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ESMA's technical advice to the European Commission on possible implementing measures of the Alternative Investment Fund Managers Directive

Finally, the analysis of national sanctioning regimes carried out by the Commission, along with the Committees of Supervisors (now transformed into European Supervisory Authorities) has shown a number of divergences and weaknesses which may have a negative impact on the proper application of EU legislation, the effectiveness of financial supervision, and ultimately on competition, stability and integrity of financial markets and consumer protection. Therefore, in its Communication of 9 December 2010 "Reinforcing sanctioning regimes in the financial sector" 2 the Commission suggested setting EU minimum common standards on certain key issues, in order to promote convergence and reinforcement. | esma European Securities and Markets Authority Final report ESMA s technical advice to the European Commission on possible implementing measures of the Alternative Investment Fund Managers Directive Date 16 November 2011 ESMA 2011 379 Table of Contents Acronyms used I. Executive Summary 5 II. Introduction and background 7 III. Article 3 exemptions 16 III.I. Identification of the portfolio of AIF under management by a particular AIFM and calculation of the value of assets under management 16 III.II. Content of the obligation to register with national competent authorities and suitable mechanisms for gathering information 21 III. III. Opt-in procedure 23 IV. General operating conditions 25 IV. I. Possible Implementing Measures on Additional Own Funds and Professional Indemnity Insurance 28 IV.II. Possible Implementing Measures on General Principles 39 IV.III. Possible Implementing Measures on Conflicts of Interest 52 IV.IV. Possible Implementing Measures on Risk Management 60 IV.V. Possible Implementing Measures on Liquidity Management 73 IV.VI. Possible Implementing Measures on Investment in Securitisation Positions 82 IV.VII. Possible Implementing Measures on Organisational Requirements 98 IV.VIII. Possible Implementing Measures on Valuation 111 IV. IX. Possible Implementing Measures on Delegation 120 V. Depositaries 136 V. I. Appointment of a depositary 139 1 Contract evidencing the appointment of a depositary 139 1.1 Particulars of the contract appointing the depositary 140 1.2 ESMA s justification for not providing a model agreement 143 V.II. General criteria for assessing the effective prudential regulation and supervision of third countries 144 V.III. Duties of the depositary 147 V.IV. Depositary functions 150 1 Depositary functions pursuant to 7 - Cash monitoring 150 1.1 Cash flow monitoring 150 1.2 ESMA s justification for not providing further guidance in relation to the depositary s duties regarding subscriptions in the AIF 154 2 Depositary functions .