | |
| (b) the programmes of activities of the management companies and, where relevant, AIFMs within the EU group. |
| Text proposed by the Commission | Amendment |
|---|---|
| 5. For the purposes of the review referred to in paragraph 3, ESMA shall compile and consolidate at group level: | deleted |
| (a) all data relevant to the review that are already available to it or to competent authorities; | |
| (b) the programmes of activities of the management companies and, where relevant, AIFMs within the EU group. |
| Text proposed by the Commission | Amendment |
|---|---|
| 5. For the purposes of the review referred to in paragraph 3, ESMA shall compile and consolidate at group level: | 5. For the purposes of the review referred to in paragraph 3, ESMA shall request management companies and, where applicable, AIFMs included in the representative sample to provide information regarding any inconsistent, overlapping, unnecessary or inadequate supervisory practices they may have identified among competent authorities responsible for the supervision of management companies and, where relevant, AIFMs within the representative sample. |
| This process shall take place either under the provisions of this Directive or the equivalent process in Directive 2011/61/EU. |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) all data relevant to the review that are already available to it or to competent authorities; | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the programmes of activities of the management companies and, where relevant, AIFMs within the EU group. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 6. Following each review, as referred to in paragraph 3, ESMA shall, after having consulted the competent authorities of the home Member States of the management companies and, where relevant, those of the home Member States of the AIFMs within the EU group, conclude on whether it identified any diverging, duplicative, redundant or deficient supervisory approaches. | deleted |
| ESMA shall include the findings referred to in the first subparagraph in a review report, issued by the Executive Board which shall be addressed to the competent authorities of the home Member States of the management companies and, where relevant, those of the home Member States of the AIFMs within the EU group. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 6. Following each review, as referred to in paragraph 3, ESMA shall, after having consulted the competent authorities of the home Member States of the management companies and, where relevant, those of the home Member States of the AIFMs within the EU group, conclude on whether it identified any diverging, duplicative, redundant or deficient supervisory approaches. | deleted |
| ESMA shall include the findings referred to in the first subparagraph in a review report, issued by the Executive Board which shall be addressed to the competent authorities of the home Member States of the management companies and, where relevant, those of the home Member States of the AIFMs within the EU group. |
| Text proposed by the Commission | Amendment |
|---|---|
| 6. Following each review, as referred to in paragraph 3, ESMA shall, after having consulted the competent authorities of the home Member States of the management companies and, where relevant, those of the home Member States of the AIFMs within the EU group, conclude on whether it identified any diverging, duplicative, redundant or deficient supervisory approaches. | deleted |
| ESMA shall include the findings referred to in the first subparagraph in a review report, issued by the Executive Board which shall be addressed to the competent authorities of the home Member States of the management companies and, where relevant, those of the home Member States of the AIFMs within the EU group. |
| Text proposed by the Commission | Amendment |
|---|---|
| Following each review, as referred to in paragraph 3, ESMA shall, after having consulted the competent authorities of the home Member States of the management companies and, where relevant, those of the home Member States of the AIFMs within the EU group, conclude on whether it identified any diverging, duplicative, redundant or deficient supervisory approaches. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| Following each review, as referred to in paragraph 3, ESMA shall, after having consulted the competent authorities of the home Member States of the management companies and, where relevant, those of the home Member States of the AIFMs within the EU group, conclude on whether it identified any diverging, duplicative, redundant or deficient supervisory approaches. | Following each review, as referred to in paragraph 3, ESMA shall, after having consulted the competent authorities of the home Member States of the management companies and, where relevant, those of the home Member States of the AIFMs within the representative sample, confirm whether any diverging, duplicative, redundant or deficient supervisory approaches have been identified. |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall include the findings referred to in the first subparagraph in a review report, issued by the Executive Board which shall be addressed to the competent authorities of the home Member States of the management companies and, where relevant, those of the home Member States of the AIFMs within the EU group. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall include the findings referred to in the first subparagraph in a review report, issued by the Executive Board which shall be addressed to the competent authorities of the home Member States of the management companies and, where relevant, those of the home Member States of the AIFMs within the EU group. | ESMA shall include the findings referred to in the first subparagraph in a review report, issued by the Executive Board which shall be addressed to the competent authorities of the home Member States of the management companies and, where relevant, those of the home Member States of the AIFMs within the representative sample. A copy of the review report shall also be sent to each of the members of the representative sample. |
| Text proposed by the Commission | Amendment |
|---|---|
| 7. Where during the review referred to in paragraph 3, ESMA identifies areas that require supervisory action, its Executive board shall issue a recommendation for corrective actions to the competent authorities concerned that is to be implemented within a reasonable time, not exceeding one year. | deleted |
| ESMA shall also inform the competent authorities of the management companies' host Member States and, where relevant, those of the host Member States of the AIFMs of its findings, including any recommendation for corrective actions that it has issued pursuant to the first subparagraph. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 7. Where during the review referred to in paragraph 3, ESMA identifies areas that require supervisory action, its Executive board shall issue a recommendation for corrective actions to the competent authorities concerned that is to be implemented within a reasonable time, not exceeding one year. | deleted |
| ESMA shall also inform the competent authorities of the management companies' host Member States and, where relevant, those of the host Member States of the AIFMs of its findings, including any recommendation for corrective actions that it has issued pursuant to the first subparagraph. |
| Text proposed by the Commission | Amendment |
|---|---|
| 7. Where during the review referred to in paragraph 3, ESMA identifies areas that require supervisory action, its Executive board shall issue a recommendation for corrective actions to the competent authorities concerned that is to be implemented within a reasonable time, not exceeding one year. | deleted |
| ESMA shall also inform the competent authorities of the management companies' host Member States and, where relevant, those of the host Member States of the AIFMs of its findings, including any recommendation for corrective actions that it has issued pursuant to the first subparagraph. |
| Text proposed by the Commission | Amendment |
|---|---|
| Where during the review referred to in paragraph 3, ESMA identifies areas that require supervisory action, its Executive board shall issue a recommendation for corrective actions to the competent authorities concerned that is to be implemented within a reasonable time, not exceeding one year. | Where during the review referred to in paragraph 3, ESMA identifies areas that require supervisory action, or if other information available to it reveals unaddressed supervisory risks, divergent or deficient supervisory practices, its Executive board may issue a decision to take specific supervisory action or to refrain from action, with binding effects for the competent authorities concerned, including on authorisation decisions or their withdrawal, adjustments to authorisation conditions, execution of on-site inspections by national competent authorities or cooperation with joint supervisory teams established and coordinated by ESMA or enforcement actions. |
| Text proposed by the Commission | Amendment |
|---|---|
| Where during the review referred to in paragraph 3, ESMA identifies areas that require supervisory action, its Executive board shall issue a recommendation for corrective actions to the competent authorities concerned that is to be implemented within a reasonable time, not exceeding one year. | Where during the review referred to in paragraph 3, ESMA identifies areas that require supervisory action, its Executive Board shall take note of this. |
| Text proposed by the Commission | Amendment |
|---|---|
| Where during the review referred to in paragraph 3, ESMA identifies areas that require supervisory action, its Executive board shall issue a recommendation for corrective actions to the competent authorities concerned that is to be implemented within a reasonable time, not exceeding one year. | Where during the supervisory college referred to in paragraph 3, ESMA identifies areas that require supervisory action, its Executive board shall issue a recommendation for corrective actions to the competent authorities concerned that is to be implemented within a reasonable time, not exceeding 3 months. |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall also inform the competent authorities of the management companies' host Member States and, where relevant, those of the host Member States of the AIFMs of its findings, including any recommendation for corrective actions that it has issued pursuant to the first subparagraph. | ESMA shall also inform other competent authorities that are responsible for supervising management companies and, where relevant, AIFMs within the representative sample of its findings. |
| Text proposed by the Commission | Amendment |
|---|---|
| Where necessary to ensure compliance with Union law or ensure the orderly functioning and integrity of the financial system or removing market barriers established by national competent authorities, its Executive board may adopt an individual decision addressed to a financial market participant to grant authorisations, enable cross-border business activities or require it to take all necessary action to comply with its obligations under this Directive, including the cessation of any practice. The market participant shall make every effort to comply with the ESMA decision within the specified timeframe. |
| Text proposed by the Commission | Amendment |
|---|---|
| 8. Where the competent authorities of the home Member States of the management companies and, where relevant, AIFMs within the EU group do not follow the recommendation issued pursuant to paragraph 7, ESMA shall act in accordance with the powers conferred on it under Articles 17, 17aa or 19 of Regulation (EU) No 1095/2010. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 8. Where the competent authorities of the home Member States of the management companies and, where relevant, AIFMs within the EU group do not follow the recommendation issued pursuant to paragraph 7, ESMA shall act in accordance with the powers conferred on it under Articles 17, 17aa or 19 of Regulation (EU) No 1095/2010. | deleted |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 8. Where the competent authorities of the home Member States of the management companies and, where relevant, AIFMs within the EU group do not follow the recommendation issued pursuant to paragraph 7, ESMA shall act in accordance with the powers conferred on it under Articles 17, 17aa or 19 of Regulation (EU) No 1095/2010. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 8. Where the competent authorities of the home Member States of the management companies and, where relevant, AIFMs within the EU group do not follow the recommendation issued pursuant to paragraph 7, ESMA shall act in accordance with the powers conferred on it under Articles 17, 17aa or 19 of Regulation (EU) No 1095/2010. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 8. Where the competent authorities of the home Member States of the management companies and, where relevant, AIFMs within the EU group do not follow the recommendation issued pursuant to paragraph 7, ESMA shall act in accordance with the powers conferred on it under Articles 17, 17aa or 19 of Regulation (EU) No 1095/2010. | deleted |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| Article 110c | deleted |
| (…) |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| Powers of ESMA to address cross-border issues | Establishment of the Asset Management Supervisory Coordination Framework |
| 1. ESMA shall on an ongoing basis identify diverging, duplicative, redundant and deficient supervisory actions stemming from the home or host competent authorities and hindering the effective exercise of passporting rights by management companies in accordance with Chapter II, Section 4 of this Directive and of depositaries carrying out their functions on a cross-border basis, pursuant to Article 23(1). | 1. An Asset Management Supervisory Coordination Framework shall be established for each large cross-border EU group. |
| 2. For the purpose of paragraph 1, ESMA shall engage with the competent authorities concerned, and, where applicable, collect additional information to identify existing or potential cross-border issues. | 2. The Asset Management Supervisory Coordination Framework shall include: |
| Where, pursuant to the first subparagraph, ESMA identifies existing or potential cross-border issues it shall propose corrective actions to the relevant competent authorities for their removal. | (a) the home competent authorities of all management companies and AIFMs belonging to the EU group; |
| 3. Where, despite of the corrective actions referred to in paragraph 2 or because the relevant competent authorities fail to implement those corrective actions, the issues identified pursuant to paragraph 2 persist, ESMA shall, without undue delay exercise at least one of the powers conferred on it under Articles 17, 17aaa, 19 or 19a of Regulation (EU) No 1095/2010 in the following cases: (a)the competent authorities of the host Member State of the management company prevent or intend to prevent a management company from managing UCITS in their territory, or impose requirements on such management which are not compliant with this Directive; (b)the competent authorities of the UCITS home Member State prevent or intend to prevent the appointment of a depositary established in another Member State as referred to in Article 23(1), or impose requirements on such appointment that are not compliant with this Directive; (c)a management company or a depositary carries out or intends to carry out functions or provide services on a cross-border basis, while not being compliant with Union law. The obligation to exercise at least one of the powers referred to in the first subparagraph shall be without prejudice to ESMA’s capacity to use any of the powers conferred on it under Regulation (EU) No 1095/2010 outside the procedure laid down in this Article. | (b) the host competent authorities of Member States in which the EU group carries out material activities, taking into account the location of the asset management group and the geographical distribution of the UCITS and AIFS managed; |
| 4. Notwithstanding the actions referred to in paragraph 3, ESMA may suspend the ability of a management company or depositary to carry out any functions and to provide any services within the territory of another Member State where one of the following conditions are fulfilled: (a)the competent authorities or stakeholders concerned fail to implement a decision, opinion, recommendation or action adopted or required by ESMA in accordance with paragraph 3 or an opinion issued by the Commission, in accordance with Article 17(4) of Regulation (EU) No 1095/2010; (b)ESMA has concluded that a management company or a depositary that carries out its functions or offers services on a cross-border basis no longer fulfil the requirements of this Directive. Before suspending a management company or a depositary from carrying out any functions or from providing any services on a cross-border basis as referred to in the first subparagraph, ESMA shall send its draft findings to the management company or the depositary concerned and to the competent authorities of the home Member State of the management company or of the depositary. The competent authorities concerned may submit to ESMA a reasoned statement within 30 calendar days of the receipt of the draft findings. ESMA shall promptly notify the management company or the depositary of the suspension of the ability to carry out any functions or provide any services on a cross-border basis. The suspension may start at the date of notification and shall start no later than 30 calendar days following that notification. | (c) ESMA in a technical coordination and supervisory convergence capacity, without acting as chair or decision authority. |
| 5. ESMA shall publish a report on its activity in accordance with paragraphs 1 to 4 at least annually. | 3. The Asset Management Supervisory Coordination Framework shall constitute the permanent mechanism for supervisory cooperation and coordination in relation to the relevant EU group, without affecting the allocation of supervisory responsibilities under this Directive. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 1. ESMA shall on an ongoing basis identify diverging, duplicative, redundant and deficient supervisory actions stemming from the home or host competent authorities and hindering the effective exercise of passporting rights by management companies in accordance with Chapter II, Section 4 of this Directive and of depositaries carrying out their functions on a cross-border basis, pursuant to Article 23(1). | deleted |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 2. For the purpose of paragraph 1, ESMA shall engage with the competent authorities concerned, and, where applicable, collect additional information to identify existing or potential cross-border issues. | deleted |
| Where, pursuant to the first subparagraph, ESMA identifies existing or potential cross-border issues it shall propose corrective actions to the relevant competent authorities for their removal. |
| Text proposed by the Commission | Amendment |
|---|---|
| For the purpose of paragraph 1, ESMA shall engage with the competent authorities concerned, and, where applicable, collect additional information to identify existing or potential cross-border issues. | For the purpose of paragraph 1, ESMA shall engage with the competent authorities concerned, and, where necessary and proportionate, collect additional information to identify existing or potential cross-border issues. |
Eero Heinäluoma, Jonás Fernández, Francisco Assis, César Luena, Evelyn Regner, Aurore Lalucq, Nikos Papandreou
| Text proposed by the Commission | Amendment |
|---|---|
| Where, pursuant to the first subparagraph, ESMA identifies existing or potential cross-border issues it shall propose corrective actions to the relevant competent authorities for their removal. | Where, pursuant to the first subparagraph, ESMA identifies existing or potential cross-border issues its Executive board may issue a decision to take specific supervisory action or to refrain from action, with binding effects for the competent authorities concerned, including on authorisation decisions or their withdrawal, adjustments to authorisation conditions, execution of on-site inspections by national competent authorities or cooperation with joint supervisory teams established and coordinated by ESMA or enforcement actions. |
| Text proposed by the Commission | Amendment |
|---|---|
| Where, pursuant to the first subparagraph, ESMA identifies existing or potential cross-border issues it shall propose corrective actions to the relevant competent authorities for their removal. | The relevant competent authorities involved shall consider necessary corrective actions or alternatively where they do not do so they shall provide a reasoned explanation to ESMA, within a timeline as set by ESMA. ESMA shall address recurring issues identified pursuant to paragraph 1 through thematic reviews conducted in accordance with Article 30 of Regulation (EU) No 1095/2010. |
Eero Heinäluoma, Jonás Fernández, Francisco Assis, César Luena, Evelyn Regner, Aurore Lalucq, Nikos Papandreou
| Text proposed by the Commission | Amendment |
|---|---|
| Where necessary to ensure compliance with Union law or ensure the orderly functioning and integrity of the financial system or removing market barriers established by national competent authorities, its Executive board may adopt an individual decision addressed to a financial market participant to grant authorisations, enable cross-border business activities or require it to take all necessary action to comply with its obligations under this Directive, including the cessation of any practice. The market participant shall make every effort to comply with the ESMA decision within the specified timeframe. |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall address recurring issues identified pursuant to paragraph 1 through thematic reviews conducted under Regulation (EU) No 1095/2010. |
Eero Heinäluoma, Jonás Fernández, Francisco Assis, César Luena, Evelyn Regner, Aurore Lalucq, Nikos Papandreou
| Text proposed by the Commission | Amendment |
|---|---|
| 3. Where, despite of the corrective actions referred to in paragraph 2 or because the relevant competent authorities fail to implement those corrective actions, the issues identified pursuant to paragraph 2 persist, ESMA shall, without undue delay exercise at least one of the powers conferred on it under Articles 17, 17aaa, 19 or 19a of Regulation (EU) No 1095/2010 in the following cases: | deleted |
| (a) the competent authorities of the host Member State of the management company prevent or intend to prevent a management company from managing UCITS in their territory, or impose requirements on such management which are not compliant with this Directive; | |
| (b) the competent authorities of the UCITS home Member State prevent or intend to prevent the appointment of a depositary established in another Member State as referred to in Article 23(1), or impose requirements on such appointment that are not compliant with this Directive; | |
| (c) a management company or a depositary carries out or intends to carry out functions or provide services on a cross-border basis, while not being compliant with Union law. | |
| The obligation to exercise at least one of the powers referred to in the first subparagraph shall be without prejudice to ESMA’s capacity to use any of the powers conferred on it under Regulation (EU) No 1095/2010 outside the procedure laid down in this Article. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| Where, despite of the corrective actions referred to in paragraph 2 or because the relevant competent authorities fail to implement those corrective actions, the issues identified pursuant to paragraph 2 persist, ESMA shall, without undue delay exercise at least one of the powers conferred on it under Articles 17, 17aaa, 19 or 19a of Regulation (EU) No 1095/2010 in the following cases: | deleted |
| (a) the competent authorities of the host Member State of the management company prevent or intend to prevent a management company from managing UCITS in their territory, or impose requirements on such management which are not compliant with this Directive; | |
| (b) the competent authorities of the UCITS home Member State prevent or intend to prevent the appointment of a depositary established in another Member State as referred to in Article 23(1), or impose requirements on such appointment that are not compliant with this Directive; | |
| (c) a management company or a depositary carries out or intends to carry out functions or provide services on a cross-border basis, while not being compliant with Union law. |
| Text proposed by the Commission | Amendment |
|---|---|
| Where, despite of the corrective actions referred to in paragraph 2 or because the relevant competent authorities fail to implement those corrective actions, the issues identified pursuant to paragraph 2 persist, ESMA shall, without undue delay exercise at least one of the powers conferred on it under Articles 17, 17aaa, 19 or 19a of Regulation (EU) No 1095/2010 in the following cases: | Where the competent authorities concerned fail to implement corrective measures to which paragraph 2 refers, or where ESMA determines that any reasoned explanations do not sufficiently resolve the concerns identified and those concerns continue to exist, ESMA shall, without unnecessary delay: |
| Text proposed by the Commission | Amendment |
|---|---|
| Where, despite of the corrective actions referred to in paragraph 2 or because the relevant competent authorities fail to implement those corrective actions, the issues identified pursuant to paragraph 2 persist, ESMA shall, without undue delay exercise at least one of the powers conferred on it under Articles 17, 17aaa, 19 or 19a of Regulation (EU) No 1095/2010 in the following cases: | Where, despite of the corrective actions referred to in paragraph 2 or because the relevant competent authorities fail to implement those corrective actions, the issues identified pursuant to paragraph 2 persist, ESMA may, where necessary and proportionate and on the basis of objective evidence, exercise one of the powers conferred on it under Articles 17, 17aaa, 19 or 19a of Regulation (EU) No 1095/2010 in the following cases: |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the competent authorities of the host Member State of the management company prevent or intend to prevent a management company from managing UCITS in their territory, or impose requirements on such management which are not compliant with this Directive; | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the competent authorities of the host Member State of the management company prevent or intend to prevent a management company from managing UCITS in their territory, or impose requirements on such management which are not compliant with this Directive; | (a) issue a reasoned follow-up opinion outlining the remaining concerns and specifying the supervisory outcomes expected from the competent authorities concerned; |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the competent authorities of the UCITS home Member State prevent or intend to prevent the appointment of a depositary established in another Member State as referred to in Article 23(1), or impose requirements on such appointment that are not compliant with this Directive; | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the competent authorities of the UCITS home Member State prevent or intend to prevent the appointment of a depositary established in another Member State as referred to in Article 23(1), or impose requirements on such appointment that are not compliant with this Directive; | (b) notify the Commission of, where appropriate, an evaluation of whether Union law has potentially been incorrectly applied or not applied; |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (c) a management company or a depositary carries out or intends to carry out functions or provide services on a cross-border basis, while not being compliant with Union law. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (c) a management company or a depositary carries out or intends to carry out functions or provide services on a cross-border basis, while not being compliant with Union law. | (c) where appropriate, recommend that the Commission consider taking suitable measures within the scope of its powers under the Treaties; and |
| Text proposed by the Commission | Amendment |
|---|---|
| (ca) evaluate any reasoned explanations submitted by the competent authorities concerned and incorporate that evaluation into the follow-up opinion referred to in point (a). |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall make publicly available the principal findings, the progress made by the competent authorities concerned in implementing the required measures and, where appropriate, summaries of any reasoned explanations provided, with the aim of promoting effective supervisory convergence and the proper functioning of financial markets. |
| Text proposed by the Commission | Amendment |
|---|---|
