Changes from report parliamentary committee draft to plenary report

Added(eb) with respect to each AIF managed or marketed in the Union by an authorised AIFM, information regarding delegation arrangements concerning portfolio management or risk management functions and in particular:

Added(i) information on the entities to which such functions have been delegated, namely the name and relevant legal identifier of each delegate, its jurisdiction of establishment and, where relevant, its supervisory authority;

Added(ia) for each of the following, a description of the human and technical resources:

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

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

Added- employed by or committed to the AIFM for monitoring and controlling the delegate;

Added(ii) information on the function delegated, the type of delegation (full or partial), and the date of the delegation agreement or contract;

Added(iii) where sub-delegation arrangements are in place, the same information in respect of the sub-delegates and the functions sub-delegated;

Added(iv) the date of conclusion and expiration of the delegation and sub-delegation arrangements;

Added(v) confirmation that the AIFM has implemented periodic due diligence measures to oversee, monitor and control the delegate, and kept records of issues identified and, where relevant, the measures adopted to address those issues.’

Added(c) in paragraph 5, second subparagraph is replaced by the following:‘In exceptional circumstances and where required in order to ensure the stability and integrity of the financial system, or to promote long-term sustainable growth, ESMA after consulting the ESRB may request the competent authorities of the home Member State to impose additional reporting requirements.’;

Added(d) paragraph 6 is replaced by the following:

Added‘6. ESMA shall develop draft regulatory technical standards specifying the details to be reported according to paragraphs 1 and points (a) to (ea) of paragraph 2. Those draft regulatory technical standards shall also set out the appropriate level of standardisation of the information to be reported according to paragraph 2, point (eb). In order to reduce duplication and inconsistencies between reporting frameworks in the asset management sector and other sectors of the financial industry, ESMA shall take into account:

Added(i) other reporting requirements to which the AIFMs are subject;

Added(ii) international developments and standards agreed at Union or global level; and

Added(iii) the report issued in accordance with paragraph 2 of Article 69b.

AddedESMA shall submit those draft regulatory technical standards to the Commission by [Please insert date = 36 months after the entry into force of this Directive].

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

Added(d) the following paragraph 7 is added:

Added‘7. ESMA shall develop draft implementing technical standards specifying:

Added(a) the format and data standards for the reports referred to in paragraphs 1 and 2, which shall include in particular relevant legal identifiers and international securities identification numbers (ISINs);

Added(b) the reporting frequency and timing;

Added(ba) methods and arrangements for submitting the reports referred to in paragraphs 1 and 2, including methods and arrangements to improve data standardisation and efficient sharing and use of data already reported in any Union reporting framework by any relevant competent authority, at Union or national level, taking into account the findings of the report issued in accordance with paragraph 2 of Article 69b;

Added(bb) the reporting template that includes a minimum set of indicators that would be relevant for AIFs to provide in exceptional circumstances referred to in paragraph 5.

AddedWhen developing those draft implementing technical standards, ESMA shall take into account international developments and standards agreed at Union or global level and the findings of the report issued in accordance with Article 69b(2).

AddedESMA shall submit those draft implementing technical standards to the Commission by [Please insert date = 36 months after the entry into force of this Directive].

AddedPower is delegated to the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.’;

Added(10a) in Article 25, the following paragraph is inserted:

Added‘3a Limits to the level of leverage referred to in paragraph 3 shall be based on the leverage measures specified in accordance with Article 4(3) of this Directive.’;

Added(10b) in Article 31, the following paragraph is added:

Added‘6a. The provisions of this article shall not apply to AIFs constituted exclusively for the purpose of purchasing company shares and proposed to employees of these companies within the framework of employee savings schemes.’

Added(11) in Article 35(2), points (b) and (c) are replaced by the following:

Added‘(b) the third country where the non-EU AIF is established is not identified as a high-risk third country pursuant to Article 9(2) of Directive (EU) 2015/849 at the time of the AIFM’s application for authorisation in accordance with Article 7(1);

Added(c) the third country where the non-EU AIF is established has signed an agreement with the home Member State of the authorised AIFM and with each other Member State in which the units or shares of the non-EU AIF are intended to be marketed, which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements, and the third country is not mentioned in Annex I to the Council conclusions ▌on the revised EU list on non-cooperative jurisdictions for tax purposes applicable at the time of the AIFM’s application for authorisation in accordance with Article 7(1).

AddedIf a third country where the non-EU AIF is established is added to Annex I to the relevant last updated version of the Council conclusions on the revised EU list on non-cooperative jurisdictions for tax purposed after the AIFM’s application for authorisation in accordance with Article 7(1), closed-ended funds shall continue to be considered to meet that criterion for a period of two years.

