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REPORT     ***I
PDF 623kWORD 78k
6 December 2018
PE 627.812v02-00 A8-0431/2018

on the proposal for a regulation of the European Parliament and of the Council on facilitating cross-border distribution of collective investment funds and amending Regulations (EU) No 345/2013 and (EU) No 346/2013

(COM(2018)0110 – C8-0110/2018 – 2018/0045(COD))

Committee on Economic and Monetary Affairs

Rapporteur: Wolf Klinz

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 PROCEDURE – COMMITTEE RESPONSIBLE
 FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a regulation of the European Parliament and of the Council on facilitating cross-border distribution of collective investment funds and amending Regulations (EU) No 345/2013 and (EU) No 346/2013

(COM(2018)0110 – C8-0110/2018 – 2018/0045(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2018)0110),

–  having regard to Article 294(2) and Article 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8-0110/2018),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the opinion of the European Economic and Social Committee of 11 July 2018(1),

–  having regard to Rule 59 of its Rules of Procedure,

–  having regard to the report of the Committee on Economic and Monetary Affairs (A8-0431/2018),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

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

Amendment    1

AMENDMENTS BY THE EUROPEAN PARLIAMENT(2)*

to the Commission proposal

---------------------------------------------------------

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on facilitating cross-border distribution of collective investment undertakings and amending Regulations (EU) No 345/2013 and (EU) No 346/2013

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Central Bank,

Having regard to the opinion of the European Economic and Social Committee,(3)

Acting in accordance with the ordinary legislative procedure,

Whereas:

(1)  Divergent regulatory and supervisory approaches concerning the cross-border distribution of alternative investment funds (AIFs), as defined in point (a) of Article 4(1) of Directive 2011/61/EU of the European Parliament and of the Council(4), including European Venture Capital Funds (EuVECA), as defined in Regulation (EU) No 345/2013, European Social Entrepreneurship Funds (EuSEF), as defined in Regulation (EU) No 346/2013 and European Long-Term Investment Funds (ELTIF), as defined in Regulation (EU) No 2015/760 and undertakings for collective investment in transferable securities (UCITS), within the meaning of Directive 2009/65/EC of the European Parliament and of the Council(5), result in fragmentation and barriers to cross-border marketing and access of AIFs and UCITS, which in turn could prevent them from being marketed in other Member States.

(2)  In order to enhance the regulatory framework applicable to collective investment undertakings and to better protect investors, marketing communications to investors in AIFs and UCITS should be identifiable as such, and should present a detailed account of risks and rewards of purchasing units or shares of an AIF or UCITS in an equally prominent manner. In addition, all information included in marketing communications should be presented in a manner that is fair, clear and not misleading. To safeguard investors’ protection and secure a level playing field between AIFs and UCITS, the standards for marketing communications should therefore equally apply to marketing communications for AIFs and UCITS.

(2 a)  In order to increase transparency and investor protection and to facilitate access to information on national laws, regulations and administrative provisions applicable to marketing communications, national competent authorities should publish such information on their websites in at least a language customary in the sphere of international finance, including their non-official summaries which would allow managers of collective investment undertakings to get a first indication of those requirements. The publication should only be for information purposes and should not create legal obligations. For the same reasons, the European Supervisory Authority (European Securities and Markets Authority) (ESMA) should create a central database containing hyperlinks to the information published on the websites of competent authorities.

(2 b)  In order to promote good practices of investor protection which are enshrined in the national requirements for fair and clear marketing communications, including their on-line aspects, it should be possible for ESMA to adopt draft regulatory technical standards on the application of those rules to marketing communications.

(3)  Competent authorities may decide to require prior notification of marketing communications for the purpose of ex-ante verification of compliance of those communications with this Regulation and other applicable requirements, such as whether the marketing communications are identifiable as such, whether they present a detailed account of risks and rewards of purchasing units or shares of a UCITS and, where a Member State allows marketing of AIFs to retail investors, of an AIF in an equally prominent manner and whether all information in marketing communications is presented in a manner that is fair, clear and not misleading. That verification should be performed within a limited timeframe. Where competent authorities require prior notification, this should not prevent them from verifying marketing communications ex-post.

