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Law No. 74 Of April 14, 2015 On Alternative Investment Fund Managers

Original Language Title: LEGE nr. 74 din 14 aprilie 2015 privind administratorii de fonduri de investiţii alternative

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LEGE no. 74 74 of 14 April 2015 (* updated *) on alternative investment fund managers ((updated on 21 November 2015 *)
ISSUER PARLIAMENT




---------- The Romanian Parliament adopts this law + Chapter I General provisions + Article 1 (1) The present law establishes the rules on authorization, activity and transparency of alternative investment fund managers, hereinafter referred to as AIFM, which manages and/or distributes in Romania participation of alternative investment funds, hereinafter referred to as the AIF. (2) Reserved as the provisions of par. ((5) and art. 2, this law applies to: a) legal persons established in Romania who manage one or more AIFs, regardless of whether it is an AIF from Romania, from another Member State or from a third country; b) AFIA established in third states for which Romania is designated as a reference member state according to the provisions of art. 39 39; c) AIFMs established in other Member States which distribute in Romania the participation titles of one or more AIFs in other Member States; d) AIFMs established in other Member States managing one or more AIFs in Romania; e) AIFM established in other Member States which distribute in Romania the participation titles of one or more AIFs from third countries; f) AIFM established in third countries that distribute in Romania the participation titles of one or more AIFs. (3) For the application of para. (2), shall not be relevant: a) whether the AIF is open or closed; b) if the AIF takes the form of the contractual form of trust or the statutory form or if it has any other c) which is the legal structure of the AIFM. (4) In the category AIF referred to in paragraph (3) includes collective investment undertakings other than undertakings for collective investment in transferable securities (A.O.P.C.), which are required to apply for registration with the Financial Supervisory Authority, hereinafter referred to as the A.S.F., according to art. 114 114 para. ((2) and art. 115 115 para. ((1) of Law no. 297/2004 on the capital market, as amended and supplemented, hereinafter referred to as Law no. 297/2004 , respectively A.O.P.C. which, in accordance with the provisions of art. 115 115 para. (2) of the same normative act, do not have the obligation to register with A.S. ((. This Law shall not apply to the following entities: a) holding companies, as defined in art. 3 3 section 27 27; b) institutions for the provision of occupational pensions falling within the scope of the Directive 2003 /41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for the provision of occupational pensions, voluntary pension funds falling under Law no. 204/2006 on voluntary pensions, with subsequent amendments and completions, to privately managed pension funds falling within the scope of the Law no. 411/2004 on privately managed pension funds, republished, with subsequent amendments and completions, to the Insurance House of Lawyers in Romania, established according to the provisions Government Emergency Ordinance no. 221/2000 on pensions and other social security rights of lawyers, approved with amendments and additions by Law no. 452/2001 , other pension schemes not integrated into the public system, as well as pension products whose purpose is to provide a benefit at the age of retirement including, where appropriate, to authorised entities which are responsible for the administration of such institutions, funds or products and acting on their behalf, provided that they do not administer the AIF; c) supranational institutions such as the European Central Bank, the European Investment Bank, the European Investment Fund, the European development finance institutions and the bilateral development banks, the World Bank, the Monetary Fund International, other supranational institutions and similar international organisations, where such institutions or organisations manage one or more AIFs and to the extent that the AIF concerned acts in the public interest; d) National Bank of Romania (NBR); e) national, regional and local authorities and bodies or other institutions managing funds supporting social security systems and pension systems; f) employee participation schemes or employee savings schemes; g) entities with special purpose of securitisation. (6) A.S.F. is the competent authority regarding the regulation, authorization and supervision of AIFM established in Romania, which are subject to the provisions of this law, by exercising the prerogatives established by Government Emergency Ordinance no. 93/2012 on the establishment, organization and functioning of the Financial Supervisory Authority, approved with amendments and completions by Law no. 113/2013 , with subsequent amendments and completions. ((7) The A.S.F. shall establish appropriate methods to verify, where relevant, on the basis of guidelines and recommendations developed by the European Securities and Markets Authority, hereinafter referred to as ESMA, compliance by the AIFM with their obligations under this law. If the A.S.F. considers it appropriate, it shall communicate to ESMA its reasoned decision on the intention not to apply the ESMA guidelines and recommendations. (8) Within 30 working days from the date of entry into force of this Law, the A.S.F. shall notify ESMA and the European Commission of its quality of competent authority in Romania to perform the tasks provided in par. ((6) and (7). + Article 2 (1) This law does not apply to AIFMs established in Romania who manage one or more AIFs whose own investors are AIFMs themselves, parent companies or branches of AIFMs or other branches of these parent companies, provided that none of these investors not to be an AIF himself. ((2) Alin. ((3) and (4) are the only ones to be applied to the AIFM referred to in point. a) and b), with the consideration of the provisions of art. 50 50: a) AIFM established in Romania that either directly or indirectly through a company from which the AIFM is linked by a joint administration or control or by a direct or indirect interest established according to the regulations of the A.S.F., manage portfolios of AIFs whose assets under management, including assets acquired through the use of leverage, do not exceed a threshold of EUR 100,000,000; or b) AIFM established in Romania that either directly or indirectly through a company from which the AIFM is linked by a joint administration or control or by a direct or indirect interest established according to the regulations of the A.S.F., manage portfolios of AIFs whose assets under management do not exceed a threshold of EUR 500,000,000 in total if the AIF's portfolios are composed of AIFs that do not use leverage and redemption rights cannot be exercised within a period of 5 years from the date of initial investment in each AIF. ((3) AIFMs referred to in par. (2) are obliged: a) to register with the A.S.F.; b) to transmit to the A.S.F. its own identification data and those of the AIF it manages at the time of registration; c) provide A.S.F. with information on the investment strategies for the AIFs it manages at the time of registration; d) to provide periodic A.S.F. information on the main financial instruments in which they invest and the main exposures and the most important concentrations of the AIF they