Regulation (EU) No 345/2013 of the European Parliament and of the Council of 17 April 2013 on European venture capital funds (Text with EEA relevance)

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Pt. 3 modified by S.I. 2019/333 reg. 11(3)
Pt. 3B modified by S.I. 2019/333 reg. 11(3)
Signature words omitted by S.I. 2019/333 reg. 6(3)
Art. 2(1)(a) words substituted by S.I. 2019/333 reg. 3(2)(a)(i)
Art. 2(1)(b) words substituted by S.I. 2019/333 reg. 3(2)(a)(ii)
Art. 2(1)(c) words substituted by S.I. 2019/333 reg. 3(2)(a)(iii)
Art. 3(a) words substituted by S.I. 2019/333 reg. 3(3)(a)
Art. 3(b) words inserted by S.I. 2019/333 reg. 3(3)(c)(i)
Art. 3(b)(iii) words substituted by S.I. 2019/333 reg. 3(3)(c)(ii)
Art. 3(d) substituted by S.I. 2019/333 reg. 3(3)(d)
Art. 3(e)(v) inserted by S.I. 2019/333 reg. 3(3)(e)(ii)
Art. 3(e)(iv) words substituted by S.I. 2019/333 reg. 3(3)(e)(i)
Art. 3(i) words substituted by S.I. 2019/333 reg. 3(3)(f)
Art. 3(k)-(n) omitted by S.I. 2019/333 reg. 3(3)(g)
Art. 3(o)-(r) and words inserted by S.I. 2019/333 reg. 3(3)(h)
Art. 3(aa) inserted by S.I. 2019/333 reg. 3(3)(b)
reg. 10(4) modified by S.I. 2019/333 reg. 11(3)
Art. 14(1)(d) omitted by S.I. 2019/333 reg. 5(1)(a)(iii)
Art. 14a(2)(d) omitted by S.I. 2019/333 reg. 5(2)(b)(ii)
Art. 21(1)(c) word substituted by S.I. 2019/333 reg. 5(7)(a)
Art. 21(1)(d) word substituted by S.I. 2019/333 reg. 5(7)(a)
Art. 21(2)(b) word substituted by S.I. 2019/333 reg. 5(7)(a)

CHAPTER IIIU.K. SUPERVISION AND ADMINISTRATIVE COOPERATION

Article 14U.K.

1.Managers of qualifying venture capital funds that intend to use designation ‘EuVECA’ for the marketing of their qualifying venture capital funds shall inform the competent authority of their home Member State of their intention and shall provide the following information:

(a)the identity of the persons who effectively conduct the business of managing qualifying venture capital funds;

(b)the identity of the qualifying venture capital funds, the units or shares of which are to be marketed and their investment strategies;

(c)information on the arrangements made for complying with the requirements of Chapter II;

(d)a list of Member States where the manager of a qualifying venture capital fund intends to market each qualifying venture capital fund[F1.]

[F2((e)] F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.The competent authority of the home Member State shall only register the manager of a qualifying venture capital fund if the following conditions are met:

(a)the persons who effectively conduct the business of managing qualifying venture capital funds are of sufficiently good repute and are sufficiently experienced also in relation to the investment strategies pursued by the manager of a qualifying venture capital fund;

(b)the information required under paragraph 1 is complete;

(c)the arrangements notified according to point (c) of paragraph 1 are suitable for complying with the requirements of Chapter II[F1.]

[F2((d)] F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.Registration under this Article shall be valid in the entire territory of the Union and shall allow managers of qualifying venture capital funds to market qualifying venture capital funds under the designation ‘EuVECA’ throughout the Union.

[F34. The competent authority of the home Member State shall inform the manager as referred to in paragraph 1 whether it has been registered as a manager of a qualifying venture capital fund no later than two months after it has provided all the information referred to in that paragraph.

5. A registration in accordance with this Article shall constitute a registration for the purposes of Article 3(3) of Directive 2011/61/EU in respect of the management of qualifying venture capital funds.

6. A manager of a qualifying venture capital fund as referred to in this Article shall notify the competent authority of the home Member State of any material changes to the conditions for its initial registration in accordance with this Article before such changes are implemented.