(4)   ▌

(5)  To ensure equality in treatment and facilitate decision-making of AIFMs and UCITS management companies whether to engage in cross border distribution of investment funds, it is important that fees and charges levied by competent authorities for ▌supervision of cross-border marketing activities referred to in Directives 2009/65/EC and 2011/61/EU are proportionate to the supervisory tasks carried out and publicly disclosed, and that in order to enhance transparency those fees and charges are published on their websites. For the same reason, hyperlinks to the information published on the websites of competent authorities in relation to the fees and charges should be published at the ESMA website in order to have a central point for information. The ESMA website should also include an interactive tool enabling indicative calculations of those fees and charges levied by competent authorities.

(5 a)  To ensure better recovery of fees or charges and to increase transparency and clarity of the fees and charges structure, where such fees or charges are levied by the competent authorities, AIFMs and UCITS management companies should receive an invoice, an individual payment statement or a payment instruction clearly setting out the amount of fees or charges due and the arrangements for payment.

(6)  Since ESMA, in accordance with Regulation (EU) No 1095/2010 of the European Parliament and of the Council(6), should monitor and assess market developments in the area of its competence, it is appropriate and necessary to enhance the knowledge of ESMA by enlarging ESMA’s currently existing databases to include all AIFMs and UCITS management , the Member States in which they are providing services and all AIFs and UCITS which those AIFMs and UCITS management companies manage and market, as well as all the Member States in which those collective investment undertakings are marketed. For that purpose, in order to enable ESMA to maintain the central database with up-to-date information, competent authorities should transmit to ESMA information on the notifications, notification letters and information that they have received under Directives 2009/65/EC and 2011/61/EU in relation to cross border activity as well as information about any change which should be reflected in the database. All transfers of documents in relation to notifications between competent authorities should take place through a notification portal to be established by ESMA.

(7)  In order to secure a level playing field between qualifying venture capital funds as defined in Article 3(b) of Regulation (EU) No 345/2013 of the European Parliament and of the Council, or qualifying social entrepreneurship funds as defined in Article 3(b) of Regulation (EU) No 346/2013 of the European Parliament and of the Council, on the one hand, and other AIFs, on the other hand, it is necessary to include into those Regulations rules on pre-marketing that are identical to the rules laid down in Directive 2011/61/EU on pre-marketing. Those rules should enable managers registered in accordance with those Regulations to target investors by testing their appetite for upcoming investment opportunities or strategies through qualifying venture capital funds and qualifying social entrepreneurship funds.

(8)  The Commission should be empowered to adopt draft regulatory technical standards, developed by ESMA, with regard to the specification of information on marketing communications, fees or charges or, where applicable, relevant calculation methodologies for those fees or charges, levied by the competent authorities. Furthermore, the Commission should be empowered to adopt draft regulatory technical standards, developed by ESMA, with regard to the specification of information to be notified in notifications, notification letters and written notices on cross-border activities that are required by Directives 2009/65/EC and 2011/61/EU. The Commission should adopt those draft regulatory technical standards by means of delegated acts pursuant to Article 290 TFEU and in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.

(9)  The Commission should be empowered to adopt implementing technical standards, developed by ESMA, with regard to the standard forms, templates and procedures for publication by competent authorities of the laws, regulations and administrative provisions and their summaries on marketing requirements applicable in their territories, the levels of fees or charges for cross-border marketing activity levied by them, and, where applicable, relevant calculation methodologies. Furthermore, to improve the transmission to ESMA, implementing technical standards should also cover notifications, notification letters and information on cross-border activities that are required by Directives 2009/65/EC and 2011/61/EU. The Commission should adopt those implementing technical standards by means of implementing acts pursuant to Article 291 TFEU and in accordance with Article 15 of Regulation (EU) No 1095/2010.

(10)  It is necessary to specify the information to be communicated every quarter to ESMA, in order to keep the databases of all managers and collective investment undertakings up-to-date.

(11)  Any processing of personal data carried out within the framework of this Regulation, such as the exchange or transmission of personal data by the competent authorities, should be undertaken in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council, and any exchange or transmission of information by ESMA should be undertaken in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council.

(11 a)  In order to enable the national competent authorities to exercise the functions attributed to them in this Regulation, Member States should vest them with sufficient resources and all the necessary supervisory and investigative powers.

