Commission Delegated Regulation (EU) 2015/514 of 18 December 2014 on the information to be provided by competent authorities to the European Securities and Markets Authority pursuant to Article 67(3) of Directive 2011/61/EU of the European Parliament and of the Council (Text with EEA relevance)
Competent authorities shall pursuant to Article 67(3) of Directive 2011/61/EU provide the following information to the European Securities and Markets Authority (ESMA):
(a)
information concerning the functioning of the EU passport for EU alternative investment fund managers (AIFMs) managing and/or marketing EU alternative investment funds (AIFs), as set out in Articles 2 to 7;
(b)
information concerning the functioning of the marketing of non-EU AIFs by EU AIFMs in the Member States and the management and/or marketing of AIFs by non-EU AIFMs in the Member States in accordance with the applicable national regimes, as set out in Articles 8 to 13;
(c)
information concerning the impact of the functioning of the systems referred to in points (a) and (b) of this paragraph, as set out in Article 14.
With regard to the use made of the passport, the competent authorities shall provide the following information:
(a)
the number of EU AIFMs authorised in accordance with Article 7 of Directive 2011/61/EU;
(b)
the number of EU AIFMs that market units or shares of EU AIFs pursuant to Article 32 of Directive 2011/61/EU, the number of EU AIFs and compartments of AIFs marketed pursuant to Article 32 of Directive 2011/61/EU, and the breakdown by home and host Member State;
(c)
the number of EU AIFMs that manage EU AIFs pursuant to Article 33 of Directive 2011/61/EU, the number of EU AIFs managed pursuant to Article 33 of Directive 2011/61/EU and the breakdown by home and host Member State;
(d)
the number of EU AIFMs that manage EU AIFs established in other Member States pursuant to Article 33 of Directive 2011/61/EU by establishing a branch and the number of EU AIFM that manage directly EU AIFs established in other Member States pursuant to Article 33 of Directive 2011/61/EU.
With regard to problems encountered regarding effective cooperation among competent authorities, competent authorities shall provide the following information:
(a)
the number of cases in which a competent authority has notified to the competent authority of the home Member State of an AIFM a situation as described in Article 45(5) of Directive 2011/61/EU, indicating the type of situation;
(b)
the number of cases in which a competent authority, after being notified as described in Article 45(5) of Directive 2011/61/EU by the competent authority of the host Member State, has taken the measures set out in Article 45(5) of that Directive, indicating the type of measures taken;
(c)
the number of cases in which a competent authority, after notifying the competent authority of the home Member State of an AIFM of a situation as described in Article 45(5) of Directive 2011/61/EU, has taken the measures set out in Article 45(6) of that Directive, indicating the type of measures taken;
(d)
the number of cases in which a competent authority has notified to the competent authority of the home Member State of an AIFM a situation as described in Article 45(7) of Directive 2011/61/EU, indicating the type of situations;
(e)
the number of cases in which a competent authority, after being notified as described in Article 45(7) of Directive 2011/61/EU by the competent authority of the host Member State, has taken measures in accordance with Article 45(7) of that Directive, indicating the type of measures taken;
(f)
the number of cases in which a competent authority, after notifying the competent authority of the home Member State of an AIFM of a situation as described in Article 45(7) of Directive 2011/61/EU, has taken the measures set out in Article 45(8) of that Directive, indicating the type of measures taken;
(g)
the number of notifications sent and of notifications received under Article 50(5) of Directive 2011/61/EU, indicating the actions taken as a consequence of the notification;
(h)
as regards the requests for assistance issued by the competent authority:
—
the number and type of requests,
—
the number of requests rejected and the reasons for rejection,
—
the degree of satisfaction with the assistance received and the difficulties encountered,
—
the average time for receiving a response;
(i)
as regards the requests for assistance received by the competent authority from competent authorities in other Member States:
—
the number and type of requests,
—
the number of requests rejected and the reasons for rejection,
—
the average time for issuing a response;
(j)
the number of on-the-spot verifications or investigations that the competent authority has undertaken in another Member State in accordance with Article 54(1) of Directive 2011/61/EU and the number of requests for on-the-spot verifications or investigations in another Member State that were refused.