| Before exercising a power pursuant to the first subparagraph, ESMA shall consult the competent authorities concerned, give them an appropriate opportunity to remedy the issue, and adopt a reasoned assessment explaining why the exercise of that power is necessary, proportionate and the least intrusive available measure. That assessment shall take due account of the expected impact on investors, market integrity, financial stability and relevant national legal frameworks. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| The obligation to exercise at least one of the powers referred to in the first subparagraph shall be without prejudice to ESMA’s capacity to use any of the powers conferred on it under Regulation (EU) No 1095/2010 outside the procedure laid down in this Article. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| The obligation to exercise at least one of the powers referred to in the first subparagraph shall be without prejudice to ESMA’s capacity to use any of the powers conferred on it under Regulation (EU) No 1095/2010 outside the procedure laid down in this Article. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| The obligation to exercise at least one of the powers referred to in the first subparagraph shall be without prejudice to ESMA’s capacity to use any of the powers conferred on it under Regulation (EU) No 1095/2010 outside the procedure laid down in this Article. | The exercise of the powers referred to in the first subparagraph shall be without prejudice to ESMA’s capacity to use any of the powers conferred on it under Regulation (EU) No 1095/2010 outside the procedure laid down in this Article. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 4. Notwithstanding the actions referred to in paragraph 3, ESMA may suspend the ability of a management company or depositary to carry out any functions and to provide any services within the territory of another Member State where one of the following conditions are fulfilled: | deleted |
| (a) the competent authorities or stakeholders concerned fail to implement a decision, opinion, recommendation or action adopted or required by ESMA in accordance with paragraph 3 or an opinion issued by the Commission, in accordance with Article 17(4) of Regulation (EU) No 1095/2010; | |
| (b) ESMA has concluded that a management company or a depositary that carries out its functions or offers services on a cross-border basis no longer fulfil the requirements of this Directive. | |
| Before suspending a management company or a depositary from carrying out any functions or from providing any services on a cross-border basis as referred to in the first subparagraph, ESMA shall send its draft findings to the management company or the depositary concerned and to the competent authorities of the home Member State of the management company or of the depositary. The competent authorities concerned may submit to ESMA a reasoned statement within 30 calendar days of the receipt of the draft findings. | |
| ESMA shall promptly notify the management company or the depositary of the suspension of the ability to carry out any functions or provide any services on a cross-border basis. The suspension may start at the date of notification and shall start no later than 30 calendar days following that notification. |
| Text proposed by the Commission | Amendment |
|---|---|
| 4. Notwithstanding the actions referred to in paragraph 3, ESMA may suspend the ability of a management company or depositary to carry out any functions and to provide any services within the territory of another Member State where one of the following conditions are fulfilled: | deleted |
| (a) the competent authorities or stakeholders concerned fail to implement a decision, opinion, recommendation or action adopted or required by ESMA in accordance with paragraph 3 or an opinion issued by the Commission, in accordance with Article 17(4) of Regulation (EU) No 1095/2010; | |
| (b) ESMA has concluded that a management company or a depositary that carries out its functions or offers services on a cross-border basis no longer fulfil the requirements of this Directive. | |
| Before suspending a management company or a depositary from carrying out any functions or from providing any services on a cross-border basis as referred to in the first subparagraph, ESMA shall send its draft findings to the management company or the depositary concerned and to the competent authorities of the home Member State of the management company or of the depositary. The competent authorities concerned may submit to ESMA a reasoned statement within 30 calendar days of the receipt of the draft findings. | |
| ESMA shall promptly notify the management company or the depositary of the suspension of the ability to carry out any functions or provide any services on a cross-border basis. The suspension may start at the date of notification and shall start no later than 30 calendar days following that notification. |
| Text proposed by the Commission | Amendment |
|---|---|
| 4. Notwithstanding the actions referred to in paragraph 3, ESMA may suspend the ability of a management company or depositary to carry out any functions and to provide any services within the territory of another Member State where one of the following conditions are fulfilled: | deleted |
| (a) the competent authorities or stakeholders concerned fail to implement a decision, opinion, recommendation or action adopted or required by ESMA in accordance with paragraph 3 or an opinion issued by the Commission, in accordance with Article 17(4) of Regulation (EU) No 1095/2010; | |
| (b) ESMA has concluded that a management company or a depositary that carries out its functions or offers services on a cross-border basis no longer fulfil the requirements of this Directive. | |
| Before suspending a management company or a depositary from carrying out any functions or from providing any services on a cross-border basis as referred to in the first subparagraph, ESMA shall send its draft findings to the management company or the depositary concerned and to the competent authorities of the home Member State of the management company or of the depositary. The competent authorities concerned may submit to ESMA a reasoned statement within 30 calendar days of the receipt of the draft findings. | |
| ESMA shall promptly notify the management company or the depositary of the suspension of the ability to carry out any functions or provide any services on a cross-border basis. The suspension may start at the date of notification and shall start no later than 30 calendar days following that notification. |
| Text proposed by the Commission | Amendment |
|---|---|
| Notwithstanding the actions referred to in paragraph 3, ESMA may suspend the ability of a management company or depositary to carry out any functions and to provide any services within the territory of another Member State where one of the following conditions are fulfilled: | Notwithstanding the actions referred to in paragraph 3, ESMA may suspend the ability of a management company or depositary to carry out any functions and to provide any services within the territory of another Member State only as a measure of last resort, where it has established on the basis of objective evidence that the continuation of those functions or services creates a serious risk to investors, market integrity or financial stability and that such risk cannot be adequately addressed by less intrusive measures or by measures taken by the competent authorities concerned within an appropriate timeframe, and where one of the following conditions are fulfilled: |
Eero Heinäluoma, Jonás Fernández, Francisco Assis, César Luena, Evelyn Regner, Aurore Lalucq, Nikos Papandreou
| Text proposed by the Commission | Amendment |
|---|---|
| Notwithstanding the actions referred to in paragraph 3, ESMA may suspend the ability of a management company or depositary to carry out any functions and to provide any services within the territory of another Member State where one of the following conditions are fulfilled: | ESMA may suspend the ability of a management company or depositary to carry out any functions and to provide any services within the territory of another Member State where one of the following conditions are fulfilled: |
Eero Heinäluoma, Jonás Fernández, Francisco Assis, César Luena, Evelyn Regner, Aurore Lalucq, Nikos Papandreou
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the competent authorities or stakeholders concerned fail to implement a decision, opinion, recommendation or action adopted or required by ESMA in accordance with paragraph 3 or an opinion issued by the Commission, in accordance with Article 17(4) of Regulation (EU) No 1095/2010; | (a) the competent authorities or stakeholders concerned fail to implement a decision, opinion, recommendation or action adopted or required by ESMA in accordance with paragraph 2 or an opinion issued by the Commission, in accordance with Article 17(4) of Regulation (EU) No 1095/2010; |
| Text proposed by the Commission | Amendment |
|---|---|
| Before suspending a management company or a depositary from carrying out any functions or from providing any services on a cross-border basis as referred to in the first subparagraph, ESMA shall send its draft findings to the management company or the depositary concerned and to the competent authorities of the home Member State of the management company or of the depositary. The competent authorities concerned may submit to ESMA a reasoned statement within 30 calendar days of the receipt of the draft findings. | Before suspending a management company or a depositary from carrying out any functions or from providing any services on a cross-border basis as referred to in the first subparagraph, ESMA shall send its draft findings to the management company or the depositary concerned and to the competent authorities of the home Member State of the management company or of the depositary. The draft findings shall set out the reasons why the suspension is necessary, proportionate and the least intrusive available measure, and shall assess the expected impact on investors, market integrity, financial stability and the relevant national legal framework. The competent authorities concerned may submit to ESMA a reasoned statement within 30 calendar days of the receipt of the draft findings. |
Eero Heinäluoma, Jonás Fernández, Francisco Assis, César Luena, Evelyn Regner, Aurore Lalucq, Nikos Papandreou
| Text proposed by the Commission | Amendment |
|---|---|
| 5. ESMA shall publish a report on its activity in accordance with paragraphs 1 to 4 at least annually. | deleted |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 5. ESMA shall publish a report on its activity in accordance with paragraphs 1 to 4 at least annually. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 5. ESMA shall publish a report on its activity in accordance with paragraphs 1 to 4 at least annually. | 5. ESMA shall publish at regular intervals a report on its activity in accordance with paragraphs 1 to 3. |
| That report shall contain, where appropriate, the principal reasoned conclusions arising from the reviews and follow-up reports referred to in Article 110b(6), as well as relevant corrective measures, together with information on the progress made in their implementation by the competent authorities concerned. |
| Text proposed by the Commission | Amendment |
|---|---|
| 5. ESMA shall publish a report on its activity in accordance with paragraphs 1 to 4 at least annually. | 5. ESMA shall publish a report on its activity in accordance with paragraphs 1 to 3 periodically where new findings are relevant to improve the market functioning, with a specific focus on cross-border issues. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| Dispute settlement | Allocation of roles |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| In case competent authorities disagree on an assessment, action or omission of one competent authority in areas where this Directive requires cooperation or coordination between competent authorities from more than one Member State, one or more competent authorities may refer the matter to ESMA which shall act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010.; | 1. The Asset Management Supervisory Coordination Framework shall be chaired by the home competent authority of the management company or AIFM that exercises control over the other management companies and AIFMs within the EU group or, where no such entity exists, by the home competent authority of the management company or AIFM designated as the principal entity of the EU group. |
| 2. The chair home competent authority may invite any host competent authority other than those referred to in Article 110c(2)(b) to participate in all or part of a meeting where: | |
| (a) the matters under discussion are relevant to that authority; or | |
| (b) its participation would contribute to effective supervisory coordination. | |
| 3. A host competent authority may also request to participate in a meeting or in part thereof. Such participation shall be subject to the agreement of the chair home competent authority. | |
| 4. The chair home competent authority shall: | |
| (a) convene and chair the meetings of the Asset Management Supervisory Coordination Framework; | |
| (b) determine the agenda, after consulting ESMA and the competent authorities participating in the relevant meeting; | |
| (c) coordinate information-sharing arrangements and any common supervisory workflow agreed within the Asset Management Supervisory Coordination Framework; | |
| (d) ensure the efficient functioning of the Asset Management Supervisory Coordination Framework. | |
| 5. ESMA shall exclusively: | |
| (a) contribute to supervisory convergence; | |
| (b) facilitate the exchange of information; | |
| (c) promote consistent supervisory practices across Member States; | |
| (d) assist the functioning of the Asset Management Supervisory Coordination Framework through technical secretariat support. |
| Text proposed by the Commission | Amendment |
|---|---|
| In case competent authorities disagree on an assessment, action or omission of one competent authority in areas where this Directive requires cooperation or coordination between competent authorities from more than one Member State, one or more competent authorities may refer the matter to ESMA which shall act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010.; | In case competent authorities disagree on a specific assessment, action or omission of one competent authority in areas where this Directive expressly requires cooperation or coordination between competent authorities from more than one Member State, one or more competent authorities may refer that specific matter to ESMA which may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010. This Article shall not be construed as conferring on ESMA a general power to review or replace ordinary supervisory decisions of competent authorities.; |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (47a) the following Article 110e is inserted: | |
| 'Article 110e | |
| Tasks of the Asset Management Supervisory Coordination Framework | |
| 1. The Asset Management Supervisory Coordination Framework should: | |
| (a) promote discussions on supervisory priorities; | |
| (b) ensure stable, structured and timely coordination on relevant cross-border aspects; | |
| (c) prevent and address inconsistent or duplicative supervisory measures affecting cross-border operations; | |
| (d) promote convergence through an exchange of information, supervisory practices and evaluations. | |
| 2. The Asset Management Supervisory Coordination Framework does not introduce joint supervisory decisions or replace the supervisory responsibilities of any competent authority under this Directive. | |
| 3. The Asset Management Supervisory Coordination Framework shall operate in a proportionate manner, reflecting the size, structure and cross-border relevance of the EU group.' |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (47b) the following Article 110f is inserted: | |
| 'Article 110f | |
| Meetings of the Asset Management Supervisory Coordination Framework | |
| 1. The chair home competent authority shall establish, after consulting ESMA and the participating competent authorities, an annual programme of ordinary meetings. | |
| 2. Additional meetings may be convened where the chair home competent authority considers that coordination would facilitate the effective supervision of the EU group or where specific cross-border supervisory issues require discussion. | |
| 3. An ad hoc meeting may also be requested by: | |
| (a) any home competent authority belonging to the Asset Management Supervisory Coordination Framework; | |
| (b) a host competent authority whose participation is relevant having regard to the matters to be discussed. | |
| The chair home competent authority shall decide whether to convene the requested meeting, taking into account: | |
| (a) the supervisory relevance of the issues raised; | |
| (b) the materiality of the activities concerned; | |
| (c) the need to ensure the efficient and proportionate functioning of the Framework. | |
| 4. ESMA shall not approve, reject or validate requests for meetings. | |
| 5. In crisis situations, the chair home competent authority shall retain full supervisory autonomy and decision-making powers. The Asset Management Supervisory Coordination Framework shall be informed ex post where appropriate and without prejudice to the operational effectiveness of crisis management measures adopted by the competent authorities. | |
| 6. Management companies and AIFMs should be invited to participate, at their discretion, in the meetings to present developments of relevance to several competent authorities and to discuss, in advance, regulatory developments with a significant impact on their business.' |
| Text proposed by the Commission | Amendment |
|---|---|
| (av) ‘EU group of an AIFM and management company means, in relation to a given AIFM or management company, a group as defined in Article 2, point (11) of Directive 2013/34/EU of the European Parliament and the Council16 that consists of any of the following: | deleted |
| (a) management companies, as defined in Article 2(1), point (b) of Directive 2009/65/EC of the European Parliament and the Council17 that are established in the Union, and which are authorised in accordance with that Directive; | |
| (b) managers of alternative investment funds, as defined in Article 4(1), point (b) of this Directive that are established in the Union, and which are authorised in accordance with this Directive; | |
| (c) investment firms, as defined in Article 4(1), point (1) of Directive 2014/65/EU of the European Parliament and the Council18 that are established in the Union, and which are authorised in accordance with that Directive; | |
| (d) credit institutions as defined in Article 2(1), point (b) of Directive 2013/36/EU of the European Parliament and the Council19 that are established in the Union, and which are authorised in accordance with that Directive; | |
| 16 32 Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19, ELI: http://data.europa.eu/eli/dir/2013/34/oj). | |
| 17 33 Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009, pp. 32–96 1, ELI: https://eur-lex.europa.eu/eli/dir/2009/65/oj/eng). | |
| 18 34 Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (recast) Text with EEA relevance (OJ L 173, 12.6.2014, p. 349, ELI: http://data.europa.eu/eli/dir/2014/65/oj). | |
| 19 Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, pp. 338–436, ELI: https://eur-lex.europa.eu/eli/dir/2013/36/oj/eng) |
The aim of amending the delegation framework is to transition from the Commission’s blanket exemption for all EU group arrangements to a risk-based approach. Under this approach, non-critical, lower-risk delegation arrangements would be granted a derogation, regardless of group structure or geography. All other arrangements would be subject to proportionate, ongoing monitoring in accordance with the ESMA Principles on third-party risk supervision.
| Text proposed by the Commission | Amendment |
|---|---|
| (av) ‘EU group of an AIFM and management company means, in relation to a given AIFM or management company, a group as defined in Article 2, point (11) of Directive 2013/34/EU of the European Parliament and the Council16 that consists of any of the following: | deleted |
| (a) management companies, as defined in Article 2(1), point (b) of Directive 2009/65/EC of the European Parliament and the Council17 that are established in the Union, and which are authorised in accordance with that Directive; | |
| (b) managers of alternative investment funds, as defined in Article 4(1), point (b) of this Directive that are established in the Union, and which are authorised in accordance with this Directive; | |
| (c) investment firms, as defined in Article 4(1), point (1) of Directive 2014/65/EU of the European Parliament and the Council18 that are established in the Union, and which are authorised in accordance with that Directive; | |
| (d) credit institutions as defined in Article 2(1), point (b) of Directive 2013/36/EU of the European Parliament and the Council19 that are established in the Union, and which are authorised in accordance with that Directive; | |
| 16 32 Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19, ELI: http://data.europa.eu/eli/dir/2013/34/oj). | |
| 17 33 Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009, pp. 32–96 1, ELI: https://eur-lex.europa.eu/eli/dir/2009/65/oj/eng). | |
| 18 34 Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (recast) Text with EEA relevance (OJ L 173, 12.6.2014, p. 349, ELI: http://data.europa.eu/eli/dir/2014/65/oj). | |
| 19 Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, pp. 338–436, ELI: https://eur-lex.europa.eu/eli/dir/2013/36/oj/eng) |
| Text proposed by the Commission | Amendment |
|---|---|
| (av) ‘EU group of an AIFM and management company means, in relation to a given AIFM or management company, a group as defined in Article 2, point (11) of Directive 2013/34/EU of the European Parliament and the Council16 that consists of any of the following: | (av) ‘delegation arrangement subject to a non-material risk classification’ means a delegation arrangement concerning the performance of the functions listed in Annex I or the services referred to in Article 6(4), where an AIFM has carried out a risk-based assessment in accordance with ESMA’s Principles on third-party risks supervision (ESMA42-1710566791-6103) and has determined that the delegation arrangement involves a non-material level of inherent and residual risk. |
| 16 32Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19, ELI: http://data.europa.eu/eli/dir/2013/34/oj). |
| Text proposed by the Commission | Amendment |
|---|---|
| (av) ‘EU group of an AIFM and management company means, in relation to a given AIFM or management company, a group as defined in Article 2, point (11) of Directive 2013/34/EU of the European Parliament and the Council16 that consists of any of the following: | (av) ‘group resources’ means the human and technical resources of an entity linked to an AIFM by common management or control and which are available for deployment by that AIFM’; |
| 16 32 Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19, ELI: http://data.europa.eu/eli/dir/2013/34/oj). |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) management companies, as defined in Article 2(1), point (b) of Directive 2009/65/EC of the European Parliament and the Council17 that are established in the Union, and which are authorised in accordance with that Directive; | deleted |
| 17 33 Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009, pp. 32–96 1, ELI: https://eur-lex.europa.eu/eli/dir/2009/65/oj/eng). |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) managers of alternative investment funds, as defined in Article 4(1), point (b) of this Directive that are established in the Union, and which are authorised in accordance with this Directive; | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (c) investment firms, as defined in Article 4(1), point (1) of Directive 2014/65/EU of the European Parliament and the Council18 that are established in the Union, and which are authorised in accordance with that Directive; | deleted |
| 18 34 Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (recast) Text with EEA relevance (OJ L 173, 12.6.2014, p. 349, ELI: http://data.europa.eu/eli/dir/2014/65/oj). |
| Text proposed by the Commission | Amendment |
|---|---|
| (d) credit institutions as defined in Article 2(1), point (b) of Directive 2013/36/EU of the European Parliament and the Council19 that are established in the Union, and which are authorised in accordance with that Directive; | deleted |
| 19 Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, pp. 338–436, ELI: https://eur-lex.europa.eu/eli/dir/2013/36/oj/eng) |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (da) holding companies that are established in the Union, whose main activity consists of holding control over, or exercising a dominant influence over the management of, any of the undertakings referred to in points (a) and (b) above; |
| Text proposed by the Commission | Amendment |
|---|---|
| (da) holding companies that are established in the Union, whose main activity consists of holding control over, or exercising a dominant influence over the management of, any of the undertakings referred to in points (a) to (d); |
The 'EU group' definition currently captures only management companies, AIFMs, investment firms and credit institutions, excluding the holding companies through which many asset management groups are actually structured. Adding holding companies established in the Union closes a structural gap that would otherwise exclude legitimate group structures from the delegation facilitation.
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| Where the undertakings referred to in points (a) to (da) form part of a wider group whose ultimate parent undertaking is established outside the Union, the EU group shall comprise only those undertakings established and authorised within the Union. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| The provisions relating to the EU group shall apply exclusively for the purposes of regulatory simplification and supervisory coordination under this Directive and shall not: | |
| (a) affect the individual authorization and responsibility of each management company or AIFM belonging to the EU group; | |
| (b) affect the obligation of management companies and AIFMs to act in the best interests of investors and fund unit-holders; | |
| (c) affect the liability of management companies and AIFMs for the functions performed on their behalf; | |
| (d) entail prudential consolidation requirements beyond those expressly provided under Union law. | |
| Where a management company or AIFM belongs to an EU group including also credit institutions or investment firms, the organizational integration within the group shall not impair: | |
| (a) the autonomous exercise of portfolio management and risk management decisions, including the related regulatory safeguards; | |
| (b) the independent exercise of voting rights; | |
| (c) the product governance decisions of the management company or AIFM; | |
| (d) the autonomous selection and oversight by the management company or AIFM of the entity appointed as depositary; | |
| (e) the ability of the management company or AIFM to act in the best interest of investors. | |
| The parent undertaking may define strategic and organizational objectives at group level, provided that such coordination does not result in direct or indirect interference with the fiduciary duties of the management company or AIFM. |
| Text proposed by the Commission | Amendment |
|---|---|
| (awa) 'delegation arrangement subject to a non-material risk categorisation' means a delegation arrangement for the performance of the functions referred to in Annex I or the services referred to in Article 6(4), in respect of which the AIFM has performed a documented risk assessment, consistent with ESMA's Principles on third-party risk supervision, and has categorised the arrangement as presenting a non-material level of inherent and residual risk. |
The Commission proposal currently limits the delegation carve-out to entities established in the Union, denying it to arrangements that may carry lower risk than some intra-EU delegations while granting it automatically to others that carry more. A risk-categorisation test, anchored in ESMA's principles on third-party risks supervision, targets relief at arrangements genuinely presenting non-material inherent and residual risk, regardless of the delegate's location, while leaving portfolio and risk management subject to a specific authorisation safeguard.
| Text proposed by the Commission | Amendment |
|---|---|
| (awa) ‘group resources’ means the personnel and technical capabilities of an entity that is connected to an AIFM through common management or control and that are available for use by that AIFM. |
| Present text | Amendment |
|---|---|
| (3-a) in paragraph 2, the following subparagraph is added: | |
| iv) a description of the periodic due diligence measures to be carried out by the AIFM to monitor the delegated activity. | "For purposes of point (e)(iv), monitoring pursuant to Article 20 (1) point (f), should be conducted in a manner proportionate to the delegation risks as assessed by the AIFM." |
The aim of amending the delegation framework is to transition from the Commission’s blanket exemption for all EU group arrangements to a risk-based approach. Under this approach, non-critical, lower-risk delegation arrangements would be granted a derogation, regardless of group structure or geography. All other arrangements would be subject to proportionate, ongoing monitoring in accordance with the ESMA Principles on third-party risk supervision.