(12)  Five years after the entry into force of this Regulation, the Commission should conduct an evaluation of the application of this Regulation. The evaluation should take account of market developments and assess whether the measures introduced have improved the cross-border distribution of investment funds.

(12 a)  In order to assess the phenomenon of reverse solicitation and demand on the own initiative of an investor, as well as the potential to use them to circumvent provisions connected to the passport, including by third country entities, the Commission should publish a report on these issues two years after the entry into force of this Regulation.

(13)  In order to ensure legal certainty, it is necessary to synchronise the application dates of laws, regulations and administrative provisions implementing [Directive amending Directive 2009/65/EC and Directive 2011/61/EU with regard to cross-border distribution of collective investment funds] and of this Regulation with regard to provisions on marketing communications and pre-marketing.

(14)  Since the objectives of this Regulation, namely to enhance market efficiency while establishing the Capital Markets Union, cannot be sufficiently achieved by the Member States but can rather, by reason of its effects, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives,

HAVE ADOPTED THIS REGULATION:

Article 1

Definitions

For the purposes of this Regulation, the following definitions apply:

(a)  ‘AIF’ means an AIF as defined in Article 4(1)(a) of Directive 2011/61/EU, including EuVECA, EuSEF and ELTIF;

(b)  ‘AIFM’ means an AIFM as authorised in accordance with Article 6 of Directive 2011/61/EU;

(ba)  ‘EuVECA manager’ means a manager of a qualifying venture capital fund registered in accordance with Article 14 of Regulation (EU) No 345/2013;

(bb)  ‘EuSEF manager’ means a manager of a qualifying social entrepreneurship fund registered in accordance with Article 15 of Regulation (EU) No 346/2013;

(c)  ‘competent authority’ means a competent authority as defined in Article 2(1)(h) of Directive 2009/65/EC or a competent authority as defined in Article 4(1)(f) of Directive 2011/61/EU or Article 4(1)(h) of Directive 2011/61/EU;

(d)  ‘home Member State’ means the Member State in which the AIFM or the UCITS management company has its registered office;

(e)  ‘UCITS’ means a UCITS authorised in accordance with Article 5 of Directive 2009/65/EC;

(f)  ‘UCITS management company’ means a management company as defined in Article 2(1)(b) of Directive 2009/65/EC or a self-managed UCITS.

Article 2

Requirements for marketing communications

1.  AIFMs, EuVECA managers, EuSEF managers and UCITS management companies shall ensure that all marketing communications to investors shall be identifiable as such, present a detailed account of risks and rewards of purchasing units or shares of an AIF or of an UCITS in an equally prominent manner and that all information included in marketing communications is fair, clear and not misleading.

2.  UCITS management companies shall ensure that no marketing communication that contains specific information about a UCITS contradicts or diminishes the significance of the information ▌contained in the prospectus referred to in Article 68 of Directive 2009/65/EC and the key investor information referred to in Article 78 of that Directive. UCITS management companies shall ensure that all marketing communications indicate that a prospectus exists and that the key investor information is available. The marketing communication shall specify where, how and in which language investors or potential investors can obtain the prospectus and the key investor information and shall provide hyperlinks to those documents.

2a.  Marketing communications referred to in paragraph 2 shall also specify where, how and in which language investors or potential investors can obtain a summary of investor rights and shall provide a hyperlink to such a summary, which shall include, as appropriate, access to Union level and national collective redress mechanisms in the event of litigation.

3.  AIFMs, EuVECA managers and EuSEF managers shall ensure that no marketing communication comprising an invitation to purchase units or shares of an AIF that contains specific information about an AIF makes any statement that contradicts the information that needs to be disclosed to the investors in accordance with Article 23 of Directive 2011/61/EU, or, respectively, with Article 13 of Regulation 345/2013 or with Article 14 of Regulation 346/2013, or diminishes its significance.

4.  Paragraph 2 of this Article shall apply mutatis mutandis to AIFs which publish a prospectus in accordance with Regulation 2017/1129 of the European Parliament and the Council,(7) or in accordance with national law, or apply rules on the format and content of the key investor information referred to in Article 78 of Directive 2009/65/EC.

5.  ▌ ESMA shall develop draft regulatory technical standards to specify the requirements for marketing communications referred to in the first paragraph, taking into account on-line aspects of marketing communications.

