Procedure : 2008/0153(COD)
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Document selected : A6-0497/2008

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A6-0497/2008

Debates :

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REPORT     ***I
PDF 808kWORD 1413k
10 December 2008
PE 412.228v02-00 A6-0497/2008

on the proposal for a directive of the European Parliament and of the Council on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (recast)

(COM(2008)0458 – C6-0287/2008 – 2008/0153(COD))

Committee on Economic and Monetary Affairs

Rapporteur: Wolf Klinz

(Recast - Rule 80a of the Rules of Procedure)

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 EXPLANATORY STATEMENT
 OPINION of the Committee on Legal Affairs
 ANNEX: OPINION OF THE CONSULTATIVE WORKING PARTY OF THE LEGAL SERVICES OF THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE COMMISSION
 PROCEDURE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (recast)

(COM(2008)0458 – C6-0287/2008 – 2008/0153(COD))

(Codecision procedure: recast)

The European Parliament,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2008)0458),

–   having regard to Article 251(2) and Article 47(2) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0287/2008),

-    having regard to the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts(1),

–   having regard to Rules 80 and 51 of its Rules of Procedure,

–   having regard to the report of the Committee on Economic and Monetary Affairs and the opinion of the Committee on Legal Affairs(A6-0497/2008),

A.  whereas, according to the Consultative Working Party of the Legal Services of the European Parliament, the Council and the Commission, the proposal in question does not include any substantive amendments other than those identified as such in the proposal and whereas, as regards the codification of the unchanged provisions of the earlier acts together with those amendments, the proposal contains a straightforward codification of the existing texts, without any change in their substance

1.  Approves the Commission proposal as adapted to the recommendations of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission and as amended below;

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3.  Instructs its President to forward its position to the Council and the Commission.

Amendment  1

Proposal for a directive

Recital 5 a (new)

Text proposed by the Commission

Amendment

(5a) Where a provision of this Directive requires a UCITS to take action, that provision should be understood to refer to the management company where the UCITS is constituted as a common fund and where such fund has no legal personality and cannot act by itself.

Amendment  2

Proposal for a directive

Recital 6 a (new)

Text proposed by the Commission

Amendment

(6a) The sale of units of UCITS by intermediaries is subject to Directive 2004/39/EC.

Amendment  3

Proposal for a directive

Recital 9

Text proposed by the Commission

Amendment

(9) By virtue of the principle of home Member State supervision, management companies authorised in their home Member States should be permitted to carry on the services for which they have received authorisation throughout the Community by establishing branches or under the freedom to provide services. The approval of the fund rules of common funds/unit trusts falls within the competence of the management company's home Member State.

(9) By virtue of the principle of home Member State supervision, management companies authorised in their home Member States should be permitted to carry on the services for which they have received authorisation throughout the Community by establishing branches or under the freedom to provide services.

Amendment  4

Proposal for a directive

Recital 10

Text proposed by the Commission

Amendment

(10) With regard to collective portfolio management (management of unit trusts/common funds and investment companies), the authorisation granted to a management company authorised in its home Member State should permit the company to carry on in host Member States the following activities: to distribute the units of the harmonised unit trusts/common funds managed by the company in its home Member State; to distribute the shares of the harmonised investment companies, managed by such a company; to perform all the other functions and tasks included in the activity of collective portfolio management; to manage the assets of investment companies incorporated in Member States other than its home Member State; to perform, on the basis of mandates, on behalf of management companies incorporated in Member States other than its home Member State, the functions included in the activity of collective portfolio management.

(10) With regard to collective portfolio management (management of unit trusts/common funds and investment companies), the authorisation granted to a management company authorised in its home Member State should permit the company to carry on in host Member States the following activities: to distribute the units of the harmonised unit trusts/common funds managed by the company in its home Member State; to distribute the shares of the harmonised investment companies, managed by such a company; to perform all the other functions and tasks included in the activity of collective portfolio management; to perform, on the basis of mandates, on behalf of management companies incorporated in Member States other than its home Member State, the functions included in the activity of collective portfolio management.

Amendment  5

Proposal for a directive

Recital 11

Text proposed by the Commission

Amendment

(11) The principle of home Member State supervision requires that the competent authorities should not grant or should withdraw authorisation where factors, such as the content of programmes of operations, the geographical distribution or the activities actually carried on indicate clearly that a management company has opted for the legal system of one Member State for the purpose of evading the stricter standards in force in another Member State within the territory of which it intends to carry on or does carry on the greater part of its activities. For the purpose of this Directive, a management company should be authorised in the Member State in which it has its registered office. In accordance with the principle of the home country control, only the Member State in which the management company has its registered office can be considered competent to approve the fund rules of unit trusts/common funds set up by such a company and the choice of the depositary. In order to prevent supervisory arbitrage and to promote confidence in the effectiveness of supervision by the home Member State authorities, a requirement for authorisation of a UCITS should be that it should not be prevented in any legal way from being marketed in its home Member State. This does not affect the free decision, once the UCITS has been authorised, to choose the Member State(s) where the units of the UCITS are to be marketed in accordance with this Directive.

(11) The principle of home Member State supervision requires that the competent authorities should not grant or should withdraw authorisation where factors, such as the content of programmes of operations, the geographical distribution or the activities actually carried on indicate clearly that a management company has opted for the legal system of one Member State for the purpose of evading the stricter standards in force in another Member State within the territory of which it intends to carry on or does carry on the greater part of its activities. For the purpose of this Directive, a management company should be authorised in the Member State in which it has its registered office. In accordance with the principle of home country supervision, only the competent authorities of the management company’s home Member State can be considered competent to supervise the organisation of the management company, which should be subject to the law of the management company’s home Member State.

Amendment  6

Proposal for a directive

Recital 11 a (new)

Text proposed by the Commission

Amendment

(11a) The competent authorities that authorise the UCITS should take into account the rules of the common fund or the instruments of incorporation of the investment company, the choice of the depositary and the ability of the management company to manage the UCITS. When the management company is located in another Member State, they should be able to rely on an attestation, by the competent authorities of the management company’s home Member State, regarding the type of UCITS that the management company is authorised to manage. The authorisation of a fund should not be conditional on any additional capital requirement at the level of the management company, the location of the management company’s registered office in the UCITS home Member State, or the location of any activities of the management company in the UCITS home Member State.

Amendment  7

Proposal for a directive

Recital 11b (new)

Text proposed by the Commission

Amendment

(11b) The competent authorities of the UCITS home Member State should be competent to supervise compliance with the rules regarding the constitution and functioning of the UCITS, which should be subject to the law of the UCITS home Member State. To this effect, the competent authorities of the UCITS home Member State should be able to obtain information directly from the management company. To remedy any breach of the rules under their responsibility, the competent authorities of the UCITS home Member State should be able to rely on the cooperation of the competent authorities of the management company’s home Member State and, if necessary, should be able to take action directly against the management company.

Amendment  8

Proposal for a directive

Recital 11c (new)

Text proposed by the Commission

Amendment

(11c) In order to prevent supervisory arbitrage and to promote confidence in the effectiveness of supervision by competent authorities of the home Member State, a requirement for authorisation of a UCITS should be that it is not prevented in any legal way from being marketed in its home Member State. This does not affect the freedom of the UCITS, once authorised, to choose the Member State(s) where its units are to be marketed in accordance with this Directive.

Amendment  9

Proposal for a directive

Recital 11 d (new)

Text proposed by the Commission

Amendment

(11d) In the event that the UCITS is managed by a management company authorised in a Member State other than the UCITS home Member State, that management company should set up appropriate procedures and arrangements adopted by the management company to deal with investor complaints, e.g. through appropriate provisions in distribution arrangements or through an address in the UCITS home Member State, which need not be an address of the management company itself. It should also set up appropriate procedures and arrangements to make information available at the request of the public or the competent authorities of the UCITS home Member State, e.g. through the designation of a contact person, from among the employees of the management company, for dealing with requests for information. However, such management company should not be obliged by the law of the UCITS home Member State to have a local representative in that Member State in order to fulfil those duties.

Amendment  10

Proposal for a directive

Recital 11 e (new)

Text proposed by the Commission

Amendment

(11e) It is necessary to provide the UCITS home Member State with all means to remedy any breach in the rules of the UCITS; to that end, the UCITS home Member State should be able to take preventive measures as well as sanctions against the management company. As a last resort, the UCITS home Member State should have the possibility to require the management company to cease managing the UCITS. Member States should provide for the necessary provisions so as to arrange for an orderly management or liquidation of the UCITS in such a case.

Amendment  11

Proposal for a directive

Recital 15 a (new)

Text proposed by the Commission

Amendment

(15a) In order to ensure a level playing field and appropriate supervision in the long term, the Commission may examine the possibilities for harmonising delegation arrangements at Community level.

Amendment  12

Proposal for a directive

Recital 18

Text proposed by the Commission

Amendment

(18) Despite the need for consolidation between UCITS, mergers of UCITS encounter many legislative and administrative difficulties in the Community. It is therefore necessary, in order to improve the functioning of the Internal Market, to lay down Community provisions facilitating mergers between UCITS (and investment compartments thereof). Although some Member States have authorised only contractual funds, mergers between all types of funds (contractual, corporate and unit trusts) should be allowed and recognised by the laws of each Member State. This Directive covers those merger techniques which are most commonly used in the Member States. It does not prevent UCITS from using other techniques on a domestic or cross-border basis. These will however remain subject to the relevant provisions of national law.

(18) Despite the need for consolidation between UCITS, mergers of UCITS encounter many legislative and administrative difficulties in the Community. It is therefore necessary, in order to improve the functioning of the Internal Market, to lay down Community provisions facilitating mergers between UCITS (and investment compartments thereof). Although some Member States may authorise only contractual funds, cross-border mergers between all types of funds (contractual, corporate and unit trusts) should be allowed and recognised by each Member State. This does not require Member states to introduce new legal forms of UCITS into their national regimes.

Amendment  13

Proposal for a directive

Recital 18 a (new)

Text proposed by the Commission

Amendment

 

(18a) This Directive covers those merger techniques which are most commonly used in Member States. It does not require Member States to introduce all three techniques into their national laws but each Member State should recognise a transfer of assets resulting from those merger techniques. This Directive does not prevent a UCITS from using other techniques on a purely domestic basis, in situations where none of the UCITS concerned by the merger has been notified for cross border marketing of its units. Those mergers should remain subject to the relevant provisions of national law. Quorum rules should not discriminate between national and cross-border mergers, nor should they be more stringent than those laid down for mergers of corporate entities.

Amendment  14

Proposal for a directive

Recital 19

Text proposed by the Commission

Amendment

(19) In order to safeguard investors' interests, Member States should require proposed mergers between UCITS either within their jurisdiction or on a cross-border basis to be subject to authorisation by their competent authorities. For cross-border mergers, the competent authorities of the home Member State of the UCITS that will cease to exist (the merging UCITS) should approve the merger so as to ensure that the interests of the unit-holders who effectively change funds are duly protected. If the merger involves more than one merging UCITS and such UCITS are domiciled in different Member States, the competent authorities of each merging UCITS will need to approve the merger, in close cooperation with each other. Since the interests of the unit-holders of the UCITS which continues to exist after the merger (the receiving UCITS) also need to be adequately safeguarded, they should be taken into account by the competent authorities of the merging UCITS' home Member State when approving a cross-border merger.

(19) In order to safeguard investors' interests, Member States should require proposed mergers between UCITS either within their jurisdiction or on a cross-border basis to be subject to authorisation by their competent authorities. For cross-border mergers, the competent authorities of the merging UCITS should approve the merger so as to ensure that the interests of the unit-holders who effectively change funds are duly protected. If the merger involves more than one merging UCITS and such UCITS are domiciled in different Member States, the competent authorities of each merging UCITS will need to approve the merger, in close cooperation with each other, including through appropriate information sharing. Since the interests of the unit-holders of the receiving UCITS also need to be adequately safeguarded, they should be taken into account by the competent authorities of the receiving UCITS' home Member State. Furthermore, unit holders of both the merging and the receiving UCITS should have the right to request the repurchase or redemption of their units without additional charge, i.e. they should be subject only to the fees to be retained by the respective funds to cover disinvestment costs in all situations, as laid down in the respective prospectuses. Alternatively, where possible, unit-holders of both the merging and receiving UCITS should be able to convert their units into units in another UCITS with similar investment policies and managed by the same management company or by another company linked to it.

Amendment  15

Proposal for a directive

Recital 20

Text proposed by the Commission

Amendment

(20) It is necessary to ensure additional third-party control of mergers. The depositaries of each of the UCITS involved in the merger should verify the conformity of the common draft terms of the merger with the relevant provisions of this Directive and of the UCITS fund rules. An independent auditor should draw-up a report on behalf of all the UCITS involved in the merger validating the valuation methods of the assets and liabilities of such UCITS and the calculation method of the exchange ratio as set forth by the management and/or administrative body of such UCITS in the common draft terms of merger. In order to limit costs connected with cross-border mergers, it should be possible to draw up a single report for all UCITS involved and the statutory auditor of the merging UCITS and/or the receiving UCITS should be enabled to do so. For investor protection reasons, unit-holders should be offered the possibility to obtain a copy of such report free of charge.

(20) Third-party control of mergers should also be ensured. The depositaries of each of the UCITS involved in the merger should verify the conformity of the common draft terms of the merger with the relevant provisions of this Directive and of the UCITS fund rules. Either a depositary or an independent auditor should draw-up a report on behalf of all the UCITS involved in the merger validating the valuation methods of the assets and liabilities of such UCITS and the calculation method of the exchange ratio as set forth by the management and/or administrative body of such UCITS in the common draft terms of merger. In order to limit costs connected with cross-border mergers, it should be possible to draw up a single report for all UCITS involved and the statutory auditor of the merging UCITS and/or the receiving UCITS should be enabled to do so. For investor protection reasons, unit-holders should be offered the possibility to obtain a copy of such report free of charge.

Amendment  16

Proposal for a directive

Recital 21

Text proposed by the Commission

Amendment

(21) It is particularly important that the unit-holders are adequately informed about the proposed merger and that their rights are sufficiently protected. Although unit-holders of the merging UCITS are most concerned, the interests of the unit-holders of the receiving UCITS should also be safeguarded in such situations where the proposed merger could have a substantial impact on their investment.

(21) It is particularly important that the unit-holders are adequately informed about the proposed merger and that their rights are sufficiently protected. Although unit-holders of the merging UCITS are most concerned, the interests of the unit-holders of the receiving UCITS should also be safeguarded.

Amendment  17

Proposal for a directive

Recital 22 a (new)

Text proposed by the Commission

Amendment

(22a) By 31 December 2010 and in order to provide a binding framework of tax neutrality, the Commission should propose a directive for taxation of fund mergers following the principle of tax neutrality laid down in Council Directive 90/434/EEC of 23 July 1990 on the common system of taxation applicable to mergers, divisions, partial divisions, transfers of assets and exchanges of shares concerning companies of different Member States and to the transfer of the registered office, of an SE or SCE, between Member States1 and Directive 2005/56/EC of the European Parliament and of the Council of 26 October 2005 on cross-border mergers of limited liability companies2. A Commission Communication and bilateral agreements between Member States should address the existing difficulties in the meantime.

 

1 OJ L 225, 20.8.1990, p. 1.

2 OJ L 310, 25.11.2005, p. 1.

Justification

The lack of an EU-Level provision to ensure tax-neutrality of cross-border fund mergers is a major obstacle to achieving the economies of scale envisaged by the new framework for mergers. The Commission committed in its White Paper of 2006 to bring forward a Communication on the tax treatment of cross-border fund mergers, which has not yet been published. Further work on this is essential to allow for a true common market and clear time frames need to be set.

Amendment  18

Proposal for a directive

Recital 32 a (new)

Text proposed by the Commission

Amendment

(32a) Measures to address the potential misalignment of interests in products where credit risk is transferred by securitisation, as envisaged by Directive .../.../EC1 amending Directives 2008/49/EC and 2006/49EC, need to be consistent and coherent in all relevant financial sector regulation; this Directive should therefore be amended by appropriate horizontal measures as soon as the impact has been duly considered.

 

1 COM(2008)0602

Amendment  19

Proposal for a directive

Recital 39

Text proposed by the Commission

Amendment

(39) In order to facilitate the effective operation of the Internal Market and to ensure the same level of investor protection throughout the Community, both master-feeder-structures where the master and the feeder are established in the same Member State and where they are established in different Member States should be allowed. In order to allow investors to better understand master-feeder-structures and regulators to supervise them more easily, notably in a cross-border context, no feeder UCITS should be able to invest into more than one master. In order to ensure the same level of investor protection throughout the Community the master should be itself an authorised UCITS.

(39) In order to facilitate the effective operation of the Internal Market and to ensure the same level of investor protection throughout the Community, master-feeder-structures should be permitted both where the master and the feeder are established in the same Member State and where they are established in different Member States. In order to allow investors to better understand master-feeder-structures and regulators to supervise them more easily, notably in a cross-border context, no feeder UCITS should be able to invest into more than one master. In order to ensure the same level of investor protection throughout the Community the master should itself be an authorised UCITS. In order to avoid undue administrative burden, provisions on notification of cross-border marketing should not apply if a master UCITS does not raise capital from the public in a Member State other than that in which it is established, but has only one or more feeder UCITS in that other Member State.

Amendment  20

Proposal for a directive

Recital 40

Text proposed by the Commission

Amendment

(40) In order to protect the feeder UCITS' investors, the feeder UCITS' investment into the master UCITS should be subject to prior approval of the competent authorities of the feeder UCITS' home Member State.

(40) In order to protect those investing in feeder UCITS, the investment by the feeder UCITS into the master UCITS should be subject to prior approval of the competent authorities of the feeder UCITS' home Member State. Only the initial investment into the master UCITS by which the feeder UCITS exceeds the limit applicable for investing into another UCITS should require approval. In order to facilitate the effective operation of the internal market and to ensure the same level of investor protection throughout the Community, the conditions which have to be met and the documents and information which have to be provided for approving the feeder UCITS' investment into the master UCITS should be exhaustive.

Amendment  21

Proposal for a directive

Recital 41

Text proposed by the Commission

Amendment

(41) In order to allow the feeder UCITS to act in the best interests of its unit-holders and notably place it in a position to obtain from the master UCITS all information and documents necessary to perform its obligations, the feeder UCITS and the master UCITS should enter into a binding and enforceable agreement. In a similar way the information-sharing agreement between the depositaries or, respectively, the auditors of the feeder UCITS and the master UCITS should ensure the flow of information and documents that is needed for the feeder UCITS' depositary or auditor to fulfil its duties.

(41) In order to allow the feeder UCITS to act in the best interests of its unit-holders and notably place it in a position to obtain from the master UCITS all information and documents necessary to perform its obligations, the feeder UCITS and the master UCITS should enter into a binding and enforceable agreement. However, if both are managed by the same management company, it should be sufficient that the latter set up internal conduct of business rules. An information-sharing agreement between the depositaries or, respectively, the auditors of the feeder UCITS and the master UCITS should ensure the flow of information and documents that is needed for the feeder UCITS' depositary or auditor to fulfil its duties. This Directive should ensure that, when complying with these requirements, the depositaries or the auditors would not be in breach of any restriction on disclosure of information or of data protection.

Amendment  22

Proposal for a directive

Recital 42

Text proposed by the Commission

Amendment

(42) In order to ensure a high level of protection of the interests of the feeder UCITS' investors, the prospectus, the key investor information as referred to in Article 73, as well as all marketing communications should be adapted to the specificities of master-feeder-structures.

(42) In order to ensure a high level of protection of the interests of the feeder UCITS' investors, the prospectus, the key investor information as referred to in Article 73, as well as all marketing communications should be adapted to the specificities of master-feeder-structures. The investment of the feeder UCITS into the master UCITS should not affect the ability of the feeder UCITS itself either to repurchase or redeem units at the request of its unit-holders or to act in the best interests of its unit-holders.

Amendment  23

Proposal for a directive

Recital 44

Text proposed by the Commission

Amendment

(44) The conversion rules should enable an existing UCITS to convert into a feeder UCITS. At the same time they should sufficiently protect unit-holders. As such a conversion is a fundamental change of the investment policy, the converting feeder UCITS should be required to provide its unit-holders with sufficient information as to enable them to decide whether to maintain their investment or not.

(44) The conversion rules should enable an existing UCITS to convert into a feeder UCITS. At the same time they should sufficiently protect unit-holders. As such a conversion is a fundamental change of investment policy, the converting feeder UCITS should be required to provide its unit-holders with sufficient information in order to enable them to decide whether or not to maintain their investment. Competent authorities should not require the feeder UCITS to provide more or different information than that specified.

Amendment  24

Proposal for a directive

Recital 46

Text proposed by the Commission

Amendment

(46) Key investor information should be provided to investors, at a pre-contractual stage, in order to help them to reach informed investment decisions. It should contain only the essential elements for making such decisions. The nature of the information to be found in the key investor information should be harmonised to the highest extent so as to ensure adequate investor protection and comparability. Key investor information should be presented in a short format. A single document of limited length presenting the information in a specified order is the most appropriate way to achieve the clarity and simplicity of presentation that is required by retail investors, and should allow for useful comparisons.

(46) Key investor information should be provided as a specific document to investors free of charge, in good time before the subscription of the UCITS, in order to help them to reach informed investment decisions. It should contain only the essential elements for making such decisions. The nature of the information to be found in the key investor information should be fully harmonised so as to ensure adequate investor protection and comparability. Key investor information should be presented in a short format. A single document of limited length presenting the information in a specified order is the most appropriate way to achieve the clarity and simplicity of presentation that is required by retail investors, and should allow for useful comparisons, notably of costs and risk profile, relevant to the investment decision.

Justification

The key investor information should, as was the case with the simplified prospectus, be provided to investors without charge.

Amendment  25

Proposal for a directive

Recital 47

Text proposed by the Commission

Amendment

(47) Key investor information should be produced for all UCITS. Management companies or, where applicable, investment companies should deliver the key investor information to the relevant entities, depending on the distribution method used (direct sales or intermediated sales). Regulation on how the key investor information is used by intermediaries at the point of sale is to be left to the relevant legislation covering such intermediaries, such as Directive 2004/39/EC.

(47) Key investor information should be produced for all UCITS. Management companies or, where applicable, investment companies should provide the key investor information to the relevant entities, depending on the distribution method used (direct sales or intermediated sales). Intermediaries should provide key investor information to clients and potential clients.

Amendment  26

Proposal for a directive

Recital 47 a (new)

Text proposed by the Commission

Amendment

(47a) The right for UCITS to sell their units in other Member States should be subject to their taking the necessary measures to ensure that facilities are available in the host Member State for making payments to unit-holders, re-purchasing or redeeming units and making available the information which UCITS are obliged to provide. However, UCITS should not be obliged by the law of the host Member State to have a paying agent in that Member State in order to fulfil their duties.

Amendment  27

Proposal for a directive

Recital 49

Text proposed by the Commission

Amendment

(49) In order to facilitate cross-border marketing of units of UCITS, control of compliance of arrangements made for marketing of units of UCITS with laws regulations and administrative procedures applicable in the UCITS host Member State, should be performed on a on-going basis after the UCITS has started marketing its units in that Member State. This control can cover, in particular, the obligation for marketing communications to be presented in a fair, clear and not-misleading way.

(49) In order to facilitate cross-border marketing of units of UCITS, control of compliance of arrangements made for marketing of units of UCITS with laws regulations and administrative procedures applicable in the UCITS host Member State, should be performed after the UCITS has accessed the market of that Member State. This control can cover the adequacy of arrangements made for marketing, in particular the adequacy of distribution arrangements and the obligation for marketing communications to be presented in a fair, clear and not-misleading way. This Directive should not prevent competent authorities of the host Member State from checking marketing communications (which does not include key investor information, prospectus and annual and half-yearly reports) according to national law before the UCITS can use them, but this control should not be discriminatory and should not prevent this UCITS from accessing the market.

