What changed, Directive 2011/61/EU

+ ## CHAPTER I — GENERAL PROVISIONS
− ## CHAPTER I / **GENERAL PROVISIONS**
+ **1.** For the purpose of this Directive, the following definitions shall apply:(a) ‘AIFs’ means collective investment undertakings, including investment compartments thereof, which:(i) raise capital from a number of investors, with a view to investing it in accordance with a defined investment poli…
− **1.** For the purpose of this Directive, the following definitions shall apply:(a) ‘AIFs’ means collective investment undertakings, including investment compartments thereof, which:(i) raise capital from a number of investors, with a view to investing it in accordance with a defined investment poli…
+ ## CHAPTER II — AUTHORISATION OF AIFMs
− ## CHAPTER II / **AUTHORISATION OF AIFMs**
+ ## CHAPTER III — OPERATING CONDITIONS FOR AIFMs / SECTION 1 — General requirements
− ## *SECTION 1* / ***General requirements***
+ ## CHAPTER III — OPERATING CONDITIONS FOR AIFMs / SECTION 2 — Organisational requirements
− ## *SECTION 2* / ***Organisational requirements***
+ ## CHAPTER III — OPERATING CONDITIONS FOR AIFMs / SECTION 3 — Delegation of AIFM functions
− ## *SECTION 3* / ***Delegation of AIFM functions***
+ ## CHAPTER III — OPERATING CONDITIONS FOR AIFMs / SECTION 4 — Depositary
− ## *SECTION 4* / ***Depositary***
+ ## CHAPTER IV — TRANSPARENCY REQUIREMENTS
− ## CHAPTER IV / **TRANSPARENCY REQUIREMENTS**
+ ## CHAPTER V — AIFMs MANAGING SPECIFIC TYPES OF AIF / SECTION 1 — AIFMs managing leveraged AIFs
− ## *SECTION 1* / ***AIFMs managing leveraged AIFs***
+ ## CHAPTER V — AIFMs MANAGING SPECIFIC TYPES OF AIF / SECTION 2 — Obligations for AIFMs managing AIFs which acquire control of non-listed companies and issuers
− ## *SECTION 2* / ***Obligations for AIFMs managing AIFs which acquire control of non-listed companies and issuers***
+ 
+ ## CHAPTER VI — RIGHTS OF EU AIFMs TO MARKET AND MANAGE EU AIFs IN THE UNION
+ 
+ ### Article 30a — Conditions for pre-marketing in the Union by an EU AIFM
+ 
+ **1.** Member States shall ensure that an authorised EU AIFM may engage in pre-marketing in the Union, except where the information presented to potential professional investors:(a) is sufficient to allow investors to commit to acquiring units or shares of a particular AIF;(b) amounts to subscriptio…
+ 
+ Where a draft prospectus or offering documents are provided, they shall not contain information sufficient to allow investors to take an investment decision and shall clearly state that:
+ 
+ (a) they do not constitute an offer or an invitation to subscribe to units or shares of an AIF; and
+ (b) the information presented therein should not be relied upon because it is incomplete and may be subject to change.
+ 
+ Member States shall ensure that an EU AIFM is not required to notify the competent authorities of the content or of the addressees of pre-marketing, or to fulfil any conditions or requirements other than those set out in this Article, before it engages in pre-marketing.
+ 
+ **2.** EU AIFMs shall ensure that investors do not acquire units or shares in an AIF through pre-marketing and that investors contacted as part of pre-marketing may only acquire units or shares in that AIF through marketing permitted under Article 31 or 32.
+ 
+ Any subscription by professional investors, within 18 months of the EU AIFM having begun pre-marketing, to units or shares of an AIF referred to in the information provided in the context of pre-marketing, or of an AIF established as a result of the pre-marketing, shall be considered to be the resul…
+ 
+ Member States shall ensure that an EU AIFM sends, within two weeks of it having begun pre-marketing, an informal letter, in paper form or by electronic means, to the competent authorities of its home Member State. That letter shall specify the Member States in which and the periods during which the …
+ 
+ **3.** A third party shall only engage in pre-marketing on behalf of an authorised EU AIFM where it is authorised as an investment firm in accordance with Directive 2014/65/EU of the European Parliament and of the Council (11), as a credit institution in accordance with Directive 2013/36/EU of the E…
+ 
+ **4.** An EU AIFM shall ensure that pre-marketing is adequately documented.
