### this section shall not apply where the issuer or the non - listed company concerned are small and medium enterprises that employ fewer than 250 persons , have an annual turnover not exceeding 50 million euro and / or an annual balance sheet not exceeding 43 million euro . ### this section shall not apply where the non - listed companies concerned are either special purpose vehicles or small and medium enterprises . for the purposes of this section , spv means companies which , in accordance with their articles of association and the national law applicable , are entitled to acquire , hold or sell only assets or interests in other spv , which in accordance with the aif rules or instruments of incorporation and national law may be acquired , held or sold directly for or by the aif ; small and medium enterprises means companies which , according to their last annual or consolidated accounts , meet at least two of the following criteria : an average number of employees in the union during the financial year of fewer than 250 persons ; a total balance sheet not exceeding eur 43 million ; an annual net turnover not exceeding eur 50 million .


### home member states shall ensure that all information received under article 24 , aggregated in respect of all aifm that it supervises , are made available to other competent authorities through the procedure set out in article 46 on supervisory cooperation . it shall , without delay , also provide information through this mechanism , and bilaterally to other member states directly concerned , if an aifm under its responsibility could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institution in other member states . ### the competent authorities of the home member states shall ensure that all information gathered under article 21 , aggregated in respect of all aifm that they supervise , is made available to the competent authorities of other member states , to the esma and to the esrb through the procedure set out in article 46 on supervisory co - operation . they shall , without delay , also provide information through this mechanism , and bilaterally to the competent authorities of other member states directly concerned , if an aifm under their responsibility , or the aif managed by that aifm , could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institution in those other member states .


### depositary for each aif it manages , the aifm shall ensure that a depositary is appointed to fulfil , where relevant , the following tasks : receive all payments made by investors when subscribing units or shares of an aif managed by the aifm and book them on behalf of the aifm in a segregated account ; safe - keep any financial instruments which belong to the aif ; verify whether the aif or the aifm on behalf of the aif has obtained the ownership of all other assets the aif invests in . 2 . an aifm shall not act as depositary . the depositary shall act independently and solely in the interest of aif investors . 3 . the depositary shall be a credit institution having its registered office in the community and be authorised in accordance with directive 2006 / 48 / ec of the european parliament and council of 14 june 2006 relating to the taking up and pursuit of the business of credit institutions . 4 . depositaries may delegate their tasks to other depositaries . 5 . the depositary shall be liable to the aifm and the investors of the aif for any losses suffered by them as a result of its failure to perform its obligations pursuant to this directive . in case of any loss of financial instruments which the depositary safe - keeps , the depositary can only discharge itself of its liability if it can prove that it could not have avoided the loss which has occurred . liability to aif investors may be invoked either directly or indirectly through the aifm , depending on the legal nature of the relationship between the depositary , the aifm and the investors . the depositary ' s liability shall not be affected by any delegation referred to in paragraph 4 . ### depositary for each aif it manages , the aifm shall ensure that a depositary is appointed to fulfil , where relevant , the following functions : receive all payments made by investors when subscribing units or shares of an aif managed by the aifm and book them on behalf of the aifm in a segregated account ; safe - keep any financial instruments which belong to the aif , namely : hold in custody all financial instruments that can be kept and make adequate arrangements so as to safeguard the aif ' s ownership rights , especially in the event of the depositary ' s insolvency , including arrangements to ensure that those financial instruments are registered in the depositary ' s books within segregated accounts or a common segregated account for multiple aif , so that in the event of the depositary ' s default they can be clearly identified as separate from the assets of the depositary ; maintain the records to verify the ownership of financial instruments that cannot be kept on the basis of the information provided by the aifm and external evidence of transactions made . verify whether the aif or the aifm on behalf of the aif has obtained the ownership of all other assets the aif invests in . 1a . in addition to the functions referred to in paragraph 1 , the depositary shall ensure that : the sale , issue , re - purchase , redemption and cancellation of shares or units of the aif are carried out in accordance with the applicable national law and the aif rules or instruments of incorporation ; the value of the shares or units of the aif is calculated in accordance with the applicable national law and the aif rules or instruments of incorporation ; in transactions involving the assets of an aif , any consideration is remitted to it within the usual time limits ; and an aif ' s income is applied in accordance with the applicable national law and the aif rules . 2 . an aifm shall not act as depositary . the depositary shall act honestly , fairly , professionally , independently and in the interest of aif investors . 3 . the depositary shall be either : a credit institution having its registered office in the community and be authorised in accordance with directive 2006 / 48 / ec , or an investment firm authorised in accordance with directive 2004 / 39 / ce . 3a . where an aif managed by an authorised aifm is domiciled in a third country , the depositary shall have its registered office in the union , unless all of the following conditions are satisfied : the competent authorities of the home member state of the aifm and those of the third country where the aif is domiciled have signed cooperation and exchange of information agreements ; the law of the third country where the aif is domiciled is in line with the standards set by international organisations ; the third country where the aif is domiciled is the subject of a decision taken pursuant to point stating that depositaries domiciled in that country are subject to effective prudential regulation and supervision which is equivalent to the provisions laid down in union law ; the third country where the aif is domiciled is the subject of a decision taken pursuant to point stating that the standards to prevent money laundering and terrorist financing are equivalent to those laid down in union law ; the home member state of the aifm has signed an agreement with the third country where the aif is domiciled which fully complies with the standards laid down in article 26 of the oecd model tax convention and ensures an effective exchange of information in tax matters . 4 . depositaries may delegate their tasks apart from functions of monitoring and oversight over their sub - depositaries . a depositary shall not delegate its functions to the extent that it becomes a letter - box entity . such a delegation of liability shall only occur in one instance . there shall be no chain of liability . 4a . depositaries shall respect best practices and shall exercise all due skill , care and diligence in the selection and appointment , periodic review and ongoing monitoring of their performance of any third party to whom they have delegated their tasks as referred to in this paragraph . 5 . the depositary shall be liable to the aifm and the investors of the aif for any losses suffered by them as a result of its intentional or negligent failure to perform its obligations pursuant to this directive or its improper performance of them except where such loss arises as a result of force majeure . in case of any loss of financial instruments which the depositary safe - keeps , the depositary can only discharge itself of its liability if it can prove that the loss has been caused by an external event , that it was not foreseeable and that the depositary could not have avoided the loss which has occurred . the depositary ' s liability towards aifm and investors shall not be affected by the fact that it has chosen to undertake a single delegation to an authorised third party , such as a sub - depositary or a sub - custodian , a part of its tasks . therefore , in the event of any loss of financial instruments which the depositary safe - keeps , as a primary obligation , without prejudice to national law , the depositary shall return the assets to the aif without undue delay . that requirement shall apply without prejudice to any legal proceedings . liability to aif investors may be invoked directly or indirectly through the aifm . 5a . by way of exception to paragraph 5 , where a depositary is legally prevented by the law of the country where the aifm invests on behalf of the aif or is unable to exercise its custodial functions due to an unforeseeable external event , the depositary can discharge itself of its own liability , including for loss of financial instruments , if it can prove that it has performed its due diligence duties as referred to in paragraph 4a . such delegation of liability can only occur in one instance . there shall be no chain of liability . 5b . by way of exception to paragraph 5 , where the contract between the depositary and a prime broker or a sub - custodian allows for the transfer and reuse of assets in compliance with the aif ' s rules , the depositary may discharge itself of its own liability if it can prove that it has performed its due diligence duties as referred to in paragraph 4a . the contract between the aifm and the depositary shall require that the aifm be informed of any contractual term allowing the transfer and reuse of assets in compliance with the aif ' s rules before the implementation of the contract . before they invest in the aif , investors shall be informed of that clause and updated about the identity of the third party . in particular , investors shall be informed of any transfer of liability to the third party that may exist , including in the event of loss of financial instruments . in that case , the delay for restitution shall be in accordance with the terms of the contract between the depositary and the third party . 5c . the depositary shall make available on request to the competent authorities of its home member state all information which it has obtained while undertaking its duties and that may be necessary for the competent authorities to supervise the aifm . if the home member state of the aifm is different from that of the depositary , the competent authorities of the home member state of the depositary shall share the information received without delay with the competent authorities of the home member state of the aifm . 5d . the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts further specifying the duties and responsibilities of depositaries and the conditions under which an aif depositary may delegate some of its functions to a third party . 5e . any appointment of a depositary shall be subject to approval from the competent authority of the home member state of the aifm . the competent authority may permit the appointment of more than one depositary where it is satisfied that this will not interfere with the proper performance of all the obligations of the depositary set out in this directive .