ESMA shall submit those draft regulatory technical standards to the Commission by … [PO: Please insert date 18 months after the date of entry into force of this amending Regulation].

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

Article 3

Publication of national provisions concerning marketing requirements

1.  Competent authorities shall publish and maintain up-to-date on their websites complete information on the applicable national laws, regulations and administrative provisions governing marketing requirements for AIFs and UCITS, and the summaries thereof, in at least a language customary in the sphere of international finance.

2.  Competent authorities shall notify to ESMA ▌the hyperlinks to the websites of competent authorities where the information referred to in paragraph 1 is published.

Competent authorities shall notify to ESMA any change in the information provided under the first subparagraph of this paragraph without undue delay.

3.  ESMA shall develop draft implementing technical standards to determine standard forms, templates and procedures for the publications and notifications under this Article.

ESMA shall submit those draft implementing standards to the Commission by [PO: Please insert date 18 months after the date of entry into force of this amending Regulation].

Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.

4.  By ... [PO: Please insert date 42 months after the date of entry into force of this amending Regulation] ESMA shall examine in a report the marketing requirements referred to in paragraph 1 and inform the European Parliament, the Council and the Commission thereof. ESMA shall update that report every two years.

Article 4

ESMA central database on national provisions concerning marketing requirements

By ... [PO: Please insert date 24 months after the date of entry into force of this amending Regulation], ESMA shall publish and maintain on its website a central database containing ▌the hyperlinks to the websites of competent authorities referred to in Article 3(2).

Article 5

Ex-ante verification of marketing communications

1.  For the sole purpose of verifying compliance with this Regulation and with national provisions concerning marketing requirements, competent authorities may require prior notification of marketing communications which the ▌management companies intend to use directly or indirectly in their dealings with investors.

The requirement for prior notification referred to in the first subparagraph shall not constitute a prior condition for the marketing of units of UCITS and shall not be part of the notification procedure referred to in Article 93 of Directive 2009/65/EC.

In cases where competent authorities require prior notification of marketing communications referred to in the first subparagraph for the purpose of ex-ante verification, they shall, within 10 working days, starting on the working day following that of the receipt of marketing communications, inform the UCITS management company of any request to amend its marketing communications.

The prior notification referred to in the first subparagraph may be required on a systematic basis or in accordance with any other verification practices and is without prejudice to further supervisory powers to verify marketing communications ex-post.

2.  Competent authorities that require prior notification of marketing communications shall establish, apply, and publish on their websites, procedures for the prior notification of marketing communications. The internal rules and procedures shall ensure transparent and non-discriminatory treatment of all UCITS, regardless of the Member States in which the UCITS are authorised.

3.  Where ▌AIFMs, EuVECA managers or EuSEF managers market to retail investors units or shares of ▌their AIFs, paragraphs 1 and 2 ▌shall apply mutatis mutandis to those AIFMs, EuVECA managers or EuSEF managers.

4.  Competent authorities ▌shall, by 31 March of every second year starting from ... [PO: Please insert date 24 months after the date of entry into force of this amending Regulation], report the following information to ESMA:

(a)  the ▌number of requests for amendments of marketing communications made on the basis of ex-ante verification, where applicable;

(b)  the number of requests for amendments and decisions taken on the basis of ex-post checks, clearly distinguishing the most frequent breaches, including a description and the nature of those breaches;

(ba)  a description of the most frequent breaches of the requirements referred to in Article 2;

(c)  one concrete example for each of the breaches referred to in point (a).

Article 6

Common principles concerning fees or charges

1.  Fees or charges levied by a competent authority in carrying out its duties in relation to the cross-border activity of AIFMs, EuVECA managers, EuSEF managers and UCITS management companies shall be consistent with the actual costs incurred by the competent authority for carrying out its functions with respect to these duties.

2.  Competent authorities shall send an invoice, an individual payment statement or a payment instruction to the address indicated in [second subparagraph of Article 93(1) of Directive 2009/65/EC or point (I) of Annex IV of Directive 2011/61/EU]. The invoice shall indicate the fees or charges referred to in paragraph 1, the means of payment and the date when payment is due.