manage, determined according to the provisions of art. 5 5 para. ((3), art. 110 110 and Annex IV to Delegated Regulation (EU) No 231/2013 of the Commission of 19 December 2012 supplementing the Directive 2011 /61/EU of the European Parliament and of the Council with regard to derogations, general operating conditions, storage, leverage, transparency and supervision, hereinafter referred to as European Union Regulation No 231/2013 , to enable the A.S.F. to effectively monitor systemic risk; and e) to inform the A.S.F. if they no longer meet the conditions mentioned in par. ((2). (4) In cases where they no longer meet the conditions provided in par. ((2), the AIFM concerned shall require the A.S.F. authorization within 30 calendar days, in accordance with the relevant procedures provided for by this Law. ((5) AIFMs referred to in par. (2) do not benefit from any of the rights granted under this law, unless they voluntarily choose to fall under the present law, in which case they no longer benefit from the exceptions provided in par. ((3) and (4). + Article 3 Within the meaning of the present law, the following terms and expressions have the following meanings: 1. the management of the AIF-the conduct, with regard to one or more alternative investment funds, at least of the investment management functions referred to in art. 5 5 para. ((2); 2. AIFM-any legal person whose main activity is the management of one or more AIFs; 3. External AIFM-the legal person indicated in item 2, responsible for the administration of the AIF, designated for this purpose by the shareholders/Board of Directors/Supervisory Board of the AIF established on the basis of a constitutive act-investment company. In the case of an AIF established on the basis of a company contract-investment fund, the external AIFM shall be represented by the legal person indicated in 2 which had the initiative to establish the respective investment fund; 4. DAFIA- Directive 2011 /61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003 /41/EC and 2009 2009 /65/EC and a Regulations (EC) No 1.060/2009 and ((EU) No 1.095/2010 ; 5. competent authorities of the AIFM established in the European Union-the competent authorities of other Member States of the European Union which supervise the AIFM established in those Member States; 6. the competent authorities in relation to the depositary: a) if the depositary is a credit institution authorised under the Directive 2013 /36/EU of the European Parliament and of the Council of 26 June 2013 on the access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002 /87/EC and repealing the Directives 2006 /48/EC and 2006 2006 /49/EC , the competent authorities defined in art. 4 4 para. ((1) pt. 40 40 of Regulation no. 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 ; b) if the depositary is an investment firm authorised under Directive 2014 /65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002 /92/EC and a Directive 2011 /61/EU (recast), the competent authorities defined in art. 4 4 para. ((1) pt. 26 of that Directive; c) if the depositary enters one of the categories of institutions referred to in art. 21 21 para. ((3) lit. ((c) of the DAFIA, the national authorities of its home Member State which are empowered under a law or administrative rule to supervise such categories of institutions; d) if the depositary is an entity referred to in art. 21 21 section 3 3 the third paragraph of the DAFIA, the national authorities of the Member State in which the entity concerned has its registered office and which are empowered under an act of law or an administrative rule to supervise those entities or the official body competent to record or supervise such entities under the rules of professional deontology applicable to them; e) if the depositary is appointed depositary for an AIF from a third State in accordance with art. 21 21 section 5 lit. b) of the DAFIA and is not part of the scope of the letter. a)-d), the relevant national authorities of the third country in which the depositary has its registered office; f) in the case of the AIF in Romania, the competent authority in relation to the depositary meeting the conditions laid down in 20 is A.S.F.; 7. competent authorities for the AIF of the European Union-national authorities of a Member State which are empowered under a law or administrative rule to supervise the AIF; 8. supervisory authorities with regard to an AIF in a third country-national authorities of a third State which are empowered under a law or administrative rule to supervise the AIF; 9. supervisory authorities with regard to an AIFM established in a third country-the national authorities of a third State which are empowered under a law or administrative rule to supervise the AIFM; 10. principal broker-a credit institution, a regulated investment firm or other entity subject to prudential regulation and continuous supervision, which provides services to professional investors, in particular to finance or the execution of transactions with financial instruments as a counterparty, and which may provide other services, such as clearing and settlement of transactions, custody services, securities lending, personalised services of technological and operational assistance; 11. initial capital-funds defined according to art. 26 26 para. ((1) lit. ((a)-(e) of Regulation (EU) No 575/2013 ; 12. performance fee-a share of the profit of the AIF obtained by the AIFM as compensation for the management of the AIF, not including the share of the AIF's profit acquired by the AIFM as a return on AIFM 13. conflict of interest-one or more of the situations provided in art. 30 30 of European Union Regulation No 231/2013 , that may occur between the persons indicated in art. 14 14 para. ((1); 14. control-the relationship between the parent company and a subsidiary, as described in section 35 35; 15. distribution-an offer or placement, directly or indirectly, carried out at the initiative of the AIFM or on behalf of the AIFM, of titles of participation of an AIF that it manages and addressed to investors domiciled or having its registered office a Member State; 16. leverage-any method by which the AIFM increases the exposure of an AIF it manages either by borrowing of cash or securities, or by positions of derivatives or by any other means; 17. issuer-legal entity governed by public or private law which has its registered office in the European Union and whose shares are admitted to trading on a regulated market in the European Union as defined in art. 4 4 para. ((1) pt. 21 21 of Directive 2014 /65/EU . The issuer is, in the case of certificates of deposit representing securities, the entity issuing the securities represented; 18 18. entities with special purpose of securitisation-entities whose sole purpose is to carry out securitisation activities according to art. 1 1 section 2 2 of Commission Implementing Regulation (EU) No 24/2009 of the European Central Bank of 19 December 2008 concerning statistics on the assets and liabilities of the investment vehicle companies engaged in securitisation operations and other activities suitable for the purpose of this purpose; 19. ESRB-European Systemic Risk Board; 20. FIA in Romania-those A.O.P.C. established in Romania that attract capital from at least 2 (two) investors, in order to place it in accordance with an investment policy defined in the interest of those investors and who meet the conditions indicated in art. 1 1 para. ((3); 21. EU AIF: a) any AIF that is authorised or registered in a Member State of the European Union under the law applicable in that Member State; b) any AIF not authorised or registered in a Member State but has its registered office and/or its head office in a Member State; 22. AIFs in a third country-an AIF that is not an AIF in the European 23. 