If the competent authority of the home Member State decides to impose restrictions or reject the changes referred to in the first subparagraph, it shall inform the manager of the qualifying venture capital fund, within one month of receipt of notification of those changes. The competent authority may extend that period by up to one month where it considers this to be necessary due to the specific circumstances of the case, after having notified the manager of the qualifying venture capital fund. The changes may be implemented if the relevant competent authority does not oppose the changes within the relevant assessment period.

7. In order to ensure the uniform application of this Article, ESMA may develop draft regulatory technical standards to further specify the information to be provided to the competent authorities in the application for registration as set out in paragraph 1 and to further specify the conditions as set out in paragraph 2.

Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.

8. In order to ensure the uniform application of this Article, ESMA may develop draft implementing technical standards on standard forms, templates and procedures for the provision of information to the competent authorities in the application for registration set out in paragraph 1 and the conditions set out in paragraph 2.

Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph of this paragraph in accordance with Article 15 of Regulation (EU) No 1095/2010.

9. ESMA shall organise and conduct peer reviews in accordance with Article 30 of Regulation (EU) No 1095/2010 in order to strengthen the consistency of the registration processes carried out by competent authorities pursuant to this Regulation.]

Textual Amendments

F1 Substituted by Regulation (EU) 2017/1991 of the European Parliament and of the Council of 25 October 2017 amending Regulation (EU) No 345/2013 on European venture capital funds and Regulation (EU) No 346/2013 on European social entrepreneurship funds (Text with EEA relevance).

F2 Deleted by Regulation (EU) 2017/1991 of the European Parliament and of the Council of 25 October 2017 amending Regulation (EU) No 345/2013 on European venture capital funds and Regulation (EU) No 346/2013 on European social entrepreneurship funds (Text with EEA relevance).

F3 Inserted by Regulation (EU) 2017/1991 of the European Parliament and of the Council of 25 October 2017 amending Regulation (EU) No 345/2013 on European venture capital funds and Regulation (EU) No 346/2013 on European social entrepreneurship funds (Text with EEA relevance).

[F3Article 14a U.K.

1. Managers of collective investment undertakings authorised under Article 6 of Directive 2011/61/EU shall apply for registration of the qualifying venture capital funds for which they intend to use the designation ‘ EuVECA ’ .

2. The application for registration referred to in paragraph 1 shall be made to the competent authority of the qualifying venture capital fund and shall include the following:

(a) the rules or instruments of incorporation of the qualifying venture capital fund;

(b) information on the identity of the depositary;

(d) a list of Member States in which the managers referred to in paragraph 1 have established, or intend to establish, qualifying venture capital funds.

For the purposes of point (c) of the first subparagraph, the information on the arrangements made for complying with the requirements of Chapter II shall refer to the arrangements made for complying with Articles 5 and 6 and points (c) and (i) of Article 13(1).

3. Where the competent authority of a qualifying venture capital fund and the competent authority of the home Member State are different, the competent authority of the qualifying venture capital fund shall ask the competent authority of the home Member State whether the qualifying venture capital fund falls within the scope of the manager’s authorisation to manage AIFs and whether the conditions laid down in point (a) of Article 14(2) are fulfilled.

The competent authority of the qualifying venture capital fund may also ask the competent authority of the home Member State for clarification and information as regards the documentation referred to in paragraph 2.

The competent authority of the home Member State shall provide an answer within one month of the date of receipt of the request submitted by the competent authority of the qualifying venture capital fund.

4. Managers as referred to in paragraph 1 shall not be required to provide information or documents which they have already provided under Directive 2011/61/EU.

5. Having assessed the documentation received in accordance with paragraph 2 and having received any clarification and information referred to in paragraph 3, the competent authority of the qualifying venture capital fund shall register a fund as a qualifying venture capital fund if the manager of that fund meets the conditions laid down in Article 14(2).

6. The competent authority of a qualifying venture capital fund shall inform the manager as referred to in paragraph 1 whether that fund has been registered as a qualifying venture capital fund no later than two months after that manager has provided all the documentation referred to in paragraph 2.

7. Registration under this Article shall be valid in the entire territory of the Union and shall allow the marketing of those funds throughout the Union under the designation ‘ EuVECA ’ .

8. In order to ensure the uniform application of this Article, ESMA may develop draft regulatory technical standards to further specify the information to be provided to the competent authorities in accordance with paragraph 2.

9. In order to ensure the uniform application of this Article, ESMA may develop draft implementing technical standards on standard forms, templates and procedures for the provision of information to the competent authorities in accordance with paragraph 2.

10. ESMA shall organise and conduct peer reviews in accordance with Article 30 of Regulation (EU) No 1095/2010 in order to strengthen the consistency of the registration processes carried out by competent authorities pursuant to this Regulation.

Textual Amendments

Article 14b U.K.

Member States shall ensure that any refusal to register a manager as referred to in Article 14 or a fund as referred to in Article 14a shall be substantiated, shall be notified to the managers referred to in those Articles and shall be subject to a right of appeal before a national judicial, administrative or other authority. That right of appeal shall also apply in respect of registration where no decision on registration has been taken within two months of the manager having provided all of the required information. Member States may require that a manager exhaust any administrative preliminary remedy provided for under national law before exercising that right of appeal.]

Textual Amendments

Article 15U.K.

Managers of qualifying venture capital funds shall inform the competent authority of the home Member State where they intend to market:

(a)

a new qualifying venture capital fund; or

(b)

an existing qualifying venture capital fund in a Member State not mentioned in the list referred to in point (d) of Article 14(1).

Article 16U.K.

[F11. The competent authority of the home Member State shall notify the competent authorities of the host Member States and ESMA immediately of any registration or removal from the register of a manager of a qualifying venture capital fund, of any addition to or removal from the register of a qualifying venture capital fund, and of any addition to or removal from the list of Member States in which a manager of a qualifying venture capital fund intends to market those funds.

For the purposes of the first subparagraph, the competent authority of a qualifying venture capital fund that has been registered in accordance with Article 14a shall immediately notify the competent authority of the home Member State, the competent authorities of the host Member States, and ESMA, of any addition to or any removal from the register of a qualifying venture capital fund or of any addition to or removal from the list of Member States in which the manager of that qualifying venture capital fund intends to market that fund.

2. The competent authorities of the host Member States shall not impose on the managers of qualifying venture capital funds any requirements or administrative procedures in relation to the marketing of their qualifying venture capital funds, nor shall they require any approval of that marketing prior to its commencement. Such requirements or administrative procedures include fees and other charges.]

3.In order to ensure uniform application of this Article, ESMA shall develop draft implementing technical standards to determine the format of notification under this Article.

4.ESMA shall submit those draft implementing technical standards to the Commission by 16 February 2014.

5.Power is conferred on the Commission to adopt the implementing technical standards referred to in paragraph 3 of this Article in accordance with the procedure laid down in Article 15 of Regulation (EU) No 1095/2010.

Textual Amendments

[F3Article 16a U.K.

1. For the purpose of organising and conducting peer reviews in accordance with Article 14(9) and Article 14a(10), the competent authority of the home Member State or, where different, the competent authority of the qualifying venture capital fund, shall ensure that the final information on the basis of which the registration was granted as set out in Article 14(1) and (2) and Article 14a(2) is made available to ESMA in a timely manner after the registration. Such information shall be made available by means of the procedure referred to in Article 22.

2. In order to ensure the uniform application of this Article, ESMA may develop draft regulatory technical standards to further specify the information to be made available to ESMA in accordance with paragraph 1.

3. In order to ensure the uniform application of this Article, ESMA shall develop draft implementing technical standards on standard forms, templates and procedures for the provision of information to be made available to ESMA in accordance with paragraph 1.

Textual Amendments

[F1Article 17 U.K.

1. ESMA shall maintain a central database that is publicly accessible on the internet and that lists all managers of qualifying venture capital funds that use the designation ‘ EuVECA ’ and the qualifying venture capital funds for which they use that designation, as well as the countries in which those funds are marketed.

2. On its website, ESMA shall provide weblinks to the relevant information regarding third countries that fulfil the applicable requirement under point (d)(iv) of the first paragraph of Article 3.]

Textual Amendments

Article 18U.K.

1.The competent authority of the home Member State shall supervise compliance with the requirements laid down in this Regulation.

[F31a. For managers as referred to in Article 2(2), the competent authority of the home Member State shall be responsible for supervising the compliance with and the adequacy of the arrangements and of the organisation of the manager, so that that manager is in a position to comply with the obligations and rules which relate to the constitution and functioning of all the qualifying venture capital funds that it manages.

1b. For a qualifying venture capital fund managed by a manager as referred to in Article 2(2), the competent authority of the qualifying venture capital fund shall be responsible for supervising the qualifying venture capital fund's compliance with the rules laid down in Articles 5 and 6 and in points (c) and (i) of Article 13(1). The competent authority of the qualifying venture capital fund shall also be responsible for supervising that fund's compliance with the obligations set out in the fund’s rules or instruments of incorporation.]

2.Where there are clear and demonstrable grounds that lead the competent authority of the host Member State to believe that the manager of a qualifying venture capital fund is in breach of this Regulation within its territory, it shall promptly inform the competent authority of the home Member State accordingly. The competent authority of the home Member State shall take appropriate measures.

3.If the manager of a qualifying venture capital fund persists in acting in a manner that is clearly in breach of this Regulation despite measures taken by the competent authority of the home Member State or because that competent authority has failed to take measures within reasonable time, the competent authority of the host Member State may, after informing the competent authority of the home Member State, take all the appropriate measures in order to protect investors, including prohibiting the manager of a qualifying venture capital fund from carrying out any further marketing of its qualifying venture capital funds within the territory of the host Member State.

Textual Amendments

Article 19U.K.

Competent authorities shall, in accordance with national law, have all supervisory and investigatory powers that are necessary for the exercise of their functions. They shall, in particular, have the power to:

(a)

request access to any document in any form, and to receive or take a copy thereof;

(b)

require the manager of a qualifying venture capital fund to provide information without delay;

(c)

require information from any person related to the activities of the manager of a qualifying venture capital fund or of the qualifying venture capital fund;

(d)

carry out on-site inspections with or without prior announcement;

(e)

take appropriate measures to ensure that a manager of a qualifying venture capital fund continues to comply with this Regulation;

(f)

issue an order to ensure that a manager of a qualifying venture capital fund complies with this Regulation and desists from a repetition of any conduct that may consist of a breach of this Regulation.

[F3ESMA shall organise and conduct peer reviews in accordance with Article 30 of Regulation (EU) No 1095/2010 in order to strengthen the consistency of the processes in relation to supervisory and investigatory powers carried out by competent authorities pursuant to this Regulation.]

Textual Amendments

Article 20U.K.

1.Member States shall lay down the rules on administrative penalties and other measures applicable to breaches of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The administrative penalties and other measures provided for shall be effective, proportionate and dissuasive.

2.By [F12 March 2020] the Member States shall notify the Commission and ESMA of the rules referred to in paragraph 1. They shall notify the Commission and ESMA without delay of any subsequent amendment thereto.

[F33. Managers as referred to in Article 2(1) shall comply at all times with this Regulation and shall also be liable for any infringements of this Regulation, including for any losses or damages resulting therefrom.

Managers as referred to in Article 2(2) shall comply at all times with Directive 2011/61/EU. They shall be responsible for ensuring compliance with this Regulation and shall be liable in accordance with Directive 2011/61/EU. Those managers shall also be liable for any losses or damages resulting from the infringement of this Regulation.]

Textual Amendments

Article 21U.K.

[F11. While respecting the principle of proportionality, the competent authority shall take the appropriate measures referred to in paragraph 2, as applicable, where the manager of a qualifying venture capital fund:]

(a)fails to comply with the requirements that apply to portfolio composition, in breach of Article 5;

(b)markets, in breach of Article 6, the units and shares of a qualifying venture capital fund to non-eligible investors;

[F1(c) uses the designation ‘ EuVECA ’ but is not registered in accordance with Article 14, or the qualifying venture capital fund is not registered in accordance with Article 14a;]

(d)uses the designation ‘EuVECA’ for the marketing of funds which are not established in accordance with point (b)(iii) of Article 3;

[F1(e) has obtained registration through false statements or any other irregular means, in breach of Article 14 or Article 14a;]

(f)fails to act honestly, fairly or with due skill, care or diligence, in conducting their business, in breach of point (a) of Article 7;

(g)fails to apply appropriate policies and procedures for preventing malpractices, in breach of point (b) of Article 7;

(h)repeatedly fails to comply with the requirements under Article 12 regarding the annual report;

(i)repeatedly fails to comply with the obligation to inform investors in accordance with Article 13.

