### 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 .


### in addition to article 27 , member states shall ensure that where an aifm acquires 30 % or more of the voting rights of an issuer or a non - listed company , that aifm makes the information set out in the second and third subparagraphs available to the issuer , the non - listed company , their respective shareholders and representatives of employees or , where there are no such representatives , to the employees themselves . with regard to issuers , the aifm shall make available the following to the issuer concerned , its shareholders and representatives of employees : the information referred to in article 6 of directive 2004 / 25 / ec of the european parliament and of the council of 21 april 2004 on takeover bids1 ; the policy for preventing and managing conflicts of interests , in particular between the aifm and the issuer ; the policy for external and internal communication of the issuer in particular as regards employees . with regard to non - listed companies , the aifm shall make available the following to the non - listed company concerned , its shareholders and representatives of employees : the identity of the aifm which either individually or in agreement with other aifm have reached the 30 % threshold ; the development plan for the non - listed company ; the policy for preventing and managing conflicts of interests , in particular between the aifm and the non - listed company ; the policy for external and internal communication of the issuer or non - listed company , in particular as regards employees . oj l 142 , 30 . 4 . 2004 , p . 12 . ### in addition to article 27 , member states shall ensure that where an aifm , acting alone or in concert with other aifm , acquires a controlling influence over an issuer or a non - listed company , that aifm notifies the information set out in this paragraph to the issuer , the non - listed company , their respective shareholders and representatives of employees or , where there are no such representatives , to the employees themselves . with regard to issuers , the aifm shall make available to the issuer concerned , its shareholders and representatives of its employees , the information referred to in article 6 of directive 2004 / 25 / ec . with regard to issuers and non - listed companies , the aifm shall make available : planned significant divestments of assets ; the policy for preventing and managing conflicts of interests , in particular between the aifm and the issuer ; the policy for external and internal communication of the issuer in particular as regards employees . the identity of the aifm which either individually or in agreement with other aifm have reached a controlling or influence ; the policy for preventing and managing conflicts of interests , in particular between the aifm and the non - listed company ; the person or persons authorised to conclude legally binding agreements relating to business strategy and employment policy .


### an aifm shall , for each of the aif it manages , make available an annual report for each financial year . the annual report shall be made available to investors and competent authorities no later than four months following the end of the financial year . ### aifm , for each of the aif it manages , and aif shall make available an annual report for each financial year . the annual report shall be made available to investors and competent authorities no later than four months following the end of the financial year .


### 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 , a certified valuator is appointed that is functionally 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 .


### 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 commission shall adopt implementing measures specifying the modalities , content and frequency of the information to be exchanged pursuant to paragraph 1 . those measures , designed 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 . ### the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts specifying the modalities , content and frequency of the information to be exchanged pursuant to paragraph 1 .


### 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 . ### the commission should be empowered to adopt delegated acts in accordance with article 290 of the treaty on the functioning of the european union , in order to determine 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 delegated acts may also 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 may 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 may specify the liquidity management requirements of this directive and in particular the minimum liquidity requirements for aif , they may 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 may as well specify the requirements that aifm have to comply with when investing in such securitisation instruments . they may specify the criteria under which a valuator can be considered independent in the meaning of this directive . they may 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 may 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 may specify the disclosure requirements imposed on aifm as regards leverage and the frequency of reporting to competent authorities and of disclosure to investors . they may set limits to the level of leverage aifm can employ when managing aif . they may 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 may 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 may 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 may 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 may 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 specify the procedures for on - the - spot verifications and investigations . they state that the fund valuation standards of a specific third country are equivalent to those applicable in the union where the valuator is established in a third country . they may state that the legislation on depositaries of a specific third country is equivalent to this directive . they may state that the legislation on prudential regulation and ongoing supervision of aifm in a specific third country is equivalent to this directive . they may state whether a specific third country grants community aifm effective market access comparable to that granted by the union to aifm from that third country . they may specify standard models for notification and attestations and to specify the procedure for the exchange of information between competent authorities .


### 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 . ### activities of aifm based on the use of high levels of leverage could be detrimental to the stability and efficient functioning of financial markets . leverage is a difficult concept to define . the competent authorities of the home member state of the aifm should however have the possibility of imposing limits on the level of leverage that aifm can use in times of extreme market stress . member states should inform the esma and the commission of any such measure .


### the commission shall adopt implementing measures specifying the criteria for assessing the equivalence of the valuation standards and rules of third countries as referred to in paragraph . those measures , designed 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 . ### the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts specifying the criteria for assessing the equivalence of the valuation standards and rules of third countries as referred to in paragraph .


### 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 .


### the commission shall adopt implementing measures specifying the criteria to be used by competent authorities to assess whether aifm comply with their obligation under paragraph 1 . those measures , designed 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 . ### the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts specifying the criteria to be used by competent authorities to assess whether aifm comply with their obligation under paragraph 1 .


### the policy for preventing and managing conflicts of interests , in particular between the aifm and the non - listed company ; ### the policy for preventing and managing conflicts of interests , in particular between the aif or aifm and the non - listed company ;


### the actual risk profile of the aif and the risk management tools employed by the aifm to manage these risks ; ### the actual risk profile of the aif , including the level of leverage used , and the risk management tools employed by the aifm to manage these risks ;


### the commission shall adopt implementing measures further specifying the criteria under which a valuator can be considered independent in the meaning of paragraph 1 . those measures , designed 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 . ### the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts further specifying the conditions governing the certification of valuators and the principles underlying the valuation criteria within the meaning of paragraph 1 .


### the commission shall adopt implementing measures further specifying the content and format of the annual report . these measures shall be adapted to the type of aifm to which they apply . ### the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts further specifying the content and format of the annual report . these acts shall be appropriate and proportionate and adapted to the type of aifm to which they apply and to the aif to which the report relates , taking account of the different size , resources , complexity , nature , investments , investment strategies and techniques , structures and investors of different types of aifm and the aif which they manage .


### ‘ 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 ;


### 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 aif and aifm and the frequency of the disclosure referred to in paragraph 2 . these acts shall be adapted to the type of aif and aifm to which they apply .


### on the basis of the criteria referred to in paragraph 2 , the commission shall , in accordance with the procedure referred to in article 49 , adopt implementing measures , stating that the valuation standards and rules of a third country legislation are equivalent to those applicable in the community . ### on the basis of the criteria referred to in paragraph 2 , the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts stating that the valuation standards and rules of a third country legislation are equivalent to those applicable in the union .


### where , following an acquisition of 30 % or more of the voting rights of an issuer , the shares of that issuer are no longer admitted to trading on a regulated market , it shall nevertheless continue to comply with its obligations under directive 2004 / 109 / ec for two years from the date of withdrawal from the regulated market . ### where , following an acquisition of a controlling influence , or the securing of a significant influence , over an issuer , the shares of that issuer are no longer admitted to trading on a regulated market , it shall nevertheless continue to comply with its obligations under directive 2004 / 109 / ec for one year from the date of withdrawal from the regulated market .


### 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 . those measures , designed 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 . ### the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts further specifying the disclosure obligations of aifm and the frequency of the disclosure referred to in paragraph 2 , taking into account the type of aifm to which they apply .


### 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 cover 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 or discretionary investment policy for the benefit of those investors . this directive should also apply to single investor funds and leveraged managed accounts , in order to preserve a level playing field between similar types of investment vehicles . it should not apply to public interest entities . this directive should neither apply to actively managed investments in the form of securities , such as certificates , managed futures , or index - linked bonds . nor should this directive apply to holding companies insofar as they hold shares in their subsidiaries , given that such holding companies are not established for the main purpose of generating returns for their investors by means of , in particular , the divestment of their subsidiaries within a set timeframe , but which are aimed at carrying out a business strategy through their subsidiaries . 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 .


### an aifm shall not act as depositary . ### no company shall act as both aifm and depositary for an 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 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 ;


### 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 .


### subject to the implementing measures referred to in the third subparagraph , the competent authorities may impose restrictions or conditions on the marketing of aif pursuant to this article . the commission shall adopt implementing measures specifying the types of restrictions or conditions that can be imposed on the marketing of aif pursuant to the second subparagraph of this paragraph . those measures , designed 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 . ### subject to the delegated acts referred to in the third subparagraph , the competent authorities may impose restrictions or conditions on the marketing of aif pursuant to this article . the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts specifying the types of restrictions or conditions that can be imposed on the marketing of aif pursuant to the second subparagraph of this paragraph .


