9. Miscellaneous
AIFMD II - The Council position - Miscellaneous
The Council position clarifies the use of the terms shares and shareholders with additional references to units and unitholders, as the European Parliament draft report does.
The Council position refers to the term liquidity management tools, not liquidity management instruments, as the European Parliament draft report does.
The notification obligations of the regulatory authorities concerning their cooperation obligation are also developed in the Council Proposal with the same approach as the European Parliament draft report, particularly regarding the notification of the ESRB if there are potential risks to the stability and integrity of the financial system.
All information exchanged under the AIFMD between ESMA, national regulatory authorities, the EBA, EIOPA and the European Systemic Risk Board is no longer considered confidential if the information disclosed is used in a summary or in an aggregate form in which individual financial market participants cannot be identified. This change relating to the confidentiality of some information is the same as that included in the Commission proposal and the European Parliament draft report.
The disclosure of derogations to the European Commission is broadened by the Council position with the derogation or option of articles 15.3 (risk management by loan-originating AIFs) and 15.4aa (leverage of a loan-originating AIF) included in the list of derogations to be disclosed to the Commission. Member states may choose to include derogations relating to these two articles when they transpose AIFMD II into national law. The European Commission will make information relating to these derogations public. Neither the Commission proposal nor the European Parliament Draft Report modifies the disclosure of derogations to the European Commission.
Access the European Council position of June 2022 here.
AIFMD II - European Parliament draft report - Miscellaneous
Clarification of the use of the terms shares and shareholders with additional references to units and unitholders. Use of the term liquidity management tools in appendix V, rather than liquidity management instruments.
ESMA should follow a risk-based approach in carrying out its functions under the AIFMD. Neither the Commission proposal nor the Council position includes such a provision.
All information exchanged under the AIFMD between ESMA, NCAs, EBA, EIOPA, and the ESRB is not considered confidential anymore where the information disclosed is used in a summary or in an aggregate form in which individual financial market participants cannot be identified. This change relating to the confidentiality of some information is the same as the one inserted in the Commission proposal.
The regulatory authorities of the home member state of an AIFM shall notify the regulatory authorities of the host member state of the AIFM and ESMA before exercising the new powers relating to the activation or deactivation of an LMT by AIFMs, in particular, non-EU AIFMs that are marketing in the Union AIFs that they manage or EU AIFMs managing non-EU AIFs. The regulatory authorities of the host member state of the AIFM may request the competent authority of the home member state of the AIFM to exercise such powers specifying the reasons for the request and notifying ESMA. The ESRB should also be notified by the regulatory authorities of the host member state of the AIFM provided that there is a potential risk to the stability and integrity of the financial system. The difference with the Commission proposal is that the ESRB should be notified only if there is a potential risk to the stability and integrity of the financial system. The draft RTS to be developed by ESMA shall recognise the primary responsibility of the AIFM for liquidity risk management and the fact that intervention by the regulatory authorities is a last resort.
Access the draft report of 16 May 2022 from the European Parliament here.
AIFMD II - European Commission proposed directive, November 2021 - Miscellaneous
The threshold for the regulatory authorities of one member state to notify ESMA and the authorities of the home and host member states of an AIFM suspected of carrying out acts contrary to the AIFMD is lowered to reasonable grounds, but still restricted to acts committed by an AIFM, as discussed above in the Depositaries section.
All information exchanged under the AIFMD between ESMA, national regulatory authorities, the EBA, EIOPA and the European Systemic Risk Board is no longer considered confidential if the information disclosed is used in a summary or in an aggregate form in which individual financial market participants cannot be identified.
Use of the term liquidity management instruments in appendix V, rather than liquidity management tools.
The regulatory authorities of an AIFM’s home member state shall notify the authorities of the host member state of the AIFM, ESMA and the ESRB before exercising powers relating to the activation or deactivation of an LMT by AIFMs, in particular, non-EU AIFMs that are marketing AIFs that they manage in the EU, or EU AIFMs managing non-EU AIFs. The regulatory authorities of of the AIFM may request the competent authority of the home member state of the AIFM to exercise such powers specifying the reasons for the request and notifying ESMA and the ESRB thereof. The Commission proposal includes a procedure regarding the process to be followed with such notifications, under which ESMA would draw up draft RTS indicating the situations and processes relating to such notification.
You can access a copy of the directive proposed by the European Commission here.