### the scope of this directive should be confined to the management of collective investment undertakings which raise capital from a number of investors with a view to investing it in accordance with a defined investment policy on the principle of risk - spreading for the benefit of those investors . this directive should not apply to the management of pension funds or managers of non - pooled investments such as endowments , sovereign wealth funds or assets hold on own account by credit institutions , insurance or reinsurance undertakings . this directive should neither apply to actively managed investments in the form of securities , such as certificates , managed futures , or index - linked bonds . it should , however , cover managers of all collective investment undertakings which are not required to be authorised as ucits . investment firms authorised under directive 2004 / 39 / ec on markets in financial instruments should not be required to obtain an authorisation under this directive in order to provide investment services in respect of aif . investment firms can however only provide investment services in respect of aif , if and to the extent the units or shares thereof can be marketed in accordance with this directive . ### the scope of this directive should be confined to the management of collective investment undertakings which raise capital from a number of investors with a view to investing it in accordance with a defined investment policy for the benefit of those investors . this directive should not apply to managers of non - pooled investments such as endowments , sovereign wealth funds to the management of portfolios of investments in accordance with mandates given by investors on a discretionary , client - by - client basis or to any other form of individual portfolio management , or to the management of assets held on own account by credit institutions , insurance or reinsurance undertakings . the exemptions provided for in this directive should be applicable in so far as aifm comply with the conditions to which those exemptions are subject on a continuous basis . this directive should , furthermore , not apply to the management of pension funds or institutions which manage funds supporting social security and public pension systems , or to securitisation vehicles . this directive should also not apply to the management of collective investment undertakings which are authorised in accordance with national law and only marketed in their home member state . this directive should , however , cover managers of all collective investment undertakings which are not required to be authorised as ucits . investment firms authorised under directive 2004 / 39 / ec on markets in financial instruments should not be required to obtain an authorisation under this directive in order to provide investment services in respect of aif . investment firms can however only provide investment services in respect of aif , if and to the extent the units or shares thereof can be marketed in accordance with this directive .


### an aifm may only market shares or units of an aif domiciled in a third country to professional investors domiciled in a member state , if the third country has signed an agreement with this member state which fully complies with the standards laid down in article 26 of the oecd model tax convention and ensures an effective exchange of information in tax matters . ### an aifm may only market shares or units of an aif domiciled in a third country to professional investors domiciled in a member state if the third country is included on the oecd list of jurisdictions which have substantially implemented the internationally agreed tax standard .


### aifm shall , before implementation , notify the competent authorities of the home member state of any change regarding the information provided in their initial application that may substantially affect the conditions under which the authorisation has been granted , in particular changes of the investment strategy and policy of any aif managed by it , of the aif rules or instruments of incorporation and the identity of any further aif the aifm intends to manage . the competent authorities shall , within a month of receipt of that notification , either approve , or impose restrictions , or reject those changes . ### aifm shall , before implementation , notify the competent authorities of the home member state of any material changes to the conditions for initial authorisation or registration , in particular changes in the programme of activity of the aifm or the investment strategy and policy of any aif managed by it . the aifm shall inform the competent authority of any change concerning the persons effectively conducting the business of the aifm . the competent authorities shall , within a month of receipt of that notification , approve , impose restrictions or reject those changes . the competent authorities shall , where duly justified , reject changes regarding the investment strategy and policy of an aif or changes regarding rules or instruments of incorporation if those have been agreed upon by the investors .


### the depositary shall be liable to the aifm and the investors of the aif for any losses suffered by them as a result of its failure to perform its obligations pursuant to this directive . ### the depositary shall be liable to the aif or the investors of the aif collectively for losses suffered by them as a result of its unjustifiable failure to perform or of its improper performance of its obligations pursuant to paragraphs 1 , 2 , 4 and 4a .


### ' alternative investment fund ' or aif means any collective investment undertaking , including investment compartments thereof whose object is the collective investment in assets and which does not require authorisation pursuant to article 5 of directive 2009 / &#8230 ; / ec [ the ucits directive ] ; ### ' alternative investment fund ' or ' aif ' means any collective investment undertaking which raises capital from a number of investors with a view to investing it in accordance with a defined investment policy on the principle of risk - spreading for the benefit of those investors , including investment compartments of any such undertaking , and which does not require authorisation pursuant to article 5 of directive 2009 / &#8230 ; / ec [ the ucits directive ] ;


### the third country has signed an agreement with the member state in which it applies for authorisation which fully complies with the standards laid down in article 26 of the oecd model tax convention and ensures an effective exchange of information in tax matters . ### the third country has signed an agreement with the member state in which it applies for authorisation which complies with the standards laid down in article 26 of the oecd model tax convention and ensures an effective exchange of information in tax matters .


### ' alternative investment fund ' or aif means any collective investment undertaking , including investment compartments thereof whose object is the collective investment in assets and which does not require authorisation pursuant to article 5 of directive 2009 / &#8230 ; / ec [ the ucits directive ] ; ### ' alternative investment fund ' or aif means any collective investment undertaking , including investment compartments thereof whose object is the collective investment in assets , single investor funds and leveraged managed accounts , which does not require authorisation pursuant to article 5 of directive 2009 / 65 / ec [ the ucits directive ] ;


### the conditions under which the 30% threshold has been reached , including information about the identity of the different shareholders involved ; ### the conditions under which controlling influence has been reached , including information about the identity of the different shareholders involved , any natural person or legal entity entitled to exercise voting rights on their behalf and , if applicable , the chain of undertakings through which voting rights are effectively held ;


### the date on which the threshold was reached or exceeded . ### the date on which the controlling influence was reached or exceeded .


### receive all payments made by investors when subscribing units or shares of an aif managed by the aifm and book them on behalf of the aifm in a segregated account ; ### holds in deposit cash accounts opened in the books of the depositary ;


### given that aifm employing high levels of leverage in their investment strategies may , under certain conditions , contribute to the build up of systemic risk or disorderly markets , special requirements should be imposed on aifm using certain techniques giving rise to particular risks . the information needed to detect , monitor and respond to those risks has not been collected in a consistent way throughout the community , and shared across member states so as to identify potential sources of risk to the stability of financial markets in the community . to remedy this situation , special requirements should apply to aifm , which consistently use high levels of leverage in their investment strategies . those aifm should be obliged to disclose information regarding their use and sources of leverage . that information should be aggregated and shared with other authorities in the community , so as to facilitate a collective analysis of the impact of the leverage of those aifm on the financial system in the community , as well as a common response . ### given that an aifm may employ leverage at the level of the aif and may , under certain conditions , contribute to the build up of systemic risk or disorderly markets , special requirements should be imposed on aifm employing leverage on a systemically significant basis . the information needed to detect , monitor and respond to those risks has not been collected in a consistent way throughout the union , and shared across member states so as to identify potential sources of risk to the stability of financial markets in the union . to remedy this situation , special requirements should apply to aifm , which employ leverage at the level of the aif on a systemically significant basis . such aifm should be obliged to disclose information regarding the use and sources of leverage . that information should be aggregated and shared with other authorities in the union , so as to facilitate a collective analysis of the impact of the leverage of aif managed by aifm on the financial system in the union , as well as a common response . competent authorities should pass such information to the european systemic risk board established under regulation no . . . / 2009 and to the european securities and markets authority established under regulation no . . . / 2009 for use by these bodies in the performance of their duties .