− ## CHAPTER VI / **RIGHTS OF EU AIFMs TO MARKET AND MANAGE EU AIFs IN THE UNION**
+ If, pursuant to a planned change, the AIFM's management of the AIF would no longer comply with this Directive or the AIFM would otherwise no longer comply with this Directive, the relevant competent authorities of the home Member State of the AIFM shall inform the AIFM within 15 working days of rece…
− If, pursuant to a planned change, the AIFM’s management of the AIF would no longer comply with this Directive or the AIFM would otherwise no longer comply with this Directive, the relevant competent authorities shall inform the AIFM without undue delay that it is not to implement the change.
+ If a planned change is implemented notwithstanding the first and second subparagraphs, or if an unplanned change has taken place pursuant to which the AIFM's management of the AIF would no longer comply with this Directive or the AIFM otherwise would no longer comply with this Directive, the compete…
− If a planned change is implemented notwithstanding the first and second subparagraphs or if an unplanned change has taken place pursuant to which the AIFM’s management of the AIF would no longer comply with this Directive or the AIFM otherwise would no longer comply with this Directive, the competen…
+ If the changes do not affect the compliance of the AIFM's management of the AIF with this Directive, or the compliance by the AIFM with this Directive otherwise, the competent authorities of the home Member State of the AIFM shall within one month inform the competent authorities of the host Member …
− If the changes are acceptable because they do not affect the compliance of the AIFM’s management of the AIF with this Directive, or the compliance by the AIFM with this Directive otherwise, the competent authorities of the home Member State of the AIFM shall, without delay, inform the competent auth…
+ 
+ ### Article 32a — De-notification of arrangements made for the marketing of units or shares of some or all EU AIFs in the Member States other than in the home Member State of the AIFM
+ 
+ **1.** Member States shall ensure that an EU AIFM may de-notify arrangements made for marketing as regards units or shares of some or all of its AIFs in a Member State in respect of which it has made a notification in accordance with Article 32, where all the following conditions are fulfilled:(a) e…
+ 
+ As of the date referred to in point (c) of the first subparagraph, the AIFM shall cease any new or further, direct or indirect, offering or placement of units or shares of the AIF it manages in the Member State in respect of which it has submitted a notification in accordance with paragraph 2.
+ 
+ **2.** The AIFM shall submit a notification to the competent authorities of its home Member State containing the information referred to in points (a), (b) and (c) of the first subparagraph of paragraph 1.
+ 
+ **3.** The competent authorities of the home Member State of the AIFM shall verify whether the notification submitted by the AIFM in accordance with paragraph 2 is complete. The competent authorities of the home Member State of the AIFM shall, no later than 15 working days from the receipt of a comp…
+ 
+ Upon transmission of the notification pursuant to the first subparagraph, the competent authorities of the home Member State of the AIFM shall promptly notify the AIFM of that transmission.
+ For a period of 36 months from the date referred to in point (c) of the first subparagraph of paragraph 1, the AIFM shall not engage in pre-marketing of units or shares of the EU AIFs referred to in the notification, or in respect of similar investment strategies or investment ideas, in the Member S…
+ 
+ **4.** The AIFM shall provide investors who remain invested in the EU AIF as well as the competent authorities of the home Member State of the AIFM with the information required under Articles 22 and 23.
+ 
+ **5.** The competent authorities of the home Member State of the AIFM shall transmit to the competent authorities of the Member State identified in the notification referred to in paragraph 2, information on any changes to the documentation and information referred to in points (b) to (f) of Annex I…
+ 
+ **6.** The competent authorities of the Member State identified in the notification referred to in paragraph 2 of this Article shall have the same rights and obligations as the competent authorities of the host Member State of the AIFM as set out in in Article 45.
+ 
+ **7.** Without prejudice to other supervisory powers referred to in Article 45(3), as from the date of transmission under paragraph 5 of this Article, the competent authorities of the Member State identified in the notification referred to in paragraph 2 of this Article, shall not require the AIFM c…
+ 
+ **8.** Member States shall allow for the use of any electronic or other distance communication means for the purposes of paragraph 4.