AddedFor the purposes of this paragraph, a third country that has been continuously mentioned in Annex II to the Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes for a period of over three years shall be considered to be mentioned in Annex I to those conclusions.’;

Added(12) Article 36(1) is amended as follows:

Added(a) point (c) is replaced by the following:

Added‘(c) the third country where the non-EU AIF is established is not identified as a high-risk third country pursuant to Article 9(2) of Directive (EU) 2015/849 at the time of the AIFM’s application for authorisation in accordance with Article 7(1).’;

Added(b) the following point (d) is added:

Added‘(d) the third country where the non-EU AIF is established has signed an agreement with the home Member State of the authorised AIFM and with each other Member State in which the units or shares of the non-EU AIF are intended to be marketed, which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements, and that third country is not mentioned in Annex I to the relevant last updated version of the Council conclusions ▌on the revised EU list on non-cooperative jurisdictions for tax purposes applicable at the time of the AIFM’s application for authorisation in accordance with Article 7(1).

AddedIf the third country where the non-EU AIF is established is added to Annex I to the relevant last updated version of the Council conclusions on the revised EU list on non-cooperative jurisdictions for tax purposed after the time of the AIFM’s application for authorisation in accordance with Article 7(1), closed-ended funds shall continue to be considered to meet that criterion for a period of two years.

AddedFor the purposes of this paragraph, a third country that has been continuously mentioned in Annex II to the Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes for a period of over three years shall be considered to be mentioned in Annex I to those conclusions.

Added(13) in Article 37(7), points (e) and (f) are replaced by the following:

Added‘(e) the third country where the non-EU AIFM is established is not identified as a high-risk third country pursuant to Article 9(2) of Directive (EU) 2015/849 at the time of the AIFM’s application for authorisation in accordance with paragraph 1 of this Article;

Added(f) the third country where the non-EU AIFM is established has signed an agreement with the Member State of reference, which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including any multilateral tax agreements and the third country is not mentioned in Annex I to the Council conclusions ▌on the revised EU list on non-cooperative jurisdictions for tax purposes applicable at the time of the AIFM’s application for authorisation in accordance with paragraph 1 of this Article.

AddedIf the third country where the non-EU AIF is established is added to Annex I to the relevant last updated version of the Council conclusions on the revised EU list on non-cooperative jurisdictions for tax purposes after the time of the AIFM’s application for authorisation in accordance with paragraph 1 of this Article, closed-ended funds shall continue to be considered to meet that criterion for a period of two years.;

AddedFor the purposes of this paragraph, a third country that has been continuously mentioned in Annex II to the Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes for a period of over three years shall be considered to be mentioned in Annex I to those conclusions’;

Added(14) the following Article 38a is inserted:

Added‘Article 38a

AddedPeer review of application of the delegation regime

Added1. By … [12 months before the date of the review referred to in Article 69b], ESMA shall▌ conduct a one-off comprehensive peer review analysis of the supervisory activities of the competent authorities in relation to the application of Article 20. That peer review analysis shall focus on the measures taken to prevent that AIFMs, which delegate performance of portfolio management or risk management to third parties located in third countries, become letter-box entities.

Added2. When conducting the peer review analysis, ESMA shall use transparent methods to ensure an objective assessment and comparison between the competent authorities reviewed.’;

Added(15) in Article 40(2), points (b) and (c) are replaced by the following:

Added‘(b) the third country where the non-EU AIF is established is not identified as a high-risk third country pursuant to Article 9(2) of Directive (EU) 2015/849 at the time of the AIFM’s application for authorisation in accordance with Article 39(1);

Added(c) the third country where the non-EU AIF is established has signed an agreement with the Member State of reference and with each other Member State in which the units or shares of the non-EU AIF are intended to be marketed which fully complies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters including any multilateral tax agreements, and the third country is not mentioned in Annex I to the the relevant last updated version of the Council conclusions ▌on the revised EU list on non-cooperative jurisdictions for tax purposes applicable at the time of the AIFM’s application for authorisation in accordance with Article 39(1).

AddedIf the third-country where the non-EU AIF is established is added to Annex I to the relevant last updated version of the Council conclusions on the revised EU list on non-cooperative jurisdictions for tax purposed after the time of the AIFM’s application for authorisation in accordance with Article 39(1), closed-ended funds shall continue to be considered to meet that criterion for a period of two years.

AddedFor the purposes of this paragraph, a third country that has been continuously mentioned in Annex II to the Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes for a period of over three years shall be considered to be mentioned in Annex I to those conclusions.’;

Added(16) Article 42(1) is amended as follows:

Added(a) point (c) is replaced by the following: