(1)

It is necessary to specify the contents of the information that the competent authorities of Member States have to provide quarterly to the European Securities and Market Authority (ESMA) in accordance with Article 67(3) of Directive 2011/61/EU to enable it to evaluate the functioning of the passport for EU alternative investment fund managers (EU AIFMs) managing or marketing EU alternative investment funds (EU AIFs) in the Union, the operating conditions for AIFs and their managers and the potential impact of an extension of the passport.

(2)

It is important to ensure that information provided by competent authorities is pertinent and capable of supporting an informed assessment. All competent authorities should therefore provide information that allows a consistent assessment throughout the Union, while retaining the possibility to also provide any additional information that they might consider useful for assessing the overall functioning of the EU passport, of the national rules governing private placements, as well as any potential impact of extending the passport to third country funds and managers. In order to ensure that a uniform set of reporting requirements applies directly to all competent authorities it is necessary to lay down rules on the information to be provided to ESMA in the form of a Regulation.

(3)

In order to assess the use made of the EU passport, it is important to gather quantitative data on AIFMs and AIFs using the passports provided in Articles 32 and 33 of Directive 2011/61/EU, data on the jurisdictions where cross-border activities take place, as well as on the types of cross-border activities.

(4)

Effective cooperation among competent authorities is an essential aspect of the overall functioning of the EU passport. To assess effectiveness, it is essential to collect information on the cooperation between competent authorities in executing their responsibilities in accordance with Articles 45 and 50 of Directive 2011/61/EU. This implies assessing the instances when the different competences were triggered, the responsive measures taken, as well as efficacy of cooperation in terms of timing, pertinence and detail.

(5)

The EU passport is based on the notification system provided for in Articles 32 and 33 of Directive 2011/61/EU. Competent authorities should therefore provide information as to the operation of such system, especially in terms of timing, smoothness, quality of information notified and any potential divergences arising from its application.

(6)

In order to allow for an objective assessment, competent authorities should be required to provide information on the functioning of the passport also from investors' perspective, particularly in terms of impacts on the investor protection. Competent authorities should also provide information on complaints filed by investors about AIFMs or AIFs established in other Member States than the one where the investor is domiciled, queries from investors related to the distribution of competencies between competent authorities from different Member States and any issues raised in relation to marketing arrangements.

(7)

The assessment of the functioning of the passport needs to take due account of ESMA's role in resolving divergences between competent authorities as regards cross-border management or marketing. Competent authorities should therefore communicate their views on the usefulness, the timing, the quality or any other issues related to ESMA's involvement.

(8)

To assess the functioning of the current national regimes allowing non-EU AIFMs and non-EU AIFs to operate in individual Member States, it is necessary to be fully aware of the details of the legal frameworks adopted by individual Member States, their specificities and differences as compared to the rules applicable to EU AIFMs and EU AIFs. It is also important to gather quantitative information as to the numbers of non-EU AIFs marketed in Member States and non-EU AIFMs managing or marketing AIFs in Member States. Such information should also contain data on enforcement and supervisory actions, as well as on additional information received from non-EU supervisory authorities upon request.

(9)

Competent authorities should communicate information on any cooperation arrangements with third country supervisory authorities that are not already known by ESMA following its involvement in the negotiation of multilateral memoranda of understanding. To be able to assess the operation of cooperation arrangements, it is important to gather information about the effectiveness of such cooperation arrangements, such as quantitative and qualitative information on the use made of the various powers foreseen in those arrangements. This includes requests for information, on-site visits and information sharing. Effectiveness of cooperation should be assessed in terms of relevance, detail, timing and completeness of the assistance received.

(10)

Competent authorities should give information on any features of the third country regime that, de facto or de jure, create restrictions or difficulties for the exercise of supervisory functions by the competent authority of a Member State or to the direct receipt of information from non-EU entities. Furthermore, information should be collected on complaints by investors as well as measures taken by the competent authorities in response to such complaints.

(11)

The assessment of the interaction between the two systems established for managing or marketing of AIFs should be based on evidence that reflects the overall situation in the internal market, as well as on short-term and long-term assessments as to the development of the market, including possible market disruptions or distortions of competition. Assessments should be made on the basis of evidence as to whether there is a level-playing field between Member States and individual third countries, for instance in terms of regulatory burden, conditions of competition or supervision. Competent authorities should provide concrete information as to general or specific issues concerning individual third countries and indicate the source of such issues.

(12)

When submitting information on possible market disruptions and distortions of competition, competent authorities should take into account all collective investment undertakings and their managers. It is important to determine whether, and the extent to which, both EU AIFs and undertakings for collective investment in transferable securities established under Directive 2009/65/EC of the European Parliament and of the Council (2), as well as their managers are potentially affected by the introduction of the third country passport. This is particularly important given that the definition of non-EU AIFMs in Directive 2011/61/EU covers all collective investment undertakings established in third countries, including those which would have been subject to Directive 2009/65/EC if they had been established in a Member State. Furthermore, in order to be able to gauge the overall impact on the market, it is necessary to identify the potential impact on other intermediaries operating in the asset management sector, such as depositaries or service providers,