Amendment  28

Proposal for a directive

Recital 50

Text proposed by the Commission

Amendment

(50) For the purpose of legal certainty there is a need to ensure that a UCITS which markets its units on a cross-border basis has an easy access, in the form of an electronic publication, to complete information on the laws, regulations and administrative provisions applicable in the UCITS host Member State and related to the marketing of UCITS.

(50) For the purpose of enhancing legal certainty there is a need to ensure that a UCITS which markets its units on a cross-border basis has an easy access, in the form of an electronic publication and in a language customary in the sphere of international finance, to complete information on the laws, regulations and administrative provisions applicable in the UCITS host Member State and that specifically relate to the arrangements made for the marketing of UCITS.

Amendment  29

Proposal for a directive

Recital 51

Text proposed by the Commission

Amendment

(51) To facilitate cross-border marketing of units of UCITS, a UCITS should be required to translate only the key investor information into the official language or one of the official languages of a UCITS host Member State or a language approved by its competent authority. Key investor information should specify the language(s) in which other obligatory disclosure documents and additional information are available.

(51) To facilitate access of UCITS to the markets of Member States, a UCITS should be required to translate only the key investor information into the official language or one of the official languages of a UCITS host Member State or a language approved by its competent authority. Key investor information should specify the language(s) in which other obligatory disclosure documents and additional information are available.

Amendment  30

Proposal for a directive

Recital 51 a (new)

Text proposed by the Commission

Amendment

(51a) Any translation requirements should refer to simple translations. There should be no requirement to produce sworn translations.

Justification

Translations should not have to be certified.

Amendment  31

Proposal for a directive

Recital 51 b (new)

Text proposed by the Commission

Amendment

(51b) Member States should require their competent authorities to make transparent their notification fees.

Justification

Notification fees vary between different Member States. It should be ensured that the fees are made public and that they reflect costs incurred, without being excessive.

Amendment  32

Proposal for a directive

Recital 52

Text proposed by the Commission

Amendment

(52) It is necessary to enhance convergence of powers at the disposal of competent authorities so as to bring about an equal enforcement of the Directive throughout the Member States. A common minimum set of powers, consistent with those conferred upon competent authorities by other Community financial services legislation should guarantee supervisory effectiveness.

(52) It is necessary to enhance convergence of powers at the disposal of competent authorities so as to bring about an equal enforcement of the Directive throughout the Member States. A common minimum set of powers, consistent with those conferred upon competent authorities by other Community financial services legislation should guarantee supervisory effectiveness. In addition, Member States should lay down rules on penalties, including criminal, civil and administrative penalties, and administrative measures, applicable to infringements of this Directive and should take the measures necessary to ensure that they are implemented.

Amendment  33

Proposal for a directive

Recital 53 a (new)

Text proposed by the Commission

Amendment

(53a) Member States should take the necessary administrative and organisational measures to enable the cooperation between national authorities and competent authorities of other Member States, including through bilateral or multilateral agreements between those authorities, so that they can fully carry out their duties in accordance with this Directive.

Amendment  34

Proposal for a directive

Recital 53 b (new)

Text proposed by the Commission

Amendment

(53b) For the purpose of cross-border provision of services, clear competences should be assigned to the respective competent authorities. The responsibilities and liabilities of the competent authorities should be clearly defined in order to eliminate any gaps or overlaps. Those responsibilities and liabilities should be consistent with the applicable law.

Justification

The new supervisory provisions in Chapter XII already cover many aspects needed to allow for adequate cooperation in case of cross-border portfolio management by a remote management company. The identified open issues that CESR is working on need to be explicitly covered, ensuring that no gaps or assignments of responsibilities are left open and no duplication of supervision will arise either.

Amendment  35

Proposal for a directive

Recital 55

Text proposed by the Commission

Amendment

(55) The principle of home Member State supervision requires that the competent authorities should not grant or should withdraw authorisation where factors such as the content of programmes of operations, the geographical distribution or the activities actually carried on indicate clearly that a UCITS or an undertaking contributing towards its business activity has opted for the legal system of one Member State for the purpose of evading the stricter standards in force in another Member State within whose territory it carries on or intends to carry on the greater part of its activities. A UCITS or an undertaking contributing towards its business activity which is a legal person must be authorised in the Member State in which it has its registered office. A UCITS or an undertaking contributing towards its business activity which is not a legal person must have its head office in the Member State in which it has been authorised. In addition, Member States must require that a UCITS' head office or a head office of an undertaking contributing towards its business activity always be established in its home Member State and that it actually operates there.

(55) The principle of home Member State supervision requires that the competent authorities should either withdraw or refuse to grant authorisation where factors such as the content of programmes of operations, the geographical distribution or the activities actually carried on indicate clearly that a UCITS or an undertaking contributing towards its business activity has opted for the legal system of one Member State for the purpose of evading the stricter standards in force in another Member State within whose territory it carries on or intends to carry on the greater part of its activities.

Amendment  36

Proposal for a directive

Recital 64 a (new)

Text proposed by the Commission

Amendment

 

(64a) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission1.

 

1 OJ L 184.17.7.1999, p. 23.

Justification

Consistency of wording should be ensured with Directive 2004/39/EC.

Further harmonisation will facilitate the implementation of a management company passport.

Amendment  37

Proposal for a directive

Recital 65

Text proposed by the Commission

Amendment

(65) The Commission should be empowered to adopt the measures necessary for the implementation of this Directive. Concerning mergers, those measures are designed to specify detailed content and way to provide information to unit-holders. Concerning master-feeder structures, those measures are designed to specify the particulars to be included in the agreement between master and feeder, their depositories and their auditors, the definition of measures appropriate to prevent late trading risks, the impact of the merger of the master on the authorisation of the feeder, the type of irregularities originating from the master to be reported to the feeder, the way and format of the information to be provided to unit-holders in case of conversion from a UCITS to a feeder UCITS, the procedure for valuating and auditing the transfer of assets from a feeder to a master and the role of the depository of the feeder in this process. Concerning the provisions on disclosure, those measures are designed to specify the specific conditions to be met when the prospectus is provided in a durable medium other than paper and by means of a website which does not constitute a durable medium, the detailed content, form and presentation of the key investor information taking into account the different nature or components of the UCITS concerned, and the specific conditions for delivering key investor information in a durable medium other than paper and by means of a website which does not constitute a durable medium. Concerning notification, those measures are designed to specify the format and scope of the information on the applicable local rules to be published by host authorities, the application of the notification procedure to the marketing of compartments of UCITS and new share classes, and the technical details on access by host authorities to updated fund documents stored by home authorities. Those measures are also designed to clarify definitions and to align terminology and framing definitions in accordance with subsequent acts on UCITS and related matters. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC. Powers not falling under the above category should be subject to the regulatory procedure provided in Article 5 of the same Decision. Those measures are designed to specify the form and content of the standardised notification letter, the standard model of attestation and the procedure for the exchange of information and the use of electronic communication during the notification process. They are also designed to detail the procedures for on-the-spot verifications and investigations exchange of information between competent authorities.

(65) The Commission should be empowered to adopt the measures necessary for the implementation of this Directive. Concerning management companies, those measures are designed to specify the details regarding organisational requirements, risk management, conflicts of interest and conduct of business. Concerning depositaries, those measures are designed to specify the duties of depositaries as provided for in this Directive in the context of the management company passport and the particulars of the agreement between the depositary and the management company. Those measures should facilitate the uniform application of the obligations of management companies and depositaries under this Directive. However, the adoption of those measures should not be a precondition to implement the right of management companies to carry on the services for which they have been authorised in their home Member State throughout the Community by establishing branches or under the freedom to provide services including the management of UCITS in another Member State.

Amendment  38

Proposal for a directive

Recital 65 a (new)

Text proposed by the Commission

Amendment

(65a) Concerning mergers, those measures are designed to specify detailed content and way to provide information to unit-holders. Concerning master-feeder structures, those measures are designed to specify the particulars to be included in the agreement between master and feeder, their depositories and their auditors, the definition of measures appropriate to prevent late trading risks, the impact of the merger of the master on the authorisation of the feeder, the type of irregularities originating from the master to be reported to the feeder, the way and format of the information to be provided to unit-holders in case of conversion from a UCITS to a feeder UCITS, the procedure for valuating and auditing the transfer of assets from a feeder to a master and the role of the depository of the feeder in this process. Concerning the provisions on disclosure, those measures are designed to specify the specific conditions to be met when the prospectus is provided in a durable medium other than paper and by means of a website which does not constitute a durable medium, the detailed content, form and presentation of the key investor information taking into account the different nature or components of the UCITS concerned, and the specific conditions for providing key investor information in a durable medium other than paper and by means of a website which does not constitute a durable medium. Concerning notification, those measures are designed to specify the scope of the information on the applicable local rules to be published by host authorities and the technical details on access by host authorities to updated fund documents stored by home authorities. Those measures are also designed to clarify definitions and to align terminology and framing definitions in accordance with subsequent acts on UCITS and related matters.

Amendment  39

Proposal for a directive

Recital 65 b (new)

Text proposed by the Commission

Amendment

(65b) Since those measures are of general scope and are designed to amend non-essential elements of this Directive, by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC1. Powers not falling under the above category should be subject to the regulatory procedure provided in Article 5 of the same Decision. Those measures are designed to specify the form and content of the standardised notification letter, the standard model of attestation and the procedure for the exchange of information and the use of electronic communication during the notification process. They are also designed to detail the procedures for on-the-spot verifications and investigations and exchange of information between competent authorities.

 

1 OJ L184, 17.7.1999, p. 23.

Amendment  40

Proposal for a directive

Article 4

Text proposed by the Commission

Amendment

For the purposes of this Directive, a UCITS shall be deemed to be established in the Member State in which the investment company or the management company of the common fund has its registered office. The Member States shall require that the head office be established in the same Member State as the registered office.

For the purposes of this Directive, a UCITS shall be deemed to be established in its home Member State.

Amendment  41

Proposal for a directive

Article 5 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

1. No UCITS shall carry on activities as such unless it has been authorised by the competent authorities of the Member State in which it is established.

1. No UCITS shall carry on activities as such unless it has been authorised by the competent authorities of its home Member State.

Justification

A true common market means that fund management services can be passported throughout the European Union. Article 49 of the Treaty establishing the European Community sets out this freedom to provide services cross-border.

Neither discrimination on grounds of the nationality of a management company should be allowed, nor should possible protectionist delays in the approval be possible.

Amendment  42

Proposal for a directive

Article 5 - paragraph 2

Text proposed by the Commission

Amendment

2. A common fund shall be authorised only if the competent authorities have approved the management company, the fund rules and the choice of depositary. An investment company shall be authorised only if the competent authorities have approved both its instruments of incorporation and the choice of depositary.

2. A common fund shall be authorised only if the competent authorities of its home Member State have approved the choice of the management company to manage the UCITS, the fund rules and the choice of depositary. An investment company shall be authorised only if the competent authorities of its home Member State have approved both its instruments of incorporation and the choice of depositary, and, where applicable, the choice of the designated management company to manage the UCITS.

Amendment  43

Proposal for a directive

Article 5 - paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. Without prejudice to paragraph 2, if the UCITS is not established in the management company’s home Member State, the competent authorities of the UCITS home Member State shall approve the choice of the management company to manage the UCITS pursuant to Article 5a. It shall not be made a condition of authorisation that the UCITS be managed by a management company having its registered office in the UCITS home Member State or that the management company performs or delegates any activities in the UCITS home Member State.

Amendment  44

Proposal for a directive

Article 5 - paragraph 3 - subparagraph 1

Text proposed by the Commission

Amendment

3. The competent authorities may not authorise a UCITS if the management company or the investment company does not comply with the preconditions laid down in Chapters III and V respectively.

3. The competent authorities of the UCITS home Member State may not authorise a UCITS if:

 

(a) such authorities establish that the investment company does not comply with the preconditions laid down in Chapter V; or

 

(b) the management company is not authorised as a UCITS management company in its home Member State.

Amendment  45

Proposal for a directive

Article 5 - paragraph 3 - subparagraph 1 a (new)

Text proposed by the Commission

Amendment

Without prejudice to Article 26, the management company or, where applicable, the investment company shall be informed, within two months of the submission of the complete documents, whether or not the choice has been approved.

Amendment  46

Proposal for a directive

Article 5 – paragraph 3 – subparagraph 2

Text proposed by the Commission

Amendment

Moreover, the competent authorities may not authorise a UCITS if the directors of the depositary are not of sufficiently good repute or are not sufficiently experienced also in relation to the type of UCITS to be managed. To that end, the names of the directors of the depositary and of every person succeeding them in office shall be communicated forthwith to the competent authorities.

Moreover, the competent authorities of the UCITS home Member State may not authorise a UCITS if the directors of the depositary are not of sufficiently good repute or are not sufficiently experienced also in relation to the type of UCITS to be managed. To that end, the names of the directors of the depositary and of every person succeeding them in office shall be communicated forthwith to the competent authorities.

Justification

A true common market means that fund management services can be passported throughout the European Union. Article 49 of the Treaty establishing the European Community sets out this freedom to provide services cross-border.

Neither discrimination on grounds of the nationality of a management company should be allowed, nor should possible protectionist delays in the approval be possible.

Amendment  47

Proposal for a directive

Article 5 – paragraph 4

Text proposed by the Commission

Amendment

4. The competent authorities shall not grant authorisation if the UCITS is legally prevented (for example, through a provision in the fund rules or instruments of incorporation) from marketing its units in its home Member State.

4. The competent authorities of the UCITS home Member State shall not grant authorisation if the UCITS is legally prevented (for example, through a provision in the fund rules or instruments of incorporation) from marketing its units in its home Member State.

Justification

A true common market means that fund management services can be passported throughout the European Union. Article 49 of the Treaty establishing the European Community sets out this freedom to provide services cross-border.

Neither discrimination on grounds of the nationality of a management company should be allowed, nor should possible protectionist delays in the approval be possible.

Amendment  48

Proposal for a directive

Article 5 – paragraph 5

Text proposed by the Commission

Amendment

5. Neither the management company nor the depositary may be replaced, nor may the fund rules or the instruments of incorporation of the investment company be amended, without the approval of the competent authorities.

5. Neither the management company nor the depositary may be replaced, nor may the fund rules or the instruments of incorporation of the investment company be amended, without the approval of the competent authorities of the UCITS home Member State.

Justification

A true common market means that fund management services can be passported throughout the European Union. Article 49 of the Treaty establishing the European Community sets out this freedom to provide services cross-border.

Neither discrimination on grounds of the nationality of a management company should be allowed, nor should possible protectionist delays in the approval be possible.

Amendment  49

Proposal for a directive

Article 5 - paragraph 5 a (new)

Text proposed by the Commission

Amendment

5a. Member States shall ensure that complete information on the laws, regulations and administrative provisions implementing this Directive which relate to the constitution and functioning of the UCITS is easily accessible at a distance or by electronic means. Member States shall ensure that this information is available at least in a language customary in the sphere of international finance, provided in a clear and unambiguous manner, and kept up-to-date.

Amendment  50

Proposal for a directive

Article 5 a (new)

Text proposed by the Commission

Amendment

 

Article 5a

1. A management company which intends to manage a UCITS established in another Member State shall provide the competent authorities of the UCITS home Member State with the following documentation:

 

(a) the written agreement with the depositary referred to in Articles 20 and 30;

 

(b) information on delegation arrangements regarding functions of investment management and administration as referred to in Annex II;

 

(c) a report on the risk-management process adopted with respect to the specific type of UCITS for which the approval is requested.

 

If a management company already manages the same type of UCITS in the UCITS home Member State, reference to the documentation already provided shall be sufficient.

 

2. Based on the attestation referred to in Articles 16 and 17, the competent authorities of the UCITS home Member State may request from the competent authorities of the management company’s home Member State clarification and information regarding the documentation referred to in paragraph 1 and on whether the type of fund for which authorisation is requested falls within the scope of the management company’s authorisation. Where applicable, the competent authorities of the management company’s home Member State shall provide their opinion within 10 working days of the initial request.

 

3. The competent authorities of the UCITS home Member State may refuse the choice of the management company only if:

 

(a) the management company does not comply with the rules falling within their remit pursuant to Article 17a,

 

(b) the management company is not authorised by the competent authorities of its home Member State to manage UCITS the type of which authorisation is requested, or

 

(c) the management company has not provided the documentation referred to in paragraph 1.

 

Before refusing the choice, the competent authorities of the UCITS home Member State should consult the competent authorities of the management company's home Member State.

 

4. Any subsequent material modifications of the documentation referred to in paragraph 1 shall be notified by the management company to the competent authorities of the UCITS home Member State.

Amendment  51

Proposal for a directive

Article 6 – paragraph 1

Text proposed by the Commission

Amendment

1. Access to the business of management companies shall be subject to prior official authorisation to be granted by the competent authorities of the UCITS home Member State. Authorisation granted under this Directive to a management company shall be valid for all Member States.

1. Access to the business of management companies shall be subject to prior official authorisation to be granted by the competent authorities of management company's home Member State. Authorisation granted under this Directive to a management company shall be valid for all Member States.

Justification

A true common market means that fund management services can be passported throughout the European Union. Article 49 of the Treaty establishing the European Community sets out this freedom to provide services cross-border.

The competent authorities of the management company's home Member State are responsible for authorising the company. This is in line with Art. 4 (1) subparagraph 20 of Directive 2004/39/EC.

Amendment  52

Proposal for a directive

Article 12 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

1. Each management company's home Member State shall draw up prudential rules which management companies, with regard to the activity of management of UCITS authorised according to this Directive, shall observe at all times.

1. Each management company's home Member State shall draw up prudential rules which management companies authorised in that Member State, with regard to the activity of management of UCITS authorised according to this Directive, shall observe at all times.

Amendment  53

Proposal for a directive

Article 12 – paragraph 1 – subparagraph 2 – point b

Text proposed by the Commission

Amendment

(b) is structured and organised in such a way as to minimise the risk of UCITS' or clients' interests being prejudiced by conflicts of interest between the company and its clients, between one of its clients and another, between one of its clients and a UCITS or between two UCITS. Nevertheless, where a branch is set up, the organisational arrangements may not conflict with the rules of conduct laid down by the UCITS host Member State to cover conflicts of interest.

(b) is structured and organised in such a way as to minimise the risk of UCITS' or clients' interests being prejudiced by conflicts of interest between the company and its clients, between one of its clients and another, between one of its clients and a UCITS and between two UCITS.

Amendment  54

Proposal for a directive

Article 12 - paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. Management companies, or, where relevant, investment companies, shall set up appropriate procedures and arrangements to ensure that they properly deal with investor complaints, and that there are no restriction for investors to exercise their rights in case the management company is authorised in a Member State different from the UCITS home Member State. Investors should be able to file complaints in their local language.

 

They shall also set up appropriate procedures and arrangements to make information available at the request of the public or the competent authorities of the UCITS home Member State.

Amendment  55

Proposal for a directive

Article 12 - paragraph 2 b (new)

Text proposed by the Commission

Amendment

2b. The Commission shall adopt implementing measures specifying procedures and arrangements set out in paragraph 1(a) and the structures and organisational requirements to minimise conflicts of interests set out in paragraph 1(b).

 

Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 107(2).

Amendment  56

Proposal for a directive

Article 13 – paragraph 1 - introductory part

Text proposed by the Commission

Amendment

1. If Member States permit management companies to delegate to third parties, for the purpose of a more efficient conduct of the companies' business, to carry out on their behalf one or more of their own functions, all of the following preconditions shall be complied with:

1. If the management company's home Member State permits management companies to delegate to third parties, for the purpose of a more efficient conduct of the companies' business, to carry out on their behalf one or more of their own functions, all of the following preconditions shall be complied with:

Justification

A true common market means that fund management services can be passported throughout the European Union. Article 49 of the Treaty establishing the European Community sets out this freedom to provide services cross-border.

Amendment  57

Proposal for a directive

Article 13 – paragraph 1 - point a

Text proposed by the Commission

Amendment

(a) the competent authority must be informed in an appropriate manner;

(a) the competent authorities of the management company's home Member State must be informed by the management company in an appropriate manner. The competent authorities of the management company's home Member State shall, without delay, transmit the information to the competent authorities of the UCITS home Member State;

Justification

A true common market means that fund management services can be passported throughout the European Union. Article 49 of the Treaty establishing the European Community sets out this freedom to provide services cross-border.

Amendment  58

Proposal for a directive

Article 13 - paragraph 1 - point i

Text proposed by the Commission

Amendment

(i) the UCITS' prospectuses list the functions which the management company has been permitted to delegate.

(i) the UCITS' prospectuses list the functions which the management company has been permitted to delegate by the management company’s home Member State.

Amendment  59

Proposal for a directive

Article 14 - paragraph 1 a (new)

Text proposed by the Commission

Amendment

1a. The Commission shall adopt implementing measures, with a view to ensuring that the management company complies with the duties set out in paragraph 1, in particular to:

 

(a) define the steps that management companies might reasonably be expected to take to identify, prevent, manage and/or disclose conflicts of interest as well as to establish appropriate criteria for determining the types of conflicts of interest whose existence may damage the interests of the UCITS;

 

(b) establish appropriate criteria for acting honestly and fairly and with due skill, care and diligence in the best interests of the UCITS;

 

Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 107(2).

Amendment  60

Proposal for a directive

Article 15 – paragraph 1 – subparagraph 1 a (new)

Text proposed by the Commission

Amendment

If such a management company proposes to market the units of the UCITS it manages itself or via a third party in another Member State without proposing to carry out any other activities or services, such marketing shall only be subject to the requirements of Chapter XI.

Amendment  61

Proposal for a directive

Article 15 - paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. Subject to the conditions set out in this Article, a UCITS shall be free to designate, or be managed by, a management company authorised in another Member State in accordance with this Directive, provided that such a management company complies with:

 

(a) the provisions of Article 16 or Article 17;

 

(b) the provisions of Article 17a and Article 5a.

Amendment  62

Proposal for a directive

Article 16 – paragraph 1

Text proposed by the Commission

Amendment

1. In addition to meeting the conditions imposed in Articles 6 and 7, any management company wishing to establish a branch within the territory of another Member State shall notify the competent authorities of its home Member State.

1. In addition to meeting the conditions imposed in Articles 6 and 7, any management company wishing to establish a branch within the territory of another Member State to carry on the activity for which it has been authorised shall notify the competent authorities of its home Member State.

Amendment  63

Proposal for a directive

Article 16 – paragraph 3 – subparagraph 2 a (new)

Text proposed by the Commission

Amendment

Where a management company wishes to carry out the service of collective portfolio management as referred to in Annex II, the competent authorities of the management company's home Member State shall attach to the documentation an attestation that the management company has been authorised in accordance with this Directive and a description of the scope of the management company's authorisation and details of any restriction on the types of UCITS that the management company is authorised to manage.

Amendment  64

Proposal for a directive

Article 16 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

3a. The services provided by a branch of a management company shall comply with the rules drawn up by the management company’s host Member State in accordance with Article 14.

Amendment  65

Proposal for a directive

Article 16 - paragraph 3 b (new)

Text proposed by the Commission

Amendment

3b. The competent authorities of the management company’s host Member State are responsible for supervising compliance with the rules referred to in paragraph 3a.

Amendment  66

Proposal for a directive

Article 16 – paragraph 4

Text proposed by the Commission

Amendment

4. Before the branch of a management company starts business, the competent authorities of the management company's host Member State shall, within two months of receiving the information referred to in paragraph 2, prepare for the supervision of the management company and, if necessary, indicate the conditions, including the rules mentioned in Articles 86 and 87 in force in the management company's host Member State and the rules of conduct to be respected in the case of provision of the portfolio management service mentioned in Article 6 (3) (a) and of investment advisory services and custody, under which, in the interest of the general good, that business must be carried on in the management company's host Member State.

4. Before the branch of a management company starts business, the competent authorities of the management company's host Member State shall, within two months of receiving the information referred to in paragraph 2, prepare for the supervision of the compliance of the management company with the rules under their responsibility.

Amendment  67

Proposal for a directive

Article 16 – paragraph 7 – subparagraph 1 a (new)

Text proposed by the Commission

Amendment

The competent authority of the management company's home Member State shall update the information contained in the attestation referred to in paragraph 3 and inform the competent authorities of the management company's host Member State whenever there is a change in the scope of the management company’s authorisation or in the details of any restriction on the types of UCITS that the management company is authorised to manage.

