Changes from report parliamentary committee draft to plenary report

RemovedArticle 1 – paragraph 1 – point 8 – point b – point i, Article 21 – paragraph 11 – subparagraph 2 – point c: (c) the depositary has exercised all due skill, care and diligence in the selection and the appointment of any third party to whom it wants to delegate parts of its tasks, except where that third party is a central securities depository acting in the capacity of an issuer CSD as defined in the delegated act adopted on the basis of Articles 29(3) and 48(10) of Regulation (EU) No 909/2014, and keeps exercising all due skill, care and diligence in the periodic review and ongoing monitoring of any third party to whom it has delegated parts of its tasks and of the arrangements of the third party in respect of the matters delegated to it;

Added(c) the following points are inserted:

RemovedDirective 2011/61/EU

Added(apa) ‘loan origination’ means the granting of loans by an AIF as the original lender;

RemovedArticle 1 – paragraph 1 – point 8 – point b – point ii, Article 21 – paragraph 11 – subparagraph 5: For the purposes of this paragraph, the provision of services by a central securities depository acting in the capacity of an issuer CSD as defined in the delegated act adopted on the basis of Articles 29(3) and 48(10) of Regulation (EU) No 909/2014 shall not be considered a delegation of the depositary’s custody functions. The provision of services by a central securities depository acting in the capacity of an investor CSD as defined in that delegated act shall be considered a delegation of the depositary’s custody functions.

Added(apb) ‘shareholder loan’ means a loan which is granted by an AIF to an undertaking in which it holds directly or indirectly at least 5 % of the capital or voting rights, where the loan cannot be sold to third-parties independently of the capital instruments held by the AIF in the same undertaking;

RemovedDirective 2011/61/EU

Added(apc) ‘loan-originating AIF’ means an AIF whose principal activity is to originate loans and for which the notional value of its originated loans exceeds 60 % of its net asset value;

RemovedArticle 1 – paragraph 1 – point 8 – point c, Article 21– paragraph 16: 16. The depositary shall make available to its competent authorities, to the competent authorities of the AIF that has appointed it as a depositary and to the competent authorities of the AIFM that manages that AIF, all information that it has obtained while performing its duties and that may be necessary for the competent authorities of the AIF or the AIFM. If the competent authorities of the AIF or the AIFM are different from those of the depositary, the competent authorities of the depositary shall share the information received without delay with the competent authorities of the AIF and the AIFM, and the competent authorities of the AIF or the AIFM shall share without delay with the competent authorities of the depositary any information relevant for the exercise of those authorities’ supervisory powers;

Added(apd) ‘capital’ means aggregate capital contributions and uncalled committed capital, calculated on the basis of amounts investible after deduction of all fees, charges and expenses that are directly or indirectly borne by investors;

RemovedDirective 2011/61/EU

Added(ape) ‘leveraged AIF’ means an AIF whose exposures are increased by the managing AIFM, whether through borrowing of cash or securities, or leverage embedded in derivative positions or by any other means.

RemovedArticle 1 – paragraph 1 – point 9 – point a – point ii, Article 23 – paragraph 1 – point ia: deleted / (deleted)

Added(2) Article 6 is amended as follows:

RemovedDirective 2011/61/EU

Added(a) in paragraph 4, the following points (c) and (d) are added:

RemovedArticle 1 – paragraph 1 – point 9 – point b, Article 23 – paragraph 4 – point d: (d) portfolio composition of originated loans;

Added‘(c) benchmark administration in accordance with Regulation (EU) 2016/1011;

RemovedDirective 2011/61/EU

Added(d) credit servicing in accordance with of Directive 2021/… of the European Parliament and of the Council;’;

RemovedArticle 1 – paragraph 1 – point 9 – point b, Article 23 – paragraph 4 – point e: (e) on an annual basis, all direct and indirect fees and charges that were directly or indirectly charged to the AIF;

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

RemovedDirective 2011/61/EU

Added‘6. Articles 2(2), Article 15, Article 16 except for the first subparagraph of paragraph (5), and Articles 23, 24 and 25 of Directive 2014/65/EU shall apply where the services referred to in paragraph 4, points (a) and (b), are provided by AIFMs.’;

RemovedArticle 1 – paragraph 1 – point 9 – point b, Article 23 – paragraph 4 – point f: (f) on an annual basis, any parent company, subsidiary or special purpose entity established in relation to the AIF’s investments by the AIFM.

Added(3) Article 7 is amended as follows:

RemovedDirective 2011/61/EU

Added(a) paragraph 2 is replaced by the following:

RemovedArticle 1 – paragraph 1 – point 10 – point a, Article 24 – paragraph 1 – subparagraph 1: An AIFM shall regularly report to the competent authorities of its home Member State on the markets and instruments in which it trades on behalf of the AIFs it manages, and on other relevant economic and accounting information set out in paragraph 2.