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 2a. By way of derogation from paragraph 2, point (e), Member States shall not require an AIFM to provide to the competent authorities of its home Member State the information referred to in paragraph 2, point (e), where that AIFM relies on one or more entities that belong to its EU group for the performance of the functions referred to in Annex I or the services referred to in Article 6(4). | deleted |
| The application for authorisation of an AIFM that relies on the human and technical resources of one or more entities that belong to its EU group to conduct its business shall, in addition to the information referred to in paragraph 2, point (c), specify those human and technical resources. The authorisation of an AIFM shall not be made conditional on the requirement that the AIFM refrains from utilising resources of one or more entities within that same EU group.; |
| Text proposed by the Commission | Amendment |
|---|---|
| By way of derogation from paragraph 2, point (e), Member States shall not require an AIFM to provide to the competent authorities of its home Member State the information referred to in paragraph 2, point (e), where that AIFM relies on one or more entities that belong to its EU group for the performance of the functions referred to in Annex I or the services referred to in Article 6(4). | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| By way of derogation from paragraph 2, point (e), Member States shall not require an AIFM to provide to the competent authorities of its home Member State the information referred to in paragraph 2, point (e), where that AIFM relies on one or more entities that belong to its EU group for the performance of the functions referred to in Annex I or the services referred to in Article 6(4). | By way of derogation from paragraph 2, point (e), Member States shall not require an AIFM to provide to the competent authorities of its home Member State the information referred to in paragraph 2, point (e), where that AIFM enters into a delegation arrangement relating to the performance of the functions referred to in Annex I or the services referred to in Article 6(4), where that delegation arrangement is considered non-critical, following a risk-based assessment performed by the AIFM. |
The aim of amending the delegation framework is to transition from the Commission’s blanket exemption for all EU group arrangements to a risk-based approach. Under this approach, non-critical, lower-risk delegation arrangements would be granted a derogation, regardless of group structure or geography. All other arrangements would be subject to proportionate, ongoing monitoring in accordance with the ESMA Principles on third-party risk supervision.
| Text proposed by the Commission | Amendment |
|---|---|
| By way of derogation from paragraph 2, point (e), Member States shall not require an AIFM to provide to the competent authorities of its home Member State the information referred to in paragraph 2, point (e), where that AIFM relies on one or more entities that belong to its EU group for the performance of the functions referred to in Annex I or the services referred to in Article 6(4). | By way of derogation from paragraph 2, point (e), Member States shall not require an AIFM to provide to the competent authorities of its home Member State the information referred to in paragraph 2, point (e), where that AIFM enters into a delegation arrangement subject to a non-material risk categorisation. |
| Text proposed by the Commission | Amendment |
|---|---|
| By way of derogation from paragraph 2, point (e), Member States shall not require an AIFM to provide to the competent authorities of its home Member State the information referred to in paragraph 2, point (e), where that AIFM relies on one or more entities that belong to its EU group for the performance of the functions referred to in Annex I or the services referred to in Article 6(4). | By way of derogation from paragraph 2, point (e), Member States shall not require an AIFM to provide to the competent authorities of its home Member State the information referred to in paragraph 2, point (e), where that AIFM relies on one or more entities that belong to its group for the performance of the functions referred to in Annex I or the services referred to in Article 6(4). |
| Text proposed by the Commission | Amendment |
|---|---|
| The application for authorisation of an AIFM that relies on the human and technical resources of one or more entities that belong to its EU group to conduct its business shall, in addition to the information referred to in paragraph 2, point (c), specify those human and technical resources. The authorisation of an AIFM shall not be made conditional on the requirement that the AIFM refrains from utilising resources of one or more entities within that same EU group.; | The application for authorisation of an AIFM shall in any case specify the name of the delegate and the delegated functions referred to in Annex I or services referred to in Article 6(4). |
The aim of amending the delegation framework is to transition from the Commission’s blanket exemption for all EU group arrangements to a risk-based approach. Under this approach, non-critical, lower-risk delegation arrangements would be granted a derogation, regardless of group structure or geography. All other arrangements would be subject to proportionate, ongoing monitoring in accordance with the ESMA Principles on third-party risk supervision.
| Text proposed by the Commission | Amendment |
|---|---|
| The application for authorisation of an AIFM that relies on the human and technical resources of one or more entities that belong to its EU group to conduct its business shall, in addition to the information referred to in paragraph 2, point (c), specify those human and technical resources. The authorisation of an AIFM shall not be made conditional on the requirement that the AIFM refrains from utilising resources of one or more entities within that same EU group.; | The application for authorisation of an AIFM that relies on group resources to conduct its business shall, in addition to the information referred to in paragraph 2, point (c), specify those group resources. The authorisation of an AIFM shall not be made conditional on the requirement that the AIFM refrains from utilising group resources but the use of group resources shall not prevent the effective supervision of the AIFM.; |
| Text proposed by the Commission | Amendment |
|---|---|
| The application for authorisation of an AIFM that relies on the human and technical resources of one or more entities that belong to its EU group to conduct its business shall, in addition to the information referred to in paragraph 2, point (c), specify those human and technical resources. The authorisation of an AIFM shall not be made conditional on the requirement that the AIFM refrains from utilising resources of one or more entities within that same EU group.; | The application for authorisation of an AIFM that relies on group resources to conduct its business shall, in addition to the information referred to in paragraph 2, point (c), specify those group resources. The authorisation of an AIFM shall not be made conditional on the requirement that the AIFM refrains from utilising group resources but the use of group resources shall not prevent the effective supervision of the AIFM.; |
| Text proposed by the Commission | Amendment |
|---|---|
| The application for authorisation of an AIFM that relies on the human and technical resources of one or more entities that belong to its EU group to conduct its business shall, in addition to the information referred to in paragraph 2, point (c), specify those human and technical resources. The authorisation of an AIFM shall not be made conditional on the requirement that the AIFM refrains from utilising resources of one or more entities within that same EU group.; | The application for authorisation of an AIFM that relies on the human and technical resources of one or more entities that belong to its group to conduct its business shall, in addition to the information referred to in paragraph 2, point (c), specify those human and technical resources. The authorisation of an AIFM shall not be made conditional on the requirement that the AIFM refrains from utilising resources of one or more entities within that same group; |
| Text proposed by the Commission | Amendment |
|---|---|
| The AIFM should document its critical and non-critical delegation arrangements, including the name of the delegate, the delegated function or service and the criticality assessment. This information shall be made available on request to the competent authorities of its home Member State. |
The aim of amending the delegation framework is to transition from the Commission’s blanket exemption for all EU group arrangements to a risk-based approach. Under this approach, non-critical, lower-risk delegation arrangements would be granted a derogation, regardless of group structure or geography. All other arrangements would be subject to proportionate, ongoing monitoring in accordance with the ESMA Principles on third-party risk supervision.
| Text proposed by the Commission | Amendment |
|---|---|
| The process of application for authorisation of an AIFM that relies on the human and technical resources of one or more entities that belong to its group to conduct its business shall be exclusively initiated by the relevant AIFM. |
| Text proposed by the Commission | Amendment |
|---|---|
| (aa) the following paragraph is inserted: | |
| ‘2b. Where an AIFM relies on intra-group resources in accordance with paragraph 2a, it shall retain effective decision-making capacity, adequate own substance and responsibility for compliance. Such intra-group arrangements shall be notified to the competent authority prior to their implementation, which may require measures to preserve supervisory visibility. This lighter treatment shall not apply where the ultimate parent is established outside the Union, unless supervisory equivalence is demonstrated.’; |
It introduces essential safeguards to the "EU group" model to prevent supervisory arbitrage and the proliferation of "letter-box" entities. By mandating that licensed entities retain adequate own substance and effective decision-making capacity, the proposal ensures that the core management remains within the Union.
The amendment requires ex-ante notification of intra-group arrangements (prior to implementation) to ensure supervisory visibility for National Competent Authorities. Furthermore, by restricting the "lighter treatment" to groups with Union-based ultimate parents, the amendment prevents non-EU firms from using thin subsidiaries to bypass robust delegation standards, thereby preserving the supervisory integrity and legal accountability of the Union’s financial ecosystem.
| Text proposed by the Commission | Amendment |
|---|---|
| In order to ensure consistent harmonisation of this Article, ESMA shall develop draft regulatory technical standards to specifying: | ESMA shall develop draft regulatory technical standards to specifying: |
The aim of amending the delegation framework is to transition from the Commission’s blanket exemption for all EU group arrangements to a risk-based approach. Under this approach, non-critical, lower-risk delegation arrangements would be granted a derogation, regardless of group structure or geography. All other arrangements would be subject to proportionate, ongoing monitoring in accordance with the ESMA Principles on third-party risk supervision.
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the details of the information to be provided to the competent authorities in the application for the authorisation of the AIFM, including the programme of activity; | (a) the criteria to be applied for the performance of the risk-based assessment; |
The aim of amending the delegation framework is to transition from the Commission’s blanket exemption for all EU group arrangements to a risk-based approach. Under this approach, non-critical, lower-risk delegation arrangements would be granted a derogation, regardless of group structure or geography. All other arrangements would be subject to proportionate, ongoing monitoring in accordance with the ESMA Principles on third-party risk supervision.
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the procedures and timelines to be followed as part of the application for authorisation of the AIFM; | (b) the different risk categories from lower to higher risk; |
The aim of amending the delegation framework is to transition from the Commission’s blanket exemption for all EU group arrangements to a risk-based approach. Under this approach, non-critical, lower-risk delegation arrangements would be granted a derogation, regardless of group structure or geography. All other arrangements would be subject to proportionate, ongoing monitoring in accordance with the ESMA Principles on third-party risk supervision.
| Text proposed by the Commission | Amendment |
|---|---|
| (c) the methods and arrangements for delivery of the information to be provided | (c) the safeguards to ensure that risk assessments are performed in a robust manner and reflect the adequate level of risk. |
The aim of amending the delegation framework is to transition from the Commission’s blanket exemption for all EU group arrangements to a risk-based approach. Under this approach, non-critical, lower-risk delegation arrangements would be granted a derogation, regardless of group structure or geography. All other arrangements would be subject to proportionate, ongoing monitoring in accordance with the ESMA Principles on third-party risk supervision.
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall develop IT solutions, including templates, data standards, formats and instructions for providing the information referred to in point (a). | deleted |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall develop IT solutions, including templates, data standards, formats and instructions for providing the information referred to in point (a). | ESMA shall develop standard forms and instructions for providing the information referred to in point (a). |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) in paragraph 3 the following subparagraph is added: | deleted |
| ‘In order to ensure a uniform application of the rules of conduct referred to in paragraph 1 and to ensure a consistent implementation across Member States, ESMA may adopt guidelines, to specify the content of those rules.;’ |
Conduct-of-business criteria for AIFMs are already specified in operative detail by Commission Delegated Regulation (EU) 231/2013, a directly applicable Regulation requiring no national transposition. A new ESMA guideline-making power duplicates existing Level 2 acquis. Consistent with the simplification objective of this Regulation, unnecessary new empowerments should be avoided where the underlying rules are already uniform across the Union by construction.
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (b) in paragraph 3 the following subparagraph is added: | deleted |
| ‘In order to ensure a uniform application of the rules of conduct referred to in paragraph 1 and to ensure a consistent implementation across Member States, ESMA may adopt guidelines, to specify the content of those rules.;’ |
| Text proposed by the Commission | Amendment |
|---|---|
| (7a) in Article 15(2), the following subparagraph is inserted after the first subparagraph: | |
| 'The risk-management process referred to in the previous subparagraph shall identify, assess, monitor and manage sustainability risks. It shall take into account both the exposure of the portfolios under management to sustainability risks and the principal adverse impacts of investment decisions on sustainability factors.' |
| Text proposed by the Commission | Amendment |
|---|---|
| 1. Member States shall ensure that AIFMs comply at all times with prudential rules.; | 1. Member States shall ensure that AIFMs comply at all times with prudential rules. Member States shall require that AIFMs use, at all times, adequate and appropriate human and technical resources that are necessary for the proper management of AIFs. ; |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) in paragraph 2 the following subparagraph is added: | deleted |
| ‘In order to ensure a uniform application of the prudential rules for AIFMs and to ensure a consistent implementation across Member States, ESMA may adopt guidelines to specify the content of those rules.;’ |
Prudential requirements for AIFMs are already comprehensively set out in Commission Delegated Regulation (EU) 231/2013, directly applicable across the Union without transposition. Adding a further Level 2 layer here is duplicative and runs counter to this package's own simplification objective.
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (b) in paragraph 2 the following subparagraph is added: | deleted |
| ‘In order to ensure a uniform application of the prudential rules for AIFMs and to ensure a consistent implementation across Member States, ESMA may adopt guidelines to specify the content of those rules.;’ |
| Text proposed by the Commission | Amendment |
|---|---|
| In order to ensure a uniform application of the prudential rules for AIFMs and to ensure a consistent implementation across Member States, ESMA may adopt guidelines to specify the content of those rules.; | In order to ensure a uniform application of the prudential rules for AIFMs and to ensure a consistent implementation across Member States, ESMA shall adopt guidelines to specify the content of those rules.; |
| Present text | Amendment |
|---|---|
| (-a) in paragraph 1, subparagraph 1, point (f) is replaced by the following: | |
| (f) the AIFM must be able to demonstrate that the delegate is qualified and capable of undertaking the functions and providing the services in question, that it was selected with all due care and that the AIFM is in a position to monitor effectively at any time the delegated activity, to give at any time further instructions to the delegate and to withdraw the delegation with immediate effect where to do so is in the interest of investors. | "(f) the AIFM must be able to demonstrate that the delegate is qualified and capable of undertaking the functions and providing the services in question, that it was selected with all due care and that the AIFM is in a position to monitor effectively at any time the delegated activity, to give at any time further instructions to the delegate and to withdraw the delegation with immediate effect where to do so is in the interest of investors. Monitoring over such delegates shall be performed in a manner proportionate to the delegation risks as assessed by the AIFM, having regard, inter alia, to the criticality of the delegated functions or services and to the fact whether the AIFM delegates within the same group." |
The aim of amending the delegation framework is to transition from the Commission’s blanket exemption for all EU group arrangements to a risk-based approach. Under this approach, non-critical, lower-risk delegation arrangements would be granted a derogation, regardless of group structure or geography. All other arrangements would be subject to proportionate, ongoing monitoring in accordance with the ESMA Principles on third-party risk supervision.
| Text proposed by the Commission | Amendment |
|---|---|
| (10) Article 20 is amended as follows: | deleted |
| (a) paragraph 3 is replaced by the following: | |
| ‘3. The AIFM's liability towards its clients, the AIF and its investors shall not be affected by the fact that the AIFM has delegated functions or services to a third party, or by any further sub-delegation, or has relied on one or more entities within its EU group to carry out its functions, pursuant to paragraph 6a, second subparagraph. The AIFM shall not delegate the functions or services or rely on the functions or services of one or more entities within its EU group to the extent that, in essence, it can no longer be considered to be the manager of the AIF or the provider of the services referred to in Article 6(4) and to the extent that it becomes a letter-box entity.;’ | |
| ‘By way of derogation from paragraph 1, where an AIFM relies on an entity within its EU group for the performance of the functions referred to in Annex I or the services referred to in Article 6(4), such arrangement shall not be considered as a delegation subject to the requirements set out in paragraph 1, where all of the following conditions are fulfilled: | |
| (a) the entity belongs to the EU group of the AIFM; | |
| (b) the AIFM has notified the competent authorities of its home Member State of the fact that it relies on another entity within its EU group to perform its functions or services; | |
| (c) the entity has been duly authorised to perform those functions or services on behalf of the AIFM.;’ |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (10) Article 20 is amended as follows: | deleted |
| (a) paragraph 3 is replaced by the following: | |
| ‘3. The AIFM's liability towards its clients, the AIF and its investors shall not be affected by the fact that the AIFM has delegated functions or services to a third party, or by any further sub-delegation, or has relied on one or more entities within its EU group to carry out its functions, pursuant to paragraph 6a, second subparagraph. The AIFM shall not delegate the functions or services or rely on the functions or services of one or more entities within its EU group to the extent that, in essence, it can no longer be considered to be the manager of the AIF or the provider of the services referred to in Article 6(4) and to the extent that it becomes a letter-box entity.;’ | |
| ‘By way of derogation from paragraph 1, where an AIFM relies on an entity within its EU group for the performance of the functions referred to in Annex I or the services referred to in Article 6(4), such arrangement shall not be considered as a delegation subject to the requirements set out in paragraph 1, where all of the following conditions are fulfilled: | |
| (a) the entity belongs to the EU group of the AIFM; | |
| (b) the AIFM has notified the competent authorities of its home Member State of the fact that it relies on another entity within its EU group to perform its functions or services; | |
| (c) the entity has been duly authorised to perform those functions or services on behalf of the AIFM.;’ |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) paragraph 3 is replaced by the following: | deleted |
| ‘3. The AIFM's liability towards its clients, the AIF and its investors shall not be affected by the fact that the AIFM has delegated functions or services to a third party, or by any further sub-delegation, or has relied on one or more entities within its EU group to carry out its functions, pursuant to paragraph 6a, second subparagraph. The AIFM shall not delegate the functions or services or rely on the functions or services of one or more entities within its EU group to the extent that, in essence, it can no longer be considered to be the manager of the AIF or the provider of the services referred to in Article 6(4) and to the extent that it becomes a letter-box entity.;’ |
The aim of amending the delegation framework is to transition from the Commission’s blanket exemption for all EU group arrangements to a risk-based approach. Under this approach, non-critical, lower-risk delegation arrangements would be granted a derogation, regardless of group structure or geography. All other arrangements would be subject to proportionate, ongoing monitoring in accordance with the ESMA Principles on third-party risk supervision.
| Text proposed by the Commission | Amendment |
|---|---|
| 3. The AIFM's liability towards its clients, the AIF and its investors shall not be affected by the fact that the AIFM has delegated functions or services to a third party, or by any further sub-delegation, or has relied on one or more entities within its EU group to carry out its functions, pursuant to paragraph 6a, second subparagraph. The AIFM shall not delegate the functions or services or rely on the functions or services of one or more entities within its EU group to the extent that, in essence, it can no longer be considered to be the manager of the AIF or the provider of the services referred to in Article 6(4) and to the extent that it becomes a letter-box entity.; | 3. The AIFM's liability towards its clients, the AIF and its investors shall not be affected by the fact that the AIFM has delegated functions or services to a third party, or by any further sub-delegation, or has entered into a delegation arrangement that is subject to a non-material risk categorisation, pursuant to paragraph 6a, second subparagraph. The AIFM shall not delegate the functions or services or enter into delegation arrangements that are subject to a non-material risk categorisation to the extent that, in essence, it can no longer be considered to be the manager of the AIF or the provider of the services referred to in Article 6(4) and to the extent that it becomes a letter-box entity.; |
| Text proposed by the Commission | Amendment |
|---|---|
| 3. The AIFM's liability towards its clients, the AIF and its investors shall not be affected by the fact that the AIFM has delegated functions or services to a third party, or by any further sub-delegation, or has relied on one or more entities within its EU group to carry out its functions, pursuant to paragraph 6a, second subparagraph. The AIFM shall not delegate the functions or services or rely on the functions or services of one or more entities within its EU group to the extent that, in essence, it can no longer be considered to be the manager of the AIF or the provider of the services referred to in Article 6(4) and to the extent that it becomes a letter-box entity.; | 3. The AIFM's liability towards its clients, the AIF and its investors shall not be affected by the fact that the AIFM has delegated functions or services to a third party, or by any further sub-delegation, or has relied on one or more entities within its group to carry out its functions, pursuant to paragraph 6a, second subparagraph. The AIFM shall not delegate the functions or services or rely on the functions or services of one or more entities within its group to the extent that, in essence, it can no longer be considered to be the manager of the AIF or the provider of the services referred to in Article 6(4) and to the extent that it becomes a letter-box entity.; |
| Text proposed by the Commission | Amendment |
|---|---|
| (aa) in paragraph 3, the following subparagraphs are added: | |
| 'In order to ensure a harmonised application of the previous subparagraph, ESMA shall develop a draft regulatory standards specifying the notion of ‘letter-box’ entity, including by developing metrics to identify real economic activity. | |
| ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by [Please insert date = 12 months after the entry into force of this Directive]. | |
| Power is conferred to the Commission to supplement this Directive by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’ |
| Text proposed by the Commission | Amendment |
|---|---|
| By way of derogation from paragraph 1, where an AIFM relies on an entity within its EU group for the performance of the functions referred to in Annex I or the services referred to in Article 6(4), such arrangement shall not be considered as a delegation subject to the requirements set out in paragraph 1, where all of the following conditions are fulfilled: | By way of derogation from paragraph 1, where the delegation arrangement is considered non-critical, such arrangement shall not be considered as a delegation subject to the requirements set out in paragraph 1. |
The aim of amending the delegation framework is to transition from the Commission’s blanket exemption for all EU group arrangements to a risk-based approach. Under this approach, non-critical, lower-risk delegation arrangements would be granted a derogation, regardless of group structure or geography. All other arrangements would be subject to proportionate, ongoing monitoring in accordance with the ESMA Principles on third-party risk supervision.
| Text proposed by the Commission | Amendment |
|---|---|
| By way of derogation from paragraph 1, where an AIFM relies on an entity within its EU group for the performance of the functions referred to in Annex I or the services referred to in Article 6(4), such arrangement shall not be considered as a delegation subject to the requirements set out in paragraph 1, where all of the following conditions are fulfilled: | By way of derogation from paragraph 1, where an AIFM enters into a non-material risk delegation arrangement, such arrangement shall not be considered as a delegation subject to the requirements set out in paragraph 1 or in Articles 76, 77 and 79 of Commission Delegated Regulation (EU) No 231/2013, where all of the following conditions are fulfilled: |
| Text proposed by the Commission | Amendment |
|---|---|
| By way of derogation from paragraph 1, where an AIFM relies on an entity within its EU group for the performance of the functions referred to in Annex I or the services referred to in Article 6(4), such arrangement shall not be considered as a delegation subject to the requirements set out in paragraph 1, where all of the following conditions are fulfilled: | By way of derogation from paragraph 1, where an AIFM relies on an entity within its group for the performance of the functions referred to in Annex I or the services referred to in Article 6(4), such arrangement shall not be considered as a delegation subject to the requirements set out in paragraph 1, where the following conditions are fulfilled: |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the entity belongs to the EU group of the AIFM; | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the entity belongs to the EU group of the AIFM; | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the entity belongs to the EU group of the AIFM; | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the AIFM has notified the competent authorities of its home Member State of the fact that it relies on another entity within its EU group to perform its functions or services; | deleted |
The aim of amending the delegation framework is to transition from the Commission’s blanket exemption for all EU group arrangements to a risk-based approach. Under this approach, non-critical, lower-risk delegation arrangements would be granted a derogation, regardless of group structure or geography. All other arrangements would be subject to proportionate, ongoing monitoring in accordance with the ESMA Principles on third-party risk supervision.