Article 7

Publication of national provisions concerning fees and charges

1.  By ... [PO: Please insert date 6 months after the date of entry into force of this amending Regulation], competent authorities shall publish and maintain up-to-date information on their websites ▌listing the fees or charges referred to in Article 6(1), or, where applicable, the calculation methodologies for those fees or charges, in at least a language customary in the sphere of international finance.

2.  Competent authorities shall notify to ESMA the hyperlinks to the websites of competent authorities where the information referred to in paragraph 1 is published.

Competent authorities shall notify to ESMA any change in the information provided under the first subparagraph without undue delay.

3.  ESMA shall develop draft regulatory technical standards to specify the information to be notified to ESMA by the competent authorities under this Article.

ESMA shall submit those draft regulatory technical standards to the Commission by ...[PO: Please insert date 12 months after the date of entry into force of this amending Regulation].

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

4.  ESMA shall develop draft implementing technical standards to determine the standard forms, templates and procedures for the notifications under this Article.

ESMA shall submit those draft implementing standards to the Commission by ... [PO: Please insert date 18 months after the date of entry into force of this amending Regulation].

Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.

Article 8

ESMA ▌database on fees and charges

In order to enhance the transparency of fees and charges by ... [PO: Please insert date 30 months after the date of entry into force of this amending Regulation] ESMA shall publish and maintain on its website a database, publicly accessible in at least a language customary in the sphere of international finance, listing hyperlinks to the websites of the competent authorities referred to in Article 7(2).

By ... [PO: Please insert date 30 months after the date of entry into force of this amending Regulation], ESMA shall develop and make available on its website an interactive tool publicly accessible in at least a language customary in the sphere of international finance that provides an indicative calculation of the fees and charges referred to in Article 6(1)▌. That tool shall be kept up to date.

Article 10

ESMA central database on cross-border marketing of AIFs and UCITS

By ... [PO: Please insert date 24 months after the date of entry into force of this amending Regulation], ESMA shall publish on its website a central database for the cross-border marketing of AIFs and UCITS, publicly accessible in a language customary in the sphere of international finance, listing:

(a)   all AIFs that are marketed in another Member State, their AIFMs, EUSEF manager or EUVECA manager, and a list of Member States in which they are marketed; and

(b)  all UCITS that are marketed in another Member State, their UCITS management companies, AIFs and UCITS which those AIFMs and UCITS management company and a list of the Member States in which they are marketed.

That central database shall be kept up to date.

The information contained in the database referred to in the first paragraph shall be without prejudice to the list referred to in the second subparagraph of Article 6(1) of Directive 2009/65/EC, the central public register referred to in the second subparagraph of Article 7(5) of Directive 2011/61/EU, the central database referred to in Article 17 of Regulation (EU) No 345/2013 and the central database referred to in Article 18 of Regulation (EU) No 346/2013.

Article 11

Standardisation of notifications to ESMA

1.  In order to facilitate the exchange of information between ESMA and competent authorities, ESMA shall establish a system for the regular exchange of information relevant to cross-border marketing activities of AIFMs and UCITS management companies.

Competent authorities shall notify ESMA of changes relating to cross-border marketing activities and communicate to ESMA, on a quarterly basis, the information which is necessary for the creation and maintenance of the central database referred to in Article 10 of this Regulation regarding any notification, ▌notification letter ▌or ▌information referred to in ▌Article 93(1), Article 93a(2) of Directive 2009/65/EC and in Article 31(2), ▌Article 32(2), Article 32a(2) and ▌of Directive 2011/61/EU, and any changes to that information, if such changes would result in a change to the information in that central database.

2.  ESMA shall establish a notification portal into which each competent authority shall upload all documents referred to in paragraph 1 and through which all transfers of such documents between competent authorities shall take place.

3.  ESMA shall develop draft regulatory technical standards to specify the technical arrangements necessary for the functioning of the notification portal referred to in paragraph 2.

ESMA shall submit those draft regulatory technical standards to the Commission by [PO: Please insert date 18 months after the date of entry into force of this amending Regulation].

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

Article 11 a

Powers of competent authorities

1.  Competent authorities shall have all supervisory and investigatory powers that are necessary for the exercise of their functions pursuant to this Regulation.

2.  The powers conferred on competent authorities in accordance with Directive 2009/65/EC, Directive 2011/61/EU, Regulation (EU) No 345/2013 and Regulation (EU) No 346/2013, Regulation (EU) 2015/760 including those related to penalties, shall also be exercised with respect to the managers referred to in Article 2 of this Regulation.