Amendment  68

Proposal for a directive

Article 17 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1. Any management company wishing to carry on business within the territory of another Member State for the first time under the freedom to provide services shall communicate the following information to the competent authorities of the management company's home Member State:

1. Any management company wishing to carry on the activities for which it has been authorised within the territory of another Member State for the first time under the freedom to provide services shall communicate the following information to the competent authorities of the management company's home Member State:

Amendment  69

Proposal for a directive

Article 17 – paragraph 2 – subparagraph 3

Text proposed by the Commission

Amendment

The management company may then start business in the the management company's host Member State notwithstanding the provisions of Article 88.

The management company may then start business in the the management company's host Member State notwithstanding the provisions of Chapter XI.

Amendment  70

Proposal for a directive

Article 17 – paragraph 2 – subparagraph 3 a (new)

Text proposed by the Commission

Amendment

Where a management company wishes to carry out the service of collective portfolio management referred to in Annex II, the competent authorities of the management company's home Member State shall enclose to the documentation an attestation that the management company has been authorised in accordance with this Directive and a description of the scope of the management company's authorisation and details of any restriction on the types of UCITS that the management company is authorised to manage.

Amendment  71

Proposal for a directive

Article 17 - paragraph 3

Text proposed by the Commission

Amendment

3. When appropriate, the competent authorities of the management company's host Member State shall, on receipt of the information referred to in paragraph 1, indicate to the management company the conditions, including the rules of conduct to be respected in the case of provision of the portfolio management service mentioned in Article 6 (3) (a) and of investment advisory services and custody, with which, in the interest of the general good, the management company must comply in the the management company's host Member State.

3. The services provided by the management company under the freedom to provide services shall comply with the rules drawn up by the management company’s home Member State in accordance with Article 14.

Amendment  72

Proposal for a directive

Article 17 - paragraph 4

Text proposed by the Commission

Amendment

4. Should the content of the information communicated in accordance with paragraph 1(b) be amended, the management company shall give notice of the amendment in writing to the competent authorities of the management company's home Member State and of the management company's host Member State before implementing the change, so that the competent authorities of the management company's host Member State may, if necessary, inform the company of any change or addition to be made to the information communicated under paragraph 3.

4. Should the content of the information communicated in accordance with Article 1(b) be amended, the management company shall give notice of the amendment in writing to the competent authorities of the management company's home Member State and of the management company's host Member State before implementing the change. The competent authorities of the management company's home Member State shall update the information contained in the attestation referred to in paragraph 2 and inform the competent authorities of the management company's host Member State whenever there is a change in the scope of the management company’s authorisation or in the details of any restriction on the types of UCITS that the management company is authorised to manage.

Amendment  73

Proposal for a directive

Article 17 - paragraph 5

Text proposed by the Commission

Amendment

5. A management company shall also be subject to the notification procedure laid down in paragraphs 1 to 4 in cases where it entrusts a third party with the marketing of the units in a management company's host Member State.

deleted

Amendment  74

Proposal for a directive

Article 17 a (new)

Text proposed by the Commission

Amendment

 

Article 17a

1. A management company which provides the service of collective portfolio management on a cross-border basis under the freedom to provide services or by the establishment of a branch shall comply with the rules of the management company’s home Member State which relate to the organisation of the management company, including delegation arrangements, risk management procedures, prudential rules and supervision, procedures referred to in Article 12 and the management company’s reporting requirements. Those rules shall be no stricter than the rules applicable to management companies conducting their activities only in their home Member State.

 

2. The competent authorities of the management company’s home Member State shall be responsible for supervising compliance with the rules referred to in paragraph 1.

 

3. A management company which provides the service of collective portfolio management on a cross-border basis under the freedom to provide services or by the establishment of a branch shall comply with the rules of the UCITS home Member State which relate to the constitution and functioning of the UCITS, namely, the rules applicable to:

 

(a) the set-up and authorisation of the UCITS;

 

(b) the issuance and redemption of units and units;

 

(c) the exercise of unit holders’ voting rights;

 

(d) investment policies and limits, including calculation of total exposure and leverage;

 

(e) restrictions on borrowing, lending and uncovered sales;

 

(f) the valuation of assets and the accounting of the UCITS;

 

(g) the calculation of the issue price and/or redemption price;

 

(h) distribution or reinvestment of the income;

 

(i) the disclosure and reporting requirements of the UCITS, including the prospectus, the key investor information and periodic reports;

 

(j) the marketing and distribution of the units;

 

(k) the relationship with unit holders;

 

(l) merging and restructuring of UCITS;

 

(m) winding-up and liquidation of the UCITS;

 

(n) the content and form of the unit-holder register.

 

4. The management company shall comply with the obligations set out in the fund rules or in the instruments of incorporation, and the obligations set out in the prospectus, which shall be consistent with applicable law as referred to in paragraphs 1 and 3.

 

5. The competent authorities of the UCITS home Member State shall be responsible for supervising compliance with the rules referred to in paragraphs 3 and 4.

 

6. The management company decides and is responsible for the arrangements and organisational decision which are necessary so that the management company is able to comply with the rules which relate to the constitution and functioning of the UCITS and with the obligations set out in the fund rules or in the instruments of incorporation, and in the obligations set out in the prospectus.

 

7. The competent authorities of the management company’s home Member State are responsible for supervising the adequacy of the arrangements and organisation of the management company so that the management company be in a position to comply with the obligations and rules which relate to the constitution and functioning of all the UCITS it manages.

 

8. Member States shall ensure that any management company authorised in a Member State is not subject to any additional requirement established in the UCITS home Member State in respect of the matters covered by this Directive, except in the cases expressly referred to in this Directive.

Amendment  75

Proposal for a directive

Article 18 - paragraph 2 -subparagraph 1

Text proposed by the Commission

Amendment

2. In discharging their responsibilities under this Directive, management company's host Member States may require branches of management companies to provide the same particulars as national management companies for that purpose.

deleted

Amendment  76

Proposal for a directive

Article 18 -paragraph 2- subparagraph 2

Text proposed by the Commission

Amendment

Management company's host Member States may require management companies, carrying on business within their territories under the freedom to provide services, to provide the information necessary for the monitoring of their compliance with the standards set by the management company's host Member State that apply to them, although those requirements may not be more stringent than those which the same Member State imposes on established management companies for the monitoring of their compliance with the same standards.

Management company's host Member States may require management companies, carrying on business within their territories under the freedom to provide services or through the establishment of a branch, to provide them with the information necessary for the monitoring of their compliance with the rules under responsibility of the management company’s host Member State that apply to them, including information regarding transactions concerning the investments of the UCITS. Those requirements may not be more stringent than those which the same Member State imposes on management companies authorised in that Member State for the monitoring of their compliance with the same standards.

Amendment  77

Proposal for a directive

Article 18 -paragraph 3

Text proposed by the Commission

Amendment

3. Where the competent authorities of a management company's host Member State ascertain that a management company that has a branch or provides services within its territory is in breach of the legal or regulatory provisions adopted in that State pursuant to those provisions of this Directive which confer powers on the management company's host Member State's competent authorities, those authorities shall require the management company concerned to put an end to its irregular situation.

3. Where the competent authorities of a management company's host Member State ascertain that a management company that has a branch or provides services within its territory is in breach of one of the rules under their responsibility, those authorities shall require the management company concerned to put an end to its irregular situation and inform the competent authorities of the management company's home Member State.

Amendment  78

Proposal for a directive

Article 18 -paragraph 5

Text proposed by the Commission

Amendment

5. If, despite the measures taken by the management company's home Member State or because such measures prove inadequate or are not available in the Member State in question, the management company persists in breaching the legal or regulatory provisions referred to in paragraph 2 in force in the management company's host Member State, the latter may, after informing the competent authorities of the management company's home Member State, take appropriate measures to prevent or to penalise further irregularities and, insofar as necessary, to prevent that management company from initiating any further transaction within its territory. Member States shall ensure that within their territories it is possible to serve the legal documents necessary for those measures on management companies.

5. If, despite the measures taken by the management company's home Member State or because such measures prove inadequate or are not available in the Member State in question, the management company persists in breaching the legal or regulatory provisions referred to in paragraph 2 in force in the management company's host Member State, the latter may, after informing the competent authorities of the management company's home Member State, take appropriate measures, including those referred to in Articles 93 and 94, to prevent or to penalise further irregularities and, insofar as necessary, to prevent that management company from initiating any further transaction within its territory. Member States shall ensure that within their territories it is possible to serve the legal documents necessary for those measures on management companies. Where the service provided within the management company’s host Member State is the management of a UCITS, the management company’s host Member State may require the management company to cease managing that UCITS.

Amendment  79

Proposal for a directive

Article 18 -paragraph 6

Text proposed by the Commission

Amendment

6. The provisions of paragraphs (3), (4) and (5) shall not affect the powers of management company's host Member States to take appropriate measures to prevent or to penalise irregularities committed within their territories which are contrary to legal or regulatory provisions adopted in the interest of the general good. This shall include the possibility of preventing offending management companies from initiating any further transactions within their territories.

deleted

Amendment  80

Proposal for a directive

Article 18 -paragraph 7

Text proposed by the Commission

Amendment

7. Any measure adopted pursuant to paragraphs 4, 5 or 6 involving penalties or restrictions on the activities of a management company shall be properly justified and communicated to the management company concerned. Every such measure shall be subject to the right to apply to the courts in the Member State which adopted it.

7. Any measure adopted pursuant to paragraphs 4 and 5 involving measures or penalties shall be properly justified and communicated to the management company concerned. Every such measure shall be subject to the right to apply to the courts in the Member State which adopted it.

Amendment  81

Proposal for a directive

Article 18 -paragraph 9 -subparagraph 1

Text proposed by the Commission

Amendment

9. In the event of the withdrawal of authorisation, the competent authorities of the management company's host Member State shall be informed and shall take appropriate measures to prevent the management company concerned from initiating any further transactions within its territory and to safeguard investors' interests.

9. The competent authorities of the management company’s home Member State shall consult the competent authorities of the UCITS home Member State before withdrawing the authorisation of the management company. In such cases, the competent authorities of the UCITS home Member State shall take appropriate measures to safeguard investors' interests. Those measures may include decisions preventing the management company concerned from initiating any further transactions within its territory and to safeguard investors' interests.

Amendment  82

Proposal for a directive

Article 18 -paragraph 10 -subparagraph 1

Text proposed by the Commission

Amendment

10. Member States shall inform the Commission of the number and type of cases in which there have been refusals pursuant to Article 16 or measures have been taken in accordance with paragraph 5 of this Article.

10. Member States shall inform the Commission of the number and type of cases in which there have been refusals pursuant to Articles 5a and 16 or measures have been taken in accordance with paragraph 5 of this Article.

Amendment  83

Proposal for a directive

Article 20 – paragraph 1

Text proposed by the Commission

Amendment

1. A depositary shall either have its registered office in the same Member State as that of the management company or be established in that Member State if its registered office is in another Member State.

1. A depositary shall either have its registered office in the UCITS home Member State or be established in that Member State if its registered office is in another Member State.

Justification

A true common market means that fund management services can be passported throughout the European Union. Article 49 of the Treaty establishing the European Community sets out this freedom to provide services cross-border.

It is an important safeguard that the depositary remains in the same Member State as the fund domicile in order to allow the depositary to discharge its duties

Amendment  84

Proposal for a directive

Article 20 - paragraph 2

Text proposed by the Commission

Amendment

2. A depositary shall be an institution which is subject to public control. It shall also furnish sufficient financial and professional guarantees to be able effectively to pursue its business as depositary and meet the commitments inherent in that function.

2. A depositary shall be an institution which is subject to prudential regulation and on-going supervision. It shall also furnish sufficient financial and professional guarantees to be able effectively to pursue its business as depositary and meet the commitments inherent in that function.

Amendment  85

Proposal for a directive

Article 20 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

3a. The depositary shall establish procedures that enable the competent authorities of the UCITS home Member State to obtain on request all information, which the depositary has obtained while discharging its duties, and which are necessary for the competent authorities to supervise compliance of the UCITS with the requirements of this Directive.

Amendment  86

Proposal for a directive

Article 20 – paragraph 3 b (new)

Text proposed by the Commission

Amendment

3b. If the management company’s home Member State is not the UCITS home Member State, the depositary shall sign a written agreement with the management company regulating the flow of information deemed necessary to allow it to perform the functions referred to in Article 19 and in other laws, regulations and administrative provisions which are relevant for depositaries in the UCITS home Member State.

Amendment  87

Proposal for a directive

Article 20 – paragraph 3 c (new)

Text proposed by the Commission

Amendment

3c. The Commission shall adopt implementing measures on the measures to be taken by a depositary in order to fulfil its duties regarding a UCITS managed by a management company situated in another Member State, including the particulars that need to be included in the standard agreements to be used by the depositary and the management company as referred to in paragraph 3a.

 

Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 107(2).

Amendment  88

Proposal for a directive

Article 26 – paragraph 2

Text proposed by the Commission

Amendment

2. An applicant shall be informed, within six months of the submission of a complete application, whether or not authorisation has been granted. Reasons shall be given whenever an authorisation is refused.

2. In the event that the investment company has not designated a management company, the investment company shall be informed, within six months of the submission of a complete application, whether or not authorisation has been granted. Reasons shall be given whenever an authorisation is refused.

Amendment  89

Proposal for a directive

Article 30 – paragraph 1

Text proposed by the Commission

Amendment

1. A depositary shall either have its registered office in the same Member State as that of the investment company or be established in that Member State if its registered office is in another Member State.

1. A depositary shall either have its registered office in the UCITS home Member State or be established in that Member State if its registered office is in another Member State.

Justification

A true common market means that fund management services can be passported throughout the European Union. Article 49 of the Treaty establishing the European Community set out this freedom to provide services cross-border.

It is an important safeguard that the depositary remains in the same Member State as the fund domicile in order to allow the depositary to discharge its duties.

Amendment  90

Proposal for a directive

Article 30 – paragraph 2

Text proposed by the Commission

Amendment

2. A depositary shall be an institution which is subject to public control. It shall also furnish sufficient financial and professional guarantees to be able effectively to pursue its business as depositary and meet the commitments inherent in that function.

2. A depositary shall be an institution which is subject to prudential regulation and on-going supervision.

Amendment  91

Proposal for a directive

Article 30 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

3a. The depositary shall establish procedures that enable the competent authorities of the UCITS home Member State to obtain on request all information, which the depositary has obtained while discharging its duties, and which are necessary for the competent authorities to supervise compliance of the UCITS with the requirements under this Directive.

Amendment  92

Proposal for a directive

Article 30 – paragraph 3 b (new)

Text proposed by the Commission

Amendment

3b. If the management company’s home Member State is not the UCITS home Member State, the depositary shall sign a written agreement with the management company regulating the flow of information deemed necessary to allow it to perform the functions referred to in Article 29 of this Directive and in other laws, regulations and administrative provisions which are relevant for depositaries in the UCITS home Member State.

Amendment  93

Proposal for a directive

Article 30 – paragraph 3 c (new)

Text proposed by the Commission

Amendment

3c. The Commission shall adopt implementing measures on the measures to be taken by a depositary in order to fulfil its duties regarding a UCITS managed by a management company situated in another Member state, including the particulars that need to be included in the standard agreements to be used by the depositary and the management company as referred to in paragraph 3a. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 107(2).

Amendment  94

Proposal for a directive

Article 34 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

This Chapter shall apply in relation to any of the following operations, hereinafter "mergers":

For the purposes of this Chapter, "mergers" shall mean:

Amendment  95

Proposal for a directive

Article 35

Text proposed by the Commission

Amendment

Member States shall, subject to the conditions set out in this Section and irrespective of the manner in which UCITS are constituted as set out in Article 1(3), allow for mergers between:

1. Member States shall, subject to the conditions set out in this Chapter and irrespective of the manner in which UCITS are constituted as set out in Article 1(3), allow for cross-border mergers and domestic mergers as defined in this Article in accordance with one or more of the merger techniques provided for under Article 34.

(a) UCITS established within their territories;

2. For the purpose of this Directive, a cross-border merger shall mean:

(b) UCITS established within their territories and UCITS established within the territories of other Member States.

(a) a merger of UCITS of which at least two are established in different Member States; and

 

(b) a merger of UCITS established in the same Member State into a newly constituted UCITS established in another Member State.

 

The merger techniques used for cross-border mergers shall be provided for under the law of the merging UCITS home Member State.

 

3. For the purpose of this Directive, a domestic merger shall mean a merger of UCITS established in the same Member State when at least one of the involved UCITS has been notified pursuant to Article 88. The merger techniques used for domestic mergers must be allowed for under the law of that Member State.

Amendment  96

Proposal for a directive

Article 36 – paragraph 2 – subparagraph 1 – point a

Text proposed by the Commission

Amendment

(a) the common draft terms of the proposed merger duly approved by the competent management or administrative body of the merging UCITS and the receiving UCITS;

(a) the common draft terms of the proposed merger duly approved by the merging UCITS and the receiving UCITS;

Amendment  97

Proposal for a directive

Article 36 – paragraph 2 – subparagraph 1 – point c

Text proposed by the Commission

Amendment

(c) a certificate issued by the depositaries of the merging and the receiving UCITS confirming that they have verified compliance of the common draft terms of merger with this Directive and the fund rules or instruments of incorporation of their respective UCITS and indicating their conclusions in this respect;

(c) a statement by each of the depositaries of the merging and the receiving UCITS confirming that, in accordance with Article 38, they have verified the elements set out in points (a), ( f) and (g) of Article 37(1) with this Directive and the fund rules or instruments of incorporation of their respective UCITS;

Amendment  98

Proposal for a directive

Article 36 – paragraph 2 – subparagraph 1 – point d

Text proposed by the Commission

Amendment

(d) the information on the proposed merger it intends to provide to its unit-holders.

(d) the information on the proposed merger that the merging UCITS and the receiving UCITS intend to provide to their respective unit-holders.

Amendment  99

Proposal for a directive

Article 36 – paragraph 2 – subparagraph 1 a (new)

Text proposed by the Commission

Amendment

This information shall be provided so that both the competent authorities of the merging UCITS home Member State and the competent authorities of the receiving UCITS home Member State can read them in the official language or one of the official languages of the relevant Member State, or in a language approved by the relevant competent authorities.

Amendment  100

Proposal for a directive

Article 36 – paragraph 3 – subparagraph 1

Text proposed by the Commission

Amendment

3. The competent authorities of the merging UCITS home Member State shall consider the potential impact of the proposed merger on unit-holders of both the merging UCITS and the receiving UCITS and when doing so, shall consult the competent authorities of the receiving UCITS home Member State unless they consider that the potential impact of the proposed merger on the unit-holders of the receiving UCITS is negligible.

3. The competent authorities of the merging UCITS home Member State shall immediately transmit copies of the information referred to in paragraph 2 to the competent authorities of the receiving UCITS home Member State. The competent authorities of the merging and the receiving UCITS home Member State shall, respectively, consider the potential impact of the proposed merger on unit-holders of the merging UCITS and the receiving UCITS to assess whether appropriate information is provided to unit-holders.

Amendment  101

Proposal for a directive

Article 36 – paragraph 3 – subparagraph 2

Text proposed by the Commission

Amendment

If the competent authorities of the merging UCITS home Member State consider it necessary, they may require that the information to unit-holders of the merging UCITS be clarified.

If the competent authorities of the merging or receiving UCITS home Member State consider it necessary, they may require that the information to unit-holders of, respectively, the merging or the receiving UCITS be clarified.

Amendment  102

Proposal for a directive

Article 36 – paragraph 3 – subparagraph 3

Text proposed by the Commission

Amendment

If the competent authorities of the merging UCITS home Member State decide that the proposed merger might have a substantial impact on the unit-holders of the receiving UCITS, they shall inform the competent authorities of the receiving UCITS home Member State, which shall require that appropriate and accurate information on the proposed merger is provided to unit-holders of the receiving UCITS.

The competent authorities of the receiving UCITS home Member State shall inform those of the merging UCITS home Member State within10 working days of receipt of the information referred to in paragraph 2 either that they are satisfied with the proposed information to be provided to the unit-holders of the receiving UCITS or that they have required that the receiving UCITS clarifies that information. That deadline shall be neither interrupted nor extended.

Amendment  103

Proposal for a directive

Article 36 – paragraph 4 – point c

Text proposed by the Commission

Amendment

(c) after having considered the potential impact of the proposed merger on unit-holders in accordance with paragraph 3, the competent authorities are satisfied with the proposed information to be provided to unit-holders of the merging UCITS, and where applicable, of the receiving UCITS.

(c) the competent authorities of the merging and the receiving UCITS home Member State are, respectively, satisfied with the proposed information to be provided to unit-holders, or no indication of dissatisfaction from the competent authorities of the receiving UCITS has been received under subparagraph 3 of paragraph 3.

Amendment  104

Proposal for a directive

Article 36 – paragraph 5 – subparagraph 1

Text proposed by the Commission

Amendment

5. The competent authorities of the merging UCITS home Member State shall inform the merging UCITS, within at the latest 30 days of the submission of a complete file, whether or not the merger has been authorised.

5. The competent authorities of the merging UCITS home Member State shall inform the merging UCITS, within at the latest 30 days of the submission of a complete file as provided for in paragraph 2, whether or not the merger has been authorised.

Amendment  105

Proposal for a directive

Article 36 – paragraph 5 – subparagraph 1 a (new)

Text proposed by the Commission

Amendment

 

In the event that the competent authorities of the merging UCITS home Member State request further information, the assessment period shall be neither interrupted nor extended. Such requests for further information shall be reasoned, proportionate and reasonable.

Justification

Provisions for the authorisation of a merger need to be clearly worded in order to avoid unnecessary interruptions or delays.

Amendment  106

Proposal for a directive

Article 36 – paragraph 5 a (new)

Text proposed by the Commission

Amendment

5a. Member States may, in accordance with the second subparagraph of Article 52(1), provide for a derogation from Chapter VII for the receiving UCITS.

Justification

In the case of a merger, the merged portfolios might need to be restructured in order to comply with the investment policies laid down in Chapter VII. A derogation period in this case, as under Art. 52 (1) for newly authorised funds, should hence be possible to allow for the necessary shifting of assets.

Amendment  107

Proposal for a directive

Article 37 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

1. Member States shall require that the management or administrative body of the merging UCITS and of the receiving UCITS draw up common draft terms of merger.

1. Member States shall require that the merging and receiving UCITS draw up common draft terms of merger.

Amendment  108

Proposal for a directive

Article 37 – paragraph 1 – subparagraph 2 – introductory part

Text proposed by the Commission

Amendment

The common draft terms of merger shall include the following particulars:

The common draft terms of merger shall set out the following particulars:

Amendment  109

Proposal for a directive

Article 37 – paragraph 1 – subparagraph 2 – point c

Text proposed by the Commission

Amendment

(c) the expected impact of the proposed merger on the unit-holders of both the merging UCITS and the receiving UCITS;

(c) the expected impact, including the tax treatment, of the proposed merger on the unit-holders of both the merging and the receiving UCITS;

Amendment  110

Proposal for a directive

Article 37 – paragraph 1 – subparagraph 2 – point d

Text proposed by the Commission

Amendment

(d) the criteria adopted for valuation of the assets and, where applicable, the liabilities on the planned effective date of the merger;

(d) the criteria adopted for valuation of the assets and, where applicable, the liabilities on the planned effective date of the merger in accordance with Article 44(1);

Amendment  111

Proposal for a directive

Article 37 – paragraph 1 – subparagraph 2 – point f a (new)

Text proposed by the Commission

Amendment

(fa) the rules applicable, respectively, to the transfer of assets and the exchange of units;

Amendment  112

Proposal for a directive

Article 37 – paragraph 1 – subparagraph 2 – point g

Text proposed by the Commission

Amendment

(g) the fund rules or instruments of incorporation of the receiving UCITS.