'feeder' AIF-an AIF which: a) invests at least 85% of its assets in shareholdings of another AIF (master AIF); b) invests at least 85% of its assets in several "master" AIFs, where such "master" AIFs have identical investment strategies; or c) has, in any other way, an exposure of 85% of the assets to one or more such "master" AIFs; 24. 'master' AIF-an AIF in which it invests another AIF or against which another AIF has an exposure in accordance with point (a). 23 23; 25. subsidiary-the company controlled by a parent company defined in point (a) 35 35, including any company subordinated to the parent company that leads the group of companies concerned; 26. own funds-own funds, as defined in art. 4 4 para. ((1) pt. 118 118 of Regulation (EU) No 575/2013 ,, i.e. the sum of Tier 1 and Tier 2 own funds; 27. holding-a company that holds stakes in one or more other companies and whose commercial objective is to apply one or more business strategies through its subsidiaries, its associated companies or its subsidiaries. its holdings to contribute to their long-term value, and which: a) either is a company acting on its own behalf and whose shares are admitted to trading on a regulated market in the EU; or b) is not established with the primary purpose of generating benefits for its investors by selling its subsidiaries or its associated companies, in accordance with the annual report or other official company documents; 28. financial instrument-a defined instrument art. 2 2 para. ((1) pt. 11 11 of Law no. 297/2004 ; 29. professional investor-an investor who is considered to be a professional customer or may be, on request, considered to be a professional customer, within the meaning of the financial investment services regulations, issued in application Directive 2004 /39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments, amending Directives 85 /611/EEC and 93 93 /6/EEC of the Council and Directive 2000 /12/EEC of the European Parliament and of the Council and repealing the Directive 93 /22/EEC of the Council 30. retail investor-an investor who is not a professional investor; 31. O.P.C.V.M. -a collective investment enterprise in securities defined in accordance with the provisions of Government Emergency Ordinance no. 32/2012 on undertakings for collective investment in transferable securities and investment management companies and for amending and supplementing Law no. 297/2004 on the capital market, approved with amendments and additions by Law no. 10/2015 ,, hereinafter referred to as Government Emergency Ordinance no. 32/2012 ; 32. qualifying holding-a holding, direct or indirect, in an AIFM representing at least 10% of the share capital or voting rights as provided for in art. 228 228 of Law no. 297/2004 , having regard to the conditions of cumulation established by the regulations issued in application of this law, or which allows the exercise of significant influence on the administration of the AIFM in which that holding is held; 33. legal representative-a natural person domiciled in a State of the European Union or a legal person having its registered office in the European Union and who, being expressly appointed by an AIFM established in a third State, acts in the name of the AIFM concerned in addition to the authorities, customers, bodies and business partners in Romania of the AIFM with regard to their obligations to the AIFM of a third State pursuant to this Law; 34. employees 'representatives-employees' representatives Law no. 467/2006 establishing the general framework for the information and consultation of employees, hereinafter referred to as Law no. 467/2006 ; 35. parent company-the company which is in one of the following situations: a) holds the majority of voting rights of shareholders or associates to another company (subsidiary); or b) has the right to appoint or revoke the majority of members of the administrative, management or supervisory bodies of another company (subsidiary) and is simultaneously a shareholder or associate in the company concerned; or c) has the right to exercise a dominant influence over a company (subsidiary) whose shareholder or associate is, pursuant to a contract concluded with the company in question or a clause in the articles of association or the status of the company in question, if the legislation covered by the subsidiary allows it to be subject to such contracts or clauses; d) is a shareholder or associate of a company, and: ((i) either the majority of the members of the management, management or supervisory bodies of the company concerned (the subsidiary) who performed these functions during the financial year in question, during the preceding financial year and up to the timing of the consolidated accounts has been appointed by the exercise of its voting rights; ((ii) either alone controls, pursuant to an agreement concluded with other shareholders or associates of the company in question (the subsidiary), the majority of the voting rights of the shareholders or associates of the company concerned. Pct. ((i) shall not apply if another company has the rights referred to in (a). a), b) or c) as regards the subsidiary. In application of lit. a), b) and d), the voting rights, the appointment or revocation rights of any other subsidiary, as well as those of any person acting in his own name, but at the expense of the parent or another subsidiary, must be added to those of the parent company. In application of lit. a), b) and d), of the rights referred to in the previous paragraph shall be deducted the following 1. conferred by the shares held in the account of a person who is neither a parent, nor a subsidiary thereof, or 2. conferred on shares held as collateral, provided that these rights are exercised in accordance with the instructions received or that the holding of these shares constitute, for the company holding them, a current operation within the framework of its loan activities, provided that the voting rights are exercised in the interest of the person providing the security. In application of lit. a) and d), of the total voting rights of the shareholders or associates of the branch shall be deducted the voting rights conferred by the shares held by the company itself, by a subsidiary of the company in question or by a person acting in his own name, but on account of these companies; 36. Unlisted company-a company having its registered office in the European Union and whose shares are not admitted to trading on a regulated market defined as art. 125 125 of Law no. 297/2004 ; 37. established-means: a) for AIFM, "which has its registered office"; b) for the AIF, "authorised or registered" or if the AIF is not authorised or registered, "which has its registered office"; c) for depositaries, "which has its registered office or branch"; d) for legal representatives legal persons, "which has its registered office or branch"; e) for legal representatives individuals, "domiciled". 