Rapport om gjennomføring av AIFMD i norsk rett - Finanstilsynet

EN
L 174/14 Official Journal of the European Union 1.7.2011
in the context of this Directive, including, inter alia – in
accordance with Regulation (EU) No 1095/2010 –
entrusting ESMA with further supervisory responsibilities
in the field of authorisation and supervision of non-EU
AIFMs. In this context the Commission should assess the
costs and benefits of entrusting ESMA with such tasks.
(92) This Directive aims at establishing a framework capable
of addressing the potential risks which might arise from
the activities of AIFMs and ensuring the effective monitoring
of those risks by the competent authorities within
the Union. It is necessary to provide for a stringent
regulatory and supervisory framework which leaves no
gaps in financial regulation. In that regard reference is
made to the existing due diligence requirements
applicable to professional investors pursuant to the
relevant regulation applicable to such investors. The
Commission is invited to review the relevant legislation
with respect to professional investors in order to assess
the need for tighter requirements regarding the due
diligence process to be undertaken by Union professional
investors investing on their own initiative in non-EU
financial products, such as non-EU AIFs.
(93) At the end of its review, the Commission should present
a report to the European Parliament and the Council
including, if appropriate, proposed amendments taking
into account the objectives of this Directive and
potential impacts on investors, AIFs or AIFMs, in the
Union and in third countries.
(94) Since the objective of this Directive, namely to ensure a
high level of investor protection by laying down a
common framework for the authorisation and supervision
of AIFMs, cannot be sufficiently achieved by the
Member States, as evidenced by the deficiencies of
existing nationally based regulation and oversight of
those actors, and can therefore 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 Directive does not go beyond
what is necessary in order to achieve that objective.
(95) Directives 2003/41/EC and 2009/65/EC, Regulation (EC)
No 1060/2009 of the European Parliament and of the
Council of 16 September 2009 on credit rating
agencies ( 1 ) and Regulation (EU) No 1095/2010 should
therefore be amended accordingly,
( 1 ) OJ L 302, 17.11.2009, p. 1.
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter
This Directive lays down the rules for the authorisation,
ongoing operation and transparency of the managers of alternative
investment funds (AIFMs) which manage and/or market
alternative investment funds (AIFs) in the Union.
Article 2
Scope
1. Subject to paragraph 3 of this Article and to Article 3, this
Directive shall apply to:
(a) EU AIFMs which manage one or more AIFs irrespective of
whether such AIFs are EU AIFs or non-EU AIFs;
(b) non-EU AIFMs which manage one or more EU AIFs; and
(c) non-EU AIFMs which market one or more AIFs in the
Union irrespective of whether such AIFs are EU AIFs or
non-EU AIFs.
2. For the purposes of paragraph 1, the following shall be of
no significance:
(a) whether the AIF belongs to the open-ended or closed-ended
type;
(b) whether the AIF is constituted under the law of contract,
under trust law, under statute, or has any other legal form;
(c) the legal structure of the AIFM.
3. This Directive shall not apply to the following entities:
(a) holding companies;
(b) institutions for occupational retirement provision which are
covered by Directive 2003/41/EC, including, where
applicable, the authorised entities responsible for
managing such institutions and acting on their behalf
referred to in Article 2(1) of that Directive or the investment
managers appointed pursuant to Article 19(1) of that
Directive, in so far as they do not manage AIFs;
(c) supranational institutions, such as the European Central
Bank, the European Investment Bank, the European
Investment Fund, the European Development Finance Institutions
and bilateral development banks, the World Bank,
the International Monetary Fund, and other supranational
institutions and similar international organisations, in the
event that such institutions or organisations manage AIFs
and in so far as those AIFs act in the public interest;
(d) national central banks;