### in particular the commission should be empowered to adopt the measures necessary for the implementation of this directive . in this respect , the commission should be able to adopt measures determining the procedures under which aifm managing portfolios of aif whose assets under management do not exceed the threshold set out in this directive may exercise their right to be treated as aifm covered by this directive . these measures are also designed to specify the criteria to be used by competent authorities to assess whether aifm comply with their obligations as regards their conduct of business , the type of conflicts of interests aifm have to identify , as well as the reasonable steps aifm are expected to take in terms of internal and organizational procedures in order to identify , prevent , manage and disclose conflicts of interest . they are designed to specify the risk management requirements to be employed by aifm as a function of the risks which the aifm incurs on behalf of the aif that it manages as well as any arrangements needed to enable aifm to manage the particular risks associated with short selling transactions , including any relevant restrictions that might be needed to protect the aif from undue risk exposures . they are designed to specify the liquidity management requirements of this directive and in particular the minimum liquidity requirements for aif . they are designed to specify the requirements that originators of securitisation instruments have to meet in order for an aifm to be allowed to invest in such instruments issued after 1 january 2011 . they are as well designed to specify the requirements that aifm have to comply with when investing in such securitisation instruments . they are designed to specify the criteria under which a valuator can be considered independent in the meaning of this directive . they are designed to specify the conditions under which the delegation of aifm functions should be approved and the conditions under which the manager could no longer be considered to be the manager of the aif in case of excessive delegation . they are designed to specify the content and format of the annual report that aifm have to make available for each aif they manage and to specify the disclosure obligations of aifm to investors and reporting requirements to competent authorities as well as their frequency . they are designed to specify the disclosure requirements imposed on aifm as regards leverage and the frequency of reporting to competent authorities and of disclosure to investors . they are designed to setting limits to the level of leverage aifm can employ when managing aif they are designed to determine the detailed content and the way aifm acquiring controlling influence in issuers and non - listed companies should fulfil their information obligation towards issuers and non - listed companies and their respective shareholders and representatives of employees , including the information to be provided in the annual reports of the aif they manage . they are designed to specify the types of restrictions or conditions that can be imposed on the marketing of aif to professional investor in the home member state of the aifm . they are designed to specify general criteria for assessing equivalence of valuation standards of third countries where the valuator is established in a third country , the equivalence of legislation of third countries regarding depositaries and , for the purpose of the authorisation of aifm established in third countries , the equivalence of prudential regulation and ongoing supervision . they are designed to specify general criteria for assessing whether third countries grant community aifm effective market access comparable to that granted by the community to aifm from third countries . they are designed to specify the modalities , content and frequency of exchange of information regarding aifm between the competent authorities of the home member state of the aifm and other competent authorities where the aifm individually or collectively with other aifm may have an impact on the stability of systemically relevant financial institutions and the orderly functioning of markets . they are designed to specify the procedures for on - the - spot verifications and investigations . ### in particular the commission should be empowered to adopt the delegated acts necessary for the implementation of this directive in accordance with article 290 of the treaty designed to specify the criteria to be used by competent authorities to assess whether aifm comply with their obligations as regards their conduct of business , the type of conflicts of interests aifm have to identify , as well as the reasonable steps aifm are expected to take in terms of internal and organisational procedures in order to identify , prevent , manage and disclose conflicts of interest . they should also be designed to specify the risk management requirements to be employed by aifm as a function of the risks which the aifm incurs on behalf of the aif that it manages . they should also be designed to specify the liquidity management systems and procedures that aifm are to employ . they should also be designed to specify the requirements that originators of securitisation instruments have to meet in order for an aifm to be allowed to invest in such instruments issued after 1 january 2011 . they should also be designed to specify the requirements that aifm have to comply with when investing in such securitisation instruments . they should also be designed to specify the procedures for the proper valuation of the assets and shares or units of aif . they should also be designed to specify as regards depositaries the modalities for the segregation of payments in different accounts , the notions of safe - keeping and custody , including the modalities for the segregation of financial instruments and entitlements in them in different accounts , the determination of when financial instruments or entitlements in them can be kept or maintained , are subject to regular trading and when there is a loss of financial instruments or entitlements in them , the oversight duties of depositaries , the conditions for delegation , including the due diligence duties of depositaries and the need for cooperation agreements with other jurisdictions and the conditions for approval of depositaries , including an assessment of whether the depositary can furnish sufficient financial and professional guarantees to be able effectively to perform the relevant depositary functions and meet the commitments inherent in those functions . they should also be designed to specify the conditions under which the delegation of aifm functions should be approved and the conditions under which the manager could no longer be considered to be the manager of the aif in case of excessive delegation . they should also be designed to specify the content and format of the annual report that aifm have to make available for each aif they manage and to specify the disclosure obligations of aifm to investors and reporting requirements to competent authorities as well as their frequency . they should also be designed to specify the disclosure requirements imposed on aifm , particularly with regard to leverage and the frequency and format of reporting to competent authorities and of disclosure to investors . they should also be designed to specify when leverage is considered to be employed on a systematic basis . they should also be designed to specify the principles competent authorities should use when considering implementation of limits on leverage . they should also be designed to specify the modalities , content and frequency of exchange of information regarding aifm between the competent authorities of the home member state of the aifm and other competent authorities where the aifm individually or collectively with other aifm may have an impact on the stability of systemically relevant financial institutions and the orderly functioning of markets . they should also be designed to specify the procedures for on - the - spot verifications and investigations .


### the scope of this directive should be confined to the management of collective investment undertakings which raise capital from a number of investors with a view to investing it in accordance with a defined investment policy on the principle of risk - spreading for the benefit of those investors . this directive should not apply to the management of pension funds or managers of non - pooled investments such as endowments , sovereign wealth funds or assets hold on own account by credit institutions , insurance or reinsurance undertakings . this directive should neither apply to actively managed investments in the form of securities , such as certificates , managed futures , or index - linked bonds . it should , however , cover managers of all collective investment undertakings which are not required to be authorised as ucits . investment firms authorised under directive 2004 / 39 / ec on markets in financial instruments should not be required to obtain an authorisation under this directive in order to provide investment services in respect of aif . investment firms can however only provide investment services in respect of aif , if and to the extent the units or shares thereof can be marketed in accordance with this directive . ### the scope of this directive should be confined to the management of collective investment undertakings which raise capital from a number of investors with a view to investing it in accordance with a defined investment policy for the benefit of those investors . this directive should not apply to the managers of non - pooled investments such as endowments , sovereign wealth funds , central banks or assets held on own account by credit institutions , pension funds , or insurance or reinsurance undertakings . in order to benefit from the exemptions provided for in this directive , aifm concerned should comply with the conditions of those exemptions on a continuous basis . this directive should , however , cover managers of all collective investment undertakings which are not required to be authorised as ucits . investment firms authorised under directive 2004 / 39 / ec on markets in financial instruments should not be required to obtain an authorisation under this directive in order to provide investment services in respect of aif . investment firms can however only provide investment services in respect of aif , if and to the extent the units or shares thereof can be marketed in accordance with this directive .


### ' alternative investment fund ' or aif means any collective investment undertaking , including investment compartments thereof whose object is the collective investment in assets and which does not require authorisation pursuant to article 5 of directive 2009 / &#8230 ; / ec [ the ucits directive ] ; ### ' alternative investment fund ' or aif means any collective investment undertaking , including investment compartments thereof , which raises capital by marketing shares or units in that collective undertaking to professional investors with a view to investing the proceeds in accordance with a defined investment policy on the principle of risk spreading for the benefit of those investors but which does not include any closed - ended vehicle or any form of corporate vehicle , any entity that requires authorisation pursuant to article 5 of directive 2009 / 65 / ec [ the ucits directive ] , any collective investment undertaking for which , under its constitutive documents , the role of manager is primarily the responsibility of the collective investment undertaking itself or of one of its members , or any collective investment undertaking whose investors are solely made up of other aif .


### ‘ marketing’ means any general offering or placement of units or shares in an aif to or with investors domiciled in the community , regardless of at whose initiative the offer or placement takes place ; ### ‘ marketing’ means any direct or indirect public offering or placement , at the initiative of the aifm , of units or shares in an aif to or with investors domiciled in the union ;


### the depositary shall be liable to the aifm and the investors of the aif for any losses suffered by them as a result of its failure to perform its obligations pursuant to this directive . ### the depositary shall be liable to the aif for any losses suffered by it as a result of its unjustifiable failure to perform or of its improper performance of its obligations pursuant to this directive .


### verify whether the aif or the aifm on behalf of the aif has obtained the ownership of all other assets the aif invests in . ### maintain the record to evidence the ownership of other assets by the aif based on information provided by the aifm or otherwise .


