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« The functioning of the passport for EU AIFMs managing and/or marketing EU AIFs; « The opinion on the functioning of the market- ing of non- EU AIFs by EU AIFMs in the Member States and the management and/or marketing of AIFs by non- EU AIFMs in the Member States; and ESMA launched a call for evidence in November 2014 aimed at gathering information from EU and non-EU stakeholders on the functioning of the EU passport. What’s in there? On 30 July 2015, ESMA issued an opinion (2015/ ESMA/1235) on both the functioning of the pass- port for EU AIFMs pursuant to Article 32 and 33 of the AIFMD, and that of the national private placement regimes set out in Articles 36 and 42 of the AIFMD. While ESMA is of the view that there is insuf- ficient evidence to suggest that the AIFMD EU passport has raised major issues in terms of the functioning and implementation of the AIFMD framework, ESMA has identified several minor issues in relation to the use of the EU passport. These issues include: « Divergent approaches with respect to mar- keting rules, including heterogeneity of fees charged by the NCAs where the AIFs are mar- keted and the definition of what constitutes a “professional investor”; « Varying interpretations of what constitute “marketing” and “material changes” under AIFMD in different Member States. In relation to the timing of the assessment of the functioning of the NPPRs, ESMA is of the view that there is insufficient evidence to indicate that the NPPRs have raised major issues in terms of the functioning and implementation of the AIFMD framework. However, ESMA also considers that the delay in the implementation of the AIFMD together with the delay in transposition in some Member States make a definitive assessment difficult. THIS DOCUMENT IS NOW AVAILABLE ON THE ESMA WEBSITE HERE.

NPPR Regime after a long period of implemen- tation has passed in all Member States. This is however linked to the decision to be taken by the European Parliament, the Council and the Com- mission on whether to extend the passport to one or more non- EU countries in the meantime. What’s next? ESMA believes that, after a long period of imple- mentation in all Member States, a further opinion on the functioning of the passport is warranted. CRR/CRD IV The European Commission issues delegated regulation (EU) 2015/923 on own funds requirements supplementing CRR/CRD IV regulatory framework Background Following the 2008 crisis and in a view to safeguard the financial stability and to improve the quality and the quantity of core capital in the banking system, the commission was empowered to adopt delegated act complementing the existing banking regulatory framework. On 26 June 2013, the European Parliament and the Council adopted Regulation (EU) No 575/2013 (CRR) and Directive 2013/36/EU (CRD IV) on prudential requirements for credit institutions and investment firms (jointly referred to as the CRD IV package which provides rules for direct holdings of an institu- tion’s own funds instruments by the institution itself and direct holdings of own funds instruments of oth- er financial sector entities. The CRD IV pack is a supervisory framework de- signed to shape prudential requirements in line with the Basel II and III framework and to set the stand- ards on bank capital and liquidity adequacy.

The CRD IV and the CRR package is a recast and repeal of CRD package entered into force on 28 June 2013 (CRR) and 17 July 2013 (CRD IV) and has been applicable as from 1 January 2014. Although CRD VI and CRR framework principally reflects Basel III, they also propose some important changes to the banking regulatory framework. On 7 January 2014, the European Commission is- sued a delegated regulation (EU) No 241/2014 sup- plementing regulation (EU) No 575/2013. What’s in there? On 17 June 2015, the European Commission adopted a subsequent delegated regulation (EU) 2015/923 which also supplements regulation (EU) No 575/2013 notably regarding the methodologies to be used for the deduction from common equity tier 1 items, the distribution of own funds instru- ments, goodwill and the minority interests to be in- cluded in consolidated common equity Tier 1 capital. The scope of application of the delegated regula- tion (EU) N0 241/2014 is extended as follows: « The conditions according to which indices shall be deemed to qualify as broad market indices, according to article 73(7) of Regulation (EU) No 575/2013;. « The sub-consolidation calculation required in accordance to Article 84(2) and Articles 85 and 87 of the regulation (EU) No 575/2013 pursuant to article 84(4) of that Regulation. Regulation (EU) No 575/2013 is supplemented with regards to regulatory technical standards for own funds requirements for institutions and in- vestments firms; seven new articles (Articles 15a to 15j) are inserted, which shed light on material notions referred to in article 36(1) (f), (h) and (i) of Regulation (EU) No 575/2013; the main additions are with regards to the methodologies of deduc-

As a result, there would be merit in the prepara- tion of another opinion on the functioning of the

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