### the identity of the aifm which either individually or in agreement with other aifm have reached the 30 % threshold ; ### the identity of the aif or aifm which either individually or in agreement with other aifm have reached the 25 % threshold ;


### in order to ensure cross - sectoral consistency and to remove misalignment between the interest of firms that repackage loans into tradeable securities and other financial instruments and aifm that invest in these securities or other financial instruments on behalf of one or more aif , the commission shall adopt implementing measures laying down the requirements in the following areas : 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 ; 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 . ### in order to ensure cross - sectoral consistency and to remove misalignment between the interest of firms that repackage loans into tradeable securities and other financial instruments and aifm that invest in these securities or other financial instruments on behalf of one or more aif , the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts laying down the requirements in the following areas : 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 ; qualitative requirements that must be met by aifm which invest in these securities or other financial instruments on behalf of one or more 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 . ### the commission should be empowered to adopt delegated acts in accordance with article 290 of the treaty on the functioning of the european union , in order to determine 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 delegated acts may also 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 may 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 may specify the liquidity management requirements of this directive and in particular the minimum liquidity requirements for aif , they may 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 may as well specify the requirements that aifm have to comply with when investing in such securitisation instruments . they may specify the criteria under which a valuator can be considered independent in the meaning of this directive . they may 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 may 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 may specify the disclosure requirements imposed on aifm as regards leverage and the frequency of reporting to competent authorities and of disclosure to investors . they may set limits to the level of leverage aifm can employ when managing aif . they may 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 may 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 may 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 may 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 may 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 specify the procedures for on - the - spot verifications and investigations . they state that the fund valuation standards of a specific third country are equivalent to those applicable in the union where the valuator is established in a third country . they may state that the legislation on depositaries of a specific third country is equivalent to this directive . they may state that the legislation on prudential regulation and ongoing supervision of aifm in a specific third country is equivalent to this directive . they may state whether a specific third country grants community aifm effective market access comparable to that granted by the union to aifm from that third country . they may specify standard models for notification and attestations and to specify the procedure for the exchange of information between competent authorities .


### the commission shall adopt implementing measures further specifying the reporting obligations referred to in paragraphs 1 , 2 and 3 and their frequency . ### the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts further specifying the reporting obligations referred to in paragraphs 1 , 2 and 3 , which may be adapted and supplemented in the light of evolving financial techniques , and their frequency .


### the commission shall adopt implementing measures further specifying the content and format of the annual report . these measures shall be adapted to the type of aifm to which they apply . ### the commission shall adopt delegated acts further specifying the content and format of the annual report . those acts shall be adapted to the type of aif or aifm to which they apply .


### the commission shall adopt implementing measures specifying the criteria to be used by competent authorities to assess whether aifm comply with their obligation under paragraph 1 . those measures , designed 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 . ### the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts specifying the criteria to be used by competent authorities to assess whether aifm comply with their obligation under paragraph 1 .


### 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 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 . to facilitate speedy and effective restitution of investor assets , the depositary shall be liable to the aifm , to the aif and to the investors of the aif collectively except in cases where such losses arise as a result of ' force majeure ' . in this context , ' force majeure ' means unforeseeable external events , causing losses beyond the control of the depositary , the consequences of which could not have been avoided despite compliance with the due diligence requirements laid down in this directive .


### the commission shall adopt implementing measures : further specifying the types of conflicts of interests as referred to in paragraph 1 ; specifying 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 . those measures , designed 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 . ### the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts : further specifying the types of conflicts of interests as referred to in paragraph 1 ; specifying 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 .


