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Survey of Legislation and Case Law, July and August 2013

Survey of Legislation and Case Law, July and August 2013 COLUMNS BY PAUL JAGER, LLM PHD-FELLOW IN COMPANY LAW AT LEIDEN UNIVERSITY, THE NETHERLANDS 1. COMPANY LAW AND CORPORATE GOVERNANCE management and where the AIF's governing body chooses not to appoint an external AIFM, the AIF itself. The AIFs which are not internally managed and have appointed an external AIFM are not subject to the remuneration principles established in the AIFMD as well as these guidelines. However, the remuneration principles set out in the Recommendation are relevant to those AIFs, as well as the AIFMs which can benefit from the exclusions and exemptions foreseen in Articles 2 or 3 of the AIFMD, to the extent that they fall within the definition of `financial undertaking' provided in paragraph 2.1 of the Recommendation. Annex I of these guidelines provides for a correlation table highlighting those principles of the Recommendation which are reflected in the AIFMD. These guidelines apply from 22 July 2013, subject to the transitional provisions of the AIFMD. 2.2. European Commission: Proposal for a Single Resolution Mechanism (SRM) for the Banking Union, 10 July 2013, ec.europa.eu/ internal_market withstanding stronger supervision ­ if a bank subject to the SSM faced serious difficulties, its resolution could be managed efficiently with minimal costs to taxpayers and the real economy. 2.3. ESMA: Guidelines on the Model MoU Concerning Consultation, Cooperation and the Exchange of Information Related to the Supervision of AIFMD Entities, 18 July 2013, ESMA/2013/998, www.esma.europa.eu 2. FINANCIAL SERVICES/SECURITIES LAW 2.1. ESMA: Guidelines on Sound Remuneration Policies under the AIFMD, 3 July 2013, ESMA/2013/ 232, www.esma.europa.eu These guidelines apply to Alternative Investment Fund Managers (AIFMs) and competent authorities. As long as the national regimes referred to in Article 42 of the Alternative Investment Fund Managers Directive (AIFMD) will continue to be in force, non-EU AIFMs which market to professional investors units or shares of Alternative Investment Funds (AIFs) in Member States without a passport will only be subject to section XIII (Guidelines on disclosure) of these guidelines. These non-EU AIFMs will be subject to the full set of remuneration provisions in these guidelines as from the date when the national regimes referred to in Article 42 of the AIFMD will be terminated and the passport regime provided for in Articles 37­41 of the AIFMD will become the sole and mandatory regime applicable in all Member States, as determined by the Commission's delegated act referred to in Article 68(6) of the AIFMD. In accordance with Article 5 of the AIFMD, for the purposes of these guidelines, the AIFMs to which the remuneration principles apply shall be either an external manager or, where the legal form of the AIF permits internal These guidelines lay down a model of the Memorandum of Understanding (MoU) that should be agreed between the EU and non-EU supervisory authorities in order to have the appropriate supervisory cooperation arrangements in place as required by the Directive 2011/61/EU of the European Parliament and the Council on AIFMs. These guidelines apply to the EU competent authorities designated in accordance with Article 44 of the AIFMD, and shall apply as from the date of entry into force of AIFMD Level 2 measures. These guidelines are without prejudice to existing or future cooperation arrangements in areas not relating to the AIFMD. These guidelines do not preclude the possibility to include in the scope of the MoU a commitment from EU authorities to cooperate with and provide assistance to non-EU authorities for the supervision of EU managers that market funds in the jurisdiction of the latter. The European Commission has today proposed an SRM for the Banking Union. The mechanism would complement the Single Supervisory Mechanism (SSM) which, once operational in late 2014, will see the European Central Bank directly supervise banks in the euro area and in other Member States which decide to join the Banking Union. The Single Resolution Mechanism would ensure that ­ not `Columns'. European Company Law 10, no. 6 (2013): 216­217. © 2013 Kluwer Law International BV, The Netherlands COLUMNS 2.4. Joint Committee: Final Draft Regulatory Technical Standards (RTS) on the Consistent Application of the Calculation Methods under Article 6(2) of the Financial Conglomerates Directive under Regulation (EU) No. 575/2013 (Capital Requirements Regulation ­ CRR) and Directive 2013/36/EU, 26 July 2013, JC-RTS-2013-01, www.esma.europa.eu large exposures, leverage ratio and liquidity ratios. As the ITS follow the scope and level of application set out in the CRR, they apply to credit institutions and investment firms on both: (i) an individual, and (ii) a consolidated level, with the exception of financial information. 2.6. ESMA Final Report: Draft Implementing Technical Standards Amending Commission Implementing Regulation (EU) No. 1247/2012 Laying down Implementing Technical Standards with Regard to the Format and Frequency of Trade Reports to Trade Repositories under Regulation (EU) No. 648/2012, 6 August 2013, ESMA/2013/1087, www.esma.europa.eu specification of ETDs. This specification would be useful as there is a risk currently that reporting of ETDs is not harmonized unless further regulatory guidance is issued. Without regulatory guidance, reporting would not be consistent and not able to be efficiently used, according to the ESMA. The draft RTS puts forward rules in order to ensure that institutions that are part of a financial conglomerate apply the appropriate calculation methods for the determination of required capital at the level of the conglomerate. 2.5. EBA: Final Draft Implementing Technical Standards (ITS) on Supervisory Reporting under Regulation (EU) No. 575/2013, 26 July 2013, EBA-ITS-2013-02, www.eba.europa.eu 3. FINANCIAL REPORTING (ACCOUNTING AND AUDITING) 4. SOCIAL POLICY (EMPLOYEE INVOLVEMENT AND TRANSFER OF UNDERTAKINGS) This Report contains ESMA's proposal for an amendment to Article 5 of the ITS on reporting, in order to postpone the reporting start date of exchange traded derivatives (ETDs) by one year. Article 5 regards the reporting start date of derivatives to trade repositories. The current dates do not include a 5. MISCELLANEOUS The ITS set out reporting requirements relating to own funds and own funds requirements, financial information, losses stemming from lending collateralized by immovable property, DECEMBER 2013, VOLUME 10, ISSUE 6 EUROPEAN COMPANY LAW http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png European Company Law Kluwer Law International