38. Member State-a Member State of the European Union. They are assimilated to the Member States of the European Union and the signatory States of the Agreement on the European Economic Area (EEA), other than the Member States, within the limits defined in that Agreement and subsequent acts 39. Member State of origin of the AIF: a) the Member State in which the AIF is authorised or registered under the law applicable in that Member State or, in the case of multiple authorisations or registrations, the Member State in which the AIF was first authorised or registered; or b) if the AIF is neither authorised nor registered in a Member State, the Member State in which the AIF has its registered office and/or its 40. Member State of origin of the AIFM-the Member State in which an AIFM has its registered office; for AIFMs established in a third country, all references to the "home Member State of the AIFM" shall mean "reference Member State" as provided for in the head. VII; 41. host Member State of an AIFM-any of the following: a) a Member State other than the home Member State where an AIFM in the European Union administers an AIF from the European Union; b) a Member State other than the home Member State where an AIFM in the European Union distributes the participation of an AIF in the European Union; c) a Member State other than the home Member State where an AIFM in the European Union distributes the participation of an AIF from a third State; d) a Member State other than the Member State of reference, where an AIFM established in a third State manages the AIF of the European Union; e) a Member State other than the Member State of reference, in which an AIFM established in a third State distributes the participation titles of an AIF in the European Union; or f) a Member State other than the Member State of reference, where an AIFM established in a third State distributes the participation of an AIF from a third State; g) a Member State other than the Member State of origin, in which an AIFM in the European Union provides the services referred to in Article 1 5 5 para. ((5); 42. Member State of reference-the Member State defined in accordance with the provisions of art. 39 39 para. ((4); 43. third State-any State which is not a member of the European Union or which is not a signatory to the EEA; 44. branch-structure organized by the establishment type, without distinct legal personality of an AIFM or of a self-managed AIF that provides a party or all the services for which the AIFM or self-administered AIF has been authorized. All the premises in Romania of an AIFM or a self-managed AIF with its registered office located in another Member State or in a third State shall be regarded as a single branch; 45. titles of participation of AIFs-shares or units of fund issued by the AIF according to the legal form of incorporation of the latter-either according to a constitutive act or according to a company contract. + Article 4 (. Each AIF administered in accordance with this Law shall be administered by a single AIFM, which shall be kept in compliance with the provisions of this Law. AIFM is: a) either an external AIFM defined according to art. 3 3 section 3 3; or b) where the AIF is constituted as a stock company and the governing body of the AIF decides not to appoint an external AIFM, the AIF itself, which, in this case, is authorised as AIFM, a situation in which the AIF is deemed to be administered internally or self-administering. ((. Where an AIFM is unable to ensure compliance with this law by the AIF or another entity acting on behalf of the AIF, the AIFM concerned shall immediately inform the A.S.F. and, where appropriate, the competent authorities of the State. home member of the AIF. In this case, the A.S.F. requires the AIFM to take the necessary measures to remedy the situation, according to A.S.F. regulations. (3) If the non-compliance persists, the A.S.F. may decide to terminate the AIFM's administration of the AIF in question, with the consideration of the provisions of par. ((2). In this case, the participation titles of that AIF are no longer distributed in the European Union. Where an AIFM established in a third State administering an AIF from a third State is concerned, the participation titles of that AIF shall no longer be distributed in Romania or in another Member State. A.S.F., as the competent authority of the home Member State of the AIFM, shall immediately inform the competent authorities of the host Member State of the AIFM of the measure ordered. + Chapter II Authorisation of the + Article 5 (1) Legal persons indicated in art. 1 1 para. ((2) may only carry out the AIF's management business if they are authorised under this Act. AIFMs authorised in accordance with this Act must meet the conditions of authorisation at any time. (2) The main activities that an AIFM may carry out when administering an AIF are as follows: a) portfolio management; b) risk management. ((3) The AIFM may carry out, in the framework of the collective management of an AIF and other activities, a) administration of the entity ((i) legal and accounting services of the fund; (ii) requests for information from customers; (iii) assessment and pricing, including tax returns; (iv) enforcement of applicable law; (v) keeping the register of holders of participation titles; (vi) income distribution; (vii) broadcasts and redemptions of participation titles; (viii) settlement of contracts, including the issuance of certificates; (ix) record keeping; b) distribution; c) activities related to the assets of the AIF, namely services necessary for the performance of the AIFM's management tasks, the management of infrastructures, the administration of real estate, the advice given to the entities capital, industrial strategy and related issues, advice and services on mergers and acquisitions of entities, as well as other services related to the management of AIFs and companies and other assets in which it has invested. (4) An external AIFM shall not be entitled to be involved in activities other than those referred to in par. ((2) and (3). Subject to authorisation as an investment management company, hereinafter referred to as S.A.I., in accordance with the provisions of Government Emergency Ordinance no. 32/2012 , it may also carry out the activity of additional administration of one or more O.P.C.V.M. (5) An external AIFM may carry out additional activities referred to in paragraph 1. (3) and the following activities and services: a) the management of individual investment portfolios, including those held by pension funds, on a discretionary basis and on an individual basis, according to the mandates given by investors, where these portfolios include one or more many financial instruments, defined in art. 2 2 para. ((1) pt. 11 11 of Law no. 297/2004 ; b) related services comprising: ((i) investment advice; ((ii) storage and administration activities related to the participation titles issued by collective investment undertakings; (iii) the takeover and transmission of financial instruments orders. + Article 6 (1) Internal managed AIFs may not be involved in activities other than their own administration, in accordance with art. 5 5 para. ((2) and (3). ((2) AIFMs may not be authorised under this law to carry out and/or perform: a) exclusively the services provided in art. 5 5 para. ((5); b) related services referred to in art. 5 5 para. ((5) lit. b) without being also authorized to provide the services referred to in par. ((5) lit. a); c) activities referred to in art. 5 5 para. ((3); or d) activities referred to in art. 5 5 para. ((2) lit. a) without also carrying out the activities referred to in art. 5 5 para. ((2) lit. b) or vice versa. (3) The provision of services referred to in art. 5 5 para. (5) must be carried out according to 3 3 para. ((4), art. 7 7 para. ((6) and art. 10 lit. f) of Law no. 297/2004 ,, as well as in accordance with the rules of conduct applicable to