### committee the commission shall be assisted by the european securities committee established by commission decision 2001 / 528 / ec of 6 june 2001 establishing the european securities committee . 2 . where reference is made to this paragraph , articles 5 and 7 of council decision 1999 / 468 / ec of 28 june 1999 laying down the procedures for the exercise of implementing powers conferred on the commission shall apply , having regard to the provisions of article 8 thereof . the period laid down in article 5 of decision 1999 / 468 / ec shall be set at three months . 3 . where reference is made to this paragraph , article 5a to and article 7 of decision 1999 / 468 / ec shall apply , having regard to the provisions of article 8 thereof . ### delegated acts the powers to adopt delegated acts referred to in articles 2 , 9 , 10 , 11 , 12 , 13 , 16 , 18 , 19 , 20 , 21 , 24 , 25 , 28 , 29 , 31 , 33 , 37 , 37 , 38 , 38 , 39 , 39 , 45 , 46 , 47 and 53 are conferred on the commission subject to the conditions laid down in paragraphs 2 and 3 of this article . 2 . the delegation of powers shall last for three years from the date of entry into force of this directive and shall be extended for periods of three years on a request from the commission made at the latest one month before the expiry of the delegation , unless the european parliament or the council objects within three months of the request . the european parliament or the council may revoke the delegation of power at any time . 3 . a delegated act adopted pursuant to this article shall enter into force only if no objection has been expressed by the european parliament or the council within a period of three months .


### 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 .


### 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 commission shall adopt implementing measures specifying the modalities , content and frequency of the information to be exchanged pursuant to paragraph 1 . those measures , designed 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 . ### the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts specifying the modalities , content and frequency of the information to be exchanged pursuant to paragraph 1 .


### 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 cover 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 or discretionary investment policy for the benefit of those investors . this directive should also apply to single investor funds and leveraged managed accounts , in order to preserve a level playing field between similar types of investment vehicles . it should not apply to public interest entities . this directive should neither apply to actively managed investments in the form of securities , such as certificates , managed futures , or index - linked bonds . nor should this directive apply to holding companies insofar as they hold shares in their subsidiaries , given that such holding companies are not established for the main purpose of generating returns for their investors by means of , in particular , the divestment of their subsidiaries within a set timeframe , but which are aimed at carrying out a business strategy through their subsidiaries . 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 commission shall adopt implementing measures specifying the modalities , content and frequency of the information to be exchanged pursuant to paragraph 1 . ### the commission shall adopt implementing measures specifying the modalities , content and frequency of the information to be exchanged pursuant to paragraph 1 and communicated to the commission pursuant to paragraph 1 .


### in addition to article 27 , member states shall ensure that where an aifm acquires 30 % or more of the voting rights of an issuer or a non - listed company , that aifm makes the information set out in the second and third subparagraphs available to the issuer , the non - listed company , their respective shareholders and representatives of employees or , where there are no such representatives , to the employees themselves . ### in addition to article 27 , member states shall ensure that where an aif or aifm acquires 25 % or more of the voting rights of an issuer or a non - listed company , that aif or aifm makes the information set out in the second and third subparagraphs available to the issuer , the non - listed company , their respective shareholders and representatives of employees or , where there are no such representatives , to the employees themselves .


### for each aif an aifm manages , it shall periodically disclose to investors : ### for each aif that permits redemptions at the option of investors , the managing aifm shall periodically disclose to investors :


### the aifm shall ensure that the functions of risk management and portfolio management are separated and subject to separate reviews . ### the aifm shall ensure that the functions of risk management and portfolio management are separated so far as it is appropriate and proportionate in view of its nature , scale and complexity and of the nature , scale and complexity of the aif that it manages .


### those measures , designed 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 . ### the commission is also empowered to adopt , in accordance with article 49 of this directive , delegated acts , regarding the type of information made public pursuant to paragraph 3a .


### the aifm must have its head office in the same member state as its registered office . ### the aifm must have its head office in the same member state as its registered office . where an aifm manages one or more aifs , authorisation shall be required for each aif concerned .


### where , following an acquisition of 30 % or more of the voting rights of an issuer , the shares of that issuer are no longer admitted to trading on a regulated market , it shall nevertheless continue to comply with its obligations under directive 2004 / 109 / ec for two years from the date of withdrawal from the regulated market . ### where , following an acquisition of controlling influence of an issuer , the shares of that issuer are no longer admitted to trading on a regulated market , it shall nevertheless continue to comply with its obligations under directive 2004 / 109 / ec for one year from the date of withdrawal from the regulated market .


### the commission shall adopt implementing measures aimed at establishing : ### the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts aimed at establishing :


### on the basis of the criteria referred to in paragraph 2 , the commission shall , in accordance with the regulatory procedure referred to in article 49 , adopt implementing measures stating : ### on the basis of the criteria referred to in paragraph 2 , the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts stating :


### the commission shall adopt implementing measures concerning procedures for on - the - spot verifications and investigations . those measures , designed 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 . ### the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts concerning procedures for on - the - spot verifications and investigations .