Survey of Legislation and Case Law, July and August 2013

European Company Law , Volume 10 (6) – Jan 21, 2013

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Abstract

COLUMNS BY PAUL JAGER, LLM PHD-FELLOW IN COMPANY LAW AT LEIDEN UNIVERSITY, THE NETHERLANDS 1. COMPANY LAW AND CORPORATE GOVERNANCE management and where the AIF's governing body chooses not to appoint an external AIFM, the AIF itself. The AIFs which are not internally managed and have appointed an external AIFM are not subject to the remuneration principles established in the AIFMD as well as these guidelines. However, the remuneration principles set out in the Recommendation are relevant to those AIFs, as well as the AIFMs which can benefit from the exclusions and exemptions foreseen in Articles 2 or 3 of the AIFMD, to the extent that they fall within the definition of `financial undertaking' provided in paragraph 2.1 of the Recommendation. Annex I of these guidelines provides for a correlation table highlighting those principles of the Recommendation which are reflected in the AIFMD. These guidelines apply from 22 July 2013, subject to the transitional provisions of the AIFMD. 2.2. European Commission: Proposal for a Single Resolution Mechanism (SRM) for the Banking Union, 10 July 2013, ec.europa.eu/ internal_market withstanding stronger supervision ­ if a bank subject to the SSM faced serious difficulties, its resolution could be managed efficiently with minimal costs to taxpayers and the real economy. 2.3. ESMA: Guidelines on the Model MoU Concerning Consultation, Cooperation and the Exchange of Information Related to the Supervision of AIFMD Entities, 18 July 2013, ESMA/2013/998, www.esma.europa.eu 2. FINANCIAL SERVICES/SECURITIES LAW 2.1. ESMA: Guidelines on Sound Remuneration Policies under the AIFMD, 3 July 2013, ESMA/2013/ 232, www.esma.europa.eu These guidelines apply to Alternative Investment Fund Managers (AIFMs) and competent authorities. As long as the national regimes referred to in Article 42 of the Alternative Investment Fund Managers Directive (AIFMD) will continue to be in force, non-EU AIFMs which market to professional investors units or shares of Alternative Investment Funds (AIFs) in Member States without a passport will only be subject to section XIII (Guidelines on disclosure) of these guidelines. These non-EU AIFMs will be subject to the full set of remuneration provisions in these guidelines as from the date when the national regimes referred to in Article 42 of the AIFMD will be terminated and the passport regime provided for in Articles 37­41 of the AIFMD will become the sole and mandatory regime applicable in all Member States, as determined by the Commission's delegated act referred to in Article 68(6) of the AIFMD. In accordance with Article 5 of the AIFMD, for the purposes of these guidelines, the AIFMs to which the remuneration principles apply shall be either an external manager or, where the legal form of the AIF permits internal These guidelines lay down a model of the Memorandum of Understanding (MoU) that should be agreed between the EU and non-EU supervisory authorities in order to have the appropriate supervisory cooperation arrangements in place as required by the Directive 2011/61/EU of the European Parliament and the Council on AIFMs. These guidelines apply to the EU competent authorities designated in accordance with Article 44 of the AIFMD, and shall apply as from the date