the provision of services and investment activities. ((4) The AIFM established in Romania must provide the A.S.F. with the information that is necessary for it to monitor at any time the compliance with the conditions provided by this law. ((5) Intermediation defined in art. 2 2 para. ((1) pt. 14 14 of Law no. 297/2004 are not required to obtain an authorisation under this Act to provide investment services, such as the management of an AIF's individual portfolio. However, those intermediaries may provide or place AIF participation titles to investors in the European Union directly or indirectly, only in so far as those shareholdings can be distributed in compliance with this law. + Article 7 (1) In order to carry out the management activity of the AIF, the AIFM established in Romania must request the A.S.F. authorization in this capacity. (2) In order to document the request provided in par. ((1), the AIFM shall transmit to the A.S.F. the following: a) information about the persons actually driving the activity of the AIFM; b) information on the identity of the direct or indirect shareholders or associates of the AIFM, natural or legal persons, who hold qualifying holdings, as well as the value of those holdings; c) an activity program that presents the organizational structure of the AIFM, including information about how the AIFM intends to comply with its obligations under the head. II, III and IV and, where appropriate, head. V, VI, VII and VIII; d) information on remuneration policies and practices in accordance with art. 13 13; e) information on the provisions taken for the delegation and subdelegation to third parties of the activities referred to in art. 19 19; f) information on investment strategies, including types of base funds, if the AIF is a fund of funds, the AIFM's policy on the use of leverage, risk profiles and other characteristics of the AIF that it administer or intend to administer them, including information on Member States or third countries in which the AIF is established or expected to be established; g) information on the place where the master AIF is established, if the AIF in question is a feeder fund; h) the rules or articles of association of each AIF that the AIFM intends to administer; i) information on the provisions taken for the appointment of the depositary, in accordance with art. 20, for each AIF that the AIFM intends to administer; j) any additional information referred to in art. 22 22 para. ((1) for each AIF that the AIFM intends to administer. (3) If an S.A.I. authorized in accordance with the provisions Government Emergency Ordinance no. 32/2012 , requests authorization as AIFM under this law, that S.A.I. no longer has to provide information or documents that it has already provided for authorization under this Act. Government Emergency Ordinance no. 32/2012 , if the information and documents in question are still present. ((. The A.S.F. shall inform ESMA on a quarterly basis of authorisations granted or withdrawn in accordance with the provisions of this Chapter. + Article 8 (1) A.S.F. grants the authorization of an AIFM established in Romania only if: a) A.S.F. establishes that the AIFM meets the conditions provided by this law; the AIFM holds an initial capital and sufficient own funds in accordance with art. 9 9; b) persons who effectively lead the activity of the AIFM have a good reputation and sufficient experience according to the regulations of the A.S.F., including in relation to the investment strategies pursued by the AIFs managed by the AIFM; the identity of those persons and any person who succeeds them in office is communicated immediately to the A.S.F., and the management of the activity of the AIFM is provided by at least two persons who meet such conditions; c) AIFM shareholders or associates holding qualifying holdings meet the requirements of the need to ensure sound and prudent management of the AIFM; and d) the head office and the registered office of the AIFM are located in Romania. (2) The authorization granted by A.S.F. is valid in all Member States, the respective AIFMs being registered in the A.S.F. ((3) The A.S.F. shall consult the competent authorities of the other Member States, prior to the authorisation of the following AIFMs: a) the subsidiary of an AIFM, an O.P.C.V.M. management company, an investment firm, a credit institution or an insurance undertaking, authorised in another Member State; b) the subsidiary of a parent company of an AIFM, an O.P.C.V.M. management company, an investment firm, a credit institution or an insurance undertaking authorised in another Member State; and c) a company controlled by the same natural or legal persons as those who control: another AIFM, an administration company of O.P.C.V.M., an investment firm, a credit institution or an insurance company authorized in another state Member. ((4) A.S.F. refuses to authorize an AIFM, when the proper conduct of its supervisory activity is prevented by: a) close links between the AIFM and other natural or legal persons; b) the laws, regulations or administrative provisions of a third country applicable to natural or legal persons with whom the AIFM has close links; c) difficulties relating to the application of those laws, regulations and administrative provisions. ((5) The A.S.F. may order the restriction of the scope of the authorisation granted to an AIFM, in particular as regards the investment strategies of the AIF that the AIFM is authorised to administer. (6) The A.S.F. informs the applicant in writing, within 3 months from the date of submission of a complete application, whether or not the authorization has been granted. This period may be extended by a maximum of 3 months, if the A.S.F. considers it necessary, in view of the circumstances specific to the case and after having notified the AIFM thereof. An application shall be deemed to be complete if the AIFM has at least presented the information referred to in Article 1 7 7 para. ((2) lit. a)-d), f) and g). AFIA may start managing the AIF in Romania by using the investment strategies described in the application for authorization in accordance with art. 7 7 para. ((2) lit. f) from the moment of granting the authorization, but not earlier than 30 days after the transmission of any missing information in accordance with art. 7 7 para. ((2) lit. e) and h)-j). + Article 9 (1) AIFM which is an AIF managed internally shall have at least the equivalent in lei of EUR 300,000, calculated at the reference rate communicated by the National Bank of Romania. (2) When an AIFM is appointed as the external administrator of the AIF, the AIFM concerned has an initial capital of at least the equivalent in lei of 125,000 euros, calculated at the reference rate communicated by the National Bank of Romania. (3) When the value of the AIF portfolios managed by the AIFM exceeds the equivalent in lei of 250,000,000 euros, the AIFM must supplement its own funds with a share of 0.02% of the amount with which the value of the portfolios administered by this exceeds the equivalent in lei of the amount of 250,000,000 euros. The total of the initial capital value and the amount of the additional amount of own funds represent the equivalent in lei of not more than 10,000,000 (4) For the purposes of paragraph ((3), AIFs managed by the AIFM, including the AIF for which the AIFM has delegated activities in accordance with art. 19 19, with the exception of the portfolios of AIFs that the AIFM manages by delegation, shall be considered to be the portfolios of the AIFM. (5) In addition to the