(g) in the case of a merger pursuant to Article 34(b), the fund rules or instruments of incorporation of the newly constituted receiving UCITS.

Amendment  113

Proposal for a directive

Article 37 – paragraph 1 – subparagraph 2 a (new)

Text proposed by the Commission

Amendment

Competent authorities shall not require any additional information to be included in the common draft terms of mergers.

Amendment  114

Proposal for a directive

Article 38

Text proposed by the Commission

Amendment

Member States shall require that the depositaries of the merging UCITS and of the receiving UCITS verify the conformity of the common draft terms of merger with this Directive and the fund rules or instruments of incorporation of their respective UCITS.

Member States shall require that the depositaries of the merging UCITS and of the receiving UCITS verify the elements set out in points (a), (f) and (g) of Article 37(1) with this Directive and the fund rules or instruments of incorporation of their respective UCITS.

Amendment  115

Proposal for a directive

Article 39 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1. Member States shall require that an independent auditor, approved in accordance with Directive 2006/43/EC of the European Parliament and of the Council, validate the following:

1. The law of the merging UCITS home Member States shall entrust either a depositary or an independent auditor, approved in accordance with Directive 2006/43/EC of the European Parliament and of the Council, with validating the following:

Amendment  116

Proposal for a directive

Article 39 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) the criteria adopted for valuation of the assets and, where applicable, the liabilities on the planned effective date of the merger;

(a) the criteria adopted for valuation of the assets and, where applicable, the liabilities on the planned effective date of the merger pursuant to Article 44(1);

Amendment  117

Proposal for a directive

Article 39 – paragraph 1 – point a a (new)

Text proposed by the Commission

Amendment

(aa) where applicable, the cash payment per unit;

Amendment  118

Proposal for a directive

Article 39 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) the calculation method of the exchange ratio.

(b) the calculation method of the exchange ratio as well as the actual exchange ratio determined at the date in accordance with Article 44(1).

Amendment                119

Proposal for a directive

Article 39 – paragraph 2

Text proposed by the Commission

Amendment

2. The statutory auditors of the merging UCITS or the receiving UCITS shall be considered independent auditors for the purposes of paragraph 1.

2. The statutory auditors of the merging UCITS or the statutory auditor of the receiving UCITS shall be considered independent auditors for the purposes of paragraph 1.

Amendment  120

Proposal for a directive

Article 39 – paragraph 3

Text proposed by the Commission

Amendment

3. A copy of the report of the independent auditor shall be made available on request and free of charge to the unit-holders of both the merging UCITS and the receiving UCITS.

3. A copy of the reports of the independent auditor, or, where applicable, the depositary shall be made available on request and free of charge to the unit-holders of both the merging and the receiving UCITS and to their respective competent authorities.

Amendment  121

Proposal for a directive

Article 40 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall require the merging UCITS to provide appropriate and accurate information on the proposed merger to its or their unit-holders so as to enable the unit-holders to make an informed decision of the impact of the proposal on their investment.

1. Member States shall require merging and receiving UCITS to provide appropriate and accurate information on the proposed merger to their respective unit-holders so as to enable them to make an informed judgement of the impact of the proposal on their investment.

Amendment  122

Proposal for a directive

Article 40 – paragraph 2

Text proposed by the Commission

Amendment

2. The competent authorities of the receiving UCITS home Member State shall require the receiving UCITS to provide appropriate and accurate information on the proposed merger to its unit-holders if so requested by the competent authorities of the merging UCITS home Member State in accordance with Article 36(3).

deleted

Amendment  123

Proposal for a directive

Article 40 – paragraph 3 – subparagraph 1

Text proposed by the Commission

Amendment

3. The information shall be provided to unit-holders only after the competent authorities of the merging UCITS home Member State have authorised the proposed merger under Article 36.

3. The information shall be provided to unit-holders of both the merging and the receiving UCITS only after the competent authorities of the merging UCITS home Member State have authorised the proposed merger under Article 36.

Amendment  124

Proposal for a directive

Article 40 – paragraph 3 – subparagraph 2

Text proposed by the Commission

Amendment

It shall be provided not less than 30 days before the date of the general meeting of unit-holders as referred to in Article 41 or, if no such general meeting of unit-holders is provided for under national law, not less than 30 days before the proposed effective date of the merger.

It shall be provided not less than 30 days before the last date for requesting repurchase or redemption without additional charge referred to in Article 44.

Amendment  125

Proposal for a directive

Article 40 – paragraph 4 – subparagraph 1

Text proposed by the Commission

Amendment

4. The information to be provided to unit-holders of the merging UCITS and, where applicable, the receiving UCITS, shall include appropriate and accurate information on the proposed merger such as to enable them to take an informed decision on the possible impact thereof on their investment and to exercise their rights under Articles 41 and 42.

4. The information to be provided to unit-holders of both the merging and the receiving UCITS, shall include appropriate and accurate information on the proposed merger such as to enable them to take an informed decision on the possible impact thereof on their investment and to exercise their rights under Articles 41 and 42.

Amendment  126

Proposal for a directive

Article 40 – paragraph 4 – subparagraph 2 – introductory part

Text proposed by the Commission

Amendment

It shall include at least the following:

It shall include the following:

Amendment  127

Proposal for a directive

Article 40 – paragraph 4 – subparagraph 2 – point a

Text proposed by the Commission

Amendment

(a) the background to and the rationale of the proposed merger;

(a) the background to and the rationale for the proposed merger;

Amendment  128

Proposal for a directive

Article 40 – paragraph 4 – subparagraph 2 – point b

Text proposed by the Commission

Amendment

(b) the possible impact of the proposed merger on unit-holders, including but not limited to any material differences in respect of investment policy and strategy, costs, expected outcome, periodic reporting and possible dilution in performance;

(b) the possible impact of the proposed merger on unit-holders, including but not limited to any material differences in respect of investment policy and strategy, costs, expected outcome, periodic reporting, possible dilution in performance and a prominent warning to investors that their tax treatment may be changed following the merger;

Amendment  129

Proposal for a directive

Article 40 – paragraph 4 – subparagraph 2 – point c

Text proposed by the Commission

Amendment

(c) any specific rights unit-holders have in relation to the proposed merger, including but not limited to the right to obtain additional information, the right to obtain a copy of the report of the independent auditor on request, and the right to request the repurchase or redemption of their units without charge as specified in Article 42;

(c) any specific rights unit-holders have in relation to the proposed merger, including but not limited to the right to obtain additional information, the right to obtain a copy of the report of the independent auditor or the depositary on request, and the right to request the repurchase or redemption of their units without charge as specified in Article 42 and the last date for exercising that right;

Amendment  130

Proposal for a directive

Article 40 – paragraph 4 – subparagraph 2 – point d

Text proposed by the Commission

Amendment

(d) the relevant procedural aspects and the planned effective date of the merger;

(d) the relevant procedural aspects, including the procedure for the transfer of units, and the planned effective date of the merger;

Amendment  131

Proposal for a directive

Article 40 – paragraph 5

Text proposed by the Commission

Amendment

5. If the merging UCITS and, where applicable, the receiving UCITS, has been notified in accordance with Article 88, the information referred to in paragraph 4 shall be provided in the official language, or one of the official languages, of the merging UCITS host Member State and, where applicable the receiving UCITS host Member State, or in a language approved by their competent authorities. The translation shall be produced under the responsibility of the UCITS required to provide the information. It shall faithfully reflect the content of the original information.

5. If the merging UCITS or the receiving UCITS, has been notified in accordance with Article 88, the information referred to in paragraph 4 shall be provided in the official language, or one of the official languages, of the relevant UCITS host Member State, or in a language approved by its competent authorities. That translation shall be produced under the responsibility of the UCITS required to provide the information. It shall faithfully reflect the content of the original information.

Amendment  132

Proposal for a directive

Article 41 – paragraph 1

Text proposed by the Commission

Amendment

Where the national laws of Member States require approval by the unit-holders of mergers between UCITS, Member States shall ensure that such approval does not require more than 75% of the votes actually cast by unit-holders present or represented at the general meeting of unit-holders.

Where the national laws of Member States require approval by the unit-holders of mergers between UCITS, Member States shall ensure that such approval does not require more than 75% of the votes actually cast by unit-holders present or represented at the general meeting of unit-holders. That approval shall be binding on all unit-holders.

Justification

A majority decision is binding for all unit-holders.

Amendment  133

Proposal for a directive

Article 41 – paragraph 2

Text proposed by the Commission

Amendment

The first paragraph shall be without prejudice to any presence quorum provided for under national laws.

The first paragraph shall be without prejudice to any presence quorum provided for under national laws. Where applicable, Member States shall not impose more stringent presence quora for cross-border than for domestic mergers. Nor shall they impose more stringent presence quora for UCITS mergers than for mergers of corporate entities.

Amendment  134

Proposal for a directive

Article 42 – paragraph 1

Text proposed by the Commission

Amendment

1. The laws of Member States shall provide that unit-holders of both the merging UCITS and the receiving UCITS have the right to request the repurchase or redemption of their units or, where possible, to convert them into units in another UCITS with similar investment policies, without charge. This right shall become effective from the moment the unit-holders of the merging UCITS and, where applicable, those of the receiving UCITS, have been informed of the proposed merger. It shall cease to exist on the effective date of the merger.

1. The laws of Member States shall provide that unit-holders of both the merging UCITS and the receiving UCITS have the right to request, without any other charge than those retained by the fund to cover disinvestment costs, the repurchase or redemption of their units or, where possible, to convert them into units in another UCITS with similar investment policies and managed by the same management company, by another company with which the management company is linked by common management or control, or by a substantial direct or indirect holding. This right shall become effective from the moment the unit-holders of the merging UCITS and those of the receiving UCITS, have been informed of the proposed merger in accordance with Article 40. It shall cease to exist five working days before the date for calculating the exchange ratio as referred to in Article 44.

Amendment  135

Proposal for a directive

Article 42 – paragraph 2

Text proposed by the Commission

Amendment

2. For mergers between UCITS, by way of derogation from Article 79(1), Member States may allow the competent authorities to require or to allow the temporary suspension of the repurchase or redemption of units provided that such suspension is justified for the protection of the unit-holders.

2. Without prejudice to the provisions of paragraph 1, for mergers between UCITS, by way of derogation from Article 79(1), Member States may allow the competent authorities to require or to allow the temporary suspension of the subscription, repurchase or redemption of units provided that such suspension is justified for the protection of the unit-holders.

Amendment  136

Proposal for a directive

Article 43

Text proposed by the Commission

Amendment

Member States shall ensure that any legal, advisory or administrative costs associated with the preparation and the completion of the merger shall not be charged, either directly or indirectly, to the merging UCITS, the receiving UCITS or any of their unit-holders.

Except in case where UCITS are self-managed, Member States shall ensure that any legal, advisory or administrative costs associated with the preparation and the completion of the merger shall not be charged to the merging UCITS, the receiving UCITS or any of their unit-holders.

Amendment  137

Proposal for a directive

Article 44 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall provide that the merger shall take effect as soon as all assets, and where applicable, all liabilities have been transferred from the merging UCITS to the receiving UCITS and unit-holders in the merging UCITS have received units in the receiving UCITS in exchange for their units in the merging UCITS.

1. For domestic mergers, the laws of the Member States shall determine the date on which a merger takes effect as well as the date for calculating the ratio for exchange of units of the merging UCITS into units of the receiving UCITS and, where applicable, for determining the relevant net asset value for cash payments.

 

For cross-border mergers, the laws of the receiving UCITS home Member State shall determine the dates referred to in the first subparagraph.

Amendment  138

Proposal for a directive

Article 44 – paragraph 2

Text proposed by the Commission

Amendment

2. The depositaries of the merging UCITS and the receiving UCITS shall be responsible for the actual transfer of assets from the merging UCITS to the receiving UCITS.

deleted

Amendment  139

Proposal for a directive

Article 44 – paragraph 3

Text proposed by the Commission

Amendment

3. The entry into effect of the merger shall be made public through all appropriate means in the manner prescribed by the laws of the receiving UCITS home Member State.

3. The entry into effect of the merger shall be made public through all appropriate means in the manner prescribed by the laws of the receiving UCITS home Member State, and notified to the competent authorities.

Amendment  140

Proposal for a directive

Article 44 – paragraph 4

Text proposed by the Commission

Amendment

4. Member States shall also ensure that the entry into effect of the merger be made public on the website of both the competent authorities of the merging UCITS home Member State and of the competent authorities of the receiving UCITS home Member State.

deleted

Amendment  141

Proposal for a directive

Article 44 a (new)

Text proposed by the Commission

Amendment

 

Article 44a

1. A merger carried out as laid down in point (a) of Article 34 shall have the following consequences:

 

(a) all the assets and liabilities of the merging UCITS shall be transferred to the receiving UCITS or, where applicable, the depositary of the receiving UCITS;

 

(b) the unit-holders of the merging UCITS shall become unit-holders of the receiving UCITS; in addition, if applicable, they are entitled to a cash payment not exceeding 10 % of the net asset value of their units in the merging UCITS;

 

(c) the merging UCITS shall cease to exist on the entry into effect of the merger.

 

2. A merger carried out as laid down in point (b) of Article 34 shall have the following consequences:

 

(a) all the assets and liabilities of the merging UCITS shall be transferred to the newly constituted receiving UCITS or, where applicable, the depositary of the receiving UCITS;

 

(b) the unit-holders of the merging UCITS shall become unit-holders of the newly constituted receiving UCITS; in addition, if applicable, they are entitled to a cash payment not exceeding 10 % of the net asset value of their units in the merging UCITS;

 

(c) the merging UCITS shall cease to exist on the entry into effect of the merger.

 

3. A merger carried out as laid down in point (c) of Article 34 shall have the following consequences:

 

(a) the [net] assets of the merging UCITS shall be transferred to the receiving UCITS or, where applicable, the depositary of the receiving UCITS;

 

(b) the unit-holders of the merging UCITS shall become unit-holders of the receiving UCITS;

 

(c) the merging UCITS continues to exist until all remaining outstanding liabilities have been discharged.

 

4. Member States shall provide that a procedure is established whereby the management company of the receiving UCITS confirms to the depositary of the receiving UCITS that transfer of assets and, where applicable, liabilities is complete. Where the receiving UCITS has not designated a management company, it will give that confirmation to the depositary of the receiving UCITS.

Amendment  142

Proposal for a directive

Article 46 – paragraph 4

Text proposed by the Commission

Amendment

4. Member States shall inform the Commission on their regulation concerning the methods used to calculate the risk exposures mentioned in paragraph 3, including the risk exposure to a counterparty in OTC derivative transactions. The Commission shall forward that information to the other Member States. Such information shall be the subject of exchanges of views within the European Securities Committee. 

4. The Commission shall adopt implementing measures in regard to paragraph 1, specifying the following:

 

(a) criteria for assessing the adequacy of risk-management process employed by the management company;

 

(b) detailed rules regarding the accurate and independent assessment of the value of OTC derivatives; 

 

(c) detailed rules regarding the content and the procedure to be followed for communicating the information to the management company home Member States' competent authorities;

 

Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 107(2).

Amendment  143

Proposal for a directive

Article 53 – paragraph 1

Text proposed by the Commission

Amendment

1. A feeder UCITS is a UCITS which invests, by way of derogation from Article 1(2)(a), Article 45, Article 47, Article 50 and Article 51(2)(c), at least 85 % of its assets in units of another UCITS ("the master UCITS") or an investment compartment thereof.

1. A feeder UCITS is a UCITS or an investment compartments thereof, which has been approved to invest, by way of derogation from Article 1(2)(a), Article 45, Article 47, Article 50 and Article 51(2)(c), at least 85 % of its assets in units of another UCITS or an investment compartment thereof ("the master UCITS").

Amendment  144

Proposal for a directive

Article 53 – paragraph 2 – subparagraph 1 – point b

Text proposed by the Commission

Amendment

(b) financial derivative instruments in accordance with Article 45(1)(g) and Article 46(2) and (3).

(b) financial derivative instruments, which may be used only for hedging purposes, in accordance with Article 45(1)(g) and Article 46(2) and (3).

Amendment  145

Proposal for a directive

Article 53 – paragraph 2 – subparagraph 2

Text proposed by the Commission

Amendment

For the purposes of point (b) of the first subparagraph, the exposure of the feeder UCITS to the underlying assets as referred to in the third subparagraph of Article 46(3) shall be calculated by also taking into account the investments of the master UCITS, including the investments of the master UCITS into financial derivative instruments and their underlyings, in proportion to the feeder UCITS investment into the master UCITS.

For the purposes of compliance with Article 46(3), the feeder UCITS may calculate its global exposure related to financial derivative instruments by combining its own direct exposure under point (b) of the first subparagraph with either:

 

(a) the master UCITS' actual exposure to financial derivative instruments in proportion to the feeder UCITS' investment into the master UCITS; or

 

(b) the master UCITS potential maximum global exposure to financial derivative instruments provided for in the master UCITS' fund rules or instruments of incorporation in proportion to the feeder UCITS investment into the master UCITS.

Amendment  146

Proposal for a directive

Article 53 – paragraph 3 – introductory part

Text proposed by the Commission

Amendment

3. A master UCITS is a UCITS which:

3. A master UCITS is a UCITS or an investment compartment thereof which:

Amendment  147

Proposal for a directive

Article 53 – paragraph 3 – point a

Text proposed by the Commission

Amendment

(a) must have at least one feeder UCITS as unit-holder;

(a) must have among its unit-holders at least one feeder UCITS;

Amendment  148

Proposal for a directive

Article 53 – paragraph 4

Text proposed by the Commission

Amendment

4. By way of derogation from Article 1(2) point (a) and Article 3 point (b), if a master UCITS has at least two feeder UCITS as unit-holders, it shall not be obliged to raise capital from other investors.

4. The following derogations for a master UCITS shall apply:

 

(a) if a master UCITS has at least two feeder UCITS as unit-holders, Article 1(2) point (a) and Article 3 point (b) shall not apply, giving the master UCITS the option to raise capital from other investors;

If a master UCITS raises capital only from one or more feeder UCITS in a Member State other than that in which it is established, Chapter XI and Article 103(1) shall not apply.

(b) if a master UCITS raises capital only from one or more feeder UCITS in a Member State other than that in which it is established, Chapter XI and Article 103(1) shall not apply.

Justification

Rephrasing is necessary to avoid confusion between subparagraph 1 and subparagraph 2, the content is not changed.

Amendment  149

Proposal for a directive

Article 54 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall ensure that the investment of a feeder UCITS into a given master UCITS be subject to prior approval by the competent authorities of the feeder UCITS' home Member State.

1. Member States shall ensure that the investment of a feeder UCITS into a given master UCITS which exceeds the limit applicable under Article 50(1) for investments into other UCITS be subject to prior approval by the competent authorities of the feeder UCITS' home Member State.

Amendment  150

Proposal for a directive

Article 54 – paragraph 2

Text proposed by the Commission

Amendment

2. If the feeder UCITS already carried on activities as a UCITS, including as a feeder UCITS of a different master UCITS, the feeder UCITS shall be informed within at the latest 15 working days following the submission of a complete file, whether or not the competent authorities approved the feeder UCITS' investment into the master UCITS.

2. The feeder UCITS shall be informed within at the latest 15 working days following the submission of a complete file, whether or not the competent authorities approved the feeder UCITS' investment into the master UCITS.

Amendment  151

Proposal for a directive

Article 54 – paragraph 3 – introductory part

Text proposed by the Commission

Amendment

3. In the event that the feeder UCITS and the master UCITS are established in the same Member State, the competent authorities of that Member State shall grant approval if the feeder UCITS, its depositary and its auditor, as well as the master UCITS, comply with all the requirements set out in this Chapter. For such purpose, the feeder UCITS shall provide to the competent authorities of its home Member State the following documents:

3. The competent authorities of the feeder UCITS home Member State shall grant approval if the feeder UCITS, its depositary and its auditor, as well as the master UCITS, comply with all the requirements set out in this Chapter. For such purpose, the feeder UCITS shall provide to the competent authorities of its home Member State the following documents:

Amendment  152

Proposal for a directive

Article 54 – paragraph 3 – point c

Text proposed by the Commission

Amendment

(c) the agreement between the feeder UCITS and the master UCITS referred to in Article 55(1);

(c) the agreement between the feeder UCITS and the master UCITS or the internal conduct of business rules referred to in Article 55(1);

Amendment  153

Proposal for a directive

Article 54 – paragraph 3 – point e

Text proposed by the Commission

Amendment

(e) a declaration of the master UCITS to the effect that it does not hold any units of a feeder UCITS;

deleted

Amendment  154

Proposal for a directive

Article 54 – paragraph 3 – point f

Text proposed by the Commission

Amendment

(f) in the event that the master UCITS and the feeder UCITS have different depositaries, the information-sharing agreement referred to in Article 56(1) between their respective depositaries;

(f) if the master UCITS and the feeder UCITS have different depositaries, the information-sharing agreement referred to in Article 56(1) between their respective depositaries;

Amendment  155

Proposal for a directive

Article 54 – paragraph 3 – point g

Text proposed by the Commission

Amendment

(g) in the event that the master UCITS and the feeder UCITS have different auditors, the information-sharing agreement referred to in Article 57(1) between their respective auditors.

(g) if the master UCITS and the feeder UCITS have different auditors, the information-sharing agreement referred to in Article 57(1) between their respective auditors.

Amendment  156

Proposal for a directive

Article 54 – paragraph 4 – subparagraph 1

Text proposed by the Commission

Amendment

4. When the feeder UCITS is established in another Member State than the master UCITS, the competent authorities of the feeder UCITS' home Member State shall grant approval provided the following conditions are met:

4. When the feeder UCITS is established in another Member State than the master UCITS, the feeder UCITS shall also provide an attestation by the competent authorities of the master UCITS that the master UCITS is a UCITS, or an investment compartment thereof, which fulfils the conditions set out in point (b) and (c) of Article 53(3). Documents shall be provided by the feeder UCITS in the official language, or one of the official languages, of the feeder UCITS home Member State or in a language approved by its competent authorities.

(a) the feeder UCITS, its depositary and its auditor comply with all the requirements set out in this Chapter and the feeder UCITS for such purpose submits the documents referred to in paragraph 3 of this Article;

 

(b) the feeder UCITS demonstrates that the master UCITS is duly authorised as a UCITS, that it is not itself a feeder UCITS and does not hold any units of a feeder UCITS.

 

Amendment  157

Proposal for a directive

Article 54 – paragraph 4 – subparagraph 2

Text proposed by the Commission

Amendment

The competent authorities of the feeder UCITS' home Member State shall immediately inform those of the master UCITS, if the approval is granted or withdrawn.

deleted

Amendment  158

Proposal for a directive

Article 55 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

1. Member States shall require the feeder UCITS to enter into an agreement with the master UCITS concerned in order to enable the feeder UCITS to meet the requirements laid down in this Directive.

1. Member States shall require that the master UCITS provide the feeder UCITS with all documents and information necessary for the latter to meet the requirements laid down in this Directive. For this purpose, the feeder UCITS shall enter into an agreement with the master UCITS.

Amendment  159

Proposal for a directive

Article 55 – paragraph 1 – subparagraph 2 – introductory part

Text proposed by the Commission

Amendment

Such agreement shall include the following particulars:

deleted

Amendment  160

Proposal for a directive

Article 55 – paragraph 1 – subparagraph 2 – point a

Text proposed by the Commission

Amendment

(a) the main characteristics of the investment objective and policy of the master UCITS;

deleted

Amendment  161

Proposal for a directive

Article 55 – paragraph 1 – subparagraph 2 – point b

Text proposed by the Commission

Amendment

(b) the rules which govern a possible modification of the investment objective and policy of the master UCITS;

deleted

Amendment  162

Proposal for a directive

Article 55 – paragraph 1 – subparagraph 2 – point c

Text proposed by the Commission

Amendment

(c) the rights and duties of the feeder UCITS and of the master UCITS and of their respective management companies.

deleted

Amendment  163

Proposal for a directive

Article 55 – paragraph 1 – subparagraph 3

Text proposed by the Commission

Amendment

The feeder UCITS shall not invest in units of that master UCITS until the agreement referred to in subparagraph 1 has become effective.