Added‘2. Member States shall require that an AIFM applying for an authorisation provides the following information relating to the AIFM to the competent authorities of its home Member State:

RemovedDirective 2011/61/EU

Added(a) information about the persons effectively conducting the business of the AIFM, in particular with regard to the functions referred to in Annex I, including:

RemovedArticle 1 – paragraph 1 – point 10 – point b a (new), Article 24 – paragraph 2 – points ea and eb (new): (ba) in paragraph 2, the following points are added: / ‘(ea) the total amount of leverage of the net asset value employed by the AIF; / (eb) information regarding delegation arrangements concerning portfolio management or risk management functions and in particular: / (i) information on the entities to which such functions have been delegated (name and LEI of each delegate, its jurisdiction of establishment and, where relevant, its supervisory authority); / (ii) information on the function delegated, the type of delegation (full or partial), and the date of the delegation agreement or contract; / (iii) where sub-delegation arrangements are in place, the same information in respect of the sub-delegates and the functions sub-delegated; / (iv) the date of conclusion and expiration of the delegation and sub-delegation arrangements; / (v) a description of the periodic due diligence measures carried out by the AIFM to oversee, monitor and control the delegate, including the date of performance of those measures, the issues identified and, where relevant, the measures and timeline adopted to address those issues.

Added(i) a ▌description of their role, title and level of seniority;

RemovedDirective 2011/61/EU

Added(ii) a description of their reporting lines and responsibilities in the AIFM and outside the AIFM;

RemovedArticle 1 – paragraph 1 – point 10 – point c, Article 24 – paragraph 6 – subparagraph 1: ESMA shall develop draft regulatory technical standards specifying the details to be reported according to paragraphs 1 and 2. In order to reduce duplication and inconsistencies between reporting frameworks, ESMA shall take into account other reporting requirements to which the AIFMs are subject and the report issued in accordance with paragraph 2 of Article 69b.

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

RemovedDirective 2011/61/EU

Added(iv) a description of the technical and human resources that support their activities;

RemovedArticle 1 – paragraph 1 – point 10 – point d, Article 24 – paragraph 7 – subparagraph 1 – point a: (a) the format and data standards for the reports referred to in paragraphs 1 and 2, which shall include in particular global LEIs and international securities identification numbers (ISINs);

Added(b) information on the identities of the AIFM’s shareholders or members, whether direct or indirect, natural or legal persons, that have qualifying holdings and on the amounts of those holdings;

RemovedDirective 2011/61/EU

Added(c) a programme of activity setting out the organisational structure of the AIFM, including information on how the AIFM intends to comply with its obligations under Chapters II, III, IV, and, where applicable, Chapters V, VI, VII and VIII of this Directive, and with its obligations under Regulation (EU) 2019/2088 and a detailed description of the appropriate human and technical resources that will be used by the AIFM to this effect;

RemovedArticle 1 – paragraph 1 – point 10 – point d, Article 24 – paragraph 7 – subparagraph 1 – point b a (new): (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.

Added(d) information on the remuneration policies and practices pursuant to Article 13;

RemovedDirective 2011/61/EU

Added(e) information on arrangements made for the delegation and sub-delegation to third parties of functions as referred to in Article 20 comprising:

RemovedArticle 1 – paragraph 1 – point 10 – point d, Article 24 – paragraph 7 – subparagraph 1 a (new): Whenn developing those draft 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).

Added(i) the legal name and relevant legal identifier of the AIFM;

RemovedDirective 2011/61/EU

Added(ii) the legal name and relevant legal identifier of the AIF and its investment strategy;

RemovedArticle 1 – paragraph 1 – point 14, Article 38a – paragraph 1: 1. By … [12 months before the date of the review referred to in Article 69b], and otherwise as necessary, ESMA shall conduct a 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.

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

RemovedDirective 2011/61/EU

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

RemovedArticle 1 – paragraph 1 – point 17, Article 46 – paragraph 2 – point j: (j) in the interest of investors, in exceptional circumstances and after consulting the AIFM, require AIFMs to activate or deactivate a liquidity management tool referred to in point 1 or 2 of Annex V or selected by the AIFM in accordance with Article 16(2b), whichever is more suitable considering the type of open-ended AIF or group of open-ended AIFs concerned and if there are financial stability risks that necessitate this requirement.;

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

RemovedDirective 2011/61/EU

Added(vi) a brief description of other functions listed in Annex I which the AIFM additionally performs;