maximum value provided in par. ((3), the amount of AIFM's own funds shall never be lower than the amount referred to in Article 97 97 of Regulation (EU) No 575/2013 . ((6) An AIFM may not provide up to 50% of the additional own funds referred to in paragraph 1. ((3) where it benefits from a security equal to the specified amount issued by a credit institution or an insurance undertaking having its registered office in a Member State or a third State, provided that it is subject to rules prudential that the A.S.F. considers equivalent to those laid down in Union law. ((7) In order to cover any professional liability risks related to the activities that the AIFM may carry out under this law, both internal AIFs and external AIFMs: a) either hold appropriate additional own funds to cover any risks of civil liability arising from professional negligence; or b) hold professional liability insurance for liability arising from professional negligence that is appropriate to the risks covered. ((8) Own funds, including the additional own funds referred to in paragraph 1. ((7) lit. a), are invested in liquid assets or in assets easily convertible into short-term cash and do not include speculative positions. (9) Alin. (7) and (8) and their implementing measures adopted by the European Commission are the only ones applying to the AIFM that are also S.A.I. administering O.P.C.V.M. + Article 10 (1) The AIFM subject to the authorization of the A.S.F., before the implementation, any modification of the significant conditions that were the basis of the authorization, provided for in art. 7 7 para. ((2) lit. a), b), e), f), h) and i). In case of modification of the conditions provided in 7 7 para. ((2) lit. c), d), g) and j), the AIFM notifies the A.S.F. in this regard 7 days prior to the entry into force of these amendments. (. If the A.S.F. decides to impose restrictions or reject those amendments, it shall inform the AIFM within 30 days of receipt of the request for authorization. This period may be extended for a further maximum of 30 days, if the A.S.F. considers it necessary due to the circumstances specific to the case and after having notified the AIFM thereof. The amendments shall enter into force if the A.S.F. issues an authorisation decision or makes no comments during the assessment period. + Article 11 A.S.F. may withdraw the authorization issued to an AIFM if it: a) does not start its activity within 12 months from the date of obtaining the authorization, expressly waives the authorization or has waived the activity regulated by this law in the last 6 months; b) obtained the authorization by false statements or other illegal ways; c) no longer meets the conditions that were the basis of the authorization; d) no longer comply with provisions Directive 2013 /36/EU and ale Regulation (EU) No 575/2013 , if the authorization also covers the portfolio management service in a discretionary manner, referred to in art. 5 5 para. ((5) lit. a); e) has seriously or systematically violated the provisions adopted pursuant to this Law; or f) falls within any of the cases in which, according to national law, the withdrawal of the authorization for aspects that do not fall within the scope of this law is required. + Chapter III Operating conditions of the AIFM + Article 12 ((1) AIFMs established in Romania must observe at any time, during the course of their activity, the following prudential rules: a) to act with honesty, competence, prudence, diligence and fairness in carrying out their activities; b) act in the interests of the AIF or the investors of the AIF it manages and the integrity c) to maintain and efficiently use the resources and procedures necessary for the smooth running of their activities; d) take all reasonable measures provided for in art. 16 16-29 of European Union Regulation No 231/2013 ,, in order to avoid conflicts of interest and, where they cannot be avoided, to identify, manage, monitor and, where appropriate, make public conflicts of interest with the aim of preventing them from adversely affecting the interests of the AIF and of their investors and to ensure that the AIFs they manage are treated fairly; e) comply with all the regulations applicable to the conduct of their activities, in such a way as to promote the interest of the AIF or of the AIF investors it manages and f) treat all AIF investors fairly. Investors in an AIF only benefit from preferential treatment if this preferential treatment is mentioned in the rules or articles of association of the AIF in question. ((2) AIFM authorized to provide the portfolio management service in a discretionary manner referred to in art. 5 5 para. ((5) lit. a): a) they are not authorized to invest the entire client's portfolio or part thereof in the AIF's participation titles that they manage, unless they receive the client's prior approval; b) may start their activity subject to the acquisition of the membership of the Investor Compensation Fund established in accordance with the provisions of Title II, Head. IX of Law no. 297/2004 . + Article 13 (1) The AIFM must draw up and apply remuneration policies and practices for the categories of staff whose professional activities have a significant impact on its risk profile or on the risk profiles of the AIF that it administer, including for persons in management positions, persons who take risks and those with control functions, as well as for any employee who receives a total remuneration that places him in the same category of remuneration with persons in management positions and those who take the risks, to be compatible with sound and effective risk management and promote this type of administration and that do not encourage risk-taking incompatible with risk profiles, rules or articles of association of the AIF Administer. ((. The AIFM shall establish remuneration policies and practices in accordance with the provisions of Annex no. 1. + Article 14 ((1) The AIFM must take all reasonable measures provided for in art. 30 30-37 of European Union Regulation No 231/2013 , in order to identify conflicts of interest arising during the administration of the AIF between: a) the AIFM, including its directors and employees or any other person directly or indirectly linked to the AIFM through control, and the AIF managed by the AIFM or the investors of this AIF b) the AIF or the investors of this AIF and another AIF or the investors c) the AIF or the investors of this AIF and another AIFM customer; d) AIF or investors of this AIF and an O.P.C.V.M. administered by the AIFM or investors of this O.P.C.V.M.; or e) two clients of AIFM. ((. The AIF shall maintain and apply effective organisational and administrative provisions with a view to the adoption of all reasonable measures provided for in art. 30 30-37 of European Union Regulation No 231/2013 intended to identify, prevent, manage and monitor conflicts of interest to prevent them from influencing the interests of the AIF and their investors. ((. The AIFM shall, within the framework of their working environment, separate tasks and responsibilities which may be deemed incompatible or which may result in conflicts of interest. The AIFM shall evolve if their operating conditions may involve any other conflicts of interest and inform the investors of the AIF thereof. (4) If the organizational provisions taken by the AIFM to identify, prevent, manage and monitor conflicts of interest are not sufficient to ensure that the risk of affecting the interests of investors is avoided according to Art. 30 30-37 of European Union Regulation