Article 12

Amendments to Regulation (EU) No 345/2013 on European venture capital funds

Regulation (EU) No 345/2013 is amended as follows:

(1)  in Article 3, the following point (o) is added:

‘(o)  ‘pre-marketing’ means a direct or indirect provision of information or communication on investment strategies or investment ideas by the manager of a qualifying venture capital fund, or on its behalf, to potential investors domiciled or with a registered office in the Union in order to test their interest in a not yet registered qualifying venture capital fund or in a qualifying venture capital fund which is established, but not yet notified for marketing in accordance with Article 15, in that Member State where the potential investors are domiciled or have their registered office, and which in each case does not amount to an offer or placement to the investor to invest in the units or shares of that qualifying venture capital fund’;

(2)  the following Article 4a is inserted:

‘Article 4a

1. Managers of qualifying venture capital funds may engage in pre-marketing in the Union, excluding where the information presented to potential investors:

(c)  enables investors to commit to acquiring units or shares of particular qualifying venture capital funds;

(d)  amounts to the final form of a prospectus, constitutional documents or offering documents of not yet registered qualifying venture capital funds, or amounts to subscription forms or similar documents whether in a draft or a final form allowing investors to invest in the units or shares of a qualifying venture capital fund. For already established qualifying venture capital funds, the final form of a prospectus may be provided.

Where a draft prospectus or offering document as referred to in point (d) of the first subparagraph is provided, such documents shall clearly state that the document does not constitute an offer or an invitation to subscribe to units or shares of a qualifying venture capital fund.

2. Managers of qualifying venture capital funds shall send a simple, informal letter in paper form or by electronic means before it engages in pre-marketing activities, stating the Member State or Member States in which it will engage in those activities, to the competent authorities of its home Member State with a copy to the competent authorities of the Member State or Member States in which it will engage in pre-marketing activities.

Competent authorities shall not require managers of qualifying venture capital funds to notify the content or the addressees of the pre-marketing.

3. Managers of qualifying venture capital funds shall ensure that investors do not acquire units or shares in a qualifying venture capital fund through pre-marketing activities and that investors contacted as part of pre-marketing may only acquire units or shares in that qualifying venture capital fund under marketing permitted under Article 14, 14a or 15.

Subscription by investors that were subject to pre-marketing, within 18 months of the managers of qualifying venture capital funds becoming engaged in pre-marketing, to units or shares of qualifying venture capital funds referred to in the information provided in the context of pre-marketing activities by the manager of qualifying venture capital funds or on its behalf, or of a qualifying venture capital fund registered as a result of those pre-marketing activities, shall be considered the result of marketing and shall be subject to the applicable notification and shall comply, where applicable, with Articles 14, 14a and 15.

3a. Member States shall ensure that a manager of qualifying venture capital funds makes appropriate arrangements such that information relating to its pre-marketing activities is available, and provided upon request, to the competent authorities of its home Member State and to the competent authorities of those Member States in which it has engaged in pre-marketing activities. A manager of qualifying venture capital funds shall ensure that its pre-marketing activities are adequately documented, including references to the Member States and the periods of time during which the pre-marketing activities took place, as well as a brief description of those activities, including the information on the investment strategies presented and, where relevant, a list of the qualifying venture capital funds presented.

3b. A third party shall only engage in activities referred to in paragraph 1 in a host Member State on behalf of a registered manager of qualifying venture capital funds where it is authorised as an investment firm in accordance with Directive 2014/65/EU, as a credit institution in accordance with Directive 2013/36/EU, as a UCITS management company in accordance with Directive 2009/65/EC, as an alternative investment fund manager in accordance with Directive 2011/61/EU, or acts as a tied agent.