+ 
+ If, pursuant to a planned change, the AIFM's management of the AIF would no longer comply with this Directive or the AIFM would otherwise no longer comply with this Directive, the relevant competent authorities of the home Member State of the AIFM shall inform the AIFM within 15 working days of rece…
− If, pursuant to a planned change, the AIFM’s management of the AIF would no longer comply with this Directive or the AIFM would otherwise no longer comply with this Directive, the competent authorities of the home Member State of the AIFM shall inform the AIFM without undue delay that it is not to i…
+ If a planned change is implemented notwithstanding the first and second subparagraphs or if an unplanned change has taken place pursuant to which the AIFM's management of the AIF would no longer comply with this Directive or the AIFM otherwise would no longer comply with this Directive, the competen…
− If a planned change is implemented notwithstanding the first and second subparagraphs or if an unplanned change has taken place pursuant to which the AIFM’s management of the AIF would no longer comply with this Directive or the AIFM otherwise would no longer comply with this Directive, the competen…
+ ## CHAPTER VII — SPECIFIC RULES IN RELATION TO THIRD COUNTRIES
− ## CHAPTER VII / **SPECIFIC RULES IN RELATION TO THIRD COUNTRIES**
+ ## CHAPTER VIII — MARKETING TO RETAIL INVESTORS
− ## CHAPTER VIII / **MARKETING TO RETAIL INVESTORS**
+ 
+ ### Article 43a — Facilities available to retail investors
+ 
+ **1.** Without prejudice to Article 26 of Regulation (EU) 2015/760, Member States shall ensure that an AIFM makes available, in each Member State where it intends to market units or shares of an AIF to retail investors, facilities to perform the following tasks:(a) process investors' subscription, p…
+ 
+ **2.** Member States shall not require an AIFM to have a physical presence in the host Member State or to appoint a third party for the purposes of paragraph 1.
+ 
+ **3.** The AIFM shall ensure that the facilities to perform the tasks referred to in paragraph 1, including electronically, are provided:(a) in the official language or one of the official languages of the Member State where the AIF is marketed or in a language approved by the competent authorities …
+ 
+ For the purposes of point (b), where the tasks are to be performed by a third party, the appointment of that third party shall be evidenced by a written contract, which specifies which of the tasks referred to in paragraph 1 are not to be performed by the AIFM and that the third party will receive a…
+ ## CHAPTER IX — COMPETENT AUTHORITIES / SECTION 1 — Designation, powers and redress procedures
− ## *SECTION 1* / ***Designation, powers and redress procedures***
+ **3.** All the information exchanged under this Directive between ESMA, the competent authorities, 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 (15) and the E…
− **3.** All the information exchanged under this Directive between ESMA, the competent authorities, 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 (11) and the E…
+ ## CHAPTER IX — COMPETENT AUTHORITIES / SECTION 2 — Cooperation between different competent authorities
− ## *SECTION 2* / ***Cooperation between different competent authorities***
+ ## CHAPTER X — TRANSITIONAL AND FINAL PROVISIONS
− ## CHAPTER X / **TRANSITIONAL AND FINAL PROVISIONS**
+ **1.** The Commission shall be assisted by the European Securities Committee established by Commission Decision 2001/528/EC (16). That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
− **1.** The Commission shall be assisted by the European Securities Committee established by Commission Decision 2001/528/EC (12). That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
+ 
+ ### Article 69a — Assessment of the passport regime
+ 
+ Before the entry into force of the delegated acts referred to in Article 67(6) pursuant to which the rules set out in Article 35 and Articles 37 to 41 become applicable, the Commission shall submit a report to the European Parliament and to the Council, taking into account the result of an assessmen…
− 
− ### ANNEX I
− 
− 1. Investment management functions which an AIFM shall at least perform when managing an AIF:
− 
− (a) portfolio management;
− 
− (b) risk management.