No 231/2013 , The AIFM shall clearly inform them, before acting on their behalf, in relation to the general nature or source of such conflicts of interest and shall develop appropriate policies and procedures. (5) When the AIFM, acting for an AIF, uses the services of a principal broker, the conditions shall be laid down in a contract. The contract shall stipulate in particular the possibility of the transfer and reuse of the assets of the AIF, which shall comply with the rules or the The contract provides for the depositary to be informed of the contract concerned. The AIFM shall act with the necessary competence, prudence and diligence in the selection and appointment of the principal brokers with whom a contract is concluded. + Article 15 ((1) The AIFM functionally and hierarchically separates the risk management functions from the operational units, including the portfolio management functions. The functional and hierarchical separation of risk management functions is verified by the A.S.F. according to the principle of proportionality, understanding that the AIFM can in any case demonstrate that specific protection measures against conflicts of interest allow the independent conduct of risk management activities and that the risk management process satisfies the requirements imposed by this law and ensures continuous effectiveness. ((2) AIFM implements appropriate risk management systems to identify, assess, manage and monitor appropriately all risks relevant to the investment strategy of each AIF and to which it is or may be exposed. each AIF, in accordance with the provisions of 30 30-37 of European Union Regulation No 231/2013 . In this regard, the AIFM should not rely solely or mechanically on credit ratings issued by credit rating agencies as defined in Article 4 (1) of the Treaty. 3 3 para. ((1) lit. ((b) of Commission Implementing Regulation (EU) No 1.060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies, to assess the creditworthiness of AIF's assets. The AIFM shall assess risk management systems with an appropriate frequency, at least once a year, and adapt them where necessary, in accordance with the provisions of this Regulation. European Union Regulation no. 231/2013 . (. Each AIFM shall at least: a) implement a documented and regularly updated prior verification procedure when investing on behalf of the AIF, according to the investment strategy, objectives and risk profile of the AIF; b) ensure that the risks associated with each AIF investment position and their overall effect on the AIF's portfolio can be permanently identified, evaluated, managed and monitored, including through the use of adequate procedures for stress tests; c) ensure that the risk profile of the AIF corresponds to the size, portfolio structure and investment strategies and objectives of the AIF set out in its rules or instruments of incorporation, prospectus and tender documents. (4) The A.S.F. monitors the adequacy of the AIFM's credit rating assessment processes, assesses the use of references to credit ratings, as referred to in par. ((2). In the framework of the AIFM's investment policies with regard to the AIF and, where appropriate, it encourages the mitigation of the impact of these references, with a view to reducing the exclusive reliance on such credit ratings. ((5) AIFMs set the maximum level of leverage they may use for each AIF they manage, as well as the rights to reuse collateral or any other type granted under the use agreement. leverage, taking into account, inter alia,: a) type of AIF; b) the investment strategy of AIF; c) sources that generate leverage for the AIF; d) any other relevant interconnection or relationship with other financial services institutions that could generate systemic risks; e) the need to limit exposure to a single counterparty; f) the extent to which the leverage is guaranteed; g) the ratio between assets and liabilities; h) the volume, nature and importance of AIFM activities in the markets concerned. + Article 16 ((1) For each AIF managed and which is not a closed-type AIF that does not use leverage, the AIFM shall use an appropriate liquidity management system and adopt procedures enabling them to monitor the liquidity risk of the The AIF and ensure that the liquidity profile of the AIF investments complies with its core obligations. The AIFM shall periodically perform stress tests, under normal conditions and in exceptional liquidity conditions, which allow them to assess the liquidity risk of the AIF and to monitor the liquidity risk of the AIF accordingly. ((2) The AIFM shall ensure that, for each AIF managed, the investment strategy, the liquidity profile and the redemption policy are consistent. + Article 17 ((. The AIFM shall at any time use appropriate and appropriate human and technical resources necessary for the proper management of the AIF. ((2) Depending on the nature of the AIF managed by the AIFM, the AIFM shall draw up and apply sound administrative and accounting procedures and control and protection devices in the field of electronic data processing as well as adequate control mechanisms internally, including, in particular, rules on the personal transactions of its employees or the holding or administration of investments with the aim of investing on their own and guaranteeing, at least, that each transaction involving the AIF may be reconstituted as regards its origin, its parts, its nature, the time, as well as and the place where it was carried out and that the assets of the AIF managed by the AIFM are invested in accordance with the rules or articles of association of the AIF and the legal provisions + Article 18 ((1) The AIFM shall ensure that, for each AIF administered, appropriate and consistent procedures are established so that an appropriate and independent valuation of the AIF's assets can be carried out in accordance with this Law, with the specific legislation applicable and with the rules or articles of association of the AIF ((2) The rules applicable to the valuation of assets and the calculation of the unit value of the net asset of the AIF shall be determined in the legislation of the country where the AIF is established and/or ((3) The AIFM shall also ensure that the unitary value of the net asset of the AIF is calculated and communicated to investors in accordance with this law, the applicable law in the field of the capital market and the rules or instrument of incorporation of the AIF. (. The valuation procedures used shall ensure the valuation of assets and the calculation of the unit value of the net asset at least once a year. (5) Where the AIF is of the open type, in the sense that it issues participation titles which are subject to a broadcast and repurchase at regular intervals, according to the regulations issued by the A.S.F., these assessments and calculations shall be carried out, by also, with a frequency appropriate to the assets held by the AIF and its frequency of issue and redemption, in accordance with the provisions of art. 67 67-74 of European Union Regulation No 231/2013 . (6) If the AIF is of a closed type, in the sense that it issues participation titles that are not subject to a broadcast and repurchase at regular intervals, according to the regulations issued by the A.S.F., these assessments and calculations shall also be made in the case of the increase or decrease of capital by the AIF concerned. (7) The AIF investors indicated in par. ((5) and (6) shall be informed of assessments and calculations as set out in the relevant provisions of the AIF's rules or articles