Rapport om gjennomføring av AIFMD i norsk rett - Finanstilsynet

EN
1.7.2011 Official Journal of the European Union L 174/9
confidence. Member States should, however, be able to
authorise the employees’ representatives and anyone
assisting them to pass on confidential information to
employees and to third parties bound by an obligation
of confidentiality. Member States should provide that the
relevant AIFMs do not request the communication of
information by the board of directors to the employees’
representatives or, where there are none, the employees
themselves, when the nature of that information is such
that, according to objective criteria, it would seriously
harm the functioning of the company concerned or
would be prejudicial to it. The notification and disclosure
requirements and the specific safeguards against asset
stripping should also apply without prejudice to any
stricter rules adopted by Member States.
(59) This Directive also lays down the conditions subject to
which EU AIFMs may market the units or shares of EU
AIFs to professional investors in the Union. Such
marketing by EU AIFMs should be allowed only in so
far as the AIFM complies with this Directive and the
marketing occurs with a passport, without prejudice to
the marketing of AIFs by AIFMs falling below the
thresholds provided for in this Directive. It should be
possible for Member States to allow marketing of AIFs
by AIFMs falling below those thresholds subject to
national provisions.
(60) It should be possible for units or shares of an AIF to be
listed on a regulated market in the Union, or offered or
placed by third parties acting on behalf of the AIFM, in a
particular Member State only if the AIFM which manages
the AIF is itself permitted to market the units or shares
of the AIF in that Member State. In addition, other
national and Union law, such as Directive 2003/71/EC
of the European Parliament and of the Council of
4 November 2003 on the prospectus to be published
when securities are offered to the public or admitted to
trading ( 1 ) and Directive 2004/39/EC, may also regulate
the distribution of AIFs to investors in the Union.
(61) Many EU AIFMs currently manage non-EU AIFs. It is
appropriate to allow authorised EU AIFMs to manage
non-EU AIFs without marketing them in the Union
without imposing on them the strict depositary
requirements and the requirements relating to the
annual report provided for in this Directive, as those
requirements have been included for the protection of
Union investors.
(62) After the entry into force of a delegated act adopted by
the Commission in this regard, which will, in principle,
taking into account the advice provided by ESMA, occur
( 1 ) OJ L 345, 31.12.2003, p. 64.
2 years after the deadline for transposition of this
Directive, authorised EU AIFMs intending to market
non-EU AIFs to professional investors in their home
Member State and/or in other Member States should be
allowed to do so with a passport in so far as they
comply with this Directive. That right should be subject
to notification procedures and conditions in relation to
the third country of the non-EU AIF.
(63) During a transitional period, which will, in principle,
taking into account ESMA’s advice, be brought to an
end by means of a delegated act 3 years after the establishment
of the passport for non-EU AIFMs, EU AIFMs
intending to market non-EU AIFs in certain Member
States, but without a passport, should also be permitted
to do so by the relevant Member States, but only in so
far as they comply with this Directive with the exception
of the depositary requirements. Such EU AIFMs should,
however, ensure that one or more entities are appointed
to carry out the duties of the depositary. In addition,
appropriate cooperation arrangements for the purpose
of systemic risk oversight and in line with international
standards should be in place between the competent
authorities of the home Member State of the AIFM and
the supervisory authorities of the third country where the
non-EU AIF is established in order to ensure an efficient
exchange of information that allows the competent
authorities of the home Member State of the AIFM to
carry out their duties in accordance with this Directive.
The cooperation arrangements should not be used as a
barrier to impede non-EU AIFs from being marketed in a
Member State. Further, the third country where the non-
EU AIF is established should not be listed as a Non-
Cooperative Country and Territory by the Financial
Action Task Force on anti-money laundering and
terrorist financing (FATF).
(64) After the entry into force of a delegated act adopted by
the Commission in that regard, which will, in principle,
taking into account advice given by ESMA, occur 2 years
after the deadline for transposition of this Directive, a
basic principle of this Directive should be that a non-
EU AIFM is to benefit from the rights conferred under
this Directive, such as to market units or shares of AIFs
throughout the Union with a passport, subject to its
compliance with this Directive. This should ensure a
level playing field between EU and non-EU AIFMs. This
Directive therefore provides for an authorisation
applicable to non-EU AIFMs which will become
applicable after the entry into force of the delegated act
adopted by the Commission in this regard. To ensure
that such compliance is enforced, the competent
authorities of a Member State should enforce compliance
with this Directive. For such non-EU AIFMs the
competent supervisory authorities should be the
competent authorities of the Member State of reference,
as defined in this Directive.