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the AIFM has notified the competent authorities of its home Member State of the fact that it relies on another entity within its EU group to perform its functions or services; | (b) the AIFM has notified the competent authorities of its home Member State of the fact that it has entered into a non-material risk delegation arrangement and has provided such information as may be required so that the competent authorities of its home Member State can assess the AIFM’s compliance with Article 20(3); |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the AIFM has notified the competent authorities of its home Member State of the fact that it relies on another entity within its EU group to perform its functions or services; | (b) the AIFM has notified the competent authorities of its home Member State of the fact that it relies on another entity within its group to perform its functions or services; |
| Text proposed by the Commission | Amendment |
|---|---|
| (c) the entity has been duly authorised to perform those functions or services on behalf of the AIFM.; | deleted |
The aim of amending the delegation framework is to transition from the Commission’s blanket exemption for all EU group arrangements to a risk-based approach. Under this approach, non-critical, lower-risk delegation arrangements would be granted a derogation, regardless of group structure or geography. All other arrangements would be subject to proportionate, ongoing monitoring in accordance with the ESMA Principles on third-party risk supervision.
| Text proposed by the Commission | Amendment |
|---|---|
| (c) the entity has been duly authorised to perform those functions or services on behalf of the AIFM.; | (c) where the delegation concerns portfolio management or risk management, the entity has been duly authorised to perform those functions or services on behalf of the AIFM per Article 78 of Commission Delegated Regulation (EU) No 231/2013.; |
| Text proposed by the Commission | Amendment |
|---|---|
| (ba) the following paragraph is inserted: | |
| '6b. By way of derogation from paragraph 1, where an AIFM enters into a delegation arrangement subject to a non-material risk categorisation, such arrangement shall not be considered as a delegation subject to the requirements set out in paragraph 1 or in Articles 76, 77 and 79 of Commission Delegated Regulation (EU) No 231/2013, where all of the following conditions are fulfilled: | |
| (a) the AIFM has notified the competent authorities of its home Member State of the fact that it has entered into a delegation arrangement subject to a non-material risk categorisation, and has provided such information as the competent authorities require to assess the AIFM's compliance with this Article; | |
| (b) where the delegation concerns portfolio management or risk management, the entity is duly authorised or registered for the purpose of asset management and subject to supervision, or the delegation has received the prior approval of the competent authorities of the home Member State of the AIFM, in accordance with Article 78 of Commission Delegated Regulation (EU) No 231/2013.' |
The Commission proposal's EU-group carve-out treats intra-group delegation as uniformly low-risk regardless of function, while denying any relief to extra-group or third-country arrangements that may carry lower risk. A non-material risk categorisation, tested against ESMA's own principles on third-party risks supervision, targets delegation requirements where risk is actually material, retaining a specific authorisation safeguard for portfolio and risk management.
| Text proposed by the Commission | Amendment |
|---|---|
| (ba) the following paragraph is inserted: | |
| ‘7a. ESMA shall develop draft regulatory technical standards specifying the characteristics of the proportionate approach related to the ongoing monitoring regime as set out in paragraph 1, point (f). | |
| ESMA shall submit those draft regulatory technical standards to the Commission by [12 months after the date of entry into force of this amending Directive].' |
The aim of amending the delegation framework is to transition from the Commission’s blanket exemption for all EU group arrangements to a risk-based approach. Under this approach, non-critical, lower-risk delegation arrangements would be granted a derogation, regardless of group structure or geography. All other arrangements would be subject to proportionate, ongoing monitoring in accordance with the ESMA Principles on third-party risk supervision.
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (10a) the following Section is inserted: | |
| 'SECTION 3a | |
| Simplified regime for management companies belonging to an EU group of management companies and AIFMs' |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (10a) the following Article is inserted: | |
| ‘Article 20a | |
| General principle | |
| Management companies belonging to an EU group shall benefit from the simplified regime set out in this Section.’ |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (10b) the following Article is inserted: | |
| 'Article 20b | |
| Use of intra-group human and technical resources | |
| 1. A management company belonging to an EU group may rely on the human and technical resources of one or more entities that belong to its EU group to conduct its business. | |
| 2. At the time of authorisation, a management company that shares resources pursuant to paragraph 1, shall in addition to the information referred to in Article 7(2), point (c), specify those human and technical resources. | |
| 3. The authorisation of a management company shall not be made conditional on the requirement that the management company refrains from utilising resources of one or more entities within that same EU group.' |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (10c) the following Article is inserted: | |
| 'Article 20c | |
| Intra-group delegation | |
| 1. A management company belonging to an EU group may rely on one or more entities that belong to its EU group to carry out on its behalf the performance of the functions referred to in Annex II or the services referred to in Article 6(3) or critical or important functions. | |
| For the purposes of this Article, “critical or important functions” means functions the interruption of which would materially impair the financial performance of the management company or the soundness or continuity of its services and activities, or the deficient, interrupted or insufficient performance of which would materially impair the continued compliance of the management company with the conditions and obligations attached to its authorisation or with applicable Union law. | |
| 2. Where a management company relies on an entity within its EU group for the performance of the functions referred to in Annex II or the services referred to in Article 6(3) or critical or important functions, such arrangement shall not be considered as a delegation subject to the delegation regime, where all of the following conditions are fulfilled: | |
| (a) the entity belongs to the EU group of the management company; | |
| (b) the management company has notified the competent authorities of its home Member State of the fact that it relies on another entity within its EU group to perform its functions or services; | |
| (c) the entity has been duly authorised to perform those functions or services; | |
| (d) the arrangement does not impair the autonomous exercise of the fiduciary duties. | |
| 3. At the time of authorisation, management company pursuant to paragraph 1 shall not provide to the competent authorities of its home Member State the information referred to in Article 7(2), point (e).' |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (10d) the following Article is inserted: | |
| 'Article 20d | |
| Application of the Anti-Letter-Box Principle | |
| 1. The application of the intra-group arrangements referred to in this Section shall not affect the obligation of management companies to comply with the prohibition on becoming a letter-box entity. | |
| 2. Competent authorities shall assess compliance with the organisational substance requirements and with the anti-letter-box principle when authorising and supervising both the management company and the entity performing functions on its behalf, including where intra-group arrangements benefit from the derogations provided for in this Section. | |
| 3. For EU groups composed exclusively of management companies authorised under Directive 2009/65/EC and AIFMs authorised under this Directive, the assessment of organisational substance and of compliance with the anti-letter-box principle shall take into account the resources, expertise, governance arrangements and infrastructures available within the EU group as a whole, including in particular: | |
| (a) the organisational integration of the EU group; | |
| (b) the distribution of functions, resources and expertise within the EU group; | |
| (c) the existence of shared infrastructures, systems, technological platforms and personnel within the EU group; | |
| (d) the effective decision-making powers, oversight functions and control responsibilities retained by the management company or AIFM; | |
| (e) the full responsibility and liability of the management company or AIFM towards investors and competent authorities. | |
| 4. The existence of shared personnel, centralised support functions, common technological infrastructures, integrated governance arrangements or intra-group delegation arrangements within an EU group shall not, in itself, constitute evidence that a management company or AIFM lacks sufficient organisational substance, nor give rise to a presumption that the management company or AIFM has become a letter-box entity.' |
| Present text | Amendment |
|---|---|
| (-a) in the first subparagraph, the introductory part is replaced by the following: | |
| The depositary shall be: | "The depositary acting on the basis of the authorisation of and under the supervision of the competent authority according to the art. 4 section 1 letter shall be:" |
The Rapporteur’s proposal to transfer the supervision of depositaries breaches the principles of subsidiarity and proportionality and should therefore be deleted. It fails to demonstrate why effective supervision of cross-border activities cannot be ensured at national level. Moreover, no equivalent supervisory approach is proposed for investment funds themselves, despite their close link to depositary services
| Text proposed by the Commission | Amendment |
|---|---|
| (b) in paragraph 5 the following subparagraph is added: | deleted |
| ‘By way of derogation from the first subparagraph, point (a), an AIFM may appoint for an AIF it manages a depositary that has its registered office or is established in a Member State other than the home Member State of the AIF, provided that the depositary falls into one of the categories referred to in paragraph 3, points (a) and (b) and has been duly authorised to provide services in other Member States pursuant to Directive 2013/36/EU or Article 6(3) of Directive 2014/65/EU, respectively.;’ |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) in paragraph 5 the following subparagraph is added: | deleted |
| ‘By way of derogation from the first subparagraph, point (a), an AIFM may appoint for an AIF it manages a depositary that has its registered office or is established in a Member State other than the home Member State of the AIF, provided that the depositary falls into one of the categories referred to in paragraph 3, points (a) and (b) and has been duly authorised to provide services in other Member States pursuant to Directive 2013/36/EU or Article 6(3) of Directive 2014/65/EU, respectively.;’ |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) in paragraph 5 the following subparagraph is added: | deleted |
| ‘By way of derogation from the first subparagraph, point (a), an AIFM may appoint for an AIF it manages a depositary that has its registered office or is established in a Member State other than the home Member State of the AIF, provided that the depositary falls into one of the categories referred to in paragraph 3, points (a) and (b) and has been duly authorised to provide services in other Member States pursuant to Directive 2013/36/EU or Article 6(3) of Directive 2014/65/EU, respectively.;’ |
| Text proposed by the Commission | Amendment |
|---|---|
| (c) paragraph 5a is deleted; | deleted |
The introduction of a passport could significantly weaken investor protection, complicate the authorisation and supervision of funds, and create legal uncertainty. It could furthermore lead to increased concentration in the depositary market, heightening risks to financial stability and amplifying systemic risk. Instead, the derogation outlined in Article 21 paragraph 5a should be reinstated.
| Text proposed by the Commission | Amendment |
|---|---|
| (c) paragraph 5a is deleted; | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (c) paragraph 5a is deleted; | (c) paragraph 5a is replaced by the following: |
| 'For purposes of paragraph 5, second subparagraph, to ensure effective supervision of the relevant AIF, the competent authority of the home Member State of the AIF shall have the power to request the competent authority of the depositary or directly the depositary appointed in accordance with that subparagraph for any such information, documents, records and explanations as are necessary and proportionate to assess the compliance of the depositary with its duties and obligations in respect of the relevant AIF under this Article. | |
| The home Member State of the AIF and the home Member State of the depositary shall cooperate together in the event of a failure of the depositary to comply with its duties and obligations. If the situation is serious, the home Member State of the AIF could request the home Member State of the depositary to take action against the depositary, in order to safeguard the interests of the investors in the AIF. | |
| The depositary shall notify without undue delay both its competent authority and the competent authority of the home Member State of the AIF of any material breach of the AIF, failure in safekeeping, unresolved cash-flow discrepancy, or any circumstance that may materially affect the interests of the AIF or its investors. | |
| If, despite the measures taken by the competent authority of the depositary within three months or because such measures prove inadequate, the depositary persists in acting in a manner that is clearly prejudicial to the interests of the home Member State of the AIF or investors of such AIF, the following shall apply: | |
| (a) after informing the competent authority of the depositary, the competent authority of the home Member State of the AIF shall take all the appropriate measures needed in order to protect the interests of the AIF or its investors, which shall include the possibility of preventing the offending depositary from providing any further depositary services and take precautionary measures to protect the interests of the AIF. The EBA and/or ESMA shall be informed of such measures without undue delay; and | |
| (b) the competent authority of the home Member State of the AIF may refer the matter to ESMA, which may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010. |
| Text proposed by the Commission | Amendment |
|---|---|
| (c) paragraph 5a is deleted; | (c) paragraph 5a is replaced by the following: |
| 'For purposes of paragraph 5, second subparagraph, to ensure effective supervision of the relevant AIF, the competent authority of the home Member State of the AIF shall have the power to request the competent authority of the depositary or directly the depositary appointed in accordance with that subparagraph for any such information, documents, records and explanations as are necessary and proportionate to assess the compliance of the depositary with its duties and obligations in respect of the relevant AIF under this Article. | |
| The home Member State of the AIF and the home Member State of the depositary shall cooperate together in the event of a failure of the depositary to comply with its duties and obligations. If the situation is serious, the home Member State of the AIF could request the home Member State of the depositary to take action against the depositary, in order to safeguard the interests of the investors in the AIF. | |
| The depositary shall notify without undue delay both its competent authority and the competent authority of the home Member State of the AIF of any material breach of the AIF, failure in safekeeping, unresolved cash-flow discrepancy, or any circumstance that may materially affect the interests of the AIF or its investors. | |
| If, despite the measures taken by the competent authority of the depositary within three months or because such measures prove inadequate, the depositary persists in acting in a manner that is clearly prejudicial to the interests of the home Member State of the AIF or investors of such AIF, the following shall apply: | |
| (a) after informing the competent authority of the depositary, the competent authority of the home Member State of the AIF shall take all the appropriate measures needed in order to protect the interests of the AIF or its investors, which shall include the possibility of preventing the offending depositary from providing any further depositary services and take precautionary measures to protect the interests of the AIF. The EBA and/or ESMA shall be informed of such measures without undue delay; and | |
| (b) the competent authority of the home Member State of the AIF may refer the matter to ESMA, which may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010.' |
| Text proposed by the Commission | Amendment |
|---|---|
| (ca) the following paragraph is inserted: | |
| '13a. The liability of the depositary shall not be excluded or limited by its establishment in a different Member State than that of the AIF.' |
| Text proposed by the Commission | Amendment |
|---|---|
| (ca) the following paragraph is inserted: | |
| '16a. Where the depositary is authorised as a credit institution under Directive 2013/36/EU or as an investment firm under Directive 2014/65/EU and has exercised its right to provide services in another Member State, the competent authorities of the AIF shall not impose any additional requirements relating to the establishment, authorisation or provision of depositary services, except where expressly provided for under Union law.' |
| Text proposed by the Commission | Amendment |
|---|---|
| (11a) the following Article 21a is inserted: | |
| 'Article 21a | |
| 1. By 31 December 2029, ESMA, in cooperation with EU national competent authorities, shall draw up a report on the current national frameworks for AIFs depositaries and on the national approaches to the supervision of depositary obligations. | |
| 2. By 31 December 2033, the Commission, after having consulted with national competent authorities and ESMA, based on the ESMA report under paragraph 1, taking into account the Commission assessment of the functioning of the derogation allowing the appointment of an AIFs depositary established in another Member State, shall draft a legislative proposal on a EU rulebook for AIFs depositaries and for the approach of the supervision of depositary obligations.' |
| Text proposed by the Commission | Amendment |
|---|---|
| (12a) in Article 22(2), the following point fa) is added: | |
| ‘(fa) the share of assets complying with the criteria laid down in the delegated acts adopted pursuant to Articles 10(3), 11(3), 12(2), 13(2), 14(2) or 15(2) of Regulation 2020/852 in which the AIFM invested.’ |
| Text proposed by the Commission | Amendment |
|---|---|
| (12a) in Article 23(1), the following point (ba) is inserted: | |
| '(ba) information on the alignment of the AIFM investment decisions with the Union's climate neutrality objective set out in Regulation (EU) 2021/1119 (‘European Climate Law’);' |
| Text proposed by the Commission | Amendment |
|---|---|
| (12b) in Article 23(1), the following point (bc) is inserted: | |
| ‘(bc) the share of the AIF investments effectively allocated to assets that meet the taxonomy requirements as laid down in the delegated acts adopted pursuant to Articles 10(3), 11(3), 12(2), 13(2), 14(2) or 15(2) of Regulation (EU) 2020/852;’ |
| Text proposed by the Commission | Amendment |
|---|---|
| (12a) in Article 24, the following paragraph is inserted: | |
| '1a. The competent authority of the home Member State shall, following verification of the completeness, quality and accuracy of the information referred to in this Article, transmit the validated supervisory data to the data platform established pursuant to Article 12 of Regulation (EU) 2019/1156.' |
Eero Heinäluoma, Jonás Fernández, Francisco Assis, César Luena, Evelyn Regner, Aurore Lalucq, Nikos Papandreou
| Text proposed by the Commission | Amendment |
|---|---|
| (12a) the following Article 25c is inserted: | |
| 'Article 25c | |
| 1. Where a competent authority determines that there is a need for reciprocation of a macroprudential measure adopted under Article 25 or 25a in its home jurisdiction, it may submit a request to ESMA, together with the accompanying rationale and background information, to coordinate reciprocation of that measure by competent authorities in other Member States. | |
| 2. ESMA, in cooperation with the ESRB, shall assess the request referred to in paragraph 1, including based on proportionality and de minimis considerations, and shall issue guidance on whether reciprocation should be granted. | |
| 3. Competent authorities to which a reciprocation request is addressed shall, within a reasonable time to be specified in the guidance referred to in paragraph 2, either apply the measure or publicly explain their reasons for not doing so. | |
| 4. Where ESMA, in cooperation with the ESRB, issues a positive opinion under paragraph 2 and reciprocation is not achieved within the time referred to in paragraph 3, ESMA may adopt a temporary, EU-wide measure enforcing reciprocation for a limited period, to allow further discussion between ESMA and the competent authorities concerned. | |
| 5. ESMA, in cooperation with the ESRB, may, where necessary to address systemic risks building up across the Union or in a single Member State: | |
| (a) apply more stringent macroprudential requirements under Article 25 or Article 25a than those applied or proposed by the relevant competent authority; or | |
| (b) recommend that one or more competent authorities implement an appropriate measure under Article 25 or Article 25a, where no national measure is in place. | |
| 6. Competent authorities to whom a recommendation is addressed under paragraph 5(b) shall respond within a reasonable time by either implementing the recommended measure or publicly explaining their reasons for not doing so. ESMA may then reassess the situation. | |
| 7. Adequate representation arrangements for national macroprudential authorities that are not members of ESMA shall be ensured in the exercise of the powers referred to in this Article, including, where appropriate, through a dedicated committee within ESMA established for that purpose.' |
| Text proposed by the Commission | Amendment |
|---|---|
| (12b) in Article 24, the following paragraph is added: | |
| ‘6a. Regulatory reporting submitted pursuant to this Article shall be submitted in a single, standardised format exclusively to ESMA, which shall centralise that reporting at fund level. ESMA shall transmit the reported data, without delay, to the competent authorities of the home Member State of the AIFM concerned, and, upon request, to the competent authorities of the Member States where the relevant AIFs are domiciled or marketed. | |
| The centralisation and analysis of data by ESMA under this Article shall be organised on a fund-by-fund basis and shall not result in the aggregation, identification or classification of AIFMs, or of groups thereof, for supervisory or regulatory purposes other than the exercise of the powers set out in this Directive, Directive 2009/65/EC or Regulation (EU) No 1095/2010. | |
| ESMA shall develop draft regulatory technical standards specifying the IT solutions, including templates, data standards, formats and instructions, for the submission of the information referred to in this Article. | |
| ESMA shall submit those draft regulatory technical standards to the Commission by … [24 months from the date of entry into force of this amending Directive]. | |
| Power is delegated to the Commission to supplement this Directive by adopting the regulatory technical standards referred to in the third subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. | |
| On an annual basis, ESMA shall prepare a report analysing, at fund and product level, the data referred to in the preceding paragraph, and shall likewise prepare, on an annual basis, a report analysing the market data collected pursuant to the European Single Access Point established under Regulation (EU) 2023/2859.’; |
| Present text | Amendment |
|---|---|
| (12b) in Article 25(2), the first subparagraph is replaced by the following: | |
| The competent authorities of the home Member State of the AIFM shall ensure that all information gathered under Article 24 in respect of all AIFMs that they supervise and the information gathered under Article 7 is made available to other relevant competent author-ities, ESMA, EBA, the European Supervisory Authority (European Insurance and Occupational Pensions Authority) established by Regu-lation (EU) No 1094/2010 of the European Parliament and of the Council (1) (known collectively as ‘European Supervisory Authorities’ or ‘ESAs’) and the ESRB, whenever necessary for the purpose of carrying out their duties, by means of the procedures set out in Article 50. | 'The competent authorities of the home Member State of the AIFM shall ensure that all information gathered under Article 24 in respect of all AIFMs that they supervise and the information gathered under Article 7 is made available, via the data platform, to other relevant competent authorities, ESMA, EBA, the European Supervisory Authority (European Insurance and Occupational Pensions Authority) established by Regulation (EU) No 1094/2010 of the European Parliament and of the Council (known collectively as ‘European Supervisory Authorities’ or ‘ESAs’) and the ESRB, whenever necessary for the purpose of carrying out their duties, by means of the procedures set out in Article 50.' |
| ((References throughout the text to the sending and receiving of information between competent authorities should be understood as submitting and accessing this information through the data platform, unless the information is additional to that required under this Directive.)) |
| Present text | Amendment |
|---|---|
| (12c) in Article 25, paragraph 2 is replaced by the following: | |
| 2. The competent authorities of the home Member State of the AIFM shall ensure that all information gathered under Article 24 in respect of all AIFMs that they supervise and the information gathered under Article 7 is made available to other relevant competent authorities, ESMA, EBA, the European Supervisory Authority (European Insurance and Occupational Pensions Authority) established by Regulation (EU) No 1094/2010 of the European Parliament and of the Council ( 24 ) (known collectively as ‘European Supervisory Authorities’ or ‘ESAs’) and the ESRB, whenever necessary for the purpose of carrying out their duties, by means of the procedures set out in Article 50. | "2. The competent authorities of the home Member State of the AIFM shall ensure that all information gathered under Article 24 in respect of all AIFMs that they supervise and the information gathered under Article 7 is made available to other relevant competent authorities, ESMA, EBA, the European Supervisory Authority (European Insurance and Occupational Pensions Authority) established by Regulation (EU) No 1094/2010 of the European Parliament and of the Council(*) (known collectively as “European Supervisory Authorities” or “ESAs”), the ESRB, and the members of the ESCB, whenever necessary for the purpose of carrying out their duties in accordance with Union or national law, by means of the procedures set out in Article 50. |
| The competent authorities of the home Member State of the AIFM shall ensure that all information gathered under Article 24 in respect of all AIFMs that they supervise is made available, for statistical purposes only, to the ESCB, by means of the procedures set out in Article 50. | The competent authorities of the home Member State of the AIFM shall, without delay, provide information by means of the procedures set out in Article 50, and bilaterally to the competent authorities of other Member States directly concerned, if an AIFM under their responsibility, or an AIF managed by that AIFM, could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institutions in other Member States, or to the stability of the financial system in another Member State" |
| Text proposed by the Commission | Amendment |
|---|---|
| (12c) the following Article 25a is inserted: | |
| 'Article 25a | |
| Risk monitoring and supervisory convergence | |
| 1. ESMA shall monitor and analyse, on an ongoing basis, the supervisory information made available through the data platform established pursuant to Article 12 of Regulation (EU) 2019/1156 for the purposes of: | |