### the depositary shall be a credit institution having its registered office in the community and be authorised in accordance with directive 2006 / 48 / ec of the european parliament and council of 14 june 2006 relating to the taking up and pursuit of the business of credit institutions . ### the depositary shall be either : a credit institution having its registered office in the community and authorised in accordance with directive&#160 ; 2006 / 48 / ec ;


### the requirements that need to be met by the originator in order for an aifm to be allowed to invest in securities or other financial instruments of this type issued after 1 january 2011 on behalf of one or more aif , including requirements that ensure that the originator retains a net economic interest of not less than 5 per cent ; ### the requirements that need to be met by the originator in order for an aifm to be allowed to invest on behalf of one or more aif in securities or other financial instruments of this type issued after 1&#160 ; january&#160 ; 2011 , including the requirements that the originator : retains a net economic interest of not less than 5 per cent in any such issue of securities and represents in the prospectus or other issuing documentation of such securities that it has , and will maintain , such interest ; and


### home member states shall ensure that all information received under article 24 , aggregated in respect of all aifm that it supervises , are made available to other competent authorities through the procedure set out in article 46 on supervisory co - operation . it shall , without delay , also provide information through this mechanism , and bilaterally to other member states directly concerned , if an aifm under its responsibility could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institution in other member states . ### the competent authorities of the home member state of the aifm shall ensure that all information gathered under article 21 in respect of all aifm that they supervise is promptly conveyed to the esma and is made available to the competent authorities of the other member states and to the esrb through the procedures set out in article 46 on supervisory co - operation . they shall , without delay , also provide information through this mechanism to the esma and the esrb , and bilaterally to the competent authorities of other member states directly concerned , if the activities of an aifm under their responsibility could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institution in those other member states , or could affect the sound functioning of financial markets .


### the depositary shall be liable to the aifm and the investors of the aif for any losses suffered by them as a result of its failure to perform its obligations pursuant to this directive . ### the depositary shall be liable to the aifm and the investors of the aif for any losses suffered by them as a result of its unjustifiable failure to perform or of its improper performance of its obligations pursuant to this directive .


### home member states shall ensure that all information received under article 24 , aggregated in respect of all aifm that it supervises , are made available to other competent authorities through the procedure set out in article 46 on supervisory co - operation . it shall , without delay , also provide information through this mechanism , and bilaterally to other member states directly concerned , if an aifm under its responsibility could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institution in other member states . ### the competent authorities of the home member states shall ensure that all information gathered under article 21 , aggregated in respect of all aifm that they supervise , is made available to the competent authorities of the other member states , to esma and to esrb through the procedure set out in article 46 on supervisory co - operation . they shall , without delay , also provide information through this mechanism , and bilaterally to the competent authorities of other member states directly concerned , if an aifm under their responsibility , or an aif managed by that aifm , could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institution in those other member states .


### an aifm shall not act as depositary . ### an aifm shall not act as depositary of an aif of which it is the aifm .


### reliable and objective asset valuation is crucial for the protection of investor interests . different aifm employ different methodologies and systems for valuing assets , depending on the assets and markets in which they predominantly invest . it is appropriate to recognise these differences but to , nevertheless , require the valuation of assets to be undertaken by an entity which is independent of the aifm . ### reliable and objective asset valuation is crucial for the protection of investor interests . different aifm employ different methodologies and systems for valuing assets , depending on the assets and markets in which they predominantly invest . it is appropriate to recognise these differences . the valuation of assets and calculation of the net asset value should be functionally independent from the management functions of the aifm . where appropriate , the aifm should be able to delegate or assign the valuation of assets and calculation of the nav to a third party .


### the scope of this directive should be confined to the management of collective investment undertakings which raise capital from a number of investors with a view to investing it in accordance with a defined investment policy on the principle of risk - spreading for the benefit of those investors . this directive should not apply to the management of pension funds or managers of non - pooled investments such as endowments , sovereign wealth funds or assets hold on own account by credit institutions , insurance or reinsurance undertakings . this directive should neither apply to actively managed investments in the form of securities , such as certificates , managed futures , or index - linked bonds . it should , however , cover managers of all collective investment undertakings which are not required to be authorised as ucits . investment firms authorised under directive 2004 / 39 / ec on markets in financial instruments should not be required to obtain an authorisation under this directive in order to provide investment services in respect of aif . investment firms can however only provide investment services in respect of aif , if and to the extent the units or shares thereof can be marketed in accordance with this directive . ### the scope of this directive should be confined to the management of collective investment undertakings which raise capital from a number of investors with a view to investing it in accordance with a defined investment policy on the principle of risk - spreading for the benefit of those investors . it should cover managers of all such collective investment undertakings which are not required to be authorised as ucits . this directive should not apply to the management of pension funds or managers of non - pooled investments such as endowments , sovereign wealth funds or assets held on own account by credit institutions , insurance or reinsurance undertakings . this directive should neither apply to actively managed investments in the form of securities , such as certificates , managed futures , or index - linked bonds . nor , for the purposes of this directive , should an undertaking which principally acts as a holding entity for a group of subsidiary undertakings , and which owns strategic stakes in undertakings with a view to long - term holding rather than for the purpose of generating returns through divestment within a defined timeframe , be regarded as a collective investment undertaking . investment firms authorised under directive 2004 / 39 / ec on markets in financial instruments should not be required to obtain an authorisation under this directive in order to provide investment services in respect of aif . investment firms can however only provide investment services in respect of aif , if and to the extent the units or shares thereof can be marketed in accordance with this directive .


### an aifm may only market shares or units of an aif domiciled in a third country to professional investors domiciled in a member state , if the third country has signed an agreement with this member state which fully complies with the standards laid down in article 26 of the oecd model tax convention and ensures an effective exchange of information in tax matters . ### an aifm may only market shares or units of an aif domiciled in a third country to professional investors domiciled in a member state if the third country is included on the oecd list of jurisdictions which have substantially implemented the internationally agreed tax standard .


### member states shall ensure that no aifm covered by this directive provides management services to any aif or markets shares or units thereof without prior authorisation . entities which are neither authorised in accordance with this directive nor , in case of aifm not covered by this directive , in accordance with the national law of a member state , shall not be allowed to provide management services to aif or market units or shares thereof within the community . ### member states shall ensure that no aifm covered by this directive provides management services to any aif without prior authorisation .


### this section shall not apply where the issuer or the non - listed company concerned are small and medium enterprises that employ fewer than 250 persons , have an annual turnover not exceeding 50 million euro and / or an annual balance sheet not exceeding 43 million euro . ### this section shall not apply where the non - listed company concerned is a small and medium enterprises that either employs fewer than 250 persons , or has an annual turnover not exceeding 50 million euro and / or an annual balance sheet not exceeding eur 43 million .


### the scope of this directive should be confined to the management of collective investment undertakings which raise capital from a number of investors with a view to investing it in accordance with a defined investment policy on the principle of risk - spreading for the benefit of those investors . this directive should not apply to the management of pension funds or managers of non - pooled investments such as endowments , sovereign wealth funds or assets hold on own account by credit institutions , insurance or reinsurance undertakings . this directive should neither apply to actively managed investments in the form of securities , such as certificates , managed futures , or index - linked bonds . it should , however , cover managers of all collective investment undertakings which are not required to be authorised as ucits . investment firms authorised under directive 2004 / 39 / ec on markets in financial instruments should not be required to obtain an authorisation under this directive in order to provide investment services in respect of aif . investment firms can however only provide investment services in respect of aif , if and to the extent the units or shares thereof can be marketed in accordance with this directive . ### the scope of this directive should be confined to the management of collective investment undertakings which raise capital from a number of investors with a view to investing it in accordance with a defined investment policy for the benefit of those investors . this directive should not apply to the managers of non - pooled investments such as endowments , sovereign wealth funds , central banks or assets held on own account by credit institutions , pension funds , or insurance or reinsurance undertakings . nor should this directive apply to managers insofar as they manage aif whose only investors are their parent undertakings , their subsidiaries or other subsidiaries of their parent undertaking and where those investors are not themselves aif . in order to benefit from the exemptions provided for in this directive , the aifm concerned should comply with the conditions to which those exemptions are subject on a continuous basis . this directive should , however , cover managers of all collective investment undertakings which are not required to be authorised as ucits . investment firms authorised under directive 2004 / 39 / ec on markets in financial instruments should not be required to obtain an authorisation under this directive in order to provide investment services in respect of aif . investment firms can however only provide investment services in respect of aif , if and to the extent the units or shares thereof can be marketed in accordance with this directive .


### where the value of the portfolios of aif managed by the aifm exceeds eur 250 million , the aifm shall provide an additional amount of own funds ; that additional amount of own funds shall be equal to 0 . 02 % of the amount by which the value of the portfolios of the aifm exceeds eur 250 million . ### where the value of the portfolios of aif managed by the aifm exceeds eur 250 million , the aifm shall provide an additional amount of own funds ; that additional amount of own funds shall be equal to 0 , 02 % of the amount by which the value of the portfolios of aif managed by the aifm exceeds eur 250 million .