− 
− 2. Other functions that an AIFM may additionally perform in the course of the collective management of an AIF:
− 
− (a) Administration: (i) legal and fund management accounting services; (ii) customer inquiries; (iii) valuation and pricing, including tax returns; (iv) regulatory compliance monitoring; (v) maintenance of unit-/shareholder register; (vi) distribution of income; (vii) unit/shares issues and redempti…
− 
− (b) Marketing;
− 
− (c) Activities related to the assets of AIFs, namely services necessary to meet the fiduciary duties of the AIFM, facilities management, real estate administration activities, advice to undertakings on capital structure, industrial strategy and related matters, advice and services relating to merger…
− 
− ### ANNEX II
− 
− **REMUNERATION POLICY**
− 
− 1. When establishing and applying the total remuneration policies, inclusive of salaries and discretionary pension benefits, for those categories of staff, including senior management, risk takers, control functions and any employee receiving total remuneration that takes them into the same remunera…
− 
− (a) the remuneration policy is consistent with and promotes sound and effective risk management and does not encourage risk-taking which is inconsistent with the risk profiles, rules or instruments of incorporation of the AIFs they manage;
− 
− (b) the remuneration policy is in line with the business strategy, objectives, values and interests of the AIFM and the AIFs it manages or the investors of such AIFs, and includes measures to avoid conflicts of interest;
− 
− (c) the management body of the AIFM, in its supervisory function, adopts and periodically reviews the general principles of the remuneration policy and is responsible for its implementation;
− 
− (d) the implementation of the remuneration policy is, at least annually, subject to central and independent internal review for compliance with policies and procedures for remuneration adopted by the management body in its supervisory function;
− 
− (e) staff engaged in control functions are compensated in accordance with the achievement of the objectives linked to their functions, independent of the performance of the business areas they control;
− 
− (f) the remuneration of the senior officers in the risk management and compliance functions is directly overseen by the remuneration committee;
− 
− (g) where remuneration is performance related, the total amount of remuneration is based on a combination of the assessment of the performance of the individual and of the business unit or AIF concerned and of the overall results of the AIFM, and when assessing individual performance, financial as w…
− 
− (h) the assessment of performance is set in a multi-year framework appropriate to the life-cycle of the AIFs managed by the AIFM in order to ensure that the assessment process is based on longer term performance and that the actual payment of performance-based components of remuneration is spread ov…
− 
− (i) guaranteed variable remuneration is exceptional, occurs only in the context of hiring new staff and is limited to the first year;
− 
− (j) fixed and variable components of total remuneration are appropriately balanced and the fixed component represents a sufficiently high proportion of the total remuneration to allow the operation of a fully flexible policy, on variable remuneration components, including the possibility to pay no v…
− 
− (k) payments related to the early termination of a contract reflect performance achieved over time and are designed in a way that does not reward failure;
− 
− (l) the measurement of performance used to calculate variable remuneration components or pools of variable remuneration components includes a comprehensive adjustment mechanism to integrate all relevant types of current and future risks;
− 
− (m) subject to the legal structure of the AIF and its rules or instruments of incorporation, a substantial portion, and in any event at least 50 % of any variable remuneration consists of units or shares of the AIF concerned, or equivalent ownership interests, or share-linked instruments or equivale…
− 
− (n) a substantial portion, and in any event at least 40 %, of the variable remuneration component, is deferred over a period which is appropriate in view of the life cycle and redemption policy of the AIF concerned and is correctly aligned with the nature of the risks of the AIF in question. The per…
− 
− (o) the variable remuneration, including the deferred portion, is paid or vests only if it is sustainable according to the financial situation of the AIFM as a whole, and justified according to the performance of the business unit, the AIF and the individual concerned. The total variable remuneratio…
− 
− (p) the pension policy is in line with the business strategy, objectives, values and long-term interests of the AIFM and the AIFs it manages. If the employee leaves the AIFM before retirement, discretionary pension benefits shall be held by the AIFM for a period of 5 years in the form of instruments…
− 
− (q) staff are required to undertake not to use personal hedging strategies or remuneration- and liability-related insurance to undermine the risk alignment effects embedded in their remuneration arrangements;
− 
− (r) variable remuneration is not paid through vehicles or methods that facilitate the avoidance of the requirements of this Directive.