| (a) identifying sector-wide vulnerabilities and emerging risks affecting alternative investment fund managers and the alternative investment fund sector; | |
| (b) identifying significant cross-border market developments; | |
| (c) identifying inconsistencies in supervisory practices among competent authorities; and | |
| (d) identifying entity-specific risks where these may have implications for investor protection, financial stability or the consistent application of Union law. | |
| 2. In carrying out the monitoring referred to in paragraph 1, ESMA shall pay particular regard to the largest alternative investment fund managers, taking into account the scale, complexity and cross-border nature of their activities. | |
| 3. Where the monitoring carried out pursuant to paragraph 1 identifies material risks or significant supervisory inconsistencies, ESMA shall, where appropriate, make use of the powers conferred upon it by Regulation (EU) No 1095/2010 in order to promote supervisory convergence and the consistent application of Union law.' |
| Text proposed by the Commission | Amendment |
|---|---|
| (12d) the following Article 25a is inserted: | |
| 'Article 25a | |
| Macroprudential liquidity requirements for open-ended AIFs | |
| 1. Competent authorities shall have the power to require managers of open-ended AIFs to maintain redemption arrangements consistent with the time required to liquidate portfolio assets under stressed market conditions. | |
| 2. For the purposes of paragraph 1, competent authorities may impose one or more of the following measures: | |
| (a) minimum notice periods for redemptions; | |
| (b) minimum holding periods; | |
| (c) limits on redemption frequency. | |
| 3. ESMA, in consultation with the ESRB, shall develop regulatory technical standards specifying: | |
| (a) methodologies for assessing the consistency between asset liquidity and redemption terms; | |
| (b) the definition of stressed market conditions. | |
| ESMA shall submit those draft regulatory technical standards to the Commission by … [six months from the date of entry into force of this amending Directive]. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. | |
| 4. Where competent authorities identify systemic risks arising from a category of funds, they may apply the measures referred to in paragraph 2 to a class of funds on a sector-wide basis. | |
| 5. Measures adopted under this Article shall pursue the objective of safeguarding financial stability and mitigating systemic liquidity risks.’ |
| Text proposed by the Commission | Amendment |
|---|---|
| (12e) the following Article 25b is inserted: | |
| 'Article 25b | |
| Macroprudential leverage limits | |
| 1. Competent authorities shall have the power to impose leverage limits on AIFs where leverage may affect financial stability. | |
| 2. In exercising the powers referred to in paragraph 1, competent authorities shall consider: | |
| (a) the size of the fund sector; | |
| (b) interconnectedness with credit institutions and financial markets; | |
| (c) concentration in specific asset classes, including in assets exposed to climate and ESG risks; | |
| (d) potential spillovers to the real economy and its long term sustainability. | |
| 3. Competent authorities may impose leverage limits at fund level or for categories of funds sharing similar investment strategies, in accordance with Article 25(3). | |
| 4. For real estate investment funds, leverage limits shall be calibrated with reference to the ratio of total debt to total assets. For the purposes of this paragraph, ‘total debt’ shall at least include all forms of borrowing and leverage exposure incurred directly or indirectly by the AIF, including, without limitation, bank borrowings, debt instruments issued, repurchase agreements, securities financing transactions and any other arrangement which has the effect of creating leverage at the level of the AIF. | |
| 5. ESMA, in cooperation with the ESRB, shall develop regulatory technical standards on the calibration of leverage limits under this Article. | |
| ESMA shall submit those draft regulatory technical standards to the Commission by … [six months from the date of entry into force of this amending Directive]. | |
| Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. | |
| 6. Measures adopted under this Article shall be designed to reduce procyclicality and mitigate risks to financial stability.' |
| Text proposed by the Commission | Amendment |
|---|---|
| (12f) the following Article 25c is inserted: | |
| Article 25c | |
| Reciprocation and top-up powers | |
| 1. Where a competent authority determines that there is a need for reciprocation of a macroprudential measure adopted under Article 25 or 25a in its home jurisdiction, it may submit a request to ESMA, together with the accompanying rationale and background information, to coordinate reciprocation of that measure by competent authorities in other Member States. | |
| 2. ESMA, in cooperation with the ESRB, shall assess the request referred to in paragraph 1, including based on proportionality and de minimis considerations, and shall issue guidance on whether reciprocation should be granted. | |
| 3. Competent authorities to which a reciprocation request is addressed shall, within a reasonable time to be specified in the guidance referred to in paragraph 2, either apply the measure or publicly explain their reasons for not doing so. | |
| 4. Where ESMA, in cooperation with the ESRB, issues a positive opinion under paragraph 2 and reciprocation is not achieved within the time referred to in paragraph 3, ESMA may adopt a temporary, EU-wide measure enforcing reciprocation for a limited period, to allow further discussion between ESMA and the competent authorities concerned. | |
| 5. ESMA, in cooperation with the ESRB, may, where necessary to address systemic risks building up across the Union or in a single Member State: | |
| (a) apply more stringent macroprudential requirements under Article 25 or Article 25a than those applied or proposed by the relevant competent authority; or | |
| (b) recommend that one or more competent authorities implement an appropriate measure under Article 25 or Article 25a, where no national measure is in place. | |
| 6. Competent authorities to whom a recommendation is addressed under paragraph 5, point (b), shall respond within a reasonable time by either implementing the recommended measure or publicly explaining their reasons for not doing so. ESMA may then reassess the situation. | |
| 7. Adequate representation arrangements for national macroprudential authorities that are not members of ESMA shall be ensured in the exercise of the powers referred to in this Article, including, where appropriate, through a dedicated committee within ESMA established for that purpose.' |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| The competent authorities of the home Member State of the AIFM shall, within 15 days of receiving the complete documentation in accordance with paragraph 2 or within 1 month of receiving the complete documentation in accordance with paragraph 3, transmit the complete documentation to the competent authorities of the host Member State of the AIFM. Such transmission shall occur only if the AIFM's management of the AIF complies, and will continue to comply, with this Directive and the AIFM otherwise complies with this Directive.; | The competent authorities of the home Member State of the AIFM shall, within 15 working days of receiving the complete documentation in accordance with paragraph 2 or within 1 month of receiving the complete documentation in accordance with paragraph 3, transmit the complete documentation to the competent authorities of the host Member State of the AIFM. Such transmission shall occur only if the AIFM's management of the AIF complies, and will continue to comply, with this Directive and the AIFM otherwise complies with this Directive.; |
| Text proposed by the Commission | Amendment |
|---|---|
| (18a) in Article 43, the following paragraph is inserted: | |
| '3a. By way of derogation from Annex II of Directive 2014/65/EU, a natural or legal person who does not satisfy the criteria in that Annex may exceptionally be treated as a professional client by the AIFM for the purposes of this Directive in relation to a specific investment in the units or shares in an AIF where all of the following conditions are met: | |
| (a) the investment is made in an AIF with no redemption rights exercisable during a period of 5 years following the date of initial investment; | |
| (b) the person has expressly requested to be treated as a professional client for the purposes of that investment; | |
| (c) the natural person or, in the case of a legal person, a duly authorised representative has given explicit written consent to such treatment and acknowledgement of the inherent risks of the investment in a document which is separate from the agreement used to subscribe for or acquire the relevant units or shares in the AIF; and | |
| (d) the amount committed by the person is: | |
| (i) at least EUR 100 000, if the person has provided reasonable evidence to the AIFM that the person has a portfolio of investable assets, including cash, financial instruments, and savings products, with a value of at least EUR 1 000 000; or | |
| (ii) at least EUR 200 000 in any other case. | |
| Upon request by its competent authority, the AIFM shall provide details of the number of clients that have requested this derogation and the investments in respect of which it applied.' |
| Text proposed by the Commission | Amendment |
|---|---|
| (19a) the following Article 44a is inserted: | |
| ‘Article 44a | |
| Designation of the competent authority for significant EU groups of management companies and AIFMs | |
| 1. By … [12 months from the date of entry into force of this amending Directive] ESMA shall, in consultation with the ESRB, identify each EU group of management companies and AIFMs that are of significant importance to the Union (‘significant EU groups of management companies and AIFMs’). | |
| An EU group of management companies and AIFMs shall be considered significant where it meets the following conditions: | |
| (a) the aggregate Union-wide net asset values of the UCITS management companies and AIFMs within the group are above EUR 300 billion; | |
| (b) the UCITS management companies and AIFMs within the group are established in more than one Member State, or those UCITS management companies and AIFMs manage or market UCITS and AIFs in more than one Member State. | |
| 2. For purposes of paragraph 1, second subparagraph, point (a), aggregate Union-wide assets under management shall include EU assets under management within the scope of Directive 2009/65/EC or of this Directive. | |
| 3. ESMA shall publish a list of the EU groups of management companies and AIFMs identified as significant in accordance with the first paragraph and shall update that list every year. | |
| Where ESMA designates an EU group of management companies and AIFMs as significant, it shall assume the supervisory tasks and duties assigned under this Directive to the competent authority of the home Member State, including for their authorisation and supervision.’ |
| Text proposed by the Commission | Amendment |
|---|---|
| (19b) the following Article 44b is inserted: | |
| ‘Article 44b | |
| Supervisory fees | |
| 1. ESMA shall charge fees to each significant EU group of management companies and AIFMs. | |
| 2. The fees referred to in paragraph 1 shall fully cover ESMA’s necessary expenditure relating to the direct management, ongoing oversight, onsite inspections, and enforcement of significant EU groups of management companies and AIFMs and shall cover all costs incurred by ESMA for the performance of its supervisory tasks under this Directive. | |
| 3. The amount of an individual supervisory fee charged to a significant EU group of management companies and AIFMs shall be fully proportionate to its size, calculated on the basis of its total assets under management, and shall reflect the complexity and risk profile of the investment strategies pursued. | |
| 4. The Commission is empowered to adopt delegated acts to supplement this Article by specifying: | |
| (a) the method of calculation of the fees; | |
| (b) the manner in which fees are to be paid.’; |
| Text proposed by the Commission | Amendment |
|---|---|
| (20a) the following Article is inserted: | |
| ‘Article 47-a | |
| ESMA-NCA supervisory convergence mechanism | |
| 1. ESMA may, in cooperation with competent authorities, conduct thematic reviews of supervisory practices in the application of this Directive and Directive 2009/65/EC, insofar as those practices affect cross-border investment fund management, including the management and distribution of UCITS and AIFs within the Union, and the effective exercise of passporting rights. | |
| In selecting topics for review, ESMA shall take into account the potential impact of divergent supervisory practices on the functioning of the Single Market for investment funds and on AIFMs, management companies, AIFs and UCITS operating on a cross-border basis, including input received from competent authorities. | |
| 2. For the purposes of paragraph 1, ESMA shall rely, to the greatest extent possible, on the information already available to it pursuant to Article 24 and on information otherwise available to competent authorities, and shall avoid imposing duplicative reporting obligations. ESMA may request targeted additional information only where necessary and proportionate for the purposes of the review. | |
| 3. ESMA shall share the outcome of each review referred to in paragraph 1 with the competent authorities concerned, and may make the general findings publicly available, in aggregate and non-attributed form, with a view to supporting supervisory convergence. ESMA shall reflect the main findings of the reviews referred to in paragraph 1 in the periodic report referred to in Article 24.’ |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (20a) the following Section is inserted: | |
| 'SECTION 1a | |
| ASSET MANAGEMENT SUPERVISORY COORDINATION FRAMEWORK FOR LARGE CROSS-BORDER EU GROUPS OF MANAGEMENT COMPANIES AND AIFMs' |
| Text proposed by the Commission | Amendment |
|---|---|
| (21) the following Articles 47a to 47c are inserted: | deleted |
| (…) |
| Text proposed by the Commission | Amendment |
|---|---|
| (21) the following Articles 47a to 47c are inserted: | deleted |
| (…) |
| Text proposed by the Commission | Amendment |
|---|---|
| (21) the following Articles 47a to 47c are inserted: | deleted |
| (…) |
The annual review duplicates ESMA's existing convergence tools and relies on data already available to ESMA and competent authorities. It thereby introduces a comprehensive new review cycle, new supervisory layers and new complexity without any added benefit.
| Text proposed by the Commission | Amendment |
|---|---|
| Article 47a | deleted |
| (…) |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA review of large EU groups of AIFMs and management companies | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA review of large EU groups of AIFMs and management companies | College of supervisors for large cross-border EU groups of AIFMs and management companies |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA review of large EU groups of AIFMs and management companies | ESMA Coordination Mechanism |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA review of large EU groups of AIFMs and management companies | Identification of large cross-border EU groups management companies and AIFMs |
| Text proposed by the Commission | Amendment |
|---|---|
| 1. By [please insert date = 12 months from entry into force] ESMA shall identify each EU group of AIFMs and management companies that meets all of the following conditions: | deleted |
| (a) the aggregate EU-wide net asset values of AIFMs and management companies within the group are above EUR 300 billion; | |
| (b) the AIFMs and management companies within the group are established in more than one Member States, or those AIFMs and management companies manage or market AIFs and UCITS in more than one Member State. | |
| ESMA shall publish a list of the EU groups of AIFMs and management companies identified in accordance with the first subparagraph and shall update that list every three years. |
| Text proposed by the Commission | Amendment |
|---|---|
| By [please insert date = 12 months from entry into force] ESMA shall identify each EU group of AIFMs and management companies that meets all of the following conditions: | By [please insert date = 12 months from entry into force] ESMA shall, in consultation with national competent authorities and industry, select a representative sample of AIFM and management company groups that are authorised in more than one Member State. |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the aggregate EU-wide net asset values of AIFMs and management companies within the group are above EUR 300 billion; | deleted |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the aggregate EU-wide net asset values of AIFMs and management companies within the group are above EUR 300 billion; | (a) the aggregate EU-wide assets under management of management companies and AIFMs within the group exceed EUR 300 billion; |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the aggregate EU-wide net asset values of AIFMs and management companies within the group are above EUR 300 billion; | (a) the aggregate EU-wide net asset values of AIFMs and management companies within the group are above EUR 150 billion; |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the AIFMs and management companies within the group are established in more than one Member States, or those AIFMs and management companies manage or market AIFs and UCITS in more than one Member State. | deleted |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the AIFMs and management companies within the group are established in more than one Member States, or those AIFMs and management companies manage or market AIFs and UCITS in more than one Member State. | (b) the management companies and AIFMs within the group carry out cross-border activities of material importance, with cross-border assets under management representing at least 20% of the aggregate EU-wide assets under management of the management companies and AIFMs within the group. |
| Text proposed by the Commission | Amendment |
|---|---|
| (ba) the EU group of AIFMs and managements companies is not considered as significant in accordance with Article 44a of this Directive; |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| For the purposes of this Article, an EU group may be identified irrespective of whether its ultimate parent undertaking is established within or outside the Union, provided that only entities forming part of the EU group in accordance with Article 2(1), point (v), are taken into account. |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall publish a list of the EU groups of AIFMs and management companies identified in accordance with the first subparagraph and shall update that list every three years. | ESMA shall publish the representative sample of management companies, AIFMs, investment firms, and credit institutions and shall select a new representative sample every three years. |
| Text proposed by the Commission | Amendment |
|---|---|
| 2. For the purposes of paragraph 1, first subparagraph, point (a), aggregate EU wide assets under management shall include EU assets under management within the scope of this Directive or of Directive 2009/65/EC. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 2. For the purposes of paragraph 1, first subparagraph, point (a), aggregate EU wide assets under management shall include EU assets under management within the scope of this Directive or of Directive 2009/65/EC. | deleted |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 2. For the purposes of paragraph 1, first subparagraph, point (a), aggregate EU wide assets under management shall include EU assets under management within the scope of this Directive or of Directive 2009/65/EC. | 2. For the purposes of paragraph 1, first subparagraph, point (a) and (b), aggregate EU wide assets under management shall include EU assets under management within the scope of this Directive or of Directive 2011/61/EU. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 3. ESMA shall, in cooperation with the competent authorities of the home Member States of the AIFMs and, where relevant, the competent authorities of the home Member States of the management companies that are part of the EU group, carry out at least annually a review of each EU group identified pursuant to paragraph 1. | deleted |
| During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2009/65/EC that are taken by the competent authorities of the AIFMs and, where relevant, management companies within each EU group. For the purpose of that review, ESMA shall use a methodology that ensures comparability and consistency of those supervisory approaches. |
| Text proposed by the Commission | Amendment |
|---|---|
| 3. ESMA shall, in cooperation with the competent authorities of the home Member States of the AIFMs and, where relevant, the competent authorities of the home Member States of the management companies that are part of the EU group, carry out at least annually a review of each EU group identified pursuant to paragraph 1. | deleted |
| During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2009/65/EC that are taken by the competent authorities of the AIFMs and, where relevant, management companies within each EU group. For the purpose of that review, ESMA shall use a methodology that ensures comparability and consistency of those supervisory approaches. |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall, in cooperation with the competent authorities of the home Member States of the AIFMs and, where relevant, the competent authorities of the home Member States of the management companies that are part of the EU group, carry out at least annually a review of each EU group identified pursuant to paragraph 1. | For the entities identified in accordance with paragraph 1, ESMA shall establish a college of supervisors. |
| The college of supervisors shall consist of: | |
| (a) ESMA, which chairs the College of supervisors meetings; | |
| (b) competent authorities of the home and host Member States of the management companies and AIFM; | |
| (c) the ESRB as an observer. |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall, in cooperation with the competent authorities of the home Member States of the AIFMs and, where relevant, the competent authorities of the home Member States of the management companies that are part of the EU group, carry out at least annually a review of each EU group identified pursuant to paragraph 1. | ESMA may, where necessary and proportionate on the basis of objective risk indicators, in cooperation with the competent authorities of the home Member States of the AIFMs and, where relevant, the competent authorities of the home Member States of the management companies that are part of the EU group, carry out a review of each EU group identified pursuant to paragraph 1. A review shall not be carried out more frequently than once every three years for the same EU group unless a material change in the structure, activities or risk profile of that EU group, or a reasoned request from a competent authority, justifies an earlier review. |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall, in cooperation with the competent authorities of the home Member States of the AIFMs and, where relevant, the competent authorities of the home Member States of the management companies that are part of the EU group, carry out at least annually a review of each EU group identified pursuant to paragraph 1. | ESMA shall, in cooperation with the competent authorities of the home Member States of the AIFMs and, where relevant, the competent authorities of the home Member States of the management companies that are part of the representative sample, carry out every three years a review of the representative sample identified pursuant to paragraph 1. |
| Text proposed by the Commission | Amendment |
|---|---|
| During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2009/65/EC that are taken by the competent authorities of the AIFMs and, where relevant, management companies within each EU group. For the purpose of that review, ESMA shall use a methodology that ensures comparability and consistency of those supervisory approaches. | During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2009/65/EC that are taken by the competent authorities of the AIFMs and, where relevant, management companies within each EU group. For the purpose of that review, ESMA shall use a methodology that ensures comparability and consistency of those supervisory approaches and that is transparent, proportionate and limited to comparing supervisory approaches under this Directive and Directive 2009/65/EC. |
| Text proposed by the Commission | Amendment |
|---|---|
| During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2009/65/EC that are taken by the competent authorities of the AIFMs and, where relevant, management companies within each EU group. For the purpose of that review, ESMA shall use a methodology that ensures comparability and consistency of those supervisory approaches. | During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2009/65/EC that are taken by the competent authorities of the AIFMs and, where relevant, management companies within the representative sample. |
| Text proposed by the Commission | Amendment |
|---|---|
| During the review referred to in the first subparagraph, ESMA shall assess the supervisory approaches in the application of the requirements of this Directive and of Directive 2009/65/EC that are taken by the competent authorities of the AIFMs and, where relevant, management companies within each EU group. For the purpose of that review, ESMA shall use a methodology that ensures comparability and consistency of those supervisory approaches. | The college of supervisors shall meet at least once a year and upon request of any of its members and exchange information, discuss and agree on the supervisory approaches in the application of the requirements of this Directive that are taken by the competent authorities of the management companies and, where relevant, AIFMs within each EU group. Members of the college of supervisors shall ensure the comparability and consistency of those supervisory approaches. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 4. The review referred to in paragraph 3 shall, in particular, assess the supervisory approaches regarding each EU group’s: | deleted |
| (a) organisational structure and governance arrangements; | |
| (b) resources and their allocation inside and outside the EU group, including the functions of the persons effectively conducting the business of the AIFMs and, where relevant, management companies, within the EU group; | |
| (c) risk management systems. |
| Text proposed by the Commission | Amendment |
|---|---|
| 4. The review referred to in paragraph 3 shall, in particular, assess the supervisory approaches regarding each EU group’s: | deleted |
| (a) organisational structure and governance arrangements; | |
| (b) resources and their allocation inside and outside the EU group, including the functions of the persons effectively conducting the business of the AIFMs and, where relevant, management companies, within the EU group; | |
| (c) risk management systems. |
| Text proposed by the Commission | Amendment |
|---|---|
| 4. The review referred to in paragraph 3 shall, in particular, assess the supervisory approaches regarding each EU group’s: | deleted |
| (a) organisational structure and governance arrangements; | |
| (b) resources and their allocation inside and outside the EU group, including the functions of the persons effectively conducting the business of the AIFMs and, where relevant, management companies, within the EU group; | |
| (c) risk management systems. |
| Text proposed by the Commission | Amendment |
|---|---|
| 4. The review referred to in paragraph 3 shall, in particular, assess the supervisory approaches regarding each EU group’s: | 4. The college of supervisors referred to in paragraph 3 shall, in particular, exchange information and assess the supervisory approaches regarding each EU group’s: |
| Text proposed by the Commission | Amendment |
|---|---|
| (c) risk management systems. | (c) risk management systems and investment policies. |
| Text proposed by the Commission | Amendment |
|---|---|
| (ca) exposure to systemic and cross-border contagion risks, as identified in coordination with the ESRB. |
This addition integrates an explicit macroprudential mandate into the supervisory framework, addressing specific concerns regarding systemic vulnerabilities in the asset management sector. By requiring coordination with the ESRB, the amendment ensures that ESMA’s oversight is not merely organisational but actively monitors liquidity mismatches and leverage-related risks in large cross-border groups. This is an essential safeguard to prevent market integration from inadvertently increasing the transmission of financial shocks across Member States.