### aifm shall ensure that , for each aif that it manages , a valuator is appointed which is independent of the aifm to establish the value of assets acquired by the aif and the value of the shares and units of the aif . ### the aifm shall , where appropriate , ensure the functional independence of the valuation function and the portfolio management function in view of the nature , scale and complexity of each aif that it manages .


### it is necessary to ensure that aifm operate subject to robust governance controls . aifm should be managed and organised so as to minimise conflicts of interest . recent developments underline the crucial need to separate asset safe - keeping and management functions , and segregate investor assets from those of the manager . to this end , the aifm has to appoint a depositary and entrust it with the booking of investor money on a segregated account , the safe - keeping of financial instruments and the verification of whether the aif or the aifm on behalf of the aif has obtained ownership of all other assets . ### it is necessary to ensure that aifm operate subject to robust governance controls . aifm should be managed and organised so as to minimise conflicts of interest . recent developments underline the crucial need to separate asset safe - keeping and management functions , and segregate investor assets from those of the manager . to this end , the aifm has to ensure the appointment of a depositary and entrust it with the booking of investor money on a segregated account , the safe - keeping of financial instruments and the verification of whether the aif or the aifm on behalf of the aif has obtained ownership of all other assets .


### ' manager of alternative investment funds ' or aifm means any legal or natural person whose regular business is to manage one or several aif ; ### ' manager of alternative investment funds ' or aifm means any legal or natural person who manages one or more aifs or a single aif which is managed autonomously ;


### it is necessary to ensure that aifm operate subject to robust governance controls . aifm should be managed and organised so as to minimise conflicts of interest . recent developments underline the crucial need to separate asset safe - keeping and management functions , and segregate investor assets from those of the manager . to this end , the aifm has to appoint a depositary and entrust it with the booking of investor money on a segregated account , the safe - keeping of financial instruments and the verification of whether the aif or the aifm on behalf of the aif has obtained ownership of all other assets . ### it is necessary to ensure that aifm operate subject to robust governance controls . aifm should be managed and organised so as to minimise conflicts of interest . recent developments underline the crucial need to separate asset safe - keeping and management functions , and segregate investor assets from those of the manager . to this end , the aifm has to appoint a depositary and entrust it with verifying that aif cash is placed on deposit appropriately with one or more approved credit institutions , the safe - keeping of financial instruments and entitlements in them and verifying the maintenance of records demonstrating the nature and means of ownership and location of assets of the aif .


### aifm shall , before implementation , notify the competent authorities of the home member state of any change regarding the information provided in their initial application that may substantially affect the conditions under which the authorisation has been granted , in particular changes of the investment strategy and policy of any aif managed by it , of the aif rules or instruments of incorporation and the identity of any further aif the aifm intends to manage . the competent authorities shall , within a month of receipt of that notification , either approve , or impose restrictions , or reject those changes . ### aifm shall , before implementation , notify the competent authorities of the home member state of any material changes to the conditions for initial authorisation or registration , in particular changes in the programme of activity of the aifm or the investment strategy and policy of any aif managed by it . the aifm shall inform the competent authority of any change concerning the persons effectively conducting the business of the aifm . the competent authorities shall , within a month of receipt of that notification , approve , impose restrictions or reject those changes . the competent authorities shall , where duly justified , reject changes regarding the investment strategy and policy of an aif or changes regarding rules or instruments of incorporation if those have been agreed upon by the investors .


### ' alternative investment fund ' or aif means any collective investment undertaking , including investment compartments thereof whose object is the collective investment in assets and which does not require authorisation pursuant to article 5 of directive 2009 / &#8230 ; / ec [ the ucits directive ] ; ### ' alternative investment fund ' or aif means any collective investment undertaking , including investment compartments thereof , which raises capital by marketing shares or units in that collective undertaking to professional investors with a view to investing the proceeds in accordance with a defined investment policy on the principle of risk spreading for the benefit of those investors but which does not include any closed - ended vehicle or any form of corporate vehicle , any entity that requires authorisation pursuant to article 5 of directive 2009 / 65 / ec [ the ucits directive ] , any collective investment undertaking for which , under its constitutive documents , the role of manager is primarily the responsibility of the collective investment undertaking itself or of one of its members , or any collective investment undertaking whose investors are solely made up of other aif .


### in particular the commission should be empowered to adopt the measures necessary for the implementation of this directive . in this respect , the commission should be able to adopt measures determining the procedures under which aifm managing portfolios of aif whose assets under management do not exceed the threshold set out in this directive may exercise their right to be treated as aifm covered by this directive . these measures are also designed to specify the criteria to be used by competent authorities to assess whether aifm comply with their obligations as regards their conduct of business , the type of conflicts of interests aifm have to identify , as well as the reasonable steps aifm are expected to take in terms of internal and organizational procedures in order to identify , prevent , manage and disclose conflicts of interest . they are designed to specify the risk management requirements to be employed by aifm as a function of the risks which the aifm incurs on behalf of the aif that it manages as well as any arrangements needed to enable aifm to manage the particular risks associated with short selling transactions , including any relevant restrictions that might be needed to protect the aif from undue risk exposures . they are designed to specify the liquidity management requirements of this directive and in particular the minimum liquidity requirements for aif . they are designed to specify the requirements that originators of securitisation instruments have to meet in order for an aifm to be allowed to invest in such instruments issued after 1 january 2011 . they are as well designed to specify the requirements that aifm have to comply with when investing in such securitisation instruments . they are designed to specify the criteria under which a valuator can be considered independent in the meaning of this directive . they are designed to specify the conditions under which the delegation of aifm functions should be approved and the conditions under which the manager could no longer be considered to be the manager of the aif in case of excessive delegation . they are designed to specify the content and format of the annual report that aifm have to make available for each aif they manage and to specify the disclosure obligations of aifm to investors and reporting requirements to competent authorities as well as their frequency . they are designed to specify the disclosure requirements imposed on aifm as regards leverage and the frequency of reporting to competent authorities and of disclosure to investors . they are designed to setting limits to the level of leverage aifm can employ when managing aif they are designed to determine the detailed content and the way aifm acquiring controlling influence in issuers and non - listed companies should fulfil their information obligation towards issuers and non - listed companies and their respective shareholders and representatives of employees , including the information to be provided in the annual reports of the aif they manage . they are designed to specify the types of restrictions or conditions that can be imposed on the marketing of aif to professional investor in the home member state of the aifm . they are designed to specify general criteria for assessing equivalence of valuation standards of third countries where the valuator is established in a third country , the equivalence of legislation of third countries regarding depositaries and , for the purpose of the authorisation of aifm established in third countries , the equivalence of prudential regulation and ongoing supervision . they are designed to specify general criteria for assessing whether third countries grant community aifm effective market access comparable to that granted by the community to aifm from third countries . they are designed to specify the modalities , content and frequency of exchange of information regarding aifm between the competent authorities of the home member state of the aifm and other competent authorities where the aifm individually or collectively with other aifm may have an impact on the stability of systemically relevant financial institutions and the orderly functioning of markets . they are designed to specify the procedures for on - the - spot verifications and investigations . ### in particular the commission should be empowered to adopt delegated acts necessary for the implementation of this directive in accordance with article 290 of the treaty designed to specify the criteria to be used by competent authorities to assess whether aifm comply with their obligations as regards their conduct of business , the type of conflicts of interests aifm have to identify , as well as the reasonable steps aifm are expected to take in terms of internal and organisational procedures in order to identify , prevent , manage and disclose conflicts of interest . they should also be designed to specify the risk management requirements to be employed by aifm as a function of the risks which the aifm incurs on behalf of the aif that it manages as well as any arrangements needed to enable aifm to manage the particular risks associated with short selling transactions , including any relevant restrictions that might be needed to protect the aif from undue risk exposures . they should also be designed to specify the liquidity management requirements of this directive and in particular the minimum liquidity requirements for aif . they should also be designed to specify the requirements that originators of securitisation instruments have to meet in order for an aif to be allowed to invest in such instruments issued after 1 january 2011 . they should also be designed to specify the requirements that aif have to comply with when investing in such securitisation instruments . they should also be designed to specify the criteria under which a valuator can be considered independent in the meaning of this directive . they should also be designed to specify the conditions under which the delegation of aifm functions should be approved and the conditions under which the manager could no longer be considered to be the manager of the aif in case of excessive delegation . they should also be designed to specify the content and format of the annual report that aif have to make available and to specify the disclosure obligations of aifm to investors and reporting requirements to competent authorities as well as their frequency . they should also be designed to specify the disclosure requirements imposed on aif as regards leverage and the frequency of reporting to competent authorities and of disclosure to investors . they should also be designed to setting limits to the level of leverage aif can employ . they should also be designed to determine the detailed content and the way aif acquiring controlling influence in issuers and non - listed companies should fulfil their information obligation towards issuers and non - listed companies and their respective shareholders and representatives of employees , including the information to be provided in the annual reports of the aif they manage . they should also be designed to specify the types of restrictions or conditions that can be imposed on the marketing of aif to professional investor in the home member state of the aifm . they should also be designed to specify general criteria for assessing equivalence of valuation standards of third countries where the valuator is established in a third country , the equivalence of legislation of third countries regarding depositaries and , for the purpose of the authorisation of aif established in third countries , to specify general criteria for assessing an effective tax and prudential cooperation . they should also be designed to specify general criteria for assessing whether third countries grant union aifm effective market access comparable to that granted by the union to aifm from third countries . they should also be designed to specify the modalities , content and frequency of exchange of information regarding aif and aifm between the european stability risk board , the european securities and market authority and the competent authorities of the home member state of the aif and aifm where the aif and aifm individually or collectively with other aif and aifm may have an impact on the stability of systemically relevant financial institutions and the orderly functioning of markets . they should also be designed to specify the procedures for on - the - spot verifications and investigations .