The feeder UCITS shall not invest in units of that master UCITS until the agreement referred to in subparagraph 1 has become effective. That agreement shall be available, on request and without charges, to all unit-holders.

Amendment  164

Proposal for a directive

Article 55 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

1a. In the event that both master and feeder UCITS are managed by the same management company or administrative body, the agreement may be replaced by internal conduct of business rules ensuring compliance with the requirements set out in paragraph 1.

Amendment  165

Proposal for a directive

Article 55 – paragraph 2

Text proposed by the Commission

Amendment

2. The master UCITS and the feeder UCITS shall take appropriate measures to ensure that no units of either the master UCITS or the feeder UCITS can be issued, sold, re-purchased or redeemed for the same business day after either the master UCITS or the feeder UCITS published the issue, sale, re-purchase or redemption price of its units for that day.

2. The master UCITS and the feeder UCITS shall take appropriate measures to coordinate the timing of their net asset value calculation and publication, or employ other recognised techniques in order to avoid market timing in their fund units and prevent arbitrage.

Justification

Article 55(2) requires the master UCITS and the feeder UCITS to calculate the net asset value at the same time. This could restrict the use of master-feeder funds in some jurisdictions where, for local reasons, valuation has to take place at a precise time which is not always the same time at which the master fund makes its own calculation.

Amendment  166

Proposal for a directive

Article 55 – paragraph 3

Text proposed by the Commission

Amendment

3. If a master UCITS temporarily suspends the re-purchase or redemption of its units, whether at its own initiative or at the request of its competent authorities, each of its feeder UCITS is entitled to suspend the re-purchase or redemption of its units notwithstanding the conditions laid down in Article 79(2) within the same period of time as the master UCITS.

3. If a master UCITS temporarily suspends the re-purchase, redemption or subscription of its units, whether at its own initiative or at the request of its competent authorities, each of its feeder UCITS is entitled to suspend the re-purchase, redemption or subscription of its units notwithstanding the conditions laid down in Article 79(2) within the same period of time as the master UCITS.

 

The feeder UCITS’s entitlement to suspend subscriptions is without prejudice to its right to decide independently at any time on a suspension of subscriptions.

Amendment  167

Proposal for a directive

Article 55 – paragraph 4 – subparagraph 2

Text proposed by the Commission

Amendment

A master UCITS may only be liquidated three months after the master UCITS informed all of its feeder UCITS and the competent authorities of these feeder UCITS' home Member States of the binding decision to liquidate.

Without prejudice for specific national provisions regarding compulsory liquidation, a master UCITS may be liquidated only three months after the master UCITS informed all of its unit-holders and the competent authorities of these feeder UCITS' home Member States of the binding decision to liquidate.

Amendment  168

Proposal for a directive

Article 55 – paragraph 5 – subparagraph 1 – point a

Text proposed by the Commission

Amendment

(a) continues to be a feeder UCITS resulting from the merger or division; or

(a) continues to be a feeder UCITS of the master UCITS or another UCITS resulting from the merger or division of the master UCITS; or

Amendment  169

Proposal for a directive

Article 55 – paragraph 5 – subparagraph 2

Text proposed by the Commission

Amendment

No merger or division of a master UCITS shall become effective, unless the master UCITS provided all of its feeder UCITS and the competent authorities of these feeder UCITS' home Member States with the information referred to in or comparable with Article 40 no later than 60 days before the proposed effective date.

No merger or division of a master UCITS shall become effective, unless the master UCITS provided all of its unit-holders and the competent authorities of its feeder UCITS' home Member States with the information referred to in or comparable with Article 40 no later than 60 days before the proposed effective date.

Amendment  170

Proposal for a directive

Article 55 – paragraph 5 – subparagraph 3

Text proposed by the Commission

Amendment

Unless the competent authorities of the feeder UCITS home Member State had granted approval pursuant to point (a) of the first subparagraph, the feeder UCITS shall re-purchase or redeem all units in the master UCITS before the merger or division of the master UCITS becomes effective.

Unless the competent authorities of the feeder UCITS home Member State had granted approval pursuant to point (a) of the first subparagraph, the master UCITS shall enable the feeder UCITS to re-purchase or redeem all units in the master UCITS before the merger or division of the master UCITS becomes effective.

Justification

In the interest of investor protection, a feeder UCITS shall be able to redeem or re-purchase its units before the merger or division of the master takes place.

Amendment  171

Proposal for a directive

Article 55 – paragraph 6 – subparagraph 1 – point a

Text proposed by the Commission

Amendment

(a) the particulars that need to be included in the agreement referred to in the first subparagraph of paragraph 1;

(a) the content of the agreement or of the internal conduct of business rules referred to in paragraph 1;

Amendment  172

Proposal for a directive

Article 56 – paragraph 1 – subparagraph 2 a (new)

Text proposed by the Commission

Amendment

Neither the depositary of the master UCITS nor that of the feeder UCITS, when complying with the requirements laid down in this Chapter, shall be in breach of any restriction on disclosure of information or of data protection imposed by contract or by any legislative, regulatory or administrative provision nor shall such behaviour involve such depositary or any person acting on its behalf in liability of any kind.

Amendment  173

Proposal for a directive

Article 56 – paragraph 1 – subparagraph 2 b (new)

Text proposed by the Commission

Amendment

Member States shall require that the feeder UCITS or, when applicable, the management company of the feeder UCITS shall be in charge of communicating to the depositary of the feeder UCITS any information about the master UCITS and required for the completion of the duties of the depositary of the feeder UCITS.

Amendment  174

Proposal for a directive

Article 56 – paragraph 2

Text proposed by the Commission

Amendment

2. The depositary of the master UCITS shall immediately inform the feeder UCITS or, where applicable, the management company and the depositary of the feeder UCITS about any irregularities it detects with regard to the master UCITS.

2. The depositary of the master UCITS shall immediately inform the competent authorities of the master UCITS, the feeder UCITS or, where applicable, the management company and the depositary of the feeder UCITS about any irregularities it detects with regard to the master UCITS which are deemed to have a negative impact on the feeder UCITS.

Amendment  175

Proposal for a directive

Article 56 – paragraph 3 – subparagraph 1 – point a

Text proposed by the Commission

Amendment

(a) the particulars that need to be included in the agreement referred to in paragraph 1 subparagraph 1;

(a) the particulars that need to be included in the agreement referred to in paragraph 1;

Amendment  176

Proposal for a directive

Article 57 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

1. Member States shall require that, if the master UCITS and the feeder UCITS have different auditors, these auditors enter into an information-sharing agreement in order to ensure the fulfilment of the duties of both auditors.

1. Member States shall require that, if the master UCITS and the feeder UCITS have different auditors, these auditors enter into an information-sharing agreement in order to ensure the fulfilment of the duties of both auditors, including the arrangements taken to comply with the requirements of paragraph 2.

Amendment  177

Proposal for a directive

Article 57 – paragraph 2 – subparagraph 1

Text proposed by the Commission

Amendment

2. In its audit report, the auditor of the feeder UCITS shall take into account the audit report of the master UCITS.

2. In its audit report, the auditor of the feeder UCITS shall take into account the audit report of the master UCITS. If the feeder UCITS and the master UCITS do not have the same accounting year, the auditor of the master UCITS shall make an ad hoc report on the same closing date as the closing date of the feeder UCITS.

Amendment  178

Proposal for a directive

Article 57 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. When complying with the requirements laid down in this Chapter, neither the auditor of the master UCITS nor that of the feeder UCITS, shall be in breach of any restriction on disclosure of information or of data protection imposed by contract or by any legislative, regulatory or administrative provision nor shall such behaviour involve such auditor or any person acting on its behalf in liability of any kind.

Amendment  179

Proposal for a directive

Article 57 – paragraph 3

Text proposed by the Commission

Amendment

3. The Commission may adopt implementing measures specifying the particulars that need to be included in the agreement referred to in paragraph 1 subparagraph 1.

3. The Commission may adopt implementing measures specifying the content of the agreement referred to in paragraph 1 subparagraph 1.

These measures, designed to amend this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 107(2).

Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 107(2).

Amendment  180

Proposal for a directive

Article 58 – paragraph 1 – subparagraph 1 – point b

Text proposed by the Commission

Amendment

(b) on the investment made in accordance with Article 53(2);

(b) the investment objective and policy, including the risk profile and whether the performance of the feeder UCITS and the master UCITS are identical, or to what extent and for which reasons they differ, including a description of the investment made in accordance with Article 53(2);

Amendment  181

Proposal for a directive

Article 58 – paragraph 1 – subparagraph 1 – point c

Text proposed by the Commission

Amendment

(c) a brief description of the master UCITS, its organisation, its investment objective and policy, including the risk profile;

(c) a brief description of the master UCITS, its organisation, its investment objective and policy, including the risk profile and where the up-dated prospectus of the master UCITS can be obtained;

Justification

Instead of annexing the prospectus of the master UCITS, information should be given under point (c) on where the prospectus can be obtained. This limits the volume of the prospectus of the feeder UCITS by providing the essential information on the master UCITS while clearly stating where further details can be obtained.

Amendment  182

Proposal for a directive

Article 58 – paragraph 1 – subparagraph 1 – point d

Text proposed by the Commission

Amendment

(d) if the feeder UCITS invests into a given investment compartment or a given unit or share class of the master UCITS, a brief description thereof;

deleted

Amendment  183

Proposal for a directive

Article 58 – paragraph 1 – subparagraph 1 – point e

Text proposed by the Commission

Amendment

(e) a summary of the agreement entered into between the feeder UCITS and the master UCITS pursuant to Article 55(1);

(e) a summary of the agreement entered into between the feeder UCITS and the master UCITS or of the internal conduct of business rules pursuant to Article 55(1);

Amendment  184

Proposal for a directive

Article 58 – paragraph 1 – subparagraph 1 – point g

Text proposed by the Commission

Amendment

(g) whether the investment objective and policy, including the risk profile and the performance of the feeder UCITS and the master UCITS are identical, or to what extent and for which reasons they differ;

deleted

Amendment  185

Proposal for a directive

Article 58 – paragraph 1 – subparagraph 2

Text proposed by the Commission

Amendment

The up-dated prospectus of the master UCITS shall be annexed to the prospectus of the feeder UCITS.

deleted

Justification

Instead of annexing the prospectus of the master UCITS, information should be given under point (c) on where the prospectus can be obtained. This limits the volume of the prospectus of the feeder UCITS by providing the essential information on the master UCITS while clearly stating where further details can be obtained.

Amendment  186

Proposal for a directive

Article 58 – paragraph 4

Text proposed by the Commission

Amendment

4. A feeder UCITS shall disclose in any relevant marketing communications that it is a feeder UCITS of a given master UCITS and as such permanently invests 85 % or more of its assets in units of such master UCITS.

4. A feeder UCITS shall disclose in any relevant marketing communications that it permanently invests 85 % or more of its assets in units of such master UCITS.

Amendment  187

Proposal for a directive

Article 58 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

4a. A paper copy of the prospectus, annual and half-yearly report of the master shall be delivered by the feeder UCITS to investors upon their request, free of charge.

Amendment  188

Proposal for a directive

Article 59 – paragraph 1 – subparagraph 1 – point c

Text proposed by the Commission

Amendment

(c) the date when the feeder UCITS is to start to invest into the master UCITS;

(c) the date when the feeder UCITS is to start to invest into the master UCITS or, if it has already invested into the master, the date when its investment is to exceed the limit applicable under Article 50(1);

Amendment  189

Proposal for a directive

Article 59 – paragraph 1 – subparagraph 1 – point d

Text proposed by the Commission

Amendment

(d) a statement that the unit-holders have the right to request the re-purchase or redemption of their units free of charge within 30 days; this right shall become effective from the moment the feeder UCITS has provided the information referred to in this paragraph.

(d) a statement that the unit-holders have the right to request the re-purchase or redemption of their units without any other charges than those retained by the fund to cover disinvestment costs within 30 days; this right shall become effective from the moment the feeder UCITS has provided the information referred to in this paragraph.

Amendment  190

Proposal for a directive

Article 59 – paragraph 1 – subparagraph 2

Text proposed by the Commission

Amendment

This information shall be provided not less than 30 days before the date of the feeder UCITS' investment into the master UCITS pursuant to point (c) of the first subparagraph.

This information shall be provided not less than 30 days before the date referred to in point (c) of the first subparagraph.

Amendment  191

Proposal for a directive

Article 59 – paragraph 3

Text proposed by the Commission

Amendment

3. Member States shall ensure that the feeder UCITS does not invest into the units of the given master UCITS before the period of 30 days referred to in the second subparagraph of paragraph 1 has elapsed.

3. Member States shall ensure that the feeder UCITS does not invest into the units of the given master UCITS in excess of the limit applicable under Article 50(1) before the period of 30 days referred to in the second subparagraph of paragraph 1 has elapsed.

Amendment  192

Proposal for a directive

Article 59 – paragraph 4 – subparagraph 2

Text proposed by the Commission

Amendment

Those measures, designed to amend this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 107(2).

Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 107(2).

Amendment  193

Proposal for a directive

Article 60 – paragraph 1

Text proposed by the Commission

Amendment

1. The feeder UCITS shall ensure that its investment into a master UCITS does not affect its ability to re-purchase or redeem its units at the request of the unit-holders or in other cases when this is in the interest of its unit-holders.

deleted

Justification

This is already covered in Art. 79, paragraph 1.

Amendment  194

Proposal for a directive

Article 60 – paragraph 3

Text proposed by the Commission

Amendment

3. Where, by virtue of an investment in the units of the master UCITS, a commission is received by the feeder UCITS, the management company of the feeder UCITS or any person acting on behalf of either the feeder UCITS or the management company of the feeder UCITS, the commission shall be paid into the assets of the feeder UCITS.

3. Where, in connection with an investment in the units of the master UCITS, a distribution fee, commission or monetary benefit is received by the feeder UCITS, the management company of the feeder UCITS or any person acting on behalf of either the feeder UCITS or the management company of the feeder UCITS, the fee, commission or monetary benefit shall be paid into the assets of the feeder UCITS.

Amendment  195

Proposal for a directive

Article 62 – paragraph 1

Text proposed by the Commission

Amendment

1. If the master UCITS and the feeder UCITS are established in the same Member State, the competent authorities shall immediately inform the feeder UCITS of any decision, measure, observation of non-compliance with the conditions of this Chapter or of any information reported pursuant to Article 101(1) with regard to the master UCITS or, where applicable, its management company, depositary or auditor.

1. If the master UCITS and the feeder UCITS are established in the same Member State, the competent authorities shall immediately inform the feeder UCITS and, when they deem it necessary, the other unit-holders, of any decision, measure, observation of non-compliance with the conditions of this Chapter or of any information reported pursuant to Article 101(1) with regard to the master UCITS or, where applicable, its management company, depositary or auditor.

Amendment  196

Proposal for a directive

Article 62 – paragraph 2

Text proposed by the Commission

Amendment

2. If the master UCITS and the feeder UCITS are established in different Member States, the competent authorities of the master UCITS' home Member State shall immediately communicate any decision, measure, observation of non-compliance with the conditions of this Chapter or information reported pursuant to Article 101(1) with regard to the master UCITS or, where applicable, its management company, depositary or auditor, to the competent authorities of the feeder UCITS' home Member State. The latter shall then immediately inform the feeder UCITS.

2. If the master UCITS and the feeder UCITS are established in different Member States, the competent authorities of the master UCITS' home Member State shall immediately communicate any decision, measure, observation of non-compliance with the conditions of this Chapter or information reported pursuant to Article 101(1) with regard to the master UCITS or, where applicable, its management company, depositary or auditor, to the competent authorities of the feeder UCITS' home Member State, which shall then immediately inform the feeder UCITS. When those authorities deem it necessary, they shall also immediately communicate this information to the other unit-holders.

Amendment  197

Proposal for a directive

Article 67

Text proposed by the Commission

Amendment

The essential elements of the prospectus shall be kept up to date.

The essential elements of the prospectus shall be updated annually or when material changes occur.

Justification

This defines 'up to date' by a more precise provision.

Amendment  198

Proposal for a directive

Article 69

Text proposed by the Commission

Amendment

UCITS shall  send their prospectus and any amendments thereto, as well as their annual and half-yearly reports, to the competent authorities.

UCITS shall send their prospectus and any amendments thereto, as well as their annual and half-yearly reports, to the competent authorities of the UCITS home Member State. UCITS shall provide this documentation to the competent authorities of the management company’s home Member State on request.

Amendment  199

Proposal for a directive

Article 70 – paragraph 2

Text proposed by the Commission

Amendment

2. The prospectus may be provided in a durable medium or in electronic form.

2. The prospectus may be provided in a durable medium or on a website. A paper copy shall be provided to the investors on request, free of charge.

Amendment  200

Proposal for a directive

Article 70 – paragraph 3

Text proposed by the Commission

Amendment

3. The annual and half-yearly reports shall be available to investors in the manner specified in the prospectus and in the key investor information referred to in Article 73.

3. The annual and half-yearly reports shall be available to investors in the manner specified in the prospectus and in the key investor information referred to in Article 73. A paper copy of the annual and half-yearly reports shall be delivered to the investors on request, free of charge.

Amendment  201

Proposal for a directive

Article 72

Text proposed by the Commission

Amendment

All marketing communications to investors shall be clearly identifiable as such. They shall be fair, clear and not misleading and the information contained therein shall be consistent with the information contained in the prospectus and the key investor information referred to in Article 73. They shall indicate that a prospectus exists and that the key investor information referred to in Article 73 is available and specify where and in which language such information or documents may be obtained by investors or potential investors or how they may have access to them.

All marketing communications to investors shall be clearly identifiable as such. They shall be fair, clear and not misleading. In particular, any marketing communications comprising an invitation to purchase units of UCITS that contains specific information about a UCITS shall make no statements that contradict or diminish the significance of the information contained in the prospectus and the key investor information referred to in Article 73. It shall indicate that a prospectus exists and that the key investor information referred to in Article 73 is available and specify where and in which language such information or documents may be obtained by investors or potential investors or how they may have access to them.

Amendment  202

Proposal for a directive

Article 73 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall require that an investment company and, for each of the common funds it manages, a management company draw up a short document containing key investor information.

1. Member States shall require that an investment company and, for each of the common funds it manages, a management company draw up a short document containing key information for investors (“key investor information”). The words “key investor information” should be clearly mentioned on that document, in the language referred to in point (b) of Article 89(1).

Amendment  203

Proposal for a directive

Article 73 – paragraph 3 – subparagraph 1 – introductory part

Text proposed by the Commission

Amendment

3. Key investor information shall include information on at least the following essential elements in respect of the UCITS concerned:

3. Key investor information shall provide information on the following essential elements in respect of the UCITS concerned:

Amendment  204

Proposal for a directive

Article 73 – paragraph 3 – point -a (new)

Text proposed by the Commission

Amendment

 

(-a) identification of the UCITS;

Amendment  205

Proposal for a directive

Article 73 – paragraph 3 – point b

Text proposed by the Commission

Amendment

(b) past performance presentation;

(b) past performance presentation or, where relevant, performance scenarios;

Amendment  206

Proposal for a directive

Article 73 – paragraph 6

Text proposed by the Commission

Amendment

6. Key investor information shall be used without alterations, except translation, in all Member States where the UCITS is notified to market its units in accordance with Article 88.

6. Key investor information shall be used without alterations or supplements, except translation, in all Member States where the UCITS is notified to market its units in accordance with Article 88.

Justification

To avoid future 'gold-plating' of the Key investor information, supplementary documents should be prohibited from being attached to the KII.

Amendment  207

Proposal for a directive

Article 73 – paragraph 7 – subparagraph 1 – introductory part

Text proposed by the Commission

Amendment

7. The Commission may adopt implementing measures which define the following:

7. The Commission shall adopt implementing measures, which define the following:

Justification

Implementing measures at Level 2 are necessary and not an open question to be decided upon at the discretion of the Commission. The implementing measures should be available at the date of the implementation of this directive.

Amendment  208

Proposal for a directive

Article 73 – paragraph 7 – subparagraph 1 – point a

Text proposed by the Commission

Amendment

(a) the detailed content of the key investor information to be provided to investors as referred to under paragraphs 2,3 and 4;

(a) the detailed and exhaustive content of the key investor information to be provided to investors as referred to under paragraphs 2,3 and 4;

Amendment  209

Proposal for a directive

Article 73 – paragraph 7 – subparagraph 1 – point b – introductory part

Text proposed by the Commission

Amendment

(b) the detailed content of the key investor information to be provided to investors in the following specific cases:

(b) the detailed and exhaustive content of the key investor information to be provided to investors in the following specific cases:

Amendment  210

Proposal for a directive

Article 73 – paragraph 7 – subparagraph 1 – point b – point v

Text proposed by the Commission

Amendment

(v) for exchange-traded UCITS, the key investor information to be provided to investors subscribing to an exchange-traded UCITS;

deleted

Amendment  211

Proposal for a directive

Article 73 – paragraph 7 – subparagraph 1 – point b – point vi

Text proposed by the Commission

Amendment

(vi) for structured, capital protected and other comparable UCITS, the key investor information to be provided to investors subscribing to structured, capital protected and other comparable UCITS offering a predetermined pay-off at a certain time horizon, entirely depending on certain parameters such as the evolution of a given index;

(vi) for structured, capital protected and other comparable UCITS, the key investor information to be provided to investors in relation to the special characteristics of such UCITS;

Amendment  212

Proposal for a directive

Article 74 – paragraph 1

Text proposed by the Commission

Amendment

1. Key investor information shall constitute pre-contractual information. It shall be fair, clear and not misleading. It shall be consistent with the relevant parts of the prospectus.

1. Key investor information shall constitute pre-contractual information that is provided free of charge. It shall be fair, clear and not misleading. It shall be consistent with the relevant parts of the prospectus.

Justification

The key investor information should, as was the case with the simplified prospectus, be provided to investors without charge.

Amendment  213

Proposal for a directive

Article 74 – paragraph 2

Text proposed by the Commission

Amendment

2. Member States shall ensure that a person does not incur civil liability solely on the basis of the key investor information, including any translation thereof, unless it is misleading, inaccurate or inconsistent with the relevant parts of the prospectus. Key investor information shall contain a clear warning in this respect.

2. Member States shall ensure that a person does not incur civil liability solely on the basis of the key investor information, including any translation thereof, unless it is materially misleading, inaccurate or inconsistent with the relevant parts of the prospectus. Key investor information shall contain a clear warning in this respect.

Justification

Clearer wording prevents misinterpretation of this paragraph.

Amendment  214

Proposal for a directive

Article 75 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall require that an investment company and, for each of the common funds it manages, a management company, which sells UCITS directly or through a tied agent to investors, delivers to investors, either directly or through their tied agent, key investor information on such UCITS in good time before their proposed subscription of units in such UCITS.

1. Member States shall require that an investment company and, for each of the common funds it manages, a management company, which sells UCITS directly or through another natural or legal person who acts on its behalf and under its full and unconditional responsibility, provides investors with key investor information on such UCITS in good time before their proposed subscription of units in such UCITS.

Amendment  215

Proposal for a directive

Article 75 – paragraph 2

Text proposed by the Commission

Amendment

2. Member States shall require that an investment company and, for each of the common funds it manages, a management company, which does not sell UCITS directly or through a tied agent to investors, delivers key investor information to product manufacturers and intermediaries selling or advising investors on potential investments in such UCITS or in products offering exposure to such UCITS, so as to enable them to provide all relevant information on the proposed investment to their clients or potential clients, in compliance with any information obligations applicable to them under the relevant Community and national law.

2. Member States shall require that an investment company and, for each of the common funds it manages, a management company, which does not sell UCITS directly or through a person who acts on its behalf and under its full and unconditional responsibility to investors, provides key investor information to intermediaries selling or advising investors on potential investments in such UCITS. Member States shall require that the intermediaries selling or advising investors on potential investments in UCITS, provide key investor information to their clients or potential clients.

Amendment  217

Proposal for a directive

Article 75 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a. Key investor information shall be provided to investors free of charge.