| Text proposed by the Commission | Amendment |
|---|---|
| (ca) liquidity risks. |
| Text proposed by the Commission | Amendment |
|---|---|
| (cb) climate and sustainability risks. |
| Text proposed by the Commission | Amendment |
|---|---|
| 4a. In addition to the supervisory assessment referred to in paragraph 4, ESMA shall use the information gathered during its reviews to identify potential risks to market diversity and competition within the Union. ESMA shall publish annual anonymised statistics on market concentration, barriers to entry, fee levels, and distribution patterns. Where ESMA identifies material risks to the competitive structure of the market, it shall transmit a reasoned report to the Commission to facilitate the exercise of the Commission’s powers under Union competition law. |
This amendment ensures that the supervisory insights gained during the review of large cross-border groups are utilized to identify structural failures that hinder the integration of the single market. By tasking the Authority with identifying risks to market diversity and monitoring distribution patterns, the proposal creates a data-driven mechanism to verify if the intended scale benefits of the Savings and Investments Union are effectively reaching end-investors through competitive fee structures.
The provision respects the institutional division of labour by positioning the Authority as a technical risk identifier that supports the Commission in the exercise of its competition powers. This reporting bridge prevents the siloing of supervisory data and ensures that material risks to market structure—such as increased concentration or entry barriers for smaller providers—are flagged for formal antitrust assessment. Furthermore, the requirement for annual anonymized statistics on fees and market participation provides the transparency necessary to monitor the health of the single market and prevent the emergence of a closed market structure dominated by a few systemic players.
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 5. For the purposes of the review referred to in paragraph 3, ESMA shall compile and consolidate at group level: | deleted |
| (a) all data relevant to the review that are already available to it or to competent authorities; | |
| (b) the programmes of activities of the AIFMs and, where relevant, management companies within the EU group. |
| Text proposed by the Commission | Amendment |
|---|---|
| 5. For the purposes of the review referred to in paragraph 3, ESMA shall compile and consolidate at group level: | deleted |
| (a) all data relevant to the review that are already available to it or to competent authorities; | |
| (b) the programmes of activities of the AIFMs and, where relevant, management companies within the EU group. |
| Text proposed by the Commission | Amendment |
|---|---|
| 5. For the purposes of the review referred to in paragraph 3, ESMA shall compile and consolidate at group level: | 5. For the purposes of the review referred to in paragraph 3, ESMA shall invite the AIFMs and, where relevant, management companies included in the representative sample to provide information regarding any inconsistent, overlapping, unnecessary or inadequate supervisory practices they may have identified among competent authorities responsible for the supervision of AIFMs and, where relevant, management companies within the representative sample. |
| This process shall take place either under the provisions of this Directive or the equivalent process in Directive 2009/65/EC. |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) all data relevant to the review that are already available to it or to competent authorities; | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the programmes of activities of the AIFMs and, where relevant, management companies within the EU group. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| The review shall not give rise to new reporting obligations for AIFMs, management companies or AIFs. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 6. Following each review, as referred to in paragraph 3, ESMA shall, after having consulted the competent authorities of the home Member States of the AIFMs and, where relevant, those of the home Member States of the management companies within the EU group, conclude on whether it identified any diverging, duplicative, redundant or deficient supervisory approaches. | deleted |
| ESMA shall include the findings referred to in the first subparagraph in a review report, issued by the Executive Board which shall be addressed to the competent authorities of the home Member States of the AIFMs and, where relevant, those of the home Member States of the management companies within the EU group. |
| Text proposed by the Commission | Amendment |
|---|---|
| 6. Following each review, as referred to in paragraph 3, ESMA shall, after having consulted the competent authorities of the home Member States of the AIFMs and, where relevant, those of the home Member States of the management companies within the EU group, conclude on whether it identified any diverging, duplicative, redundant or deficient supervisory approaches. | deleted |
| ESMA shall include the findings referred to in the first subparagraph in a review report, issued by the Executive Board which shall be addressed to the competent authorities of the home Member States of the AIFMs and, where relevant, those of the home Member States of the management companies within the EU group. |
| Text proposed by the Commission | Amendment |
|---|---|
| 6. Following each review, as referred to in paragraph 3, ESMA shall, after having consulted the competent authorities of the home Member States of the AIFMs and, where relevant, those of the home Member States of the management companies within the EU group, conclude on whether it identified any diverging, duplicative, redundant or deficient supervisory approaches. | deleted |
| ESMA shall include the findings referred to in the first subparagraph in a review report, issued by the Executive Board which shall be addressed to the competent authorities of the home Member States of the AIFMs and, where relevant, those of the home Member States of the management companies within the EU group. |
| Text proposed by the Commission | Amendment |
|---|---|
| Following each review, as referred to in paragraph 3, ESMA shall, after having consulted the competent authorities of the home Member States of the AIFMs and, where relevant, those of the home Member States of the management companies within the EU group, conclude on whether it identified any diverging, duplicative, redundant or deficient supervisory approaches. | Following each review, as referred to in paragraph 3, ESMA shall, after having consulted the competent authorities of the home Member States of the AIFMs and, where relevant, those of the home Member States of the management companies within the representative sample, confirm whether any diverging, duplicative, redundant or deficient supervisory approaches have been identified. |
| Text proposed by the Commission | Amendment |
|---|---|
| 7. Where during the review referred to in paragraph 3, ESMA identifies areas that require supervisory action, its Executive board shall issue a recommendation for corrective actions to the competent authorities concerned that is to be implemented within a reasonable time, not exceeding one year. | deleted |
| ESMA shall also inform the competent authorities of the host Member States of the AIFMs and, where relevant, those of the host Member States of the management companies of its findings, including any recommendation for corrective actions that it has issued pursuant to the first subparagraph. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 7. Where during the review referred to in paragraph 3, ESMA identifies areas that require supervisory action, its Executive board shall issue a recommendation for corrective actions to the competent authorities concerned that is to be implemented within a reasonable time, not exceeding one year. | deleted |
| ESMA shall also inform the competent authorities of the host Member States of the AIFMs and, where relevant, those of the host Member States of the management companies of its findings, including any recommendation for corrective actions that it has issued pursuant to the first subparagraph. |
Eero Heinäluoma, Jonás Fernández, Francisco Assis, César Luena, Evelyn Regner, Aurore Lalucq, Nikos Papandreou
| Text proposed by the Commission | Amendment |
|---|---|
| Where during the review referred to in paragraph 3, ESMA identifies areas that require supervisory action, its Executive board shall issue a recommendation for corrective actions to the competent authorities concerned that is to be implemented within a reasonable time, not exceeding one year. | Where during the review referred to in paragraph 3, ESMA identifies areas that require supervisory action or if other information available to it reveals unaddressed supervisory risks, divergent or deficient supervisory practices, its Executive board may issue a decision to take specific supervisory action or to refrain from action, with binding effects for the competent authorities concerned, including on authorisation decisions or their withdrawal, adjustments to authorisation conditions, execution of on-site inspections by national competent authorities or cooperation with joint supervisory teams established and coordinated by ESMA or enforcement actions. |
| Text proposed by the Commission | Amendment |
|---|---|
| Where during the review referred to in paragraph 3, ESMA identifies areas that require supervisory action, its Executive board shall issue a recommendation for corrective actions to the competent authorities concerned that is to be implemented within a reasonable time, not exceeding one year. | Where during the review referred to in paragraph 3, ESMA identifies areas that require supervisory action, its Executive Board shall take note of this. |
| Text proposed by the Commission | Amendment |
|---|---|
| Where during the review referred to in paragraph 3, ESMA identifies areas that require supervisory action, its Executive board shall issue a recommendation for corrective actions to the competent authorities concerned that is to be implemented within a reasonable time, not exceeding one year. | Where during the college of supervisors referred to in paragraph 3 identifies areas that require supervisory action, ESMA Executive board shall issue a recommendation for corrective actions to the competent authorities concerned that is to be implemented within a reasonable time, not exceeding 3 months. |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall also inform the competent authorities of the host Member States of the AIFMs and, where relevant, those of the host Member States of the management companies of its findings, including any recommendation for corrective actions that it has issued pursuant to the first subparagraph. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall also inform the competent authorities of the host Member States of the AIFMs and, where relevant, those of the host Member States of the management companies of its findings, including any recommendation for corrective actions that it has issued pursuant to the first subparagraph. | ESMA shall also inform other competent authorities that are responsible for supervising AIFMs and, where relevant, management companies within the representative sample of its findings, including any recommendation for corrective actions that it has issued pursuant to the first subparagraph. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 8. Where the competent authorities of the home Member States of the AIFMs and, where relevant, management companies within the EU group do not follow the recommendation issued pursuant to paragraph 7, ESMA shall act in accordance with the powers conferred on it under Articles 17, 17aa or 19 of Regulation (EU) No 1095/2010. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 8. Where the competent authorities of the home Member States of the AIFMs and, where relevant, management companies within the EU group do not follow the recommendation issued pursuant to paragraph 7, ESMA shall act in accordance with the powers conferred on it under Articles 17, 17aa or 19 of Regulation (EU) No 1095/2010. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 8. Where the competent authorities of the home Member States of the AIFMs and, where relevant, management companies within the EU group do not follow the recommendation issued pursuant to paragraph 7, ESMA shall act in accordance with the powers conferred on it under Articles 17, 17aa or 19 of Regulation (EU) No 1095/2010. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 8. Where the competent authorities of the home Member States of the AIFMs and, where relevant, management companies within the EU group do not follow the recommendation issued pursuant to paragraph 7, ESMA shall act in accordance with the powers conferred on it under Articles 17, 17aa or 19 of Regulation (EU) No 1095/2010. | 8. Where the competent authorities of the home Member States of the AIFMs and, where relevant, management companies within the EU group do not follow the recommendation issued pursuant to paragraph 7, ESMA shall act in accordance with the powers conferred on it under Articles 17, 17aa or 19 of Regulation (EU) No 1095/2010 only where, on the basis of a reasoned assessment, it concludes that there is a clear breach of Union law or a persistent supervisory failure that creates a material obstacle to the functioning of the single market and cannot be addressed through cooperation between the competent authorities concerned. ESMA shall take due account of the explanation provided by the competent authorities and of relevant national legal and market specificities. |
| Text proposed by the Commission | Amendment |
|---|---|
| 8a. By ... [five years after the date of entry into force of this amending Directive], the Commission, after consulting ESMA and the ESRB, shall carry out an ex-post evaluation of the effectiveness of the CST model. On the basis of that evaluation, the Commission may submit a legislative proposal to transfer the full supervision of EU groups as referred to in paragraph 1 to ESMA where necessary to preserve market integrity or financial stability. |
The amendment creates a sequenced integration mechanism, avoiding an immediate and potentially disruptive transfer of supervisory powers. By mandating an ex-post evaluation after five years, the Union ensures that any transition to full direct ESMA supervision is evidence-based and data-led. This approach provides legal certainty for the industry while protecting financial stability by ensuring a clear allocation of responsibilities, thereby avoiding the risk of "blurred accountability" during periods of market stress.