− 
− 2. The principles set out in paragraph 1 shall apply to remuneration of any type paid by the AIFM, to any amount paid directly by the AIF itself, including carried interest, and to any transfer of units or shares of the AIF, made to the benefits of those categories of staff, including senior managem…
− 
− 3. AIFMs that are significant in terms of their size or the size of the AIFs they manage, their internal organisation and the nature, the scope and the complexity of their activities shall establish a remuneration committee. The remuneration committee shall be constituted in a way that enables it to…
− 
− The remuneration committee shall be responsible for the preparation of decisions regarding remuneration, including those which have implications for the risk and risk management of the AIFM or the AIF concerned and which are to be taken by the management body in its supervisory function. The remuner…
− 
− ### ANNEX III
− 
− **DOCUMENTATION AND INFORMATION TO BE PROVIDED IN CASE OF INTENDED MARKETING IN THE HOME MEMBER STATE OF THE AIFM**
− 
− (a) A notification letter, including a programme of operations identifying the AIFs the AIFM intends to market and information on where the AIFs are established;
− 
− (b) the AIF rules or instruments of incorporation;
− 
− (c) identification of the depositary of the AIF;
− 
− (d) a description of, or any information on, the AIF available to investors;
− 
− (e) information on where the master AIF is established if the AIF is a feeder AIF;
− 
− (f) any additional information referred to in Article 23(1) for each AIF the AIFM intends to market;
− 
− (g) where relevant, information on the arrangements established to prevent units or shares of the AIF from being marketed to retail investors, including in the case where the AIFM relies on activities of independent entities to provide investment services in respect of the AIF.
− 
− ### ANNEX IV
− 
− **DOCUMENTATION AND INFORMATION TO BE PROVIDED IN THE CASE OF INTENDED MARKETING IN MEMBER STATES OTHER THAN THE HOME MEMBER STATE OF THE AIFM**
− 
− (a) A notification letter, including a programme of operations identifying the AIFs the AIFM intends to market and information on where the AIFs are established;
− 
− (b) the AIF rules or instruments of incorporation;
− 
− (c) identification of the depositary of the AIF;
− 
− (d) a description of, or any information on, the AIF available to investors;
− 
− (e) information on where the master AIF is established if the AIF is a feeder AIF;
− 
− (f) any additional information referred to in Article 23(1) for each AIF the AIFM intends to market;
− 
− (g) the indication of the Member State in which it intends to market the units or shares of the AIF to professional investors;
− 
− (h) information about arrangements made for the marketing of AIFs and, where relevant, information on the arrangements established to prevent units or shares of the AIF from being marketed to retail investors, including in the case where the AIFM relies on activities of independent entities to provi…
− 
− (1) OJ L 193, 18.7.1983, p. 1.
− 
− (2) OJ L 15, 20.1.2009, p. 1.
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− (3) OJ L 177, 30.6.2006, p. 201.
− 
− (4) Regulation (EU) 2019/2033 of the European Parliament and of the Council of 27 November 2019 on the prudential requirements of investment firms and amending Regulations (EU) No 1093/2010, (EU) No 575/2013, (EU) No 600/2014 and (EU) No 806/2014 (OJ L 314, 5.12.2019, p. 1).
− 
− (5) OJ L 84, 26.3.1997, p. 22.
− 
− (6) OJ L 302, 17.11.2009, p. 1.
− 
− (7) Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 2017 laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation, and amending Directives 2009/65/EC, 2009/138/EC and 2011/61/EU…
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− (8) OJ L 157, 9.6.2006, p. 87.
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− (9) OJ L 124, 20.5.2003, p. 36.
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− (10) OJ L 26, 31.1.1977, p. 1.
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− (11) OJ L 331, 15.12.2010, p. 48.
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− (12) OJ L 191, 13.7.2001, p. 45.
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− (*1) OJ L 228, 16.8.1973, p. 3.
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− (*2) OJ L 345, 19.12.2002, p. 1.
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− (*3) OJ L 323, 9.12.2005, p. 1.
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− (*4) OJ L 302, 17.11.2009, p. 32.
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− (*5) OJ L 174, 1.7.2011, p. 1.’.
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− (*6) OJ L 174, 1.7.2011, p. 1.’.