With regard to problems encountered regarding the effective functioning of the notification system provided for in Articles 32 and 33 of Directive 2011/61/EU, competent authorities shall provide the following information:
(a)
the average time between the receipt of the complete notification file from an AIFM and the moment when the recipient competent authority notifies the competent authority of the host Member State;
(b)
the average time for notification to the AIFM that it can undertake cross-border activities by the competent authority of its home Member State, calculated from the date of the transmission of the notification file to the competent authority of the host Member State;
(c)
the number of requests for clarification from the competent authority of the host country in relation to the notification;
(d)
the number of disputes involving the competent authorities of the home and of the host Member State in relation to the notification process.
With regard to issues of investor protection in relation to AIFs marketed or managed from another Member State as well as AIFs marketed under Article 43 of Directive 2011/61/EU, competent authorities shall provide the following information:
(a)
the number and type of complaints by investors addressed to the competent authority in relation to AIFs marketed or managed by an AIFM established in another Member State, the reasons invoked and how such complaints were solved;
(b)
evidence as to the lack of clarity amongst investors as regards the distribution of supervisory tasks between the competent authorities of the home and the host country;
(c)
any issues related to the functioning of the arrangements made by the AIFM for the marketing of AIFs and the arrangements established to prevent units or shares of the AIF from being marketed to retail investors, as required under point (h) of Annex IV of Directive 2011/61/EU.
With regard to mediation by ESMA, competent authorities shall provide information on the degree of satisfaction with the mediation by ESMA on matters concerning the functioning of the passport for EU AIFMs managing and/or marketing EU AIFs.
With regard to the effectiveness of the collection and sharing of information in relation to the monitoring of systemic risks, competent authorities shall provide the following information:
(a)
the number of occasions where the competent authority has received information from another competent authority in relation to monitoring of systemic risk, distinguishing:
—
recurring information made available in accordance with the first sentence of Article 25(2) of Directive 2011/61/EU,
—
bilateral information on important sources of counterparty risk transmitted in accordance with the second sentence of Article 25(2) of Directive 2011/61/EU,
—
ad-hoc information bilaterally shared in accordance with Article 53 of Directive 2011/61/EU;
(b)
the number of occasions where the competent authority has shared information with another competent authority in relation to the monitoring of systemic risk, distinguishing:
—
information reported regularly in accordance with Article 25 of Directive 2011/61/EU,
—
ad-hoc information shared bilaterally in accordance with Article 53 of Directive 2011/61/EU.
With regard to the marketing of non-EU AIFs by EU AIFMs in accordance with Article 36(1) of Directive 2011/61/EU, competent authorities shall provide the following information:
(a)
the legal provisions under which such marketing is allowed, including a description of specific conditions applicable;
(b)
the number of EU AIFMs authorised by the competent authority to market non-EU AIFs in its jurisdiction in accordance with Article 36 of Directive 2011/61/EU and the number of non-EU AIFs marketed;
(c)
the number of requests for information addressed by the competent authority to EU AIFMs in relation to the marketing of non-EU AIFs;
(d)
enforcement or supervisory actions or sanctions imposed on EU AIFMs in relation to the marketing of non-EU AIFs.
With regard to the marketing of AIFs by non-EU AIFMs in accordance with Article 42(1) of Directive 2011/61/EU, competent authorities shall provide the following information:
(a)
the legal provisions under which such marketing is allowed, including a description of the specific conditions applicable;
(b)
the number of non-EU AIFMs that market AIFs in the jurisdiction of the competent authority in accordance with Article 42(1) of Directive 2011/61/EU and the number of AIFs marketed;
(c)
the number of requests for information addressed by the competent authority to non-EU AIFMs in relation to the marketing of AIFs pursuant to Article 42(1) of Directive 2011/61/EU;
(d)
enforcement or supervisory actions or sanctions imposed by the competent authority on non-EU AIFMs in relation to the obligations laid down in Articles 22, 23, 24 and 26 to 30 of Directive 2011/61/EU.
