Revised Swedish Presidency compromise text on AIFMD
27 November 2009
The new revised compromise text is even more industry-friendly than the one published two weeks ago, showing how the industry is obtaining what it’s lobbying for. This week MEPs will debate Jean-Paul Gauzes' opinion report on AIFM.
Key changes include:
· Preamble. New point 5aa: Several provisions of this Directive oblige the AIFM to ensure compliance with requirements for which, in some fund structures, the AIFM is not responsible. An example is fund structures where the responsibility for appointing the depositary rests with the AIF or another entity acting on behalf of the AIF. In such cases, the AIFM has no ultimate control over whether a depositary is actually appointed, unless the AIF is internally managed. Since this Directive does not regulate the AIF, there could be no obligation in the Directive on the AIF to appoint a depositary. In cases of failure of an AIFM to ensure compliance with requirements for which the AIF or another entity on its behalf is responsible for, the competent authorities should require the AIFM to take the necessary steps to remedy the situation. If, despite such steps, the non-compliance persists, the AIFM should resign as manager of that AIF. In that case the AIF may no longer be marketed in the Community.
· Preamble. Point 18 now includes “It should be ensured that the AIFM in the third country in question complies with standards set by international organisations, inter alia the IOSCO standards on hedge funds oversight”
· New article 3a: Determination of the AIFM under the chapter of authorisation of AIFM
· New article 4a: Activities of an AIFM
· Article 6a, related to the initial capital and own fund: new paragraph 2a saying Member States shall require that an AIFM which is an internally managed AIF has an initial capital of at least EUR 300 000.
· New article 51 a1: Amendment of Directive 2003/41/EC
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