of entry into force of AIFMD Level 2 measures. These guidelines are without prejudice to existing or future cooperation arrangements in areas not relating to the AIFMD. These guidelines do not preclude the possibility to include in the scope of the MoU a commitment from EU authorities to cooperate with and provide assistance to non-EU authorities for the supervision of EU managers that market funds in the jurisdiction of the latter. The European Commission has today proposed an SRM for the Banking Union. The mechanism would complement the Single Supervisory Mechanism (SSM) which, once operational in late 2014, will see the European Central Bank directly supervise banks in the euro area and in other Member States which decide to join the Banking Union. The Single Resolution Mechanism would ensure that ­ not `Columns'. European Company Law 10, no. 6 (2013): 216­217. © 2013 Kluwer Law International BV, The Netherlands COLUMNS 2.4. Joint Committee: Final Draft Regulatory Technical Standards (RTS) on the Consistent Application of the Calculation Methods under Article 6(2) of the Financial Conglomerates Directive under Regulation (EU) No. 575/2013 (Capital Requirements Regulation ­ CRR) and Directive 2013/36/EU, 26 July 2013, JC-RTS-2013-01, www.esma.europa.eu large exposures, leverage ratio and liquidity ratios. As the ITS follow the scope and level of application set out in the CRR, they apply to credit institutions and investment firms on both: (i) an individual, and (ii) a consolidated level, with the exception of financial information. 2.6. ESMA Final Report: Draft Implementing Technical Standards Amending Commission Implementing Regulation (EU) No. 1247/2012 Laying down Implementing Technical Standards with Regard to the Format and Frequency of Trade Reports to Trade Repositories under Regulation (EU) No. 648/2012, 6 August 2013, ESMA/2013/1087, www.esma.europa.eu specification of ETDs. This specification would be useful as there is a risk currently that reporting of ETDs is not harmonized unless further regulatory guidance is issued. Without regulatory guidance, reporting would not be consistent and not able to be efficiently used, according to the ESMA. The draft RTS puts forward rules in order to ensure that institutions that are part of a financial conglomerate apply the appropriate calculation methods for the determination of required capital at the level of the conglomerate. 2.5. EBA: Final Draft Implementing Technical Standards (ITS) on Supervisory Reporting under Regulation (EU) No. 575/2013, 26 July 2013, EBA-ITS-2013-02, www.eba.europa.eu 3. FINANCIAL REPORTING (ACCOUNTING AND AUDITING) 4. SOCIAL POLICY (EMPLOYEE INVOLVEMENT AND TRANSFER OF UNDERTAKINGS) This Report contains ESMA's proposal for an amendment to Article 5 of the ITS on reporting, in order to postpone the reporting start date of exchange traded derivatives (ETDs) by one year. Article 5 regards the reporting start date of derivatives to trade repositories. The current dates do not include a 5. MISCELLANEOUS The ITS set out reporting requirements relating to own funds and own funds requirements, financial information, losses stemming from lending collateralized by immovable property, DECEMBER 2013, VOLUME 10, ISSUE 6 EUROPEAN COMPANY LAW

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European Company LawKluwer Law International

Published: Jan 21, 2013

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