### in addition to article 27 , member states shall ensure that where an aifm acquires 30 % or more of the voting rights of an issuer or a non - listed company , that aifm makes the information set out in the second and third subparagraphs available to the issuer , the non - listed company , their respective shareholders and representatives of employees or , where there are no such representatives , to the employees themselves . with regard to issuers , the aifm shall make available the following to the issuer concerned , its shareholders and representatives of employees : the information referred to in article 6 of directive 2004 / 25 / ec of the european parliament and of the council of 21 april 2004 on takeover bids1 ; the policy for preventing and managing conflicts of interests , in particular between the aifm and the issuer ; the policy for external and internal communication of the issuer in particular as regards employees . with regard to non - listed companies , the aifm shall make available the following to the non - listed company concerned , its shareholders and representatives of employees : the identity of the aifm which either individually or in agreement with other aifm have reached the 30 % threshold ; the development plan for the non - listed company ; the policy for preventing and managing conflicts of interests , in particular between the aifm and the non - listed company ; the policy for external and internal communication of the issuer or non - listed company , in particular as regards employees . oj l 142 , 30 . 4 . 2004 , p . 12 . ### in addition to article 27 , member states shall ensure that where an aifm , acting alone or in concert with other aifm , acquires a controlling influence over an issuer or a non - listed company , that aifm notifies the information set out in this paragraph to the issuer , the non - listed company , their respective shareholders and representatives of employees or , where there are no such representatives , to the employees themselves . with regard to issuers , the aifm shall make available to the issuer concerned , its shareholders and representatives of its employees , the information referred to in article 6 of directive 2004 / 25 / ec . with regard to issuers and non - listed companies , the aifm shall make available : planned significant divestments of assets ; the policy for preventing and managing conflicts of interests , in particular between the aifm and the issuer ; the policy for external and internal communication of the issuer in particular as regards employees . the identity of the aifm which either individually or in agreement with other aifm have reached a controlling or influence ; the policy for preventing and managing conflicts of interests , in particular between the aifm and the non - listed company ; the person or persons authorised to conclude legally binding agreements relating to business strategy and employment policy .


### 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 . ### the commission should be empowered to adopt delegated acts in accordance with article 290 of the treaty on the functioning of the european union , in order to determine 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 delegated acts may also 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 may 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 may specify the liquidity management requirements of this directive and in particular the minimum liquidity requirements for aif , they may 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 may as well specify the requirements that aifm have to comply with when investing in such securitisation instruments . they may specify the criteria under which a valuator can be considered independent in the meaning of this directive . they may 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 may 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 may specify the disclosure requirements imposed on aifm as regards leverage and the frequency of reporting to competent authorities and of disclosure to investors . they may set limits to the level of leverage aifm can employ when managing aif . they may 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 may 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 may 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 may 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 may 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 specify the procedures for on - the - spot verifications and investigations . they state that the fund valuation standards of a specific third country are equivalent to those applicable in the union where the valuator is established in a third country . they may state that the legislation on depositaries of a specific third country is equivalent to this directive . they may state that the legislation on prudential regulation and ongoing supervision of aifm in a specific third country is equivalent to this directive . they may state whether a specific third country grants community aifm effective market access comparable to that granted by the union to aifm from that third country . they may specify standard models for notification and attestations and to specify the procedure for the exchange of information between competent authorities .


### the commission shall adopt implementing measures further specifying the disclosure requirements with regard to leverage and the frequency of reporting to competent authorities and of disclosure to investors . those measures , designed 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 . ### the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts further specifying the disclosure requirements with regard to leverage and the frequency of reporting to competent authorities and of disclosure to investors .


### on the basis of the criteria referred to in paragraph 2 , the commission shall , in accordance with the procedure referred to in article 49 , adopt implementing measures , stating that the valuation standards and rules of a third country legislation are equivalent to those applicable in the community . ### on the basis of the criteria referred to in paragraph 2 , the commission is empowered to adopt , in accordance with article 49 of this directive , delegated acts stating that the valuation standards and rules of a third country legislation are equivalent to those applicable in the union .