Amendment  216

Proposal for a directive

Article 75 – paragraph 2 b (new)

Text proposed by the Commission

Amendment

 

2b. The competent authorities of each Member State may make available to the public, in a dedicated section of their website, key investor information concerning all UCITS constituted and authorised in that Member State.

Justification

This solution, which has already been adopted by some Member States, allows for this information to be centralized and improves ease of consultation and accessibility of current and historical data. It can usefully be extended to other countries.

Amendment  218

Proposal for a directive

Article 76 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

1. Member States shall allow investment companies and, for each of the common funds they manage, management companies, to deliver key investor information in a durable medium or by means of a website.

1. Member States shall allow investment companies and, for each of the common funds they manage, management companies, to provide key investor information in a durable medium or by means of a website. A paper copy shall be delivered free of charge to the investor, upon request.

Amendment  219

Proposal for a directive

Article 76 – paragraph 1 – subparagraph 1 a (new)

Text proposed by the Commission

Amendment

 

In addition, an up-to-date version of the key investor information shall be made available on the website of the investment company or management company.

Justification

Consistency of wording should be ensured with Directive 2004/39/EC. Furthermore, the KII should always be published on the website of the administrative body managing the UCITS to ensure easy accessibility for all parties.

Amendment  220

Proposal for a directive

Article 76 – paragraph 2 – subparagraph 1

Text proposed by the Commission

Amendment

2. The Commission may adopt implementing measures which define the specific conditions which need to be met when delivering key investor information in a durable medium other than on paper and by means of a website which does not constitute a durable medium.

2. The Commission may adopt implementing measures which define the specific conditions which need to be met when providing key investor information in a durable medium other than on paper and by means of a website which does not constitute a durable medium.

Justification

Consistency of wording should be ensured with Directive 2004/39/EC.

Amendment  221

Proposal for a directive

Article 77 – paragraph 2

Text proposed by the Commission

Amendment

2. The essential elements of key investor information shall be kept up to date.

2. The essential elements of key investor information shall be updated annually or when material changes occur.

Justification

This makes defines "up to date"; this definition is in line with the CESR advice CESR/08-087on KII.

Amendment  222

Proposal for a directive

Article 86 – paragraph 3

Text proposed by the Commission

Amendment

3. Member States shall ensure that complete information on the laws, regulations and administrative provisions which do not fall within the field governed by this Directive and which are relevant to the marketing of units of UCITS, established in another Member State within their territories, is easily accessible at distance and by electronic means. Member States shall ensure that this information is available in a language customary in the sphere of international finance, is provided in a clear and unambiguous manner and is kept up to date.

3. Member States shall ensure that complete information on the laws, regulations and administrative provisions which do not fall within the field governed by this Directive and which are specifically relevant to the arrangements made for the marketing of units of UCITS, established in another Member State within their territories, is easily accessible at distance and by electronic means. Member States shall ensure that this information is available in a language customary in the sphere of international finance, is provided in a clear and unambiguous manner and is kept up to date.

Amendment  223

Proposal for a directive

Article 86 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

3a. For the purpose of this Chapter, a UCITS shall mean a UCITS or an investment compartment thereof.

Amendment  224

Proposal for a directive

Article 88 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

1.  If a UCITS proposes to market its units in a Member State other than that in which it is established, it shall first submit a notification letter to the competent authorities of its home Member State.

1. If a UCITS proposes to market its units in a Member State other than its home Member State, it shall first submit a notification letter to the competent authorities of its home Member State.

Amendment  225

Proposal for a directive

Article 88 – paragraph 1 – subparagraph 2

Text proposed by the Commission

Amendment

The notification letter shall include information on arrangements made for marketing of units of the UCITS in that Member State.

The notification letter shall include information on arrangements made for marketing of units of the UCITS in the host Member State.

Amendment  226

Proposal for a directive

Article 88 – paragraph 3 – subparagraph 2

Text proposed by the Commission

Amendment

The competent authorities of the UCITS home Member State shall transmit the complete documentation referred to in paragraphs 1 and 2 to the competent authorities of the Member State in which the UCITS proposes to market its units, no later that one month after the date of receipt of the notification letter. They shall enclose to the documentation an attestation that the UCITS fulfils the conditions imposed by this Directive.

The competent authorities of the UCITS home Member State shall transmit the complete documentation referred to in paragraphs 1 and 2 to the competent authorities of the Member State in which the UCITS proposes to market its units, no later than five working days after the date of receipt of the notification letter and the complete documentation provided for in paragraph 2. They shall enclose to the documentation an attestation that the UCITS fulfils the conditions imposed by this Directive.

Amendment  227

Proposal for a directive

Article 88 – paragraph 4

Text proposed by the Commission

Amendment

4. Member States shall ensure that the notification letter as referred to in paragraph 1 and the attestation as referred to in paragraph 3 are provided in a language customary in the sphere of international finance.

4. Member States shall ensure that the notification letter as referred to in paragraph 1 and the attestation as referred to in paragraph 3 are provided in a language customary in the sphere of international finance, unless the UCITS home Member State and the UCITS host Member State agree to the notification letter as referred to in paragraph 1 and the attestation as referred to in paragraph 3 being provided in an official language of both Member States.

Justification

Amendment  228

Proposal for a directive

Article 88 – paragraph 6

Text proposed by the Commission

Amendment

6. For the purpose of the notification procedure set out in this Article, the competent authorities of the Member State in which a UCITS proposes to market its units shall not request any additional documents, certificates or information other than those provided for in this Article.

6. For the purpose of the notification procedure set out in this Article, the competent authorities of the Member State in which a UCITS proposes to market its units shall not request or require prior approval for any non-marketing documents including contractual documents such as application forms, certificates or other information other than those provided for in this Article.

Justification

This clarification makes clear the host Member State cannot require pre-approval of non-marketing documents such as subscription forms for taking up units

Amendment  229

Proposal for a directive

Article 88 – paragraph 7

Text proposed by the Commission

Amendment

7. The UCITS home Member State shall ensure that the competent authorities of the UCITS host Member State have access, by electronic means, to the documents referred to in paragraph 2 and, if applicable, to any translations thereof and that those documents and translations are kept up to date.

7. The UCITS home Member State shall ensure that the competent authorities of the UCITS host Member State have access, by electronic means, to the documents referred to in paragraph 2 and, if applicable, to any translations thereof. It shall ensure that the UCITS keep those documents and translations up to date. The UCITS shall notify any amendments to the documents referred to in paragraph 2 to the competent authority of the host Member State and indicate where these documents can be obtained electronically.

Amendment  230

Proposal for a directive

Article 88 – paragraph 8

Text proposed by the Commission

Amendment

8. In the event of a change in the information regarding the marketing arrangements communicated in the notification letter in accordance with paragraph 1, the UCITS shall give a written notice of this change to the competent authorities of the host Member State before implementing the change.

8. In the event of a change in the information regarding the arrangements made for marketing communicated in the notification letter in accordance with paragraph 1, the UCITS shall give a written notice of this change to the competent authorities of the host Member State before implementing the change.

Amendment  231

Proposal for a directive

Article 89 – paragraph 1 – subparagraph 2 – point a

Text proposed by the Commission

Amendment

(a) without prejudice to the provisions of Chapter IX, such information and/or documents shall be provided to investors in the way prescribed by the laws, regulations and/or administrative provisions of the UCITS host Member State;

(a) without prejudice to the provisions of Chapter IX, such information and/or documents shall be provided to investors in the way prescribed by the laws, regulations and/or administrative provisions of the UCITS host Member State; there shall be no translation requirements other than those stipulated in this Directive;

Justification

Clarity is needed that the translation requirements stated in Art. 89, paragraph 1 (b) to (d) are exhaustive and that no additional requirements should be imposed by the UCITS host Member State.

Amendment  232

Proposal for a directive

Article 89 – paragraph 1 – subparagraph 2 – point b

Text proposed by the Commission

Amendment

(b) key investor information referred to in Article 73 shall be translated into the official language, or one of the official languages, of the UCITS host Member State or into a language approved by the competent authorities of the UCITS host Member State;

(b) key investor information referred to in Article 73 shall be translated into the official language, or one of the official languages, of the UCITS host Member State or into a language approved by the competent authorities of the UCITS host Member State, as decided by the UCITS;

Justification

The language of the KII is chosen according to the provisions laid down but at the discretion of the UCITS.

Amendment  233

Proposal for a directive

Article 90 – paragraph 1 – subparagraph 1 – point a

Text proposed by the Commission

Amendment

(a) the format and the scope of the information as referred to in Article 86 (3);

(a) the scope of the information as referred to in Article 86 (3);

Amendment  234

Proposal for a directive

Article 90 – paragraph 2 – subparagraph 1 – point a

Text proposed by the Commission

Amendment

(a) the form and contents of a standard model of the notification letter to be used by a UCITS for the purpose of notification, as referred to in Article 88(1);

(a) the form and content of the notification letter to be used by a UCITS for the purpose of notification, as referred to in Article 88(1);

Justification

The implementing measures regarding the notification letter should aim for as much harmonisation as possible.

Amendment  235

Proposal for a directive

Article 92 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall designate the authorities which are to carry out the duties provided for in this Directive. They shall inform the Commission thereof, indicating any division of duties.

1. Member States shall designate the competent authorities which are to carry out the duties provided for in this Directive. They shall inform the Commission thereof, indicating any division of duties.

Amendment  236

Proposal for a directive

Article 92 – paragraph 3

Text proposed by the Commission

Amendment

3. The authorities of the UCITS home Member  State shall be competent to supervise that UCITS. However, the authorities of the UCITS host Member  State shall be competent to supervise compliance with the provisions falling outside the field governed by the Directive and requirements set out in Articles 87 and 89.

3. The authorities of the UCITS home Member State shall be competent to supervise that UCITS including, where relevant, pursuant to Article 17a. However, the authorities of the UCITS host Member State shall be competent to supervise compliance with the provisions falling outside the field governed by the Directive and requirements set out in Articles 87 and 89.

Amendment  237

Proposal for a directive

Article 93 – paragraph 2 – point j

Text proposed by the Commission

Amendment

(j) require the suspension of the repurchase or redemption of units in the interest of the unit holders or of the public;

(j) require the suspension of the issue, repurchase or redemption of units in the interest of the unit holders or of the public;

Amendment  238

Proposal for a directive

Article 94 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. Without precluding rules on penalties applicable to infringements of the other national provisions adopted pursuant to this Directive, Member States shall in particular lay down effective, proportionate and dissuasive penalties concerning the duty to present key investor information in a way that is likely to be understood by retail investors according to Article 73(5).

1. Member States shall lay down the rules on measures and penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. Without prejudice to the procedures for the withdrawal of authorization or to the right of Member States to impose criminal sanctions, Member States shall in particular ensure, in conformity with their national law, that the appropriate administrative measures can be taken or administrative sanctions be imposed against the persons responsible where the provisions adopted in the implementation of this Directive have not been complied with. The measures and penalties provided for must be effective, proportionate and dissuasive. Without precluding rules on measures and penalties applicable to infringements of the other national provisions adopted pursuant to this Directive, Member States shall in particular lay down effective, proportionate and dissuasive measures and penalties concerning the duty to present key investor information in a way that is likely to be understood by retail investors according to Article 73(5).

Amendment  239

Proposal for a directive

Article 94 – paragraph 2

Text proposed by the Commission

Amendment

2. Member States shall provide that the competent authorities may disclose to the public any measure or sanction that will be imposed for infringement of the provisions adopted in the implementation of this Directive, unless such disclosure would seriously jeopardise the financial markets or cause disproportionate damage to the parties involved.

2. Member States shall provide that the competent authorities may disclose to the public any measure or sanction that will be imposed for infringement of the provisions adopted in the implementation of this Directive, unless such disclosure would seriously jeopardise the financial markets, be detrimental to the interests of investors or cause disproportionate damage to the parties involved.

Amendment  240

Proposal for a directive

Article 96 – paragraph 1 – subparagraph 2

Text proposed by the Commission

Amendment

Member States shall take the necessary administrative and organisational measures to facilitate the cooperation provided for in this paragraph.

Member States shall take the necessary administrative and organisational measures to facilitate the cooperation between competent authorities, including through bilateral or multilateral co-operation agreements with the competent authorities of other Member States, so that they can ensure adequate supervision of the UCITS and the management company and fully carry out their duties under this Directive. Such agreements may involve mutual delegation of supervisory tasks or one or more competent authorities sharing supervisory tasks over UCITS which are managed by a management company under the freedom to provide services of by the establishment of a branch.

Amendment  241

Proposal for a directive

Article 96 – paragraph 2a (new)

Text proposed by the Commission

Amendment

 

2a. Where a competent authority has good reasons to suspect that acts contrary to this Directive, carried out by entities not subject to its supervision, are being or have been carried out on the territory of another Member State, it shall notify this in a manner as specific as possible to the competent authority of the other Member State. The latter authority shall take appropriate action. It shall inform the notifying competent authority of the outcome of the action and, to the extent possible, of significant interim developments. This paragraph shall be without prejudice to the competences of the competent authority that has forwarded the information.

Amendment  242

Proposal for a directive

Article 97 – paragraph 2 – subparagraph 1a (new)

Text proposed by the Commission

Amendment

 

Competent authorities exchanging information with other competent authorities under this Directive may indicate at the time of communication that such information must not be disclosed without their express agreement, in which case such information may be exchanged solely for the purposes for which those authorities gave their agreement.

Amendment  243

Proposal for a directive

Article 97 – paragraph 5 – subparagraph 1 – introductory part

Text proposed by the Commission

Amendment

5.  Paragraphs 1  and 4 shall not preclude the exchange of information between the competent authorities, within one Member State or between several Member States, which are:

5. Paragraphs 1 and 4 shall not preclude the exchange of information within a Member State or between Member States, between competent authorities; and:

Amendment  244

Proposal for a directive

Article 102 – paragraph 1

Text proposed by the Commission

Amendment

1. The competent authorities shall  give reasons for any decision to refuse authorisation, and any negative decision taken in implementation of the general measures adopted in application of this Directive, and communicate them to applicants.

1. The competent authorities shall give reasons for any decision to refuse authorisation, and any negative decision taken in implementation of the general measures adopted in application of this Directive, in writing, and communicate them to applicants.

Amendment  245

Proposal for a directive

Article 102 – paragraph 2

Text proposed by the Commission

Amendment

2. Member States shall provide that decisions taken in respect of a UCITS pursuant to laws, regulations and administrative provisions adopted in accordance with this Directive are subject to the right to apply to the courts; the same shall apply if no decision is taken within six months of the  submission of  an authorisation application made by a UCITS which includes all the information required under the provisions in force.

2. Member States shall provide that any decision taken under laws, regulations or administrative provisions adopted in accordance with this Directive is properly reasoned and is subject to the right to apply to the courts. The right to apply to the courts shall apply also where, in respect of an application for authorization which provides all the information required, no decision is taken within six months of its submission.

Amendment  246

Proposal for a directive

Article 103 – paragraph 2

Text proposed by the Commission

Amendment

2. Any decision to withdraw authorisation, or any other serious measure taken against a UCITS, or any suspension of re-purchase or redemption imposed upon it, shall  be communicated without delay by the authorities of the UCITS home  Member State to the authorities of the UCITS host  Member States.

2. Any decision to withdraw authorisation, or any other serious measure taken against a UCITS, or any issue, suspension of re-purchase or redemption imposed upon it, shall be communicated without delay by the authorities of the UCITS home  Member State to the authorities of the UCITS host  Member States and, if the management company of a UCITS is situated in another Member State, to the competent authorities of the management company’s home Member State.

Amendment  247

Proposal for a directive

Article 103 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. The competent authorities of the management company’s home  Member State and those of the UCITS home Member State shall, respectively, have the ability to take action against the management company if it infringes rules under their respective responsibility.

Amendment  248

Proposal for a directive

Article 103 – paragraph 4 – subparagraph 1 – introductory part

Text proposed by the Commission

Amendment

4. If, despite the measures taken by the competent authorities of the UCITS home Member State or because such measures prove inadequate, or because the UCITS home Member State fails to act within a reasonable timeframe, the UCITS persists in acting in a manner that is clearly prejudicial to the interests of the UCITS host Member State's investors, the competent authorities of the UCITS host Member State, may take either of the following actions:

4. If, despite the measures taken by the competent authorities of the UCITS home Member State or because such measures prove inadequate, or because the UCITS home Member State fails to act within a reasonable timeframe, the UCITS persists in acting in a manner that is clearly prejudicial to the interests of the UCITS host Member State's investors, the competent authorities of the UCITS host Member State, may take consequently either of the following actions:

Amendment  249

Proposal for a directive

Article 103 – paragraph 4 – subparagraph 1 – point b

Text proposed by the Commission

Amendment

(b) bring the matter to the attention of the Committee of European Securities Regulators.

(b) if necessary, bring the matter to the attention of the Committee of European Securities Regulators.

Amendment  250

Proposal for a directive

Article 103 – paragraph 5

Text proposed by the Commission

Amendment

5. Member States shall ensure that within their territories it is possible to serve the legal documents necessary for the measures which may be taken by the UCITS host Member State on UCITS pursuant to paragraphs 2 to 4.

5. Member States shall ensure that within their territories it is possible under their national law to serve the legal documents necessary for the measures which may be taken by the UCITS host Member State on UCITS pursuant to paragraphs 2 to 4.

Amendment  251

Proposal for a directive

Article 104 – paragraph 2

Text proposed by the Commission

Amendment

2. Insofar as it is necessary for the purpose of exercising their powers of supervision, the competent authorities of the management company's  home Member State shall be informed by the competent authorities of the management company's  host Member State of any measures taken by the management company's  host Member State pursuant to Article 18 (6) which involve penalties imposed on a management company or restrictions on a management company's activities.

2. Insofar as it is necessary for the purpose of exercising their powers of supervision, the competent authorities of the management company's home Member State shall be informed by the competent authorities of the management company's host Member State of any measures taken by the management company's host Member State pursuant to Article 18 (6) which involve measures and penalties imposed on a management company or restrictions on a management company's activities.

Amendment  252

Proposal for a directive

Article 104 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. The competent authorities of the management company's home Member State shall notify, without delay, the competent authorities of the UCITS home Member State of any problems identified at the level of the management company and which would affect the ability of the management company to properly perform its duties with respect to the fund and any breaches of the requirements under Chapter III.

Amendment  253

Proposal for a directive

Article 104 – paragraph 2 b (new)

Text proposed by the Commission

Amendment

2b. The competent authorities of the UCITS's home Member State shall notify, without delay, the competent authorities of the management company’s home Member State of any problems identified at the level of the UCITS and which may affect the ability of the management company to properly perform its duties and comply with applicable rules.

Amendment  254

Proposal for a directive

Article 109 a (new)

Text proposed by the Commission

Amendment

 

Article 109a

By ...* , the Commission shall submit to the European Parliament and the Council a report on the application of this Directive.

 

* OJ: please insert date three years after the entry into force of this Directive.

Justification

The obligation to report back to Parliament and Council on the implementation allows to analyse the progress achieved and to identify possible gaps and new challenges to the UCITS framework. The work on this directive has to be ongoing in order to ensure that the European fund industry remains competitive.

Amendment  255

Proposal for a directive

Article 110 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

1. Member States shall adopt and publish by [ … ] at the latest, the laws, regulations and administrative provisions necessary to comply with Articles 1(3)(b), 2(1)(e), 2(1)(f), 2(1)(n), 4, 5(2), 16(5), 19(1), 19(3)(a), 19(3)(d), 19(3)(e), 34 to 44, 45(1) introductory phrase, 45(3), 49(3), 51(1), 51(2) subparagraph 1 introductory phrase, 53 to 62, 63(1), 64, 65(2), 65(3), 66, 67, 69, 70, 72, 73 to 77, 78(1)(b), 78(2)(a) second indent, 81, 83(1)(b), 84(b), 85, 86-96, 102(3), 103(1), 103(3) to (5), 105, 110 to 112 and Annex I. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.

1. Member States shall adopt and publish by 1 January 2011, the laws, regulations and administrative provisions necessary to comply with Articles 1(3)(b), 2(1)(e), 2(1)(f), 2(1)(n), 4, 5(2), 16(5), 19(1), 19(3)(a), 19(3)(d), 19(3)(e), 34 to 44, 45(1) introductory phrase, 45(3), 49(3), 51(1), 51(2) subparagraph 1 introductory phrase, 53 to 62, 63(1), 64, 65(2), 65(3), 66, 67, 69, 70, 72, 73 to 77, 78(1)(b), 78(2)(a) second indent, 81, 83(1)(b), 84(b), 85, 86-96, 102(3), 103(1), 103(3) to (5), 105, 110 to 112 and Annex I. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.

Justification

Even though the changes in the Directive are quite substantial, a speedy implementation is vital to ensure that the envisaged gains can be exploited in a reasonable timeframe.

Amendment  256

Proposal for a directive

Article 111 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

References to the simplified prospectus shall be construed as references to the key investor information referred to in Article 73.

Amendment  257

Proposal for a directive

Article 112 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

1a. The Commission shall adopt and publish by 1 July 2010, the implementing measures as provided by Articles 12, 14, 20, 30, 46 and 73.

Amendment  258

Proposal for a directive

Annex I – schedule A – point 1 – middle column

Text proposed by the Commission

Amendment

1. Information concerning the management company

1. Information concerning the management company, including an indication whether the management company is domiciled in another Member State than in the UCITS home Member State.

Amendment  259

Proposal for a directive

Annex I – schedule B – point V – indent 11

Text proposed by the Commission

Amendment

- transaction costs

deleted

Justification

The inclusion of transaction costs as a new information in the periodic reports still leaves questions on calculation open. The value added is questionable.

(1)

OJ C 77, 28.3.2002, p.1.


EXPLANATORY STATEMENT

1. General history of UCITS

UCITS (Undertakings for Collective Investment in Transferable Securities) are a harmonised investment fund product that invest according to defined investment policies and can be passported across the whole European Union. Investment funds provide retail investors with the opportunity to invest rather low volumes of capital in a diversified portfolio that is professionally managed. The UCITS framework Directive 85/611/EEC establishes a high degree of investor protection and cost transparency, setting basic requirements on organisation, management and oversight of investment funds.

Various updates of the directive have been undertaken(1), the main recent ones being Directives 2001/107/EC ("Management Company Directive") and 2001/108/EC ("Product Directive") to allow for the investment in new asset classes, to enhance investors' information, to widen the scope of activities for management companies and to introduce capital requirements for management companies.

The UCITS brand has proven to be a success, sold not only across the EU but also in Asia and Latin America, amounting to 5,6 trillion EURO in total assets at the end of June 2008.(2)

2. Reasons for Revision

The European investment fund market is fragmented with a very low average fund size compared to the US, leading to unnecessarily high costs for the investor.

The Commission's investigations starting with the Asset Management Expert Group in 2004, followed by the Green Paper in July 2005 and subsequently the White Paper in November 2006, each followed by public consultations of the industry and other stakeholders, revealed shortcomings and showed that there is a substantial need to revise certain parts of the UCITS III regime and to include some new mechanisms in the framework directive. To ensure that the regulatory framework remains effective in fast evolving markets and is adapted to investor needs, as well as ensuring competitiveness of the EU fund industry, the legal requirements on the UCITS product need to be reformed.

These measures are part of the so-called Market Efficiency Package, UCITS IV, aimed at increasing economies of scale and fostering competition in the European fund industry with the goal of reducing costs for investors while ensuring the same high level of investor protection. In particular, six areas have been identified where a change or addition to the current framework is needed.

3. Content and Rapporteur position

Your rapporteur welcomes the Commission work on improving the framework for harmonised European investment funds and is supportive of the proposed changes but suggests some further improvements of the text. Your rapporteur regrets however the delay with regard to the Management Company Passport.

3.1 Merger

The new merger provisions introduced in the directive establish a European framework for both domestic and cross-border fund mergers, allowing for economies of scale.

The Commission announced in its White Paper(3) to deliver a Communication on taxation of cross-border mergers of funds. This Communication is supposed to be based on ECJ case-law stipulating that cross-border mergers should be treated like domestic mergers in a tax-neutral way (based on the national capital gains tax treatment). This Communication is still outstanding.