### aifm shall ensure that , for each aif that it manages , a valuator is appointed which is independent of the aifm to establish the value of assets acquired by the aif and the value of the shares and units of the aif . ### aifm shall ensure that , for each aif that it manages , appropriate and consistent procedures are established so that the proper valuation of the assets of the aif and of the shares or units of the aif can be performed .


### ' marketing ' means any general offering or placement of units or shares in an aif to or with investors domiciled in the community , regardless of at whose initiative the offer or placement takes place ; ### ' marketing ' means a general offering or placement , at the initiative of an aifm or of an intermediary responsible for distribution , of units or shares in an aif to or with investors domiciled in the community


### the scope of this directive should be confined to the management of collective investment undertakings which raise capital from a number of investors with a view to investing it in accordance with a defined investment policy on the principle of risk - spreading for the benefit of those investors . this directive should not apply to the management of pension funds or managers of non - pooled investments such as endowments , sovereign wealth funds or assets hold on own account by credit institutions , insurance or reinsurance undertakings . this directive should neither apply to actively managed investments in the form of securities , such as certificates , managed futures , or index - linked bonds . it should , however , cover managers of all collective investment undertakings which are not required to be authorised as ucits . investment firms authorised under directive 2004 / 39 / ec on markets in financial instruments should not be required to obtain an authorisation under this directive in order to provide investment services in respect of aif . investment firms can however only provide investment services in respect of aif , if and to the extent the units or shares thereof can be marketed in accordance with this directive . ### the scope of this directive should be confined to the management of collective investment undertakings which raise capital from a number of investors with a view to investing it in accordance with a defined investment policy on the principle of risk - spreading for the benefit of those investors . this directive should not apply to the management of pension funds or managers of non - pooled investments such as endowments , sovereign wealth funds or assets held on own account by credit institutions , insurance or reinsurance undertakings . this directive should neither apply to actively managed investments in the form of securities , such as certificates , managed futures , or index - linked bonds . it should , however , cover managers of all collective investment undertakings which are not required to be authorised as ucits . investment firms authorised under directive 2004 / 39 / ec on markets in financial instruments should not be required to obtain an authorisation under this directive in order to provide investment services in respect of aif . investment firms can however only provide investment services in respect of aif , if and to the extent the units or shares thereof can be marketed in accordance with this directive . this directive should not apply to industrial holding companies having their shares traded on an eu - regulated market insofar as they hold shares in their subsidiaries or associated companies over which they have a controlling influence for the purpose of carrying out an industrial business strategy .


### given that aifm employing high levels of leverage in their investment strategies may , under certain conditions , contribute to the build up of systemic risk or disorderly markets , special requirements should be imposed on aifm using certain techniques giving rise to particular risks . the information needed to detect , monitor and respond to those risks has not been collected in a consistent way throughout the community , and shared across member states so as to identify potential sources of risk to the stability of financial markets in the community . to remedy this situation , special requirements should apply to aifm , which consistently use high levels of leverage in their investment strategies . those aifm should be obliged to disclose information regarding their use and sources of leverage . that information should be aggregated and shared with other authorities in the community , so as to facilitate a collective analysis of the impact of the leverage of those aifm on the financial system in the community , as well as a common response . ### given that an aifm may employ leverage at the level of the aif and may , under certain conditions , contribute to the build up of systemic risk or disorderly markets , special requirements should be imposed on aifm employing leverage on a systemically significant basis . the information needed to detect , monitor and respond to those risks has not been collected in a consistent way throughout the union , and shared across member states so as to identify potential sources of risk to the stability of financial markets in the union . to remedy this situation , special requirements should apply to aifm , which employ leverage at the level of the aif on a systemically significant basis . such aifm should be obliged to disclose information regarding the use and sources of leverage in their aif . information gathered by competent authorities should be aggregated and shared with other authorities in the union , so as to facilitate a collective analysis of the impact of the leverage of aif managed by aifm on the financial system in the union , as well as a common response .


### the accounting information given in the annual report shall be audited by one or more persons empowered by law to audit accounts in accordance with directive 2006 / 43 / ec of the european parliament and of the council of 17 may 2006 on statutory audits of annual accounts and consolidated accounts , amending council directives 78 / 660 / eec and 83 / 349 / eec and repealing council directive 84 / 253 / eec . the auditor ' s report , including any qualifications , shall be reproduced in full in the annual report . ### the accounting information given in the annual report shall be prepared in accordance with the accounting standards or principles required by the applicable aif rules or instruments of incorporation or formation and audited by one or more persons empowered by law to audit accounts in accordance with directive 2006 / 43 / ec of the european parliament and of the council of 17 may 2006 on statutory audits of annual accounts and consolidated accounts , amending council directives 78 / 660 / eec and 83 / 349 / eec and repealing council directive 84 / 253 / eec . the auditor ' s report , including any qualifications , shall be reproduced in full in the annual report .


### ‘ manager of alternative investment funds ‘ or aifm means any legal or natural person whose regular business is to manage one or several aif ; ### ‘ manager of alternative investment funds ‘ or aifm means any legal person that is responsible for the management of one or several aif and for compliance with the requirements of this directive and which can be the aif itself unless it has designated an external entity ;


### activities of aifm based on the use of high levels of leverage could be detrimental to the stability and efficient functioning of financial markets . it is considered necessary to allow the commission to impose limits on the level of leverage that aifm could use , in particular in those cases where aifm employ high levels of leverage on a systematic basis . the limits to the maximum amount of leverage should take into account aspects related to the source of leverage and the strategies employed by the aifm . they should also take into account the essentially dynamic nature of the management of leverage by most aifm using a high level of leverage . in this respect the limits to leverage could for example either consist in a threshold that should not be breached at any point in time or a limit on the average leverage employed during a given period . ### it is considered necessary to allow the competent authorities of the home member state of the aifm to impose limits on the level of leverage that aifm could employ in aif where the stability and integrity of the financial system may be threatened . those limits should take into account aspects related to the source of leverage and the strategies employed by the aifm , as well as the market conditions in which the aif operates . they should also take into account the essentially dynamic nature of the management of leverage by most aifm using leverage in their aif and possible pro - cyclical effects .


### ‘ marketing’ means any general offering or placement of units or shares in an aif to or with investors domiciled in the community , regardless of at whose initiative the offer or placement takes place ; ### ‘ marketing’ means any offering or placement of units or shares in an aif to or with investors domiciled in the union , regardless of at whose initiative the offer or placement takes place ;


### home member states shall ensure that all information received under article 24 , aggregated in respect of all aifm that it supervises , are made available to other competent authorities through the procedure set out in article 46 on supervisory cooperation . it shall , without delay , also provide information through this mechanism , and bilaterally to other member states directly concerned , if an aifm under its responsibility could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institution in other member states . ### the competent authorities of the home member states shall ensure that all information gathered under article 21 , aggregated in respect of all aifm that they supervise , is made available to the competent authorities of other member states , to the esma and to the esrb through the procedure set out in article 46 on supervisory co - operation . they shall , without delay , also provide information through this mechanism , and bilaterally to the competent authorities of other member states directly concerned , if an aifm under their responsibility , or an aif managed by that aifm , could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institution in those other member states .