Article 13

Amendments to Regulation (EU) No 346/2013 on European social entrepreneurship funds

Regulation (EU) No 346/2013 is amended as follows:

(1)  in Article 3, the following point (o) is added:

‘(o)  ‘pre-marketing’ means a direct or indirect provision of information or communication on investment strategies or investment ideas by the manager of a qualifying social entrepreneurship fund, or on its behalf, to potential investors domiciled or with a registered office in the Union in order to test their interest in a not yet registered qualifying social entrepreneurship fund or in a qualifying social entrepreneurhip fund which is established, but not yet notified for marketing in accordance with Article 16, in that Member State where the potential investors are domiciled or have their registered office, and which in each case does not amount to an offer or placement to the investor to invest in the units or shares of that qualifying social entrepreneurship fund’;

(2)  the following Article 4a is inserted:

‘Article 4a

1. Managers of qualifying social entrepreneurship funds may engage in pre-marketing in the Union, excluding where the information presented to potential investors:

(c)  enables investors to commit to acquiring units or shares of particular qualifying social entrepreneurship funds;

(d)  amounts to the final form of a prospectus, constitutional documents or offering documents of not yet registered qualifying social entrepreneurship funds, or amounts to subscription forms or similar documents whether in a draft or a final form allowing investors to invest in the units or shares of a qualifying social entrepreneurship fund. For already established qualifying social entrepreneurship funds, the final form of a prospectus may be provided.

Where a draft prospectus or offering document as referred to in point (d) of the first subparagraph is provided, such documents shall clearly state that the document does not constitute an offer or an invitation to subscribe to units or shares of a qualifying social entrepreneurship fund.

2. Managers of qualifying social entrepreneurship funds shall send a simple, informal letter in paper form or by electronic means before it engages in pre-marketing activities, stating the Member State or Member States in which it will engage in those activities, to the competent authorities of its home Member State with a copy to the competent authorities of the Member State or Member States in which it will engage in pre-marketing activities.

Competent authorities shall not require managers of qualifying social entrepreneurship funds to notify the content or the addressees of the pre-marketing.

3. Managers of qualifying social entrepreneurship funds shall ensure that investors do not acquire units or shares in a qualifying social entrepreneurship fund through pre-marketing activities and that investors contacted as part of pre-marketing may only acquire units or shares in that qualifying social entrepreneurship fund under marketing permitted under Article 15, 15a or 16.

Subscription by investors that were subject to pre-marketing, within 18 months of the managers of qualifying social entrepreneurship funds engaged in pre-marketing, to units or shares of qualifying social entrepreneurship funds referred to in the information provided in the context of pre-marketing activities by the manager of qualifying social entrepreneurship funds or on its behalf, or of a qualifying social entrepreneurship fund registered as a result of those pre-marketing activities shall be considered the result of marketing and shall be subject to the applicable notification and shall comply, where applicable, with Articles 15, 15a and 16.

3a. Member States shall ensure that the manager of qualifying social entrepreneurship funds makes appropriate arrangements such that information relating to its pre-marketing activities is available, and provided upon request, to the competent authorities of its home Member State and to the competent authorities of the Member States in which it has engaged in pre-marketing activities. A manager of qualifying social entrepreneurship funds shall ensure that its pre-marketing activities are adequately documented, including references to the Member States, the periods of time in which the pre-marketing activities took place, as well as a brief summary description of those activities, including the information on the investment strategies presented and, where relevant, a list of the qualifying social entrepreneurship funds presented.

3b. A third party shall only engage in activities referred to in paragraph 1 in a host Member State on behalf of a registered manager of qualifying social entrepreneurship funds where it is authorised as an investment firm in accordance with Directive 2014/65/EU, as a credit institution in accordance with Directive 2013/36/EU, as a UCITS management company in accordance with Directive 2009/65/EC, as an alternative investment fund manager in accordance with Directive 2011/61/EU, or acts as a tied agent.

Article 13a

Amendment to Regulation (EU) No 1286/2014 on key information documents for packaged retail and insurance-based investment products (PRIIPs)

Regulation (EU) No 1286/2014 is amended as follows:

(1)  in Article 32(1), “31 December 2019” is replaced by “31 December 2021”;

(2)  in Article 33(1), “31 December 2018” is replaced by “31 December 2019”;

(3)  in Article 33(2), “31 December 2018” is replaced by “31 December 2019”;

(4)  in Article 33(4), “31 December 2018” is replaced by “31 December 2019”.

Article 14

Evaluation

By ... [PO: Please insert date 60 months after the date of entry into force of this amending Regulation] the Commission shall, on the basis of a public consultation and in light of discussions with ESMA and competent authorities, conduct an evaluation of the application of this Regulation.