[F12. In the cases referred to in paragraph 1, the competent authority shall, as appropriate:

(a) take measures to ensure that the manager of a qualifying venture capital fund concerned complies with Articles 5 and 6, points (a) and (b) of Article 7 and Articles 12 to 14a, as applicable;

(b) prohibit the manager of the qualifying venture capital fund concerned from using the designation ‘ EuVECA ’ and remove that manager, or the qualifying venture capital fund concerned, from the register.

3. The competent authority referred to in paragraph 1 shall inform any other relevant competent authority, the competent authorities of any host Member States in accordance with point (d) of Article 14(1), and ESMA, without delay of the removal of a manager of a qualifying venture capital fund or of a qualifying venture capital fund from the register.

4. The right to market one or more qualifying venture capital funds under the designation ‘ EuVECA ’ in the Union shall expire with immediate effect from the date of the decision of the competent authority referred to in point (b) of paragraph 2.]

[F35. The competent authority of the home Member State or of the host Member State, as applicable, shall inform ESMA without delay if it has clear and demonstrable grounds for believing that the manager of a qualifying venture capital fund has committed any of the breaches referred to in points (a) to (i) of Article 21(1).

ESMA may, while respecting the principle of proportionality, issue recommendations in accordance with Article 17 of Regulation (EU) No 1095/2010 addressed to the competent authorities concerned to take any of the measures referred to in paragraph 2 of this Article, or to refrain from taking such measures.]

Textual Amendments

[F3Article 21a U.K.

The powers conferred on competent authorities in accordance with Directive 2011/61/EU, including those related to penalties, shall also be exercised with respect to the managers referred to in Article 2(2) of this Regulation.]

Textual Amendments

Article 22U.K.

1.Competent authorities and ESMA shall cooperate with each other for the purpose of carrying out their respective duties under this Regulation in accordance with Regulation (EU) No 1095/2010.

2.Competent authorities and ESMA shall exchange all information and documentation necessary to carry out their respective duties under this Regulation in accordance with Regulation (EU) No 1095/2010, in particular to identify and remedy breaches of this Regulation.

Article 23U.K.

1.All persons who work or who have worked for the competent authorities or for ESMA, as well as auditors and experts instructed by the competent authorities or by ESMA, are bound by the obligation of professional secrecy. No confidential information which those persons receive in the course of their duties shall be divulged to any person or authority whatsoever, save in summary or aggregate form such that managers of qualifying venture capital funds and qualifying venture capital funds cannot be individually identified, without prejudice to cases covered by criminal law and proceedings under this Regulation.

2.The competent authorities of the Member States or ESMA shall not be prevented from exchanging information in accordance with this Regulation or other Union law applicable to managers of qualifying venture capital funds and qualifying venture capital funds.

3.Where competent authorities or ESMA receive confidential information in accordance with paragraph 2, they may use it only in the course of their duties and for the purpose of administrative and judicial proceedings.

Article 24U.K.

In the event of disagreement between competent authorities of Member States on an assessment, action or omission of one competent authority in areas where this Regulation requires cooperation or coordination between competent authorities from more than one Member State, competent authorities may refer the matter to ESMA, which may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010, in so far as the disagreement is not related to point (b)(iii) or to point (d)(iv) of Article 3 of this Regulation.

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CHAPTER IIIU.K. SUPERVISION AND ADMINISTRATIVE COOPERATION

Article 14U.K.

[F3Article 14a U.K.

Article 14b U.K.

Article 15U.K.

Article 16U.K.

[F3Article 16a U.K.

[F1Article 17 U.K.

Article 18U.K.

Article 19U.K.

Article 20U.K.

Article 21U.K.

[F3Article 21a U.K.

Article 22U.K.

Article 23U.K.

Article 24U.K.

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