### home member states shall ensure that all information received under article 24 , aggregated in respect of all aifm that it supervises , are made available to other competent authorities through the procedure set out in article 46 on supervisory cooperation . it shall , without delay , also provide information through this mechanism , and bilaterally to other member states directly concerned , if an aifm under its responsibility could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institution in other member states . ### the competent authorities of the home member states shall ensure that all information gathered under article 21 , aggregated in respect of all aifm that they supervise , is made available to the competent authorities of other member states , to the esma and to the esrb through the procedure set out in article 46 on supervisory co - operation . they shall , without delay , also provide information through this mechanism , and bilaterally to the competent authorities of other member states directly concerned , if an aifm under their responsibility , or the aif managed by that aifm , could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institution in those other member states .


### verify whether the aif or the aifm on behalf of the aif has obtained the ownership of all other assets the aif invests in . ### maintain the record to evidence the ownership of other assets by the aif based on information provided by the aifm or otherwise .


### qualitative requirements that must be met by aifm which invest in these securities or other financial instruments on behalf of one or more aif . those measures , designed to amend to amend non - essential elements of this directive by supplementing it , shall be adopted in accordance with the regulatory procedure with scrutiny referred to in article 49 . ### qualitative requirements that must be met by aifm which invest in these securities or other financial instruments on behalf of one or more aif . aif shall be entitled to rely on an originator’s representation for the entire existence of any such securities when determining whether to invest in any such securities . those measures , designed to amend to amend non - essential elements of this directive by supplementing it , shall be adopted in accordance with articles 49a , 49 b and 49c .


### given that aifm employing high levels of leverage in their investment strategies may , under certain conditions , contribute to the build up of systemic risk or disorderly markets , special requirements should be imposed on aifm using certain techniques giving rise to particular risks . the information needed to detect , monitor and respond to those risks has not been collected in a consistent way throughout the community , and shared across member states so as to identify potential sources of risk to the stability of financial markets in the community . to remedy this situation , special requirements should apply to aifm , which consistently use high levels of leverage in their investment strategies . those aifm should be obliged to disclose information regarding their use and sources of leverage . that information should be aggregated and shared with other authorities in the community , so as to facilitate a collective analysis of the impact of the leverage of those aifm on the financial system in the community , as well as a common response . ### given that aifm employing high levels of leverage in their investment strategies may , under certain conditions , contribute to the build up of systemic risk or disorderly markets , special reporting requirements should be imposed on aifm using leverage . the information needed to detect , monitor and respond to those risks has not been collected in a consistent way throughout the community , and shared across member states so as to identify potential sources of risk to the stability of financial markets in the community . to remedy this situation , special reporting requirements should apply to aifm which use high levels of leverage in their investment strategies . those aifm should be obliged to disclose information regarding their use and sources of leverage . that information should be aggregated in a central register under the auspices of the european systemic risk board established by regulation 2009 / . . . / ec and shared with other authorities in the union , the esma and competent authorities in third countries , where appropriate , so as to facilitate a collective analysis of the impact of the leverage of those aifm on the financial system in the union , as well as a common response . a central register under the auspices of the esrb for banks that provide prime broker services to aif shall also be set up in directives 2006 / 48 / ec and 2006 / 49 / ec .


### the commission shall adopt implementing measures further specifying the reporting obligations referred to in paragraphs 1 , 2 and 3 and their frequency . ### the commission shall adopt delegated acts in accordance with articles 49a , 49b and 49c further specifying the reporting obligations referred to in paragraphs 1 , 2 and 3 and their frequency . such acts shall be appropriate and proportionate and adapted to the type of aifm and aif to which they apply , taking account , inter alia , of the different size , resources , complexity , nature , investments , investment strategies and techniques , structures and investors of different types of aifm .


### the requirements that need to be met by the originator in order for an aifm to be allowed to invest in securities or other financial instruments of this type issued after 1 january 2011 on behalf of one or more aif , including requirements that ensure that the originator retains a net economic interest of not less than 5 per cent ; ### the requirements that need to be met by the originator in order for an aifm to be allowed to invest on behalf of one or more aif in securities or other financial instruments of this type issued after 1&#160 ; january&#160 ; 2011 , including the requirements that the originator : retains a net economic interest of not less than 5 per cent in any such issue of securities and represents in the prospectus or other issuing documentation of such securities that it has , and will maintain , such interest ; and


### the commission shall adopt implementing measures further specifying the disclosure obligations of aifm and the frequency of the disclosure referred to in paragraph 2 . these measures shall be adapted to the type of aifm to which they apply . ### the commission shall adopt delegated acts further specifying the disclosure obligations of aifm and the frequency of the disclosure referred to in paragraph 2 . these acts shall be adapted to the type of aifm to which they apply and be proportionate , taking account , inter alia , of the different size , resources , complexity , nature , investments , investment strategies and techniques , structures and investors of different types of aifm .


### given that aifm employing high levels of leverage in their investment strategies may , under certain conditions , contribute to the build up of systemic risk or disorderly markets , special requirements should be imposed on aifm using certain techniques giving rise to particular risks . the information needed to detect , monitor and respond to those risks has not been collected in a consistent way throughout the community , and shared across member states so as to identify potential sources of risk to the stability of financial markets in the community . to remedy this situation , special requirements should apply to aifm , which consistently use high levels of leverage in their investment strategies . those aifm should be obliged to disclose information regarding their use and sources of leverage . that information should be aggregated and shared with other authorities in the community , so as to facilitate a collective analysis of the impact of the leverage of those aifm on the financial system in the community , as well as a common response . ### given that an aifm may employ leverage , at the level of the aif and may , under certain conditions , contribute to the build up of systemic risk or disorderly markets , special requirements should be imposed on aifm employing leverage on a systemically significant basis . the information needed to detect , monitor and respond to those risks has not been collected in a consistent way throughout the union , and shared across member states so as to identify potential sources of risk to the stability of financial markets in the union . to remedy this situation , special requirements should apply to aifm , which employ leverage at the level of the aif on a systemically significant basis . such aifm should be obliged to disclose information regarding the use and sources of leverage in their aif . information gathered by competent authorities should be aggregated and shared with other authorities in the union , so as to facilitate a collective analysis of the impact of the leverage of aif managed by aifm on the financial system in the union , as well as a common response .


### ' alternative investment fund ' or aif means any collective investment undertaking , including investment compartments thereof whose object is the collective investment in assets and which does not require authorisation pursuant to article 5 of directive 2009 / &#8230 ; / ec [ the ucits directive ] ; ### ' alternative investment fund ' or ' aif ' means any collective investment undertaking which raises capital from a number of investors with a view to investing it in accordance with a defined investment policy on the principle of risk - spreading for the benefit of those investors , including investment compartments of any such undertaking , and which does not require authorisation pursuant to article 5 of directive 2009 / &#8230 ; / ec [ the ucits directive ] ;