Your rapporteur asks the Commission to come forward with this communication before the implementation of this directive and to conduct further work on a taxation of fund mergers directive, following the principles set out in Directives 90/434/EEC and 2005/65/EC that would deal with the taxation obstacle in a binding manner. Clear rules are needed to ensure that the benefits of the proposed merger framework can be exploited leading to market consolidation, improved efficiency and lower costs to the investor.

3.2 Master/Feeder

In order to achieve market efficiency by means of proliferation of funds of sub-optimal size, the Commission has introduced new provisions on the pooling of funds. Via so-called master/feeder structures a UCITS fund may invest 85% or more into a master UCITS (which is not itself a feeder UCITS) allowing for cost savings due to combined management of the fund's assets.

Your rapporteur is of the opinion that even though the pooling process is addressed in great detail some of the proposed provisions could be simplified and further streamlining of regulatory exchange of information and documents is possible. He has also inserted provisions that strengthen investor protection in the case of liquidation.

3.3 Key investor information

The key investor information (KII) or key information document (KID) is to replace the existing simplified prospectus. This document will be provided to potential investors making the comparison of key elements of the investment product easier and allowing for an informed judgement. The KII will be two pages in length and its content will be fully harmonised. The Level 1 provisions only set out the main components and leave the details that will be determined by consumer testing to be decided at Level 2.(4)

Your rapporteur proposes that it should be clear that the KII be provided free of charge. In addition, an important change your rapporteur suggests to undertake is regarding the implementing measures on the KII. Your rapporteur suggests that the European Commission commits to adopting implementing measures. He asks the Commission to adopt these measures before 2011 in order to allow for a timely implementation. Your rapporteur has furthermore introduced amendments to ensure that the information requirements are in line with the wording and provisions in MiFID.

3.4 Notification

Simplification of the existing notification procedure by means of regulator-to-regulator approach and electronic transmission of documents will be one of the main benefits from the Market Efficiency Package. The transfer of the notification documents by the UCITS home supervisor to the host Member State authorities, upon which the UCITS may immediately start marketing its units in the host Member State, allows quicker and less costly access to another Member State, resulting in more choice and lower costs for the investor. The host MS will not be able to request additional documentation or require a second authorisation, preventing protective attempts in the cross-border marketing of UCITS funds.

The simplified and harmonised provisions on notification are an important and vital advancement. Your rapporteur is however of the opinion that a one month time period given to the UCITS home supervisor for checking completeness of files and attesting compliance with the Directive is unjustifiably long and not in line with provisions on notification for other products. (5) He suggests shortening this period to 5 working days.

3.5 Supervisory cooperation

The Commission proposal substantially strengthens the cooperation between supervisors.

Your rapporteur welcomes the adjustments that provide the necessary tools for supervisors to fulfil their tasks efficiently and adequately in a cross-border context. These provisions already address many of the aspects that are vital to ensure that cross-border mergers, master/feeder structures and the management company passport can be effectively supervised and that enforcement is possible.

3.6 Management Company Passport

The Management Company Passport (MCP) was already part of the last UCITS revision(6) aimed at giving management companies the right to passport their collective portfolio management services across the EU according to the principle of freedom to provide services as set out in the Treaty(7). The passport however never really worked in practice.

The Commission has pursued the goal of introducing a MCP for all types of funds(8) since the publication of the Green Paper in 2005. The potential economic benefits of a passport would amount to up to € 762 million p.a.(9) Some serious concerns regarding the supervision of a remote management company have recently been raised. The Commission has given the Committee of European Securities Regulators (CESR) a mandate until 01 November 2008 to deliver advice on the technicalities and supervisory questions regarding the possible implementation of a MCP and has committed to amending its proposal before the end of this legislature.

Your rapporteur takes these concerns seriously. Your rapporteur is certain that the MCP would contribute to the establishment of a true common market for the fund industry and lead to substantial economic benefits while allowing for the same high level of investor protection. He has hence made the political decision to introduce the first basic Level 1 provisions to allow for a passporting of collective portfolio management services. Your rapporteur will address the remaining open details by means of amendments upon receipt of the CESR advice. Your rapporteur expects the CESR advice to give a clear indication on technical questions. Your rapporteur is optimistic that the remaining issues can be resolved.

4. Timetable

The timeframe available for the completion of the work on this Directive is extremely tight. It is in the interest of the European institutions, the investor and the industry as well as Member States that this legislative proposal be adopted before the end of this legislative period. In order to ensure this, a very demanding schedule is envisaged for the pursuit of this goal.

(1)

Directive 85/611/EEC was amended by the following acts: Council Directive 88/220/EEC of 22 March 1988, Directive 95/26/EC of the European Parliament and of the Council of 29 June 1995 (OJ L 168, 18.7.1995, p. 7), Directive 2000/64/EC of the European Parliament and of the Council of 7 November 2000 (OJ L 290, 17.11.2000, p. 27), Directive 2001/107/EC of the European Parliament and of the Council of 21 January 2002 (OJ L 41, 13.2.2002, p. 20), Directive 2001/108/EC of the European Parliament and of the Council of 21 January 2002 (OJ L 41, 13.2.2002, p. 35); Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 (OJ L 145, 30.4.2004, p. 1), Directive 2005/1/EC of the European Parliament and of the Council of 9 March 2005 amending Council Directives 73/239/EEC, 85/611/EEC, 91/675/EEC, 92/49/EEC and 93/6/EEC and Directives 94/19/EC, 98/78/EC, 2000/12/EC, 2001/34/EC, 2002/83/EC and 2002/87/EC in order to establish a new organisational structure for financial services committees (OJ L 79, 24.3.2005, p 9) and Directive 2008/18/EC of the European Parliament and of the Council of 11 March 2008 amending Directive 85/611/EC as regards the implementing powers conferred on the Commission (OJ L 76, 19.3.2008, p. 42).

(2)

Efama Trends in the European Investment Fund Industry in Q2 2008, published on 9 September 2008.

(3)

SEC (2006)1451 SEC (2006)1452, pages 6-7.

(4)

The work on Level 2 is ongoing but CESR has already produced an advice on the content and form of the Key Information Document disclosures for UCITS (CESR/08-087, CESR advice to the European Commission from February 2008).

(5)

Directive 2001/34/EC (Prospectus Directive), Article 18 (1) sets the period at 3 working days.

(6)

Directive 2001/107/EC

(7)

Article 49 of Treaty Establishing the European Community establishes the freedom to provide cross-border services.

(8)

Corporate, contractual and unit-trust funds

(9)

COM Impact Assessment SEC(2006) 1451 (published alongside with the White Paper on investment funds).


OPINION of the Committee on Legal Affairs (19.11.2008)

for the Committee on Economic and Monetary Affairs

on the proposal for a directive of the European Parliament and of the Council on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS)

(COM(2008)0458 – C6-0287/2008 – 2008/0153(COD))

Rapporteur: Jean-Paul Gauzès

SHORT JUSTIFICATION

Draft opinion on the proposal for a directive of the European Parliament and of the Council on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS).

- Management company passeport

The last UCITS revision ie Directive 2001/107/EC created the Management Company Passport in order to give management companies the right to passport their collective portfolio management services across the EU. Its aim was to contribute to the establishment of a true common market for the fund industry in the EU.

This decision was taken on the basis of Article 49 of the Treaty Establishing the European Community which establishes the freedom to provide cross-border services.

However, the passport never worked in practice.

In order to fulfill the management company passport while ensuring a proper investor protection, the Commission has given the Committee of European Securities Regulators (CESR) a mandate until 01 November 2008 to deliver advice on those issues, with the view to introduce relevant provisions in the UCITS directive by the end of the legislature.

Having in mind the economic potential benefits that the management company passport could bring to both the European industry and the investors, your rapporteur is in favour of a full Management Company Passport as long as the supervision is efficient and the investor is well protected. He is confident that these objectives can be reconciled.

To reach this aim, your rapporteur suggests the following modifications:

-in order to ensure clarity of the nationality of the UCITS and proper supervision, consistency is needed between: the domicile of the fund, the law applicable to the constitution and the functioning of the UCITS and the competent authorities responsible for authorizing the UCITS and enforcing the rules regarding constitution and functioning of the UCITS;

-the choice of the management company should be taken into account by the competent authorities responsible for authorizing the UCITS. However, in order to ensure the freedom established by the EC Treaty, the localisation of the management company’s registered office or activities should not be a condition for granting this authorization;

-the competent authority of the management company should make sure that, given its organization – including its risk management procedures -, the management company is in a position to comply with the rules applicable to all UCITS it manages.

- the depositary shall always be located in the same Member State as the fund. According to your rapporteur and in order to protect the investor, it shall not be subject to "public control", which is too vague but rather by proper on-going supervision.

- Cross border mergers

The new merger provisions introduced in the directive establish a European framework for both domestic and cross-border fund mergers.

Your rapporteur is of the opinion that, according to the principle of subsidiarity, the directive should be applicable to cross-border mergers and domestic mergers only for those which have a cross-border impact. However, the domestic mergers which are purely national should be excluded from the scope of the directive.

Besides, the role of the depositary and its subsequent liabilities should be clarified, also with regard to the role assumed by supervisors.

Finally, according to the principle of non discrimination, Member states shall not impose more stringent rules for cross border mergers than for domestic mergers, including e.g. quorum requirements.

- Master-feeder structure

The Commission has introduced new provisions on the pooling of funds via so-called master/feeder structures.

According to your rapporteur, when approval of the feeder UCITS' investment into the master UCITS is refused, the competent authority shall explain the reasons (comply or explain).

As a rule, a maximal harmonisation should be seeked, in order to ensure a level playing field throughout the EU. Thus maximum harmonization should be applied to any agreement between a master and a feeder fund.

The reasting technique

Under the Inter-institutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts, and in particular pursuant to point 9 thereof, the Consultative Working Party consisting of the respective legal services of the European Parliament, the Council and the Commission, met on 4 and 24 September and on 13 November 2008 for the purpose of examining the proposal submitted by the Commission.

The said examination resulted in the Consultative Working Party´s establishing, without dissent, that the proposal does not comprise any substantive amendment other than those identified as such therein or in the Working Party`s opinion. The Working Party also concluded, as regards the codification of the unchanged provision of the earlier act with those substantive amendments, that the proposal contains a straightforward codification of the existing text, without any change in its substance.

AMENDMENTS

The Committee on Legal Affairs calls on the Committee on Economic and Monetary Affairs, as the committee responsible, to incorporate the following amendments in its report:

Amendment  1

Proposal for a directive

Recital 18

Text proposed by the Commission

Amendment

(18) Despite the need for consolidation between UCITS, mergers of UCITS encounter many legislative and administrative difficulties in the Community. It is therefore necessary, in order to improve the functioning of the Internal Market, to lay down Community provisions facilitating mergers between UCITS (and investment compartments thereof). Although some Member States have authorised only contractual funds, mergers between all types of funds (contractual, corporate and unit trusts) should be allowed and recognised by the laws of each Member State. This Directive covers those merger techniques which are most commonly used in the Member States. It does not prevent UCITS from using other techniques on a domestic or cross-border basis. These will however remain subject to the relevant provisions of national law.

(18) Despite the need for consolidation between UCITS, mergers of UCITS encounter many legislative and administrative difficulties in the Community. It is therefore necessary, in order to improve the functioning of the Internal Market, to lay down Community provisions facilitating mergers between UCITS (and investment compartments thereof). Although some Member States have authorised only contractual funds, cross-border mergers between all types of funds (contractual, corporate and unit trusts) should be allowed and recognised by the laws of each Member State. This does not require Member States to introduce new legal forms of UCITS into their national regulation. This Directive covers those merger techniques which are most commonly used in the Member States. Member States should not be obliged to introduce all techniques mentioned in this Directive into their national law, but they should recognise transfers of assets resulting from those techniques. It does not prevent UCITS from using other techniques on a domestic basis, in situations where none of the UCITS concerned by the merger has been notified for cross-border marketing of its units. These mergers will remain subject to the relevant provisions of national law.

Justification

En application du principe de subsidiarité, la directive ne devrait pas imposer aux Etats membres l’introduction de nouvelles formes de société, d’autant que cela n’est pas nécessaire à l’efficacité de la directive.

En application du principe de subsidiarité, la directive devrait s’appliquer 1/ aux fusions transfrontalières mais aussi 2/ aux fusions nationales dont l’impact est transfrontalier. Pour ces fusions, l’efficacité de la directive suppose une reconnaissance par les Etats membres des techniques énoncées dans la directive. En revanche les fusions purement nationales ne devraient pas être incluses dans le champ d’application de la directive.

Amendment  2

Proposal for a directive

Recital 40

Text proposed by the Commission

Amendment

(40) In order to protect the feeder UCITS' investors, the feeder UCITS' investment into the master UCITS should be subject to prior approval of the competent authorities of the feeder UCITS' home Member State.

(40) In order to protect the feeder UCITS' investors, the feeder UCITS' investment into the master UCITS should be subject to prior approval of the competent authorities of the feeder UCITS' home Member State. In order to ensure a level playing field throughout the Community, the information which has to be provided for approving the feeder UCITS' investment into the master UCITS should be exhaustive.

Justification

Une harmonisation maximale est nécessaire pour assurer l’égalité de concurrence.

Amendment  3

Proposal for a directive

Recital 41

Text proposed by the Commission

Amendment

(41) In order to allow the feeder UCITS to act in the best interests of its unit-holders and notably place it in a position to obtain from the master UCITS all information and documents necessary to perform its obligations, the feeder UCITS and the master UCITS should enter into a binding and enforceable agreement. In a similar way the information-sharing agreement between the depositaries or, respectively, the auditors of the feeder UCITS and the master UCITS should ensure the flow of information and documents that is needed for the feeder UCITS' depositary or auditor to fulfil its duties.

(41) In order to allow the feeder UCITS to act in the best interests of its unit-holders and notably place it in a position to obtain from the master UCITS all information and documents necessary to perform its obligations, the feeder UCITS and the master UCITS should enter into a binding and enforceable agreement. However, if both are managed by the same management company, it should be sufficient that the latter set up internal conduct-of-business rules. An information-sharing agreement between the depositaries or, respectively, the auditors of the feeder UCITS and the master UCITS should ensure the flow of information and documents that is needed for the feeder UCITS' depositary or auditor to fulfil its duties. Compliance with these requirements should not result in a breach of any restriction on disclosure of information or of data protection rules.

Justification

Si le maître et le nourricier sont gérés par la même société de gestion, un accord entre le maître et le nourricier est une condition impossible à réaliser. En revanche, des règles de conduite interne appropriées devraient être mises en place par la société de gestion.

Il convient par ailleurs de clarifier l’articulation de ces dispositions avec les règles relatives au secret professionnel et à la protection des données.

Amendment  4

Proposal for a directive

Article 2 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) "depositary" means any institution entrusted with the duties mentioned in Articles 19 and 29 and subject to the other provisions laid down in Chapter IV and Section 3 of Chapter V;

(a) "depositary" means any credit institution or investment firm or insurance company as defined in Directives 2006/48/EC, 2004/34/EC and 2002/12/EC;

Justification

Cette modification entraînerait de fait la caducité des articles 20-2 et 20-3 ainsi que des articles 30-2 et 30-3.

Amendment  5

Proposal for a directive

Article 2 – paragraph 1 – point e

Text proposed by the Commission

Amendment

(e) a "UCITS home Member State" means: the Member State in which the UCITS is authorised pursuant to Article 5;

(e) "UCITS home Member State" means the Member State in which the management company or, where applicable, an investment company has applied for authorisation of the UCITS;

Justification

In order to ensure clarity of the nationality of the UCITS and proper supervision, consistency is needed between: 1/ the domicile of the fund; 2/ the law applicable to the constitution and the functioning of the UCITS and 3/ the competent authorities responsible for authorizing the UCITS and enforcing the rules regarding constitution and functioning of the UCITS.

Amendment  6

Proposal for a directive

Article 4

Text proposed by the Commission

Amendment

For the purposes of this Directive, a UCITS shall be deemed to be established in the Member State in which the investment company or the management company of the common fund has its registered office. The Member States shall require that the head office be established in the same Member State as the registered office.

For the purposes of this Directive, a UCITS shall be deemed to be established in its home Member State.

Justification

In order to fulfil the freedoms established by the EC Treaty, a UCITS established in one Member state should be allowed to be managed by a management company situated in another MemberSstate.

Amendment  7

Proposal for a directive

Article 5 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

1. No UCITS shall carry on activities as such unless it has been authorised by the competent authorities of the Member State in which it is established.

1. No UCITS shall carry on activities as such unless it has been authorised by the competent authorities of its home Member State.

Amendment  8

Proposal for a directive

Article 5 – paragraph 2

Text proposed by the Commission

Amendment

2. A common fund shall be authorised only if the competent authorities have approved the management company, the fund rules and the choice of depositary. An investment company shall be authorised only if the competent authorities have approved both its instruments of incorporation and the choice of depositary.

2. A common fund shall be authorised only if the competent authorities of its home Member State have approved the application of the management company, the fund rules and the choice of depositary. An investment company shall be authorised only if the competent authorities of its home Member State have approved both its instruments of incorporation and the choice of depositary, and, where relevant, the choice of the designated management company.

Amendment  9

Proposal for a directive

Article 5 – paragraph 3

Text proposed by the Commission

Amendment

3. The competent authorities may not authorise a UCITS if the management company or the investment company does not comply with the preconditions laid down in Chapters III and V respectively.

3. If the UCITS is not established in the management company’s home Member State, the competent authorities of the UCITS' home Member State shall approve the application of the management company pursuant to Article 17c. It must not be made a condition of authorisation that the UCITS be managed by a management company having its registered office in that Member State or that the management company perform or delegate any activities in the UCITS' home Member State.

Moreover, the competent authorities may not authorise a UCITS if the directors of the depositary are not of sufficiently good repute or are not sufficiently experienced also in relation to the type of UCITS to be managed. To that end, the names of the directors of the depositary and of every person succeeding them in office shall be communicated forthwith to the competent authorities.

 

Directors shall mean those persons who, under the law or the instruments of incorporation, represent the depositary, or who effectively determine the policy of the depositary.

 

Amendment  10

Proposal for a directive

Article 5 – paragraph 5

Text proposed by the Commission

Amendment

5. Neither the management company nor the depositary may be replaced, nor may the fund rules or the instruments of incorporation of the investment company be amended, without the approval of the competent authorities.

5. Neither the management company nor the depositary may be replaced, nor may the fund rules or the instruments of incorporation of the investment company be amended, without the approval of the competent authorities of the UCITS' home Member State.

Amendment  11

Proposal for a directive

Article 5 – paragraph 5 a (new)

Text proposed by the Commission

Amendment

5a. Whenever the competent authorities of the UCITS' home Member State do not approve the replacement of a management company, they shall set out, in writing, the reasons for that decision.

Justification

In order to ensure clarity of the nationality of the UCITS and proper supervision, consistency is needed between: 1/ the domicile of the fund; 2/ the law applicable to the constitution and the functioning of the UCITS and 3/ the competent authorities responsible for authorizing the UCITS and enforcing the rules regarding constitution and functioning of the UCITS.

The choice of the management company should be taken into account by the competent authorities responsible for authorizing the UCITS. However, in order to ensure the freedom established by the EC Treaty, the localisation of the management company’s registered office or activities should not be a condition for granting this authorization.

Amendment  12

Proposal for a directive

Article 6 – paragraph 1

Text proposed by the Commission

Amendment

1. Access to the business of management companies shall be subject to prior official authorisation to be granted by the competent authorities of the UCITS home Member State. Authorisation granted under this Directive to a management company shall be valid for all Member States.

1. Access to the business of management companies shall be subject to prior official authorisation to be granted by the competent authorities of the management company’s home Member State. Authorisation granted under this Directive to a management company shall be valid for all Member States.

Justification

A management company should be authorized and supervised by the competent authorities of the Member state where it has its registered office, which should be defined as the management company’s home Member State.

Amendment  13

Proposal for a directive

Article 17 a (new)

Text proposed by the Commission

Amendment

Article 17a

 

1. A management company providing cross-border management services for the UCITS under the free provision of services or by the establishment of a branch shall comply with the rules of the management company’s home Member State which relate to the organisation of the management company, including delegation arrangements, risk management procedures, prudential rules and supervision, rules of conduct and the management company’s reporting requirements.

 

Those rules may not be stricter than rules applicable to management companies conducting their activities only in their home Member State.

 

2. The competent authorities of the management company’s home Member State shall be responsible for supervising compliance with paragraph 1, inter alia with a view to ensuring that the management company complies with the rules regarding the constitution and the functioning of all the UCITS it manages.

Justification

Consistency is needed between: 1/ the definition of the management company’s home Member state; 2/ the law applicable to the organization of the management company and 3/ the competent authorities responsible for authorizing the management company and enforcing the rules regarding its organization.

If a problem occurs at the level of the management company, it is likely that all UCITS managed by this management company in the EU will be affected. Only the competent authority of the management company is able to intervene quickly at the level of the management company to solve such a problem and avoid endangering all the concerned UCITS. Therefore, the competent authority of the management company should make sure that, given its organization – including its risk management procedures -, the management company is in a position to comply the rules applicable to all UCITS it manages.

Amendment  14

Proposal for a directive

Article 17 b (new)

Text proposed by the Commission

Amendment

Article 17b

 

1. A management company authorised in a Member State other than the UCITS' home Member State which provides cross-border management services for the UCITS through the free provision of services or by the establishment of a branch shall comply with the rules of the UCITS' home Member State which relate to the constitution and functioning of the UCITS.

 

2. The management company shall comply with the obligations set out in the fund rules and in the prospectus.

 

3. The competent authorities of the UCITS' home Member State shall be responsible for supervising compliance with paragraphs 1 and 2.

Justification

In order to ensure clarity of the nationality of the UCITS and proper supervision, consistency is needed between: 1/ the domicile of the fund; 2/ the law applicable to the constitution and the functioning of the UCITS and 3/ the competent authorities responsible for authorizing the UCITS and enforcing the rules regarding constitution and functioning of the UCITS.

Amendment  15

Proposal for a directive

Article 17 c (new)

Text proposed by the Commission

Amendment

Article 17c

 

1. A management company which applies for approval to manage a UCITS established in another Member State shall provide the competent authorities of the UCITS' home Member State with the following documentation:

 

(a) a report on the risk management process adopted with respect to the specific type of UCITS for which the approval is requested;

 

(b) a written agreement with the depositary which shall ensure the proper flow of information between the management company and the depositary and, hence, allow the depositary to perform the duties assigned to it by this Directive;

 

(c) information on delegation arrangements for operational functions.

 

2. The competent authorities of the UCITS' home Member State shall inform both the management company and the competent authorities of the management company’s home Member State, within one month of the submission of a complete application, whether or not the management company has been approved. Reasons shall be given whenever approval is not granted.

Justification

In order to authorize the UCITS, some information on the management company is needed. It is especially important to confirm that the depositary is in a position to perform its oversight duties.

In order to fulfil the freedom established by the EC Treaty, the assessment of the choice of the management company should be made in a clear timeframe.

Amendment  16

Proposal for a directive

Article 20 – paragraph 2

Text proposed by the Commission

Amendment

2. A depositary shall be an institution which is subject to public control. It shall also furnish sufficient financial and professional guarantees to be able effectively to pursue its business as depositary and meet the commitments inherent in that function.

2. A depositary shall be an institution which is subject to ongoing supervision. It shall also furnish sufficient financial and professional guarantees to be able effectively to pursue its business as depositary and meet the commitments inherent in that function.

Justification

Proper supervision of the depositary should be ensured.

Amendment  17

Proposal for a directive

Article 30 – paragraph 2

Text proposed by the Commission

Amendment

2. A depositary shall be an institution which is subject to public control. It shall also furnish sufficient financial and professional guarantees to be able effectively to pursue its business as depositary and meet the commitments inherent in that function.

2. A depositary shall be an institution which is subject to ongoing supervision. It shall also furnish sufficient financial and professional guarantees to be able effectively to pursue its business as depositary and meet the commitments inherent in that function.