With regard to the management of EU AIFs by non-EU AIFMs in accordance with applicable national regimes, competent authorities shall provide the following information:
(a)
the legal provisions under which such management is allowed, including a description of the specific conditions applicable;
(b)
the number of non-EU AIFMs that manage EU AIFs in the jurisdiction of the competent authority and the number of EU AIFs managed;
(c)
the number of requests for information addressed by the competent authority to non-EU AIFMs in relation to the management of EU AIFs.
With regard to the existence and effectiveness of cooperation arrangements for the purpose of systemic risk oversight between the competent authority of a Member State and the supervisory authority of the non-EU country, competent authorities shall provide the following information:
(a)
the existence of bilateral cooperation arrangements between the competent authority and supervisory authorities in third countries other than those negotiated and agreed under the auspices of ESMA and the third countries concerned;
(b)
as regards requests for information or assistance submitted by the competent authority to authorities of a third country in accordance with cooperation arrangements:
—
the number and type of requests,
—
the number of requests rejected and the reasons for rejection,
—
the degree of satisfaction with the assistance received, including difficulties encountered,
—
the average time for receiving a response;
(c)
the number of on-site visits that the competent authority has requested the supervisory authority of a third country to perform on its behalf, in accordance with cooperation arrangements, as well as the number of requests for on-site visits that were refused;
(d)
the number of occasions where, in accordance with cooperation arrangements, unsolicited information was received from the supervisory authority of a third country about:
—
any known material event that could adversely impact a supervised entity,
—
enforcement or regulatory actions or sanctions, including the revocation, suspension or modification of relevant licenses or registration, concerning or related to non-EU AIFMs that market or manage AIFs in the jurisdiction of the competent authority;
(e)
the number of occasions when the competent authority has shared with other competent authorities information received from third country supervisory authorities for the purpose of monitoring systemic risk, in accordance with cooperation arrangements.
With regard to issues of investor protection in relation to marketing and management under the applicable national regimes, competent authorities shall provide the following information:
(a)
the number and type of complaints addressed to the competent authority from investors in relation to AIFs marketed in that jurisdiction under the applicable national regime;
(b)
enforcement or regulatory actions or sanctions imposed by the competent authority, including the revocation, suspension or modification of relevant licenses or registration, concerning or related to non-EU AIFMs that market or manage AIFs in that jurisdiction, or non-EU AIFs marketed in that jurisdiction by EU AIFMs.
With regard to the features of the third country regulatory and supervisory framework that might prevent the effective exercise by the competent authority of its supervisory functions, competent authorities shall provide the following information:
(a)
problems or obstacles in the application of the regulatory and supervisory framework that the competent authority has faced when exercising supervisory functions on non-EU AIFMs or non-EU AIFs;
(b)
problems in obtaining information directly from non-EU AIFMs.
With regard to the impact of the functioning of the systems referred to in points (a) and (b) of Article 1, competent authorities shall provide the following information:
(a)
evidence showing that AIFMs that were established in their jurisdiction have moved to third countries, specifying the aggregate figures for the number of AIFs and assets under management per third country and the reasons for such move;
(b)
detailed information on any identified or expected market disruption or distortion of competition between EU and non-EU collective investment undertakings, as well as EU and non-EU managers of collective investment undertakings;
(c)
evidence showing that EU managers of collective investment undertakings authorised in their jurisdiction have encountered difficulties or limitations in establishing themselves or marketing collective investment undertakings they manage in any third country, specifying the third country;
(d)
evidence showing existing difficulties or limitations in third countries that have the effect of deterring EU managers of collective investment undertakings authorised in their jurisdiction from deciding to establish themselves or market collective investment undertakings they manage in any third country, specifying the third country;
(e)
information indicating any other general or specific difficulty which EU managers of collective investment undertakings encounter in establishing themselves or marketing collective investment undertakings they manage in third countries, specifying the third country.
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