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| Article 47b | deleted |
| (…) |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| Powers of ESMA to address cross-border issues | Establishment of the Asset Management Supervisory Coordination Framework |
| 1. ESMA shall on an ongoing basis identify diverging, duplicative, redundant and deficient supervisory actions stemming from the home or host competent authorities and hindering the effective exercise of passporting rights by AIFMs in accordance with Article 33 of this Directive and of depositaries carrying out their functions on a cross-border basis, pursuant to Article 21(5). | 1. An Asset Management Supervisory Coordination Framework shall be established for each large cross-border EU group. |
| 2. For the purpose of paragraph 1, ESMA shall engage with the competent authorities concerned, and, where applicable, collect additional information to identify existing or potential cross-border issues. | 2. The Asset Management Supervisory Coordination Framework shall include: |
| Where, pursuant to the first subparagraph, ESMA identifies existing or potential cross-border issues it shall propose corrective actions to the relevant competent authorities for their removal. | (a) the home competent authorities of all management companies and AIFMs belonging to the EU group; |
| 3. Where, despite of the corrective actions referred to in paragraph 2 or because the relevant competent authorities fail to implement them, the issues identified pursuant to paragraph 2 persist, ESMA shall without undue delay exercise at least one of the powers conferred on it under Articles 17, 17aaa, 19 or 19aa of Regulation (EU) No 1095/2010 at least in the following cases: | (b) the host competent authorities of Member States in which the EU group carries out material activities, taking into account the location of the asset management group and the geographical distribution of the UCITS and AIFS managed; |
| (a)the competent authorities of the host Member State of the AIFM prevent or intend to prevent an AIFM from managing AIFs in their territory, or impose requirements on such management which are not compliant with this Directive; | (c) ESMA in a technical coordination and supervisory convergence capacity, without acting as chair or decision authority. |
| (b)the competent authorities of the home Member State of the AIFM or those of the home Member State of the AIF prevent or intend to prevent the appointment of a depositary established in another Member State as referred to in Article 21(5), or impose requirements on such appointment that are not compliant with this Directive; (c)an AIFM or a depositary carries out or intends to carry out functions or provide services on a cross-border basis, while not being compliant with Union law. The obligation to exercise at least one of the powers referred to in the first subparagraph shall be without prejudice to ESMA’s capacity to use any of the powers conferred on it under Regulation (EU) No 1095/2010 outside the procedure laid down in this Article. | 3. The Asset Management Supervisory Coordination Framework shall constitute the permanent mechanism for supervisory cooperation and coordination in relation to the relevant EU group, without affecting the allocation of supervisory responsibilities under this Directive. |
| 4. Notwithstanding the actions referred to in paragraph 3, ESMA may suspend the ability of an AIFM or depositary to carry out any functions and to provide any services within the territory of another Member State where one of the following conditions are fulfilled: (a)the competent authorities or stakeholders concerned fail to implement a decision, opinion, recommendation or action adopted or required by ESMA in accordance with paragraph 3 or an opinion issued by the Commission, in accordance with Article 17(4) of Regulation (EU) No 1095/2010; (b)ESMA has concluded that an AIFM or a depositary that carries out its functions or offers services on a cross-border basis no longer fulfil the requirements of this Directive. Before suspending an AIFM or a depositary from carrying out any functions or from providing any services on a cross-border basis as referred to in the first subparagraph, ESMA shall send its draft findings to the AIFM or the depositary concerned and to the competent authorities of the home Member State of the AIFM or of the depositary. The competent authorities concerned may submit to ESMA a reasoned statement within 30 calendar days of the receipt of the draft findings. ESMA shall promptly notify the AIFM or the depositary of the suspension of the ability to carry out any functions or provide any services on a cross-border basis. The suspension may start at the date of notification and shall start no later than 30 calendar days following that notification. | |
| 5. ESMA shall publish a report on its activity in accordance with paragraphs 1 to 4 at least annually. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| Powers of ESMA to address cross-border issues | deleted |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 1. ESMA shall on an ongoing basis identify diverging, duplicative, redundant and deficient supervisory actions stemming from the home or host competent authorities and hindering the effective exercise of passporting rights by AIFMs in accordance with Article 33 of this Directive and of depositaries carrying out their functions on a cross-border basis, pursuant to Article 21(5). | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 1. ESMA shall on an ongoing basis identify diverging, duplicative, redundant and deficient supervisory actions stemming from the home or host competent authorities and hindering the effective exercise of passporting rights by AIFMs in accordance with Article 33 of this Directive and of depositaries carrying out their functions on a cross-border basis, pursuant to Article 21(5). | 1. ESMA shall identify diverging, duplicative, redundant and deficient supervisory actions stemming from the home or host competent authorities and hindering the effective exercise of passporting rights by AIFMs in accordance with Article 33 of this Directive and of depositaries carrying out their functions on a cross-border basis, pursuant to Article 21(5). |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 2. For the purpose of paragraph 1, ESMA shall engage with the competent authorities concerned, and, where applicable, collect additional information to identify existing or potential cross-border issues. | deleted |
| Where, pursuant to the first subparagraph, ESMA identifies existing or potential cross-border issues it shall propose corrective actions to the relevant competent authorities for their removal. |
| Text proposed by the Commission | Amendment |
|---|---|
| For the purpose of paragraph 1, ESMA shall engage with the competent authorities concerned, and, where applicable, collect additional information to identify existing or potential cross-border issues. | For the purpose of paragraph 1, ESMA shall engage with the competent authorities concerned, and, where necessary and proportionate, collect additional information to identify existing or potential cross-border issues. |
Eero Heinäluoma, Jonás Fernández, Francisco Assis, César Luena, Evelyn Regner, Aurore Lalucq, Nikos Papandreou
| Text proposed by the Commission | Amendment |
|---|---|
| Where, pursuant to the first subparagraph, ESMA identifies existing or potential cross-border issues it shall propose corrective actions to the relevant competent authorities for their removal. | Where, pursuant to the first subparagraph, ESMA identifies existing or potential cross-border issues, its Executive board may issue a decision to take specific supervisory action or to refrain from action, with binding effects for the competent authorities concerned, including on authorisation decisions or their withdrawal, adjustments to authorisation conditions, execution of on-site inspections by national competent authorities or cooperation with joint supervisory teams established and coordinated by ESMA or enforcement actions. |
| Text proposed by the Commission | Amendment |
|---|---|
| Where, pursuant to the first subparagraph, ESMA identifies existing or potential cross-border issues it shall propose corrective actions to the relevant competent authorities for their removal. | The relevant competent authorities involved shall consider necessary corrective actions or alternatively where they do not do so they shall provide a reasoned explanation to ESMA, within a timeline as set by ESMA. ESMA shall address recurring issues identified pursuant to paragraph 1 through thematic reviews conducted in accordance with Article 30 of Regulation (EU) No 1095/2010. |
| Text proposed by the Commission | Amendment |
|---|---|
| Where, pursuant to the first subparagraph, ESMA identifies existing or potential cross-border issues it shall propose corrective actions to the relevant competent authorities for their removal. | Where, pursuant to the first subparagraph, ESMA identifies cross-border issues it shall propose corrective actions to the relevant competent authorities for their removal. |
Eero Heinäluoma, Jonás Fernández, Francisco Assis, César Luena, Evelyn Regner, Aurore Lalucq, Nikos Papandreou
| Text proposed by the Commission | Amendment |
|---|---|
| Where necessary to ensure compliance with Union law or ensure the orderly functioning and integrity of the financial system or removing market barriers established by national competent authorities, its Executive board may adopt an individual decision addressed to a financial market participant to grant authorisations, enable cross-border business activities or require it to take all necessary action to comply with its obligations under this Directive, including the cessation of any practice. The market participant shall make every effort to comply with the ESMA decision within the specified timeframe. |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall address recurring issues identified pursuant to paragraph 1 through thematic reviews conducted under Regulation (EU) No 1095/2010. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 3. Where, despite of the corrective actions referred to in paragraph 2 or because the relevant competent authorities fail to implement them, the issues identified pursuant to paragraph 2 persist, ESMA shall without undue delay exercise at least one of the powers conferred on it under Articles 17, 17aaa, 19 or 19aa of Regulation (EU) No 1095/2010 at least in the following cases: | deleted |
| (a) the competent authorities of the host Member State of the AIFM prevent or intend to prevent an AIFM from managing AIFs in their territory, or impose requirements on such management which are not compliant with this Directive; | |
| (b) the competent authorities of the home Member State of the AIFM or those of the home Member State of the AIF prevent or intend to prevent the appointment of a depositary established in another Member State as referred to in Article 21(5), or impose requirements on such appointment that are not compliant with this Directive; | |
| (c) an AIFM or a depositary carries out or intends to carry out functions or provide services on a cross-border basis, while not being compliant with Union law. | |
| The obligation to exercise at least one of the powers referred to in the first subparagraph shall be without prejudice to ESMA’s capacity to use any of the powers conferred on it under Regulation (EU) No 1095/2010 outside the procedure laid down in this Article. |
Eero Heinäluoma, Jonás Fernández, Francisco Assis, César Luena, Evelyn Regner, Aurore Lalucq, Nikos Papandreou
| Text proposed by the Commission | Amendment |
|---|---|
| 3. Where, despite of the corrective actions referred to in paragraph 2 or because the relevant competent authorities fail to implement them, the issues identified pursuant to paragraph 2 persist, ESMA shall without undue delay exercise at least one of the powers conferred on it under Articles 17, 17aaa, 19 or 19aa of Regulation (EU) No 1095/2010 at least in the following cases: | deleted |
| (a) the competent authorities of the host Member State of the AIFM prevent or intend to prevent an AIFM from managing AIFs in their territory, or impose requirements on such management which are not compliant with this Directive; | |
| (b) the competent authorities of the home Member State of the AIFM or those of the home Member State of the AIF prevent or intend to prevent the appointment of a depositary established in another Member State as referred to in Article 21(5), or impose requirements on such appointment that are not compliant with this Directive; | |
| (c) an AIFM or a depositary carries out or intends to carry out functions or provide services on a cross-border basis, while not being compliant with Union law. | |
| The obligation to exercise at least one of the powers referred to in the first subparagraph shall be without prejudice to ESMA’s capacity to use any of the powers conferred on it under Regulation (EU) No 1095/2010 outside the procedure laid down in this Article. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| Where, despite of the corrective actions referred to in paragraph 2 or because the relevant competent authorities fail to implement them, the issues identified pursuant to paragraph 2 persist, ESMA shall without undue delay exercise at least one of the powers conferred on it under Articles 17, 17aaa, 19 or 19aa of Regulation (EU) No 1095/2010 at least in the following cases: | deleted |
| (a) the competent authorities of the host Member State of the AIFM prevent or intend to prevent an AIFM from managing AIFs in their territory, or impose requirements on such management which are not compliant with this Directive; | |
| (b) the competent authorities of the home Member State of the AIFM or those of the home Member State of the AIF prevent or intend to prevent the appointment of a depositary established in another Member State as referred to in Article 21(5), or impose requirements on such appointment that are not compliant with this Directive; | |
| (c) an AIFM or a depositary carries out or intends to carry out functions or provide services on a cross-border basis, while not being compliant with Union law. |
| Text proposed by the Commission | Amendment |
|---|---|
| Where, despite of the corrective actions referred to in paragraph 2 or because the relevant competent authorities fail to implement them, the issues identified pursuant to paragraph 2 persist, ESMA shall without undue delay exercise at least one of the powers conferred on it under Articles 17, 17aaa, 19 or 19aa of Regulation (EU) No 1095/2010 at least in the following cases: | Where the competent authorities concerned fail to implement corrective measures to which paragraph 2 refers, or where ESMA determines that any reasoned explanations do not sufficiently resolve the concerns identified and those concerns continue to exist, ESMA shall, without unnecessary delay: |
| Text proposed by the Commission | Amendment |
|---|---|
| Where, despite of the corrective actions referred to in paragraph 2 or because the relevant competent authorities fail to implement them, the issues identified pursuant to paragraph 2 persist, ESMA shall without undue delay exercise at least one of the powers conferred on it under Articles 17, 17aaa, 19 or 19aa of Regulation (EU) No 1095/2010 at least in the following cases: | Where, despite of the corrective actions referred to in paragraph 2 or because the relevant competent authorities fail to implement them, the issues identified pursuant to paragraph 2 persist, ESMA shall without undue delay exercise at least one of the powers conferred on it under Articles 17, 19 or 19aa of Regulation (EU) No 1095/2010 at least in the following cases: |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the competent authorities of the host Member State of the AIFM prevent or intend to prevent an AIFM from managing AIFs in their territory, or impose requirements on such management which are not compliant with this Directive; | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the competent authorities of the host Member State of the AIFM prevent or intend to prevent an AIFM from managing AIFs in their territory, or impose requirements on such management which are not compliant with this Directive; | (a) issue a reasoned follow-up opinion outlining the remaining concerns and specifying the supervisory outcomes expected from the competent authorities concerned; |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the competent authorities of the home Member State of the AIFM or those of the home Member State of the AIF prevent or intend to prevent the appointment of a depositary established in another Member State as referred to in Article 21(5), or impose requirements on such appointment that are not compliant with this Directive; | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (b) the competent authorities of the home Member State of the AIFM or those of the home Member State of the AIF prevent or intend to prevent the appointment of a depositary established in another Member State as referred to in Article 21(5), or impose requirements on such appointment that are not compliant with this Directive; | (b) notify the Commission of, where appropriate, an evaluation of whether Union law has potentially been incorrectly applied or not applied; |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (c) an AIFM or a depositary carries out or intends to carry out functions or provide services on a cross-border basis, while not being compliant with Union law. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| (c) an AIFM or a depositary carries out or intends to carry out functions or provide services on a cross-border basis, while not being compliant with Union law. | (c) where appropriate, recommend that the Commission consider taking suitable measures within the scope of its powers under the Treaties; and |
| Text proposed by the Commission | Amendment |
|---|---|
| (ca) evaluate any reasoned explanations submitted by the competent authorities concerned and incorporate that evaluation into the follow-up opinion referred to in point (a). |
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall make publicly available the principal findings, the progress made by the competent authorities concerned in implementing the required measures and, where appropriate, summaries of any reasoned explanations provided, with the aim of promoting effective supervisory convergence and the proper functioning of financial markets. |
| Text proposed by the Commission | Amendment |
|---|---|
| The obligation to exercise at least one of the powers referred to in the first subparagraph shall be without prejudice to ESMA’s capacity to use any of the powers conferred on it under Regulation (EU) No 1095/2010 outside the procedure laid down in this Article. | deleted |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| The obligation to exercise at least one of the powers referred to in the first subparagraph shall be without prejudice to ESMA’s capacity to use any of the powers conferred on it under Regulation (EU) No 1095/2010 outside the procedure laid down in this Article. | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 4. Notwithstanding the actions referred to in paragraph 3, ESMA may suspend the ability of an AIFM or depositary to carry out any functions and to provide any services within the territory of another Member State where one of the following conditions are fulfilled: | deleted |
| (a) the competent authorities or stakeholders concerned fail to implement a decision, opinion, recommendation or action adopted or required by ESMA in accordance with paragraph 3 or an opinion issued by the Commission, in accordance with Article 17(4) of Regulation (EU) No 1095/2010; | |
| (b) ESMA has concluded that an AIFM or a depositary that carries out its functions or offers services on a cross-border basis no longer fulfil the requirements of this Directive. | |
| Before suspending an AIFM or a depositary from carrying out any functions or from providing any services on a cross-border basis as referred to in the first subparagraph, ESMA shall send its draft findings to the AIFM or the depositary concerned and to the competent authorities of the home Member State of the AIFM or of the depositary. The competent authorities concerned may submit to ESMA a reasoned statement within 30 calendar days of the receipt of the draft findings. | |
| ESMA shall promptly notify the AIFM or the depositary of the suspension of the ability to carry out any functions or provide any services on a cross-border basis. The suspension may start at the date of notification and shall start no later than 30 calendar days following that notification. |
| Text proposed by the Commission | Amendment |
|---|---|
| 4. Notwithstanding the actions referred to in paragraph 3, ESMA may suspend the ability of an AIFM or depositary to carry out any functions and to provide any services within the territory of another Member State where one of the following conditions are fulfilled: | deleted |
| (a) the competent authorities or stakeholders concerned fail to implement a decision, opinion, recommendation or action adopted or required by ESMA in accordance with paragraph 3 or an opinion issued by the Commission, in accordance with Article 17(4) of Regulation (EU) No 1095/2010; | |
| (b) ESMA has concluded that an AIFM or a depositary that carries out its functions or offers services on a cross-border basis no longer fulfil the requirements of this Directive. | |
| Before suspending an AIFM or a depositary from carrying out any functions or from providing any services on a cross-border basis as referred to in the first subparagraph, ESMA shall send its draft findings to the AIFM or the depositary concerned and to the competent authorities of the home Member State of the AIFM or of the depositary. The competent authorities concerned may submit to ESMA a reasoned statement within 30 calendar days of the receipt of the draft findings. | |
| ESMA shall promptly notify the AIFM or the depositary of the suspension of the ability to carry out any functions or provide any services on a cross-border basis. The suspension may start at the date of notification and shall start no later than 30 calendar days following that notification. |
| Text proposed by the Commission | Amendment |
|---|---|
| 4. Notwithstanding the actions referred to in paragraph 3, ESMA may suspend the ability of an AIFM or depositary to carry out any functions and to provide any services within the territory of another Member State where one of the following conditions are fulfilled: | deleted |
| (a) the competent authorities or stakeholders concerned fail to implement a decision, opinion, recommendation or action adopted or required by ESMA in accordance with paragraph 3 or an opinion issued by the Commission, in accordance with Article 17(4) of Regulation (EU) No 1095/2010; | |
| (b) ESMA has concluded that an AIFM or a depositary that carries out its functions or offers services on a cross-border basis no longer fulfil the requirements of this Directive. | |
| Before suspending an AIFM or a depositary from carrying out any functions or from providing any services on a cross-border basis as referred to in the first subparagraph, ESMA shall send its draft findings to the AIFM or the depositary concerned and to the competent authorities of the home Member State of the AIFM or of the depositary. The competent authorities concerned may submit to ESMA a reasoned statement within 30 calendar days of the receipt of the draft findings. | |
| ESMA shall promptly notify the AIFM or the depositary of the suspension of the ability to carry out any functions or provide any services on a cross-border basis. The suspension may start at the date of notification and shall start no later than 30 calendar days following that notification. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 4. Notwithstanding the actions referred to in paragraph 3, ESMA may suspend the ability of an AIFM or depositary to carry out any functions and to provide any services within the territory of another Member State where one of the following conditions are fulfilled: | deleted |
| (a) the competent authorities or stakeholders concerned fail to implement a decision, opinion, recommendation or action adopted or required by ESMA in accordance with paragraph 3 or an opinion issued by the Commission, in accordance with Article 17(4) of Regulation (EU) No 1095/2010; | |
| (b) ESMA has concluded that an AIFM or a depositary that carries out its functions or offers services on a cross-border basis no longer fulfil the requirements of this Directive. | |
| Before suspending an AIFM or a depositary from carrying out any functions or from providing any services on a cross-border basis as referred to in the first subparagraph, ESMA shall send its draft findings to the AIFM or the depositary concerned and to the competent authorities of the home Member State of the AIFM or of the depositary. The competent authorities concerned may submit to ESMA a reasoned statement within 30 calendar days of the receipt of the draft findings. | |
| ESMA shall promptly notify the AIFM or the depositary of the suspension of the ability to carry out any functions or provide any services on a cross-border basis. The suspension may start at the date of notification and shall start no later than 30 calendar days following that notification. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| Notwithstanding the actions referred to in paragraph 3, ESMA may suspend the ability of an AIFM or depositary to carry out any functions and to provide any services within the territory of another Member State where one of the following conditions are fulfilled: | deleted |
| (a) the competent authorities or stakeholders concerned fail to implement a decision, opinion, recommendation or action adopted or required by ESMA in accordance with paragraph 3 or an opinion issued by the Commission, in accordance with Article 17(4) of Regulation (EU) No 1095/2010; | |
| (b) ESMA has concluded that an AIFM or a depositary that carries out its functions or offers services on a cross-border basis no longer fulfil the requirements of this Directive. |
Eero Heinäluoma, Jonás Fernández, Francisco Assis, César Luena, Evelyn Regner, Aurore Lalucq, Nikos Papandreou
| Text proposed by the Commission | Amendment |
|---|---|
| Notwithstanding the actions referred to in paragraph 3, ESMA may suspend the ability of an AIFM or depositary to carry out any functions and to provide any services within the territory of another Member State where one of the following conditions are fulfilled: | ESMA may suspend the ability of an AIFM or depositary to carry out any functions and to provide any services within the territory of another Member State where one of the following conditions are fulfilled: |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the competent authorities or stakeholders concerned fail to implement a decision, opinion, recommendation or action adopted or required by ESMA in accordance with paragraph 3 or an opinion issued by the Commission, in accordance with Article 17(4) of Regulation (EU) No 1095/2010; | deleted |
Eero Heinäluoma, Jonás Fernández, Francisco Assis, César Luena, Evelyn Regner, Aurore Lalucq, Nikos Papandreou
| Text proposed by the Commission | Amendment |
|---|---|
| (a) the competent authorities or stakeholders concerned fail to implement a decision, opinion, recommendation or action adopted or required by ESMA in accordance with paragraph 3 or an opinion issued by the Commission, in accordance with Article 17(4) of Regulation (EU) No 1095/2010; | (a) the competent authorities or stakeholders concerned fail to implement a decision, opinion, recommendation or action adopted or required by ESMA in accordance with paragraph 2 or an opinion issued by the Commission, in accordance with Article 17(4) of Regulation (EU) No 1095/2010; |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (b) ESMA has concluded that an AIFM or a depositary that carries out its functions or offers services on a cross-border basis no longer fulfil the requirements of this Directive. | deleted |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| Before suspending an AIFM or a depositary from carrying out any functions or from providing any services on a cross-border basis as referred to in the first subparagraph, ESMA shall send its draft findings to the AIFM or the depositary concerned and to the competent authorities of the home Member State of the AIFM or of the depositary. The competent authorities concerned may submit to ESMA a reasoned statement within 30 calendar days of the receipt of the draft findings. | deleted |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| ESMA shall promptly notify the AIFM or the depositary of the suspension of the ability to carry out any functions or provide any services on a cross-border basis. The suspension may start at the date of notification and shall start no later than 30 calendar days following that notification. | deleted |
Eero Heinäluoma, Jonás Fernández, Francisco Assis, César Luena, Evelyn Regner, Aurore Lalucq, Nikos Papandreou
| Text proposed by the Commission | Amendment |
|---|---|
| 4a. Where necessary to ensure compliance with Union law or ensure the orderly functioning and integrity of the financial system or removing market barriers established by national competent authorities, its Executive board may adopt an individual decision addressed to a financial market participant to grant authorisations, enable cross-border business activities or require it to take all necessary action to comply with its obligations under this Directive, including the cessation of any practice. The market participant shall make every effort to comply with the ESMA decision within the specified timeframe. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| 5. ESMA shall publish a report on its activity in accordance with paragraphs 1 to 4 at least annually.; | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 5. ESMA shall publish a report on its activity in accordance with paragraphs 1 to 4 at least annually.; | deleted |
Eero Heinäluoma, Jonás Fernández, Francisco Assis, César Luena, Evelyn Regner, Aurore Lalucq, Nikos Papandreou
| Text proposed by the Commission | Amendment |
|---|---|
| 5. ESMA shall publish a report on its activity in accordance with paragraphs 1 to 4 at least annually.; | deleted |
| Text proposed by the Commission | Amendment |
|---|---|
| 5. ESMA shall publish a report on its activity in accordance with paragraphs 1 to 4 at least annually.; | 5. ESMA shall publish at regular intervals a report on its activity in accordance with paragraphs 1 to 3. That report shall contain, where appropriate, the principal reasoned conclusions arising from the reviews and follow-up reports referred to in Article 47a(6), as well as relevant corrective measures, together with information on the progress made in their implementation by the competent authorities concerned. |
| Text proposed by the Commission | Amendment |
|---|---|
| 5. ESMA shall publish a report on its activity in accordance with paragraphs 1 to 4 at least annually.; | 5. ESMA shall publish a report on its activity in accordance with paragraphs 1 to 3 periodically where new findings are relevant to improve the market functioning, with a specific focus on cross-border issues. |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (21a) the following Article is inserted: | |
| 'Article 47c | |
| Allocation of roles | |
| 1. The Asset Management Supervisory Coordination Framework shall be chaired by the home competent authority of the management company or AIFM that exercises control over the other management companies and AIFMs within the EU group or, where no such entity exists, by the home competent authority of the management company or AIFM designated as the principal entity of the EU group. | |