By ... [PO: Please insert date 24 months after the date of entry into force of this amending Regulation] the Commission shall, on the basis of a consultation of competent authorities, ESMA and other relevant stakeholders, submit a report to the European Parliament and to the Council on the phenomenon of reverse solicitation and demand on the own initiative of an investor, specifying the extent of this form of subscriptions to funds, its geographical distribution, including third countries, and its potential to be used to circumvent provisions connected to the passport.

Article 15

Entry into force

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

It shall apply from [PO: Please insert the twentieth day following that of its publication in the Official Journal of the European Union], except for paragraphs 1 and 4 of Article 2, paragraph 1 and 2 of Article 3, Article 12 and Article 13, which shall apply from ... [PO: Please insert date 24 months after the date of entry into force of this amending Regulation].

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament  For the Council

The President  The President

(1)

  OJ C 367, 10.10.2018, p. 50.

(2)

* Amendments: new or amended text is highlighted in bold italics; deletions are indicated by the symbol ▌.

(3)

  OJ C 367, 10.10.2018, p. 50.

(4)

  Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (OJ L 174, 1.7.2011, p. 1).

(5)

  Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009, p. 32).

(6)

  Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).

(7)

  Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC (OJ L 168, 30.6.2017, p. 12).


PROCEDURE – COMMITTEE RESPONSIBLE

Title

Facilitating cross-border distribution of collective investment funds

References

COM(2018)0110 – C8-0110/2018 – 2018/0045(COD)

Date submitted to Parliament

7.3.2018

 

 

 

Committee responsible

       Date announced in plenary

ECON

16.4.2018

 

 

 

Committees asked for opinions

       Date announced in plenary

BUDG

16.4.2018

JURI

16.4.2018

 

 

Not delivering opinions

       Date of decision

BUDG

21.3.2018

JURI

27.3.2018

 

 

Rapporteurs

       Date appointed

Wolf Klinz

31.5.2018

 

 

 

Discussed in committee

8.10.2018

19.11.2018

 

 

Date adopted

3.12.2018

 

 

 

Result of final vote

+:

–:

0:

34

0

5

Members present for the final vote

Pervenche Berès, Esther de Lange, Markus Ferber, Jonás Fernández, Roberto Gualtieri, Brian Hayes, Petr Ježek, Wolf Klinz, Georgios Kyrtsos, Philippe Lamberts, Werner Langen, Bernd Lucke, Olle Ludvigsson, Ivana Maletić, Marisa Matias, Gabriel Mato, Alex Mayer, Bernard Monot, Luděk Niedermayer, Ralph Packet, Sirpa Pietikäinen, Anne Sander, Martin Schirdewan, Molly Scott Cato, Pedro Silva Pereira, Peter Simon, Paul Tang, Marco Valli, Miguel Viegas, Jakob von Weizsäcker

Substitutes present for the final vote

Enrique Calvet Chambon, Mady Delvaux, Syed Kamall, Alain Lamassoure, Luigi Morgano, Michel Reimon, Lieve Wierinck

Substitutes under Rule 200(2) present for the final vote

Barbara Lochbihler, Jarosław Wałęsa

Date tabled

6.12.2018


FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

34

+

ALDE

Enrique Calvet Chambon, Petr Ježek, Wolf Klinz, Lieve Wierinck

ECR

Syed Kamall, Bernd Lucke, Ralph Packet

PPE

Markus Ferber, Brian Hayes, Georgios Kyrtsos, Alain Lamassoure, Esther de Lange, Werner Langen, Ivana Maletić, Gabriel Mato, Luděk Niedermayer, Sirpa Pietikäinen, Anne Sander, Jarosław Wałęsa

S&D

Pervenche Berès, Mady Delvaux, Jonás Fernández, Roberto Gualtieri, Olle Ludvigsson, Alex Mayer, Luigi Morgano, Pedro Silva Pereira, Peter Simon, Paul Tang, Jakob von Weizsäcker

VERTS/ALE

Philippe Lamberts, Barbara Lochbihler, Michel Reimon, Molly Scott Cato

0

-

 

 

5

0

EFDD

Bernard Monot, Marco Valli

GUE/NGL

Marisa Matias, Martin Schirdewan, Miguel Viegas

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention

Last updated: 7 December 2018Legal notice