Justification

Proper supervision of the depositary should be ensured.

Amendment  18

Proposal for a directive

Article 34 – introductory part

Text proposed by the Commission

Amendment

This Chapter shall apply in relation to any of the following operations, hereinafter "mergers":

This Chapter shall apply to cross-border mergers as well as domestic mergers when either the merging UCITS or the receiving UCITS has been notified pursuant to Article 88.

 

For the purposes of this Chapter, "mergers" shall mean:

Justification

En application du principe de subsidiarité, la directive devrait s’appliquer 1/ aux fusions transfrontalières mais aussi 2/ aux fusions nationales dont l’impact est transfrontalier. En revanche les fusions purement nationales ne devraient pas être incluses dans le champ d’application de la directive.

Amendment  19

Proposal for a directive

Article 36 – paragraph 2 – point c

Text proposed by the Commission

Amendment

(c) a certificate issued by the depositaries of the merging and the receiving UCITS confirming that they have verified compliance of the common draft terms of merger with this Directive and the fund rules or instruments of incorporation of their respective UCITS and indicating their conclusions in this respect;

(c) a statement by each of the depositaries of the merging and the receiving UCITS confirming that, in accordance with Article 38, they have verified compliance of the common draft terms of merger with the particulars listed in Article 37(1), points (c), (f) and (g) of this Directive and the fund rules or instruments of incorporation of their respective UCITS;

Justification

The scope of the statement delivered by each of the depositary should be precise as certain elements cited in Article 37 paragraph 1 come under the roles and duties of the auditors, and ultimately the management company. Moreover, the roles, duties and responsibilities of auditors are harmonised at a European level trough the Directive 2006/43/CE, unlike depositaries. This amendment proposal aims at avoiding different levels of validation and verification from one Member State to another.

Amendment  20

Proposal for a directive

Article 37 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall require that the management or administrative body of the merging UCITS and of the receiving UCITS draw up common draft terms of merger.

1. Member States shall require that the management or administrative body of the merging UCITS and of the receiving UCITS draw up common draft terms of merger.

The common draft terms of merger shall include the following particulars:

The common draft terms of merger shall include the following particulars:

(a) identification of the type of merger and of the UCITS involved;

(a) identification of the type of merger and of the UCITS involved;

(b) the background to and the rationale for the proposed merger;

(b) the background to and the rationale for the proposed merger;

(c) the expected impact of the proposed merger on the unit-holders of both the merging UCITS and the receiving UCITS;

(c) the expected impact, including the tax treatment, of the proposed merger on the unit-holders of both the merging UCITS and the receiving UCITS;

(d) the criteria adopted for valuation of the assets and, where applicable, the liabilities on the planned effective date of the merger;

(d) the criteria adopted for valuation of the assets and, where applicable, the liabilities on the planned effective date of the merger;

(e) the calculation method of the exchange ratio;

(e) the calculation method of the exchange ratio;

(f) the planned effective date of the merger;

(f) the planned effective date of the merger;

 

(fa) the rules applicable for the transfer of units;

(g) the fund rules or instruments of incorporation of the receiving UCITS.

(g) the fund rules or instruments of incorporation of the receiving UCITS.

 

The particulars listed in points (c), (f) and (g) shall be provided by the depositary, taking into account the provisions of Article 36(2), point (c).

 

The particulars listed in points (d) and (e) shall be provided by the independent auditor, taking into account the provisions of Article 39(1).

 

The particulars listed in points (a), (b) and (g) shall be provided under the responsibility of the management company.

Justification

To guarantee that the development of cross-border mergers is not realised to the detriment of the protection of the investor, the common draft terms must identify all the impacts on the merger for the unit-holders, from a point of view of the conditions of transfer of the units and of the tax impacts to realise the merger under optimal conditions. The role of the actors of the merger should be also precise to ensure the legal certainty of the operation.

Amendment  21

Proposal for a directive

Article 39 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) the calculation method of the exchange ratio.

(b) the calculation method of the exchange ratio and the outcome of that calculation.

Justification

The independent auditor, in addition to the method, must verify the outcome of the exchange ratio calculation in order to avoid the situation of the unit-holders being determined on an erroneous basis.

Amendment  22

Proposal for a directive

Article 40 – paragraph 4

Text proposed by the Commission

Amendment

4. The information to be provided to unit-holders of the merging UCITS and, where applicable, the receiving UCITS, shall include appropriate and accurate information on the proposed merger such as to enable them to take an informed decision on the possible impact thereof on their investment and to exercise their rights under Articles 41 and 42.

4. The information to be provided to unit-holders of the merging UCITS and, where applicable, the receiving UCITS, shall include appropriate and accurate information on the proposed merger such as to enable them to take an informed decision on the possible impact thereof on their investment and to exercise their rights under Articles 41 and 42.

It shall include at least the following:

It shall include the following:

(a) the background to and the rationale of the proposed merger;

(a) the background to and the rationale for the proposed merger;

(b) the possible impact of the proposed merger on unit-holders, including but not limited to any material differences in respect of investment policy and strategy, costs, expected outcome, periodic reporting and possible dilution in performance;

(b) the possible impact of the proposed merger on unit-holders, including but not limited to any material differences in respect of investment policy and strategy, costs, expected outcome, periodic reporting and possible dilution in performance, and tax treatment;

(c) any specific rights unit-holders have in relation to the proposed merger, including but not limited to the right to obtain additional information ; the right to obtain a copy of the report of the independent auditor on request, and the right to request the repurchase or redemption of their units without charge as specified in Article 42;

(c) any specific rights unit-holders have in relation to the proposed merger, including but not limited to the right to obtain additional information, the right to obtain a copy of the report of the independent auditor on request, the right to request the re-purchase or redemption of their units without charge as specified in Article 42 and the deadline for exercising that right;

(d) the relevant procedural aspects and the planned effective date of the merger;

(d) the relevant procedural aspects, including the procedure for the transfer of units, and the planned effective date of the merger;

(e) a copy of the key investor information referred to in Article 73 of the receiving UCITS.

(e) a copy of the key investor information referred to in Article 73 of the receiving UCITS.

Justification

The information transmitted to the unit-holders must also concern the procedure for the transfer of units and the tax impacts (this mainly relates to informing the unit-holder of the change to the tax regime). For example, in France, the unit-holder is taxed on the difference between the purchase price in the merging fund and the selling price in the receiving fund. In Germany the unit-holder is taxed on the capital gain for each security.

Amendment  23

Proposal for a directive

Article 41 – subparagraph 2

Text proposed by the Commission

Amendment

The first paragraph shall be without prejudice to any presence quorum provided for under national laws.

The first paragraph shall be without prejudice to any presence quorum provided for under national law. Member States shall not impose more stringent rules in respect of presence quora for cross-border mergers than for domestic mergers.

Justification

Les Etats membres sont libres d’imposer, ou non, des règles de présence. Toutefois, conformément au principe de non-discrimination, les règles établies pour les fusions transfrontalières ne devraient pas être plus exigeantes que les règles établies pour les fusions nationales.

Amendment  24

Proposal for a directive

Article 53 – paragraph 1

Text proposed by the Commission

Amendment

1. A feeder UCITS is a UCITS which invests, by way of derogation from Article 1(2)(a), Article 45, Article 47, Article 50 and Article 51(2)(c), at least 85 % of its assets in units of another UCITS ("the master UCITS") or an investment compartment thereof.

1. A feeder UCITS is a UCITS or an investment compartment thereof which invests, by way of derogation from Article 1(2)(a), Article 45, Article 47, Article 50 and Article 51(2)(c), at least 85 % of its assets in units of another UCITS or an investment compartment thereof ("the master UCITS").

Justification

Par souci de cohérence avec les autres dispositions de la directive, un fonds nourricier ou un fonds maître devrait pouvoir être, soit un OPCVM, soit un compartiment d’OPCVM.

Amendment  25

Proposal for a directive

Article 53 – paragraph 3 – introductory part

Text proposed by the Commission

Amendment

3. A master UCITS is a UCITS which:

3. A master UCITS is a UCITS or an investment compartment thereof which:

Justification

Par souci de cohérence avec les autres dispositions de la directive, un fonds nourricier ou un fonds maître devrait pouvoir être, soit un OPCVM, soit un compartiment d’OPCVM.

Amendment  26

Proposal for a directive

Article 54 – paragraph 2

Text proposed by the Commission

Amendment

2. If the feeder UCITS already carried on activities as a UCITS, including as a feeder UCITS of a different master UCITS, the feeder UCITS shall be informed within at the latest 15 working days following the submission of a complete file, whether or not the competent authorities approved the feeder UCITS' investment into the master UCITS.

2. If the feeder UCITS already carried on activities as a UCITS, including as a feeder UCITS of a different master UCITS, the feeder UCITS shall be informed within at the latest 15 days following the submission of a complete file, whether or not the competent authorities approved the feeder UCITS' investment into the master UCITS. The competent authorities shall give reasons whenever approval is not granted.

Justification

Comme toute décision administrative de refus, la décision de refuser un investissement dans un fonds maître doit être motivée.

Si le maître et le nourricier sont gérés par la même société de gestion, un accord entre le maître et le nourricier est une condition impossible à réaliser. En revanche, des règles de conduite interne appropriées devraient être mises en place par la société de gestion.

Amendment  27

Proposal for a directive

Article 54 – paragraph 3

Text proposed by the Commission

Amendment

3. In the event that the feeder UCITS and the master UCITS are established in the same Member State, the competent authorities of that Member State shall grant approval if the feeder UCITS, its depositary and its auditor, as well as the master UCITS, comply with all the requirements set out in this Chapter. For such purpose, the feeder UCITS shall provide to the competent authorities of its home Member State the following documents:

3. The competent authorities of the feeder UCITS' home Member State shall grant approval if the feeder UCITS, its depositary and its auditor, as well as the master UCITS, comply with all the requirements set out in this Chapter. For such purpose, the feeder UCITS shall provide to the competent authorities of its home Member State the following documents:

(a) the fund rules or instruments of incorporation of the feeder UCITS and the master UCITS;

(a) the fund rules or instruments of incorporation of the feeder UCITS and the master UCITS;

(b) the prospectus and the key investor information referred to in Article 73 of the feeder UCITS and the master UCITS;

(b) the prospectus and the key investor information referred to in Article 73 of the feeder UCITS and the master UCITS;

(c) the agreement between the feeder UCITS and the master UCITS referred to in Article 55(1);

(c) the agreement between the feeder UCITS and the master UCITS or the internal conduct-of-business rules referred to in Article 55(1);

(d) where applicable, the information to be provided to unit-holders referred to in Article 59(1);

(d) where applicable, the information to be provided to unit-holders referred to in Article 59(1);

(e) a declaration of the master UCITS to the effect that it does not hold any units of a feeder UCITS;

(e) a declaration of the master UCITS to the effect that it does not hold any units of one of its own feeder UCITS;

(f) in the event that the master UCITS and the feeder UCITS have different depositaries, the information-sharing agreement referred to in Article 56(1) between their respective depositaries;

(f) in the event that the master UCITS and the feeder UCITS have different depositaries, the information-sharing agreement referred to in Article 56(1) between their respective depositaries;

(g) in the event that the master UCITS and the feeder UCITS have different auditors, the information-sharing agreement referred to in Article 57(1) between their respective auditors.

(g) in the event that the master UCITS and the feeder UCITS have different auditors, the information-sharing agreement referred to in Article 57(1) between their respective auditors.

Justification

Comme toute décision administrative de refus, la décision de refuser un investissement dans un fonds maître doit être motivée.

Si le maître et le nourricier sont gérés par la même société de gestion, un accord entre le maître et le nourricier est une condition impossible à réaliser. En revanche, des règles de conduite interne appropriées devraient être mises en place par la société de gestion.

Amendment  28

Proposal for a directive

Article 54 – paragraph 4

Text proposed by the Commission

Amendment

4. When the feeder UCITS is established in another Member State than the master UCITS, the competent authorities of the feeder UCITS' home Member State shall grant approval provided the following conditions are met:

4. When the feeder UCITS is established in another Member State than the master UCITS, the competent authorities of the feeder UCITS' home Member State shall immediately inform those of the master UCITS, if the approval is granted or withdrawn.

(a) the feeder UCITS, its depositary and its auditor comply with all the requirements set out in this Chapter and the feeder UCITS for such purpose submits the documents referred to in paragraph 3 of this Article;

 

(b) the feeder UCITS demonstrates that the master UCITS is duly authorised as a UCITS, that it is not itself a feeder UCITS and does not hold any units of a feeder UCITS.

 

The competent authorities of the feeder UCITS' home Member State shall immediately inform those of the master UCITS, if the approval is granted or withdrawn.

 

Justification

Comme toute décision administrative de refus, la décision de refuser un investissement dans un fonds maître doit être motivée.

Si le maître et le nourricier sont gérés par la même société de gestion, un accord entre le maître et le nourricier est une condition impossible à réaliser. En revanche, des règles de conduite interne appropriées devraient être mises en place par la société de gestion.

Amendment  29

Proposal for a directive

Article 55 – paragraph 1 - subparagraphs 1 and 2

Text proposed by the Commission

Amendment

1. Member States shall require the feeder UCITS to enter into an agreement with the master UCITS concerned in order to enable the feeder UCITS to meet the requirements laid down in this Directive.

1. Member States shall require the feeder UCITS to enter into an agreement with the master UCITS which shall include the following information:

Such agreement shall include the following particulars:

 

(a) the main characteristics of the investment objective and policy of the master UCITS;

 

(b) the rules which govern a possible modification of the investment objective and policy of the master UCITS;

(a) the rules which govern a possible modification of the investment objective and policy of the master UCITS;

(c) the rights and duties of the feeder UCITS and of the master UCITS and of their respective management companies.

(b) the rights and duties of the feeder UCITS and of the master UCITS and of their respective management companies.

Justification

Si le maître et le nourricier sont gérés par la même société de gestion, un accord entre le maître et le nourricier est une condition impossible à réaliser. En revanche, des règles de conduite interne appropriées devraient être mises en place par la société de gestion.

Une harmonisation maximale du contenu de l’accord passé entre le maître et le nourricier est nécessaire pour assurer l’égalité de concurrence.

Amendment  30

Proposal for a directive

Article 55 – paragraph 1 – subparagraph 3 a (new)

Text proposed by the Commission

Amendment

3a. In the event that the master and feeder UCITS are managed by the same management or administrative body, the agreement may be replaced by internal conduct-of-business rules ensuring compliance with the requirements set out in this paragraph.

Justification

Si le maître et le nourricier sont gérés par la même société de gestion, un accord entre le maître et le nourricier est une condition impossible à réaliser. En revanche, des règles de conduite interne appropriées devraient être mises en place par la société de gestion.

Une harmonisation maximale du contenu de l’accord passé entre le maître et le nourricier est nécessaire pour assurer l’égalité de concurrence.

Amendment  31

Proposal for a directive

Article 55 – paragraph 6 – point a

Text proposed by the Commission

Amendment

(a) the particulars that need to be included in the agreement referred to in the first subparagraph of paragraph 1;

(a) the content of the agreement or the internal conduct-of-business rules referred to in paragraph 1;

Justification

Si le maître et le nourricier sont gérés par la même société de gestion, un accord entre le maître et le nourricier est une condition impossible à réaliser. En revanche, des règles de conduite interne appropriées devraient être mises en place par la société de gestion.

Une harmonisation maximale du contenu de l’accord passé entre le maître et le nourricier est nécessaire pour assurer l’égalité de concurrence.

Amendment  32

Proposal for a directive

Article 56

Text proposed by the Commission

Amendment

1. Member States shall require that, if the master UCITS and the feeder UCITS have different depositaries, these depositaries enter into an information-sharing agreement in order to ensure the fulfilment of the duties of both depositaries.

1. Member States shall require that, if the master UCITS and the feeder UCITS have different depositaries, the management company of the master UCITS is to be responsible for informing the feeder UCITS or, where applicable, the management company of the feeder UCITS about any irregularities it detects with regard to the master UCITS.

The feeder UCITS shall not invest in units of the master UCITS until such agreement has become effective.

 

2. The depositary of the master UCITS shall immediately inform the feeder UCITS or, where applicable, the management company and the depositary of the feeder UCITS about any irregularities it detects with regard to the master UCITS.

2. The feeder UCITS or, where applicable, the management company of the feeder UCITS, shall be responsible for communicating to the depositary of the feeder UCITS any information about the master UCITS which is required for complete performance of the duties of the depositary of the feeder UCITS.

3. The Commission may adopt implementing measures further specifying the following:

3. The Commission may adopt implementing measures further specifying the following:

(a) the particulars that need to be included in the agreement referred to in paragraph 1 subparagraph 1;

(a) the particulars that need to be included in the information referred to in paragraphs 1 and 2;

(b) the types of irregularities referred to in paragraph 2 which are deemed to have a negative impact on the feeder UCITS.

(b) the types of irregularities referred to in paragraph 1.

Those measures, designed to amend this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 107(2).

Those measures, designed to amend this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 107(2).

Justification

As there is no contractual relations between the depositaries, the Directive should be based on the contractual relationship between the management company and the depositary and should indicate that the management company remains responsible for transmission of information, whereas the depositaries’ responsibilities remain as defined nationally at the time being.


ANNEX: OPINION OF THE CONSULTATIVE WORKING PARTY OF THE LEGAL SERVICES OF THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE COMMISSION

GROUPE CONSULTATIF DES SERVICES JURIDIQUES                               Brussels, 14/11/2008

OPINION

FOR THE ATTENTION OF             THE EUROPEAN PARLIAMENT

THE COUNCIL THE COMMISSION

Proposal for a directive of the European Parliament and of the Council on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) COM(2008) 458 final of 16.7.2008 - 2008/0153 (COD)

Having regard to the Inter-institutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts, and in particular to point 9 thereof, the Consultative Working Party consisting of the respective legal services of the European Parliament, the Council and the Commission met on 4 and 24 September and on 13 November 2008 for the purpose of examining the aforementioned proposal submitted by the Commission.

At those meetings(1), an examination of the proposal for a directive of the European Parliament and of the Council recasting Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) resulted in the Consultative Working Party's establishing, by common accord, as follows.

1) The following parts of text of the recast proposal should have been identified by using the grey-shaded type generally used for marking substantive changes:

- the entire text of recital 5 of Directive 85/611/EEC, having been presented between the texts of recitals 4 and 5 in the recast proposal and having been already marked with double strikethrough;

- in recital 8, which corresponds to recital 5 of Directive 2001/1G7/EC, the final wording "within three years", which has already been marked with double strikethrough;

- in Article 2(5), the reference made to "Article 92 of Directive 2001/34/EC of the European Parliament and of the Council" (the wording of Article la(10), second subparagraph, of Directive 85/611/EEC currently reads "For the purpose of this definition, the voting rights referred to in Article 7 of Directive 88/627/EEC(7) shall be taken into account"; in the recast text that reference was adapted so as to read as a reference made to "Article 92 of Directive 2001/34/EC of the European Parliament and the Council"; Article 92 of Directive 2001/34/EC has been deleted by Article 32(5) of Directive 2004/109/EC of the European Parliament and of the Council. The Legal Service of the European Parliament is of the opinion that the text "Article 92 of Directive 2001/34/EC of the European Parliament and the Council" should have been presented with double strikethrough);

- in Article 21, first paragraph, the words "UCITS home Member" as well as the wording "in which the management company's registered office is situated' (which has already been marked with double strikethrough).

2) In Article 6(1), the expression "UCITS" presented between adaptation arrows before the wording "home Member State" should be removed.

3) In Article I2(l)(b), the expression "UCITS' presented between adaptation arrows before the wording "host Member State" should be removed.

4) In Article 97(5), the existing wording of Article 50(6) of Directive 85/611/EEC should be reintroduced, in slightly adapted form, in the place of the adapted text that appears in the recast proposal. The wording of Article 97(5) should read as follows: "5. Paragraphs 1 and 4 shall not preclude the exchange of information:

(a) within a Member State, where there are two or more competent authorities; or

(b) within a Member State or between Member States, between competent authorities; and

(i) authorities with public responsibility for the supervision of credit institutions, investment undertakings, insurance undertakings arid other financial organisations and the authorities responsible for the supervision of financial markets;

(ii) bodies involved in the liquidation or bankruptcy of UCITS and other similar procedures and of undertakings contributing towards their business activity;

(Hi) persons responsible for carrying out statutory audits of the accounts of insurance undertakings, credit institutions, investment undertakings and other financial institutions,

in the performance of their supervisory functions, or the disclosure to bodies which administer compensation schemes of information necessary for the performance of their functions,

Information exchanged pursuant to the first subparagraph shall be subject to the conditions of professional secrecy imposed in paragraph 1".

5) In the correlation table contained in Annex IV, a correspondence should be indicated between Annex II of Directive 85/611 /EEC and Annex II of the recast text. In consequence, examination of the proposal has enabled the Consultative Working Party to conclude, without dissent, that the proposal does not comprise any substantive amendments other than those identified as such therein or in the present opinion. The Working Party also concluded, as regards the codification of the unchanged provisions of the earlier act with those substantive amendments, that the proposal contains a straightforward codification of the existing text, without any change in its substance.

C. PENNERA                       J.-C. PIRIS                C.-F.DURAND

Jurisconsult                            Jurisconsult                 actg. Director General

PROCEDURE

Title

Coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS)

References

COM(2008)0458 – C6-0287/2008 – 2008/0153(COD)

Committee responsible

ECON

Opinion by

       Date announced in plenary

JURI

2.9.2008

 

 

 

Drafts(wo)man

       Date appointed

Jean-Paul Gauzès

22.9.2008

 

 

Discussed in committee

7.10.2008

 

 

 

Date adopted

17.11.2008

 

 

 

Result of final vote

+:

–:

0:

19

0

0

Members present for the final vote

Carlo Casini, Bert Doorn, Monica Frassoni, Giuseppe Gargani, Lidia Joanna Geringer de Oedenberg, Neena Gill, Othmar Karas, Klaus-Heiner Lehne, Antonio Masip Hidalgo, Manuel Medina Ortega, Aloyzas Sakalas, Diana Wallis, Rainer Wieland, Jaroslav Zvěřina, Tadeusz Zwiefka

Substitute(s) present for the final vote

Jean-Paul Gauzès, József Szájer, Jacques Toubon, Ieke van den Burg

(1)

The Consultative Working Party had at its disposal the English, French and German language versions of the proposal and worked on the basis of the English version, being the master-copy language version of the text under discussion.


PROCEDURE

Title

Coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS)

References

COM(2008)0458 – C6-0287/2008 – 2008/0153(COD)

Date submitted to Parliament

16.7.2008

Committee responsible

       Date announced in plenary

ECON

2.9.2008

Committee(s) asked for opinion(s)

       Date announced in plenary

JURI

2.9.2008

 

 

 

Rapporteur(s)

       Date appointed

Wolf Klinz

22.4.2008

 

 

Discussed in committee

22.9.2008

7.10.2008

1.12.2008

 

Date adopted

2.12.2008

 

 

 

Result of final vote

+:

–:

0:

31

1

2

Members present for the final vote

Mariela Velichkova Baeva, Paolo Bartolozzi, Zsolt László Becsey, Sebastian Valentin Bodu, Sharon Bowles, Udo Bullmann, David Casa, Christian Ehler, Jonathan Evans, José Manuel García-Margallo y Marfil, Jean-Paul Gauzès, Robert Goebbels, Donata Gottardi, Louis Grech, Benoît Hamon, Gunnar Hökmark, Karsten Friedrich Hoppenstedt, Sophia in ‘t Veld, Wolf Klinz, Andrea Losco, Astrid Lulling, Gay Mitchell, Sirpa Pietikäinen, John Purvis, Peter Skinner, Margarita Starkevičiūtė, Ivo Strejček, Cornelis Visser, Sahra Wagenknecht

Substitute(s) present for the final vote

Daniel Dăianu, Harald Ettl, Alain Lipietz

Substitute(s) under Rule 178(2) present for the final vote

Proinsias De Rossa, Ingo Friedrich

Last updated: 18 December 2008Legal notice