| 2. The chair home competent authority may invite any host competent authority other than those referred to in Article 47b(2), point (b), to participate in all or part of a meeting where: | |
| (a) the matters under discussion are relevant to that authority; or | |
| (b) its participation would contribute to effective supervisory coordination. | |
| 3. A host competent authority may also request to participate in a meeting or in part thereof. Such participation shall be subject to the agreement of the chair home competent authority. | |
| 4. The chair home competent authority shall: | |
| (a) convene and chair the meetings of the Asset Management Supervisory Coordination Framework; | |
| (b) determine the agenda, after consulting ESMA and the competent authorities participating in the relevant meeting; | |
| (c) coordinate information-sharing arrangements and any common supervisory workflow agreed within the Asset Management Supervisory Coordination Framework; | |
| (d) ensure the efficient functioning of the Asset Management Supervisory Coordination Framework. | |
| 5. ESMA shall exclusively: | |
| (a) contribute to supervisory convergence; | |
| (b) facilitate the exchange of information; | |
| (c) promote consistent supervisory practices across Member States; | |
| (d) assist the functioning of the Asset Management Supervisory Coordination Framework through technical secretariat support.' |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (21b) the following Article is inserted: | |
| 'Article 47d | |
| Tasks of the Asset Management Supervisory Coordination Framework | |
| 1. The Asset Management Supervisory Coordination Framework should: | |
| (a) promote discussions on supervisory priorities; | |
| (b) ensure stable, structured and timely coordination on relevant cross-border aspects; | |
| (c) prevent and address inconsistent or duplicative supervisory measures affecting cross-border operations; | |
| (d) promote convergence through an exchange of information, supervisory practices and evaluations. | |
| 2. The Asset Management Supervisory Coordination Framework does not introduce joint supervisory decisions or replace the supervisory responsibilities of any competent authority under this Directive. | |
| 3. The Asset Management Supervisory Coordination Framework shall operate in a proportionate manner, reflecting the size, structure and cross-border relevance of the EU group.' |
Giovanni Crosetto, Johan Van Overtveldt, Denis Nesci, Francesco Ventola, Mariateresa Vivaldini, Marco Squarta
| Text proposed by the Commission | Amendment |
|---|---|
| (21c) the following Article is inserted: | |
| 'Article 47e | |
| Meetings of the Asset Management Supervisory Coordination Framework | |
| 1. The chair home competent authority shall establish, after consulting ESMA and the participating competent authorities, an annual programme of ordinary meetings. | |
| 2. Additional meetings may be convened where the chair home competent authority considers that coordination would facilitate the effective supervision of the EU group or where specific cross-border supervisory issues require discussion. | |
| 3. An ad hoc meeting may also be requested by: | |
| (a) any home competent authority belonging to the Asset Management Supervisory Coordination Framework; | |
| (b) a host competent authority whose participation is relevant having regard to the matters to be discussed. | |
| The chair home competent authority shall decide whether to convene the requested meeting, taking into account: | |
| (a) the supervisory relevance of the issues raised; | |
| (b) the materiality of the activities concerned; | |
| (c) the need to ensure the efficient and proportionate functioning of the Framework. | |
| 4. ESMA shall not approve, reject or validate requests for meetings. | |
| 5. In crisis situations, the chair home competent authority shall retain full supervisory autonomy and decision-making powers. The Asset Management Supervisory Coordination Framework shall be informed ex post where appropriate and without prejudice to the operational effectiveness of crisis management measures adopted by the competent authorities. | |
| 6. Management companies and AIFMs should be invited to participate, at their discretion, in the meetings to present developments of relevance to several competent authorities and to discuss, in advance, regulatory developments with a significant impact on their business.' |
| Present text | Amendment |
|---|---|
| (-a) in paragraph 4, the first and second paragraphs are replaced by the following: | |
| The competent authorities of the Member States shall immediately supply one another and ESMA with the information required for the purposes of carrying out their duties under this Directive. | ‘The competent authorities of the Member States shall make use of the data platform established pursuant to Article 12 of Regulation (EU) 2019/1156 for the purposes of exchanging supervisory information under this Directive. In the case that the information required by a competent authority is not accessible in the data platform, the competent authority may make a request to the relevant competent authority with a clear justification for requiring this additional information.’ |
| The competent authorities of the home Member State shall forward a copy of the relevant cooperation arrangements entered into by them in accordance with Article 35, 37 and/or 40 to the host Member States of the AIFM concerned. The competent authorities of the home Member State shall, in accordance with procedures relating to the applicable regulatory technical standards referred to in Article 35(14), Article 37 (17) or Article 40(14), forward the information received from third-country supervisory authorities in accordance with cooperation arrangements with such supervisory authorities in respect of an AIFM, or, where relevant, pursuant to Article 45(6) or (7), to the competent authorities of host Member State of the AIFM concerned. |
| Text proposed by the Commission | Amendment |
|---|---|
| (26a) in Article 69, the following paragraph is added: | |
| '4a. By [36 months after the entry into force of this Directive], the Commission shall submit a report to the European Parliament and to the Council assessing the impact of this Directive on market structure, market concentration and capital allocation. | |
| In particular, the report shall assess: | |
| (a) whether this Directive has contributed to increasing investment in the Union's real economy, including investments supporting the green transition; | |
| (b) whether it has resulted in a significant increase in capital flows outside the Union; | |
| (c) whether investments made pursuant to this Directive are consistent with the Union's climate neutrality objective set out in the Regulation (EU) 2021/1119 (‘European Climate Law’). | |
| Where appropriate, the Commission shall accompany the report with a legislative proposal.' |
| Present text | Amendment |
|---|---|
| (27b) Article 69-a(2) is replaced by the following: | |
| 2. By 16 April 2026, ESMA shall submit to the Commission a report regarding the development of the integrated collection of supervisory data, which shall focus on how to: (a) reduce areas of duplication and inconsistencies between the reporting frameworks in the asset-management sector and other sectors of the financial industry; and (b) improve 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. | "2. By 16 April 2027, ESMA shall submit to the Commission a report regarding the development of the integrated collection of supervisory data, which shall focus on how to: (a) reduce areas of duplication and inconsistencies between the reporting frameworks in the asset-management sector and other sectors of the financial industry; and (b) improve 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." |
| Present text | Amendment |
|---|---|
| (1a) in Article 2(1), point (j) is replaced by the following: | |
| (j) persons: | "(j) persons: |
| (i) dealing on own account, including market makers, in commodity derivatives or emission allowances or derivatives thereof, excluding persons who deal on own account when executing client orders; or | (i) dealing on own account, including market makers, in commodity derivatives or emission allowances or derivatives thereof, excluding persons who deal on own account when executing client orders; or |
| (ii) providing investment services, other than dealing on own account, in commodity derivatives or emission allowances or derivatives thereof to the customers or suppliers of their main business; provided that: | (ii) providing investment services, other than dealing on own account, in commodity derivatives or emission allowances or derivatives thereof to the customers or suppliers of their main business;provided that: |
| — for each of those cases individually and on an aggregate basis, the activity is ancillary to their main business, when considered on a group basis, | — for each of those cases individually and on an aggregate basis, the activity is ancillary to their main business, when considered on a group basis, |
| — those persons are not part of a group the main business of which is the provision of investment services within the meaning of this Directive, the performance of any activity listed in Annex I to Directive 2013/36/EU, or acting as a market maker for commodity derivatives, | — those persons are not part of a group the main business of which is the provision of investment services within the meaning of this Directive, the performance of any activity listed in Annex I to Directive 2013/36/EU, or acting as a market maker for commodity derivatives, |
| — those persons do not apply a high-frequency algorithmic trading technique, and | — the net outstanding national exposure of this person represents a marginal share of the total amount of net exposures in specific commodity derivatives or emission allowances or derivatives markets in which this person is active, |
| — those persons report upon request to the competent authority the basis on which they have assessed that their activity under points (i) and (ii) is ancillary to their main business, | — the investments services are provided exclusively for hedging purposes and commensurate to the volume of commercial transactions, |
| — those persons do not apply a high-frequency algorithmic trading technique, and | |
| — those persons report upon request to the competent authority the basis on which they have assessed that their activity under points (i) and (ii) is ancillary to their main business," |
| Present text | Amendment |
|---|---|
| (1a) in Article 2(1), point (j), the first subparagraph is replaced by the following: | |
| persons:(i) dealing on own account, including market makers, in commodity derivatives or emission allowances or derivatives thereof, excluding persons who deal on own account when executing client orders; or(ii) providing investment services, other than dealing on own account, in commodity derivatives or emission allowances or derivatives thereof to the customers or suppliers of their main business; | "persons: |
| (i) dealing on own account, including market makers, in commodity derivatives or emission allowances or derivatives thereof, excluding persons who deal on its own account when executing client orders; or | |
| (ii) providing investment services , other than dealing on its own account, in commodity derivatives or emission allowances or derivatives thereof to the customers or suppliers of their main business." |
The deletion proposed in the rapporteur’s draft report should be rejected, as the Ancillary Activity Exemption is functioning effectively and no evidence has identified a regulatory gap. Commodity firms use derivatives mainly to hedge commercial risks and do not pose the same risks as investment firms. Its removal would impose disproportionate capital and compliance costs, reduce market liquidity, weaken EU competitiveness and ultimately increase prices for energy, food and other essential commodities.
| Present text | Amendment |
|---|---|
| (1b) in Article 2, paragraph 4 is replaced by the following: | |
| 1. By 31 July 2021, the Commission shall adopt a delegated act in accordance with Article 89 in order to supplement this Directive by specifying, for the purpose of point (j) of paragraph 1 of this Article, the criteria for establishing when an activity is to be considered to be ancillary to the main business at group level. | "4. By [12 months after entry into force of this Directive], the Commission shall adopt a delegated act in accordance with Article 89 in order to supplement this Directive by specifying, for the purpose of point (j) of paragraph 1 of this Article, the criteria for establishing when an activity is to be considered to be ancillary to the main business at group level. |
| Those criteria shall take into account the following elements: | Those criteria shall take into account the following elements: |
| (a) whether the net outstanding notional exposure in commodity derivatives or emission allowances or derivatives thereof for cash settlement traded in the Union, excluding commodity derivatives or emission allowances or derivatives thereof traded on a trading venue, is below an annual threshold of EUR 3 billion; or | (a) whether the net outstanding notional exposure in commodity derivatives or emission allowances or derivatives thereof for cash settlement traded in the Union, excluding commodity derivatives or emission allowances or derivatives thereof traded on a trading venue, is below an annual threshold of EUR 3 billion; or |
| (b) whether the capital employed by the group to which the person belongs is predominantly allocated to the main business of the group; or | (b) whether the capital employed by the group to which the person belongs is predominantly allocated to the main business of the group, |
| (c) whether or not the size of the activities referred to in point (j) of paragraph 1 exceeds the total size of the other trading activities at group level. | (c) whether or not the size of the activities referred to in point (j) of paragraph 1 exceeds the total size of the other trading activities at group level, |
| The activities referred to in this paragraph shall be considered at group level. | (ca) whether the net outstanding notional exposure of the person represents a marginal share of the total amount of net outstanding notional exposure in the commodity derivatives or emission allowances or derivatives, |
| The elements referred to in the second subparagraph of this paragraph shall exclude: | (cb) whether the investment services are provided exclusively for hedging purposes. |
| (a) intragroup transactions as referred to in Article 3 of Regulation (EU) No 648/2012 that serve group-wide liquidity or risk management purposes; | The activities referred to in this paragraph shall be considered at group level." |
| (b) transactions in commodity derivatives or emission allowances or derivatives thereof that are objectively measurable as reducing risks directly relating to the commercial activity or treasury financing activity; |
| Text proposed by the Commission | Amendment |
|---|---|
| (ea) Article 4, point (34) is amended as follows: | |
| ‘group’ means a group as defined in Article 2(11) of Directive 2013/34/EU; | ‘group’ means a group as defined in Article 2(11) of Directive 2013/34/EU, including CCPs as defined in point (31) of Article 2(1) of Regulation (EU) 600/2014, and CSDs as defined in point (31a) of Article 2(1) of Regulation (EU) 600/2014; |
| Present text | Amendment |
|---|---|
| (aa) paragraph 1 is replaced by the following: | |
| 1. Member States shall ensure that competent authorities, in line with the calculation methodology determined by ESMA in the regulatory technical standards adopted in accordance with paragraph 3, set and apply limits on the size of a net position which a person can hold at all times in agricultural commodity derivatives and critical or significant commodity derivatives that are traded on trading venues, and in economically equivalent OTC contracts. Commodity derivatives shall be considered to be critical or significant where the sum of all net positions of end position holders constitutes the size of their open interest and is at a minimum of 300 000 lots on average over a one-year period. The limits shall be set based on all positions held by a person and those held on his or her behalf at an aggregate group level in order to: | "1. Member States shall ensure that competent authorities, in line with the calculation methodology determined by ESMA in the regulatory technical standards adopted in accordance with paragraph 3, set and apply limits on the size of a net position which a person can hold at all times in agricultural or energy commodity derivatives and critical or significant commodity derivatives that are traded on trading venues, and in economically equivalent OTC contracts. Commodity derivatives shall be considered to be critical or significant where the sum of all net positions of end position holders constitutes the size of their open interest and is at a minimum of 300 000 lots on average over a one-year period. The limits shall be set based on all positions held by a person and those held on his or her behalf at an aggregate group level in order to: |
| (a) prevent market abuse; | (a) prevent market abuse; |
| (b) support orderly pricing and settlement conditions, including preventing market distorting positions, and ensuring, in particular, convergence between prices of derivatives in the delivery month and spot prices for the underlying commodity, without prejudice to price discovery on the market for the underlying commodity. | (b) support orderly pricing and settlement conditions, including preventing market distorting positions, and ensuring, in particular, convergence between prices of derivatives in the delivery month and spot prices for the underlying commodity, without prejudice to price discovery on the market for the underlying commodity; |
| (c) prevent the build-up of market distorting positions. | |
| The position limits referred to in paragraph 1 shall not apply to: | The position limits referred to in paragraph 1 shall not apply to: |
| (a) positions held by, or on behalf of, a non-financial entity, and which are objectively measurable as reducing risks directly relating to the commercial activity of that non-financial entity; | (a) positions held by, or on behalf of, a non-financial entity, and which are objectively measurable as reducing risks directly relating to the commercial activity of that non-financial entity. A position should be considered as reducing risks directly related to the commercial activity when the transaction: |
| (b) positions held by, or on behalf of, a financial entity that is part of a predominantly commercial group and is acting on behalf of a non-financial entity of the predominantly commercial group, where those positions are objectively measurable as reducing risks directly relating to the commercial activity of that non-financial entity; | - represents a substitute for a position taken or going to be taken on a physical market; |
| - is economically commensurate to the risks of the commercial activity. | |
| (c) positions held by financial and non-financial counterparties for positions that are objectively measurable as resulting from transactions entered into to fulfil obligations to provide liquidity on a trading venue as referred to in point (c) of the fourth subparagraph of Article 2(4); | (b) positions held by financial and non-financial counterparties for positions that are objectively measurable as resulting from transactions entered into to fulfil obligations to provide liquidity on a trading venue as referred to in point (c) of the fourth subparagraph of Article 2(4); |
| (d) any other securities as referred to in point (c) of point (44) of Article 4(1) which relate to a commodity or an underlying as referred to in Section C.10 of Annex I. | |
| ESMA shall develop draft regulatory technical standards to determine a procedure by which a financial entity that is part of a predominantly commercial group may apply for a hedging exemption for positions held by that financial entity that are objectively measurable as reducing risks directly relating to the commercial activities of the non-financial entities of the group. | ESMA shall develop draft regulatory technical standards to determine a procedure by which a financial entity that is part of a predominantly commercial group may apply for a hedging exemption for positions held by that financial entity that are objectively measurable as reducing risks directly relating to the commercial activities of the non-financial entities of the group. |
| ESMA shall develop draft regulatory technical standards to determine a procedure setting out how persons may apply for an exemption for positions resulting from transactions entered into to fulfil obligations to provide liquidity on a trading venue. | ESMA shall develop draft regulatory technical standards to determine a procedure setting out how persons may apply for an exemption for positions resulting from transactions entered into to fulfil obligations to provide liquidity on a trading venue. |
| ESMA shall submit the draft regulatory technical standards referred to in the third and fourth subparagraphs to the Commission by 28 November 2021. | ESMA shall submit the draft regulatory technical standards referred to in the third and fourth subparagraphs to the Commission by [12 months after the entry into force of this Directive]. |
| Power is delegated to the Commission to supplement this Directive by adopting the regulatory technical standards referred to in the third and fourth subparagraphs of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. | Power is delegated to the Commission to supplement this Directive by adopting the regulatory technical standards referred to in the third and fourth subparagraphs of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010." |
| Present text | Amendment |
|---|---|
| (ab) paragraph 3 is replaced by the following: | |
| ESMA shall draw up a list of critical or significant commodity derivatives referred to in paragraph 1 and develop draft regulatory technical standards to determine the calculation methodology that competent authorities are to apply when establishing the spot month position limits and other months’ position limits for physically settled and cash settled commodity derivatives based on the characteristics of the relevant derivative concerned. | "ESMA shall draw up a list of critical or significant commodity derivatives referred to in paragraph 1 and develop draft regulatory technical standards to determine the calculation methodology that competent authorities are to apply when establishing the spot month position limits and other months’ position limits for physically settled and cash settled commodity derivatives based on the characteristics of the relevant derivative concerned. |
| When drawing up the list of critical or significant commodity derivatives referred to in paragraph 1, ESMA shall take into account the following factors: | When drawing up the list of critical or significant commodity derivatives referred to in paragraph 1, ESMA shall take into account the following factors: |
| (a) the number of market participants; | (a) the number of market participants; |
| (b) the commodity underlying the derivative concerned. | (b) the commodity underlying the derivative concerned; |
| (c) the impact on consumer prices in agricultural and energy commodities and related products, due to price volatility or price peaks or other undue trading activity of the derivative concerned. | |
| When determining the calculation methodology referred to in the first subparagraph, ESMA shall take into account the following factors: | When determining the calculation methodology referred to in the first subparagraph, ESMA shall take into account the following factors: |
| (a) the deliverable supply in the underlying commodity; | (a) the deliverable supply in the underlying commodity; |
| (b) the overall open interest in that derivative and the overall open interest in other financial instruments with the same underlying commodity; | (b) the overall open interest in that derivative and the overall open interest in other financial instruments with the same underlying commodity; |
| (c) the number and size of the market participants; | (c) the number and size of each of the market participants; |
| (d) the characteristics of the underlying commodity market, including patterns of production, consumption and transportation to market; | (d) the characteristics of the underlying commodity market, including patterns of production, consumption, access by and prices for consumers to that commodity and transportation to market; |
| (e) the development of new commodity derivatives; | (e) the development of new commodity derivatives; |
| (f) the experience of investment firms or market operators operating a trading venue and of other jurisdictions regarding the position limits. | (f) the experience of investment firms or market operators operating a trading venue and of other jurisdictions regarding the position limits; |
| (g) the overall number of positions and their participants, per commodity derivative contract, which are not objectively measurable as reducing risks directly relating to the commercial activity of that non-financial entity. | |
| ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 28 November 2021. | ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by [12 months after the entry into force of this Directive]. |
| Power is delegated to the Commission to supplement this Directive by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. | Power is delegated to the Commission to supplement this Directive by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010." |
| Text proposed by the Commission | Amendment |
|---|---|
| 10. The competent authority shall communicate the details of the position limits it has established to ESMA, which shall publish and maintain on its website a database with summaries of the position limits.; | 10. The investment firm or market operator operating the trading venue shall: |
| (a) make public two weekly reports with the aggregate positions held by the different categories of position holders for the different financial instruments traded on their platforms specifying the number of long and short positions by category of position holder, changes thereto since the previous report, the percentage of the total open interest represented by each category and the number of position holders in each category; | |
| (b) provide the competent authority with a complete breakdown of the positions of all market participants, including any positions held on behalf of their clients on a daily basis; | |
| (c) make public the general policy of position management controls, inform the competent authority of the details of position management controls, including the measures adopted towards specific market participants. | |
| The competent authority shall communicate the details of the position limits it has established to ESMA, which shall publish and maintain on its website a database with summaries of the position limits.; |
| Text proposed by the Commission | Amendment |
|---|---|
| (17a) in Article 67, the following paragraph is inserted: | |
| ‘2a. Notwithstanding ESMA’s role as the competent authority for the authorisation and supervision of pan-European market operators (PEMOs), the national surveillance authorities of the Member State where a venue operated by a PEMO is situated or operated shall retain primary responsibility for supervising orderly trading and monitoring market abuse on that venue. Those authorities shall have the necessary powers to perform market surveillance tasks and carry out duties essential for the preservation of market integrity and investor protection.’; |
This amendment is meant to preserve proximity to local markets and ensure that national authorities—who bear the fiscal repercussions of market dysfunctions—retain intervention capabilities for market integrity.
| Text proposed by the Commission | Amendment |
|---|---|
| (-a) the following paragraph is inserted: | |
| '2a. Before following the procedure laid down in paragraphs 1 or 2, the competent authority of the host Member State may, in emergencies, take any precautionary measures necessary to protect the interests of investors and others for whom services are provided.' |
The amendment equips host competent authorities with a limited emergency power to act immediately where the activities of a cross-border investment firm create a serious and urgent risk to investors, clients or other market participants. It allows precautionary measures to be taken before harm becomes irreversible, rather than requiring the authority to wait for the ordinary supervisory process to be completed. The measure is intended as an exceptional safeguard for urgent cases.
| Text proposed by the Commission | Amendment |
|---|---|
| (23a) in Article 90, the following paragraph is added: | |
| ‘6a. By [ please insert the date = 12 months after the date of entry into force of this Directive], the Commission shall: | |
| (a) in consultation with ESMA and ACER, assess the feasibility of establishing a single reporting mechanism for energy commodity derivatives and an unique identifier format for transactions reported under both this Directive and the energy regulatory framework; | |
| (b) assess whether amendments to this Directive are necessary in order to align the EU regulatory framework with the latest international standards with regard to the regulation and supervision of commodity derivatives markets. | |
| The Commission shall report to the European Parliament and the Council and, where appropriate, accompany its report with legislative proposals.' |
| Text proposed by the Commission | Amendment |
|---|---|
| (23a) in Annex I, Section C, point (11) is deleted. |
This amendment argues that emission allowances under the EU ETS should no longer be classified as financial instruments under MiFID II, because their current financialisation undermines the core policy goal of decarbonisation and creates unnecessary costs for obliged entities, while ETS derivatives can remain fully regulated and available to meet riskmanagement needs.
Connections
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Sources & citation
Where the facts on this page come from, and how to cite it.
- Data source
- Licensed CC BY 4.0.
- Retrieved
- 25 September 2026
Cite as
European Parliament (2026). “AMENDMENTS 319 - 647 - Draft report on the proposal for a directive of the European Parliament and of the Council amending Directives 2009/65/EC, 2011/61/EU and 2014/65/EU as regards the further development of capital market integration and supervision within the Union”. Text, 27 July 2026. docId ECON-AM-791126. EU Parl Watch Research. https://news.eu-parl.st-solutions.dev/texts/ECON-AM-791126 (retrieved 25 September 2026). Data: EP Open Data API: document record, https://data.europarl.europa.eu/api/v2/documents/ECON-AM-791126 (CC BY 4.0).
BibTeX
@misc{epw-text-econ-am-791126,
author = {{European Parliament}},
title = {{AMENDMENTS 319 - 647 - Draft report on the proposal for a directive of the European Parliament and of the Council amending Directives 2009/65/EC, 2011/61/EU and 2014/65/EU as regards the further development of capital market integration and supervision within the Union}},
year = {2026},
date = {2026-07-27},
howpublished = {\url{https://news.eu-parl.st-solutions.dev/texts/ECON-AM-791126}},
url = {https://news.eu-parl.st-solutions.dev/texts/ECON-AM-791126},
urldate = {2026-09-25},
publisher = {EU Parl Watch Research},
note = {Text. docId ECON-AM-791126. Data: EP Open Data API: document record (CC BY 4.0)}
}