### depositary for each aif it manages , the aifm shall ensure that a depositary is appointed to fulfil , where relevant , the following tasks : receive all payments made by investors when subscribing units or shares of an aif managed by the aifm and book them on behalf of the aifm in a segregated account ; safe - keep any financial instruments which belong to the aif ; verify whether the aif or the aifm on behalf of the aif has obtained the ownership of all other assets the aif invests in . 2 . an aifm shall not act as depositary . the depositary shall act independently and solely in the interest of aif investors . 3 . the depositary shall be a credit institution having its registered office in the community and be authorised in accordance with directive 2006 / 48 / ec of the european parliament and council of 14 june 2006 relating to the taking up and pursuit of the business of credit institutions . 4 . depositaries may delegate their tasks to other depositaries . 5 . the depositary shall be liable to the aifm and the investors of the aif for any losses suffered by them as a result of its failure to perform its obligations pursuant to this directive . in case of any loss of financial instruments which the depositary safe - keeps , the depositary can only discharge itself of its liability if it can prove that it could not have avoided the loss which has occurred . liability to aif investors may be invoked either directly or indirectly through the aifm , depending on the legal nature of the relationship between the depositary , the aifm and the investors . the depositary ' s liability shall not be affected by any delegation referred to in paragraph 4 . ### depositary for each aif it manages , the aifm shall ensure that a depositary is appointed to fulfil , where relevant , the following functions : receive all payments made by investors when subscribing units or shares of an aif managed by the aifm and book them on behalf of the aifm in a segregated account ; safe - keep any financial instruments which belong to the aif , namely : hold in custody all financial instruments that can be kept and make adequate arrangements so as to safeguard the aif ' s ownership rights , especially in the event of the depositary ' s insolvency , including arrangements to ensure that those financial instruments are registered in the depositary ' s books within segregated accounts or a common segregated account for multiple aif , so that in the event of the depositary ' s default they can be clearly identified as separate from the assets of the depositary ; maintain the records to verify the ownership of financial instruments that cannot be kept on the basis of the information provided by the aifm and external evidence of transactions made . verify whether the aif or the aifm on behalf of the aif has obtained the ownership of all other assets the aif invests in . 1a . in addition to the functions referred to in paragraph 1 , the depositary shall ensure that : the sale , issue , re - purchase , redemption and cancellation of shares or units of the aif are carried out in accordance with the applicable national law and the aif rules or instruments of incorporation ; the value of the shares or units of the aif is calculated in accordance with the applicable national law and the aif rules or instruments of incorporation ; in transactions involving the assets of an aif , any consideration is remitted to it within the usual time limits ; and an aif ' s income is applied in accordance with the applicable national law and the aif rules . 2 . an aifm shall not act as depositary . the depositary shall act honestly , fairly , professionally , independently and in the interest of aif investors . 3 . the depositary shall be either : a credit institution having its registered office in the community and be authorised in accordance with directive 2006 / 48 / ec , or an investment firm authorised in accordance with directive 2004 / 39 / ce . 3a . where an aif managed by an authorised aifm is domiciled in a third country , the depositary shall have its registered office in the union , unless all of the following conditions are satisfied : the competent authorities of the home member state of the aifm and those of the third country where the aif is domiciled have signed cooperation and exchange of information agreements ; the law of the third country where the aif is domiciled is in line with the standards set by international organisations ; the third country where the aif is domiciled is the subject of a decision taken pursuant to point stating that depositaries domiciled in that country are subject to effective prudential regulation and supervision which is equivalent to the provisions laid down in union law ; the third country where the aif is domiciled is the subject of a decision taken pursuant to point stating that the standards to prevent money laundering and terrorist financing are equivalent to those laid down in union law ; the home member state of the aifm has signed an agreement with the third country where the aif is domiciled which fully complies with the standards laid down in article 26 of the oecd model tax convention and ensures an effective exchange of information in tax matters . 4 . depositaries may delegate their tasks apart from functions of monitoring and oversight over their sub - depositaries . a depositary shall not delegate its functions to the extent that it becomes a letter - box entity . such a delegation of liability shall only occur in one instance . there shall be no chain of liability . 4a . depositaries shall respect best practices and shall exercise all due skill , care and diligence in the selection and appointment , periodic review and ongoing monitoring of their performance of any third party to whom they have delegated their tasks as referred to in this paragraph . 5 . the depositary shall be liable to the aifm and the investors of the aif for any losses suffered by them as a result of its intentional or negligent failure to perform its obligations pursuant to this directive or its improper performance of them except where such loss arises as a result of force majeure . in case of any loss of financial instruments which the depositary safe - keeps , the depositary can only discharge itself of its liability if it can prove that the loss has been caused by an external event , that it was not foreseeable and that the depositary could not have avoided the loss which has occurred . the depositary ' s liability towards aifm and investors shall not be affected by the fact that it has chosen to undertake a single delegation to an authorised third party , such as a sub - depositary or a sub - custodian , a part of its tasks . therefore , in the event of any loss of financial instruments which the depositary safe - keeps , as a primary obligation , without prejudice to national law , the depositary shall return the assets to the aif without undue delay . that requirement shall apply without prejudice to any legal proceedings . liability to aif investors may be invoked directly or indirectly through the aifm . 5a . by way of exception to paragraph 5 , where a depositary is legally prevented by the law of the country where the aifm invests on behalf of the aif or is unable to exercise its custodial functions due to an unforeseeable external event , the depositary can discharge itself of its own liability , including for loss of financial instruments , if it can prove that it has performed its due diligence duties as referred to in paragraph 4a . such delegation of liability can only occur in one instance . there shall be no chain of liability . 5b . by way of exception to paragraph 5 , where the contract between the depositary and a prime broker or a sub - custodian allows for the transfer and reuse of assets in compliance with the aif ' s rules , the depositary may discharge itself of its own liability if it can prove that it has performed its due diligence duties as referred to in paragraph 4a . the contract between the aifm and the depositary shall require that the aifm be informed of any contractual term allowing the transfer and reuse of assets in compliance with the aif ' s rules before the implementation of the contract . before they invest in the aif , investors shall be informed of that clause and updated about the identity of the third party . in particular , investors shall be informed of any transfer of liability to the third party that may exist , including in the event of loss of financial instruments . in that case , the delay for restitution shall be in accordance with the terms of the contract between the depositary and the third party . 5c . the depositary shall make available on request to the competent authorities of its home member state all information which it has obtained while undertaking its duties and that may be necessary for the competent authorities to supervise the aifm . if the home member state of the aifm is different from that of the depositary , the competent authorities of the home member state of the depositary shall share the information received without delay with the competent authorities of the home member state of the aifm . 5d . the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts further specifying the duties and responsibilities of depositaries and the conditions under which an aif depositary may delegate some of its functions to a third party . 5e . any appointment of a depositary shall be subject to approval from the competent authority of the home member state of the aifm . the competent authority may permit the appointment of more than one depositary where it is satisfied that this will not interfere with the proper performance of all the obligations of the depositary set out in this directive .


### scope this section shall apply to the following : aifm managing one or more aif which either individually or in aggregation acquires 30 % or more of the voting rights of an issuer or of a non - listed company domiciled in the community , as appropriate ; aifm having concluded an agreement with one or more other aifm which would allow the aif managed by these aifm to acquire 30 % or more of the voting rights of the issuer or the non - listed company , as appropriate . 2 . this section shall not apply where the issuer or the non - listed company concerned are small and medium enterprises that employ fewer than 250 persons , have an annual turnover not exceeding 50 million euro and / or an annual balance sheet not exceeding 43 million euro . ### scope this section shall apply to the following : aifm managing one or more aif which either individually or in aggregation acquires controlling influence , for example when acquiring 10% , 20% , 30% or 50% or more of the voting rights , over an issuer or over a non - listed company domiciled in the union , as appropriate ; aifm having concluded an agreement with one or more other aifm which would allow the aif managed by these aifm to acquires controlling influence , for example when acquiring 10% , 20% , 30% or 50% or more of the voting rights , over an issuer or over a non - listed company , as appropriate . 2 . article 26 to 30 shall not apply where the issuer or the non - listed company concerned – included depended companies – employs fewer than 50 persons .


### home member states shall ensure that all information received under article 24 , aggregated in respect of all aifm that it supervises , are made available to other competent authorities through the procedure set out in article 46 on supervisory co - operation . it shall , without delay , also provide information through this mechanism , and bilaterally to other member states directly concerned , if an aifm under its responsibility could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institution in other member states . ### the competent authorities of the home member states shall ensure that all information gathered under article 21 , aggregated in respect of all aifm that they supervise , is made available to the competent authorities of the other member states , to esma and to esrb through the procedure set out in article 46 on supervisory co - operation . they shall , without delay , also provide information through this mechanism , and bilaterally to the competent authorities of other member states directly concerned , if an aifm under their responsibility , or an aif managed by that aifm , could potentially constitute an important source of counterparty risk to a credit institution or other systemically relevant institution in those other member states .


### reliable and objective asset valuation is crucial for the protection of investor interests . different aifm employ different methodologies and systems for valuing assets , depending on the assets and markets in which they predominantly invest . it is appropriate to recognise these differences but to , nevertheless , require the valuation of assets to be undertaken by an entity which is independent of the aifm . ### reliable and objective asset valuation is crucial for the protection of investor interests . different aifm employ different methodologies and systems for valuing assets , depending on the assets and markets in which they predominantly invest . it is appropriate to recognise these differences . the process for valuation of assets and calculation of the net asset value should be functionally independent from the management functions of the aifm . where appropriate , the aifm should be able to delegate or assign the valuation of assets and calculation of the nav to a third party .