of association. ((8) The AIFM shall ensure that the assessment function is exercised either by: a) an external valuer, who is a legal or physical person independent of the AIF, the AIFM and any other person with close links to the AIF or the AIFM; or b) AIFM itself, provided that the assessment task is functionally independent of portfolio management and remuneration policy and that other measures guarantee the limitation of conflicts of interest and the prevention of influence unjustified on employees. The depositary appointed for an AIF shall not be appointed as the external valuer of that AIF, unless it has functionally and hierarchically separated the exercise of its depositary functions from its external valuer tasks, and any conflicts of interest are identified, managed, monitored and duly communicated to the investors of the AIF. ((9) Where the assessment function is exercised by an external assessor, the AIFM shall demonstrate that: a) the external valuer is either: (i) legal person, corporate member of the National Association of Authorized Assessors in Romania, hereinafter referred to as ANEVAR, whose object of activity refers to the provision of services in the financial-accounting and/or consulting field for business and management and to designate as his representative to carry out assessments in accordance with capital market regulations, an accredited member ANEVAR (specialization Evaluation enterprises) or a member of some professional evaluation organisations affiliated to the European Group of Associations Assessors (TEGOVA) or other international organizations recognized by ANEVAR; (ii) the accredited individual member of ANEVAR (specialization Evaluation of enterprises) or member of professional affiliated evaluation organizations TEGoVA or of other international organizations recognized by ANEVAR; b) the external valuer may provide sufficient professional guarantees in order to be able to perform effectively the appropriate assessment function in accordance with paragraph 1. ((1)-(3); and c) the appointment of the external assessor complies with the 19 19 para. ((1)-(3), as well as the acts delegated by the European Commission in this field. (10) The external valuer appointed shall not delegate the assessment function to a third party. (11) The AIFM notifies the appointment of the external assessor A.S.F., which may request the appointment of another external assessor in its place, if the conditions provided in par. ((9) are not or are no longer fulfilled. (12) The assessment shall be carried out with impartiality, competence, prudence and professional diligence. (13) If the assessment function is not exercised by an external assessor, the A.S.F. may require the AIFM to order the verification of its evaluation procedures and/or its assessments by an external assessor or, as the case may be, by an auditor. ((14) AIFMs are responsible for the correct valuation of the assets of the AIF and the calculation of the net asset value and the publication of this net asset value. The appointment by the AIFM of an external valuer shall not affect AIFM's liability to the AIF and its investors. (15) With the consideration of the provisions of par. ((14), the external valuer shall be liable to the AIFM for losses incurred by the AIFM as a result of negligence or intentional failure of its tasks. + Article 19 (1) AIFM may delegate to third parties, subject to prior approval of the A.S.F. and on the basis of written contract, the exercise of the activities referred to in art. 5 5 para. (2), in accordance with the A.S.F. regulations issued in the application of this law. As regards the activities referred to in art. 5 5 para. (3), their delegation shall be made subject to the notification of the A.S.F., on the basis of written contract and in accordance with the A.S.F. regulations issued in application of this law. ((2) Delegation of activities referred to in par. (1) shall be carried out with the following conditions: a) the AIFM must be able to justify its entire delegation structure with objective reasons; b) the delegate must have sufficient resources to carry out those tasks, and the persons who effectively carry out the work of the delegate must have a sufficiently good reputation and sufficient experience according to A.S.F. regulations; c) where the delegation concerns the management of the portfolio or the risk management, it must be granted only to entities that are authorised or registered in a Member State, having as their object the management of assets and which they are subject to the supervision of the competent authorities of those Member States or, where that condition cannot be fulfilled, must be granted only on condition of prior authorisation by the A.S.F.; d) where the delegation relates to portfolio management or risk management and is granted to an entity in a third country, it must be ensured, in addition to the requirements laid down in point (a). c), the cooperation between the A.S.F. and the supervisory authority of the entity concerned; e) the delegation must not prevent the smooth conduct of the supervision of the AIFM and, in particular, must not prevent the AIFM from acting, nor the AIF being administered in the interests of its investors; f) the AIFM must be able to demonstrate that the delegate is qualified and capable of carrying out the functions concerned, that it has been diligently selected and that the AIFM can effectively and at any time monitor the delegated activity, give at any time Additional instructions to the delegate and withdraw the delegation with immediate effect when this is in the interest of investors. The AIFM shall continuously assess the services provided by each delegate. ((. The portfolio management or risk management shall not be delegated: a) the depositary or a delegate of the depositary; or b) any other entity whose interests may conflict with those of the AIFM or of the investors of the AIF, unless the entity concerned has functionally and hierarchically separated the exercise of its management tasks of its risk management portfolio from its other potentially conflicting tasks, and any conflicts of interest are identified, managed, monitored and communicated appropriately to the investors of the AIF. (4) The fact that the AIFM has delegated functions to a third party or any other sub-delegation does not affect AIFM's liability to the AIF and its investors. The AIFM shall not delegate its functions to such an extent that it can no longer be considered the manager of the AIF and become a "letterbox" entity within the meaning given to that term in accordance with art. 82 82 of European Union Regulation No 231/2013 . (. The third party to which activities have been delegated by the AIFM may sub-delegate any of its delegated functions provided that the following requirements are met: a) the AIFM has given its prior consent to sub-delegation; b) the AIFM has notified the A.S.F. before the subdelegation provisions enter into force; c) the conditions provided in par. ((2), all references to the "delegate" being understood as references to the "sub-delegate". ((6) A sub-delegation of portfolio management or risk management shall not be assigned: a) the depositary or a delegate of the depositary; or b) any other entity whose interests may conflict with those of the AIFM or of the investors of the AIF, unless the entity concerned has functionally and hierarchically separated the exercise of its management tasks. its risk management portfolio of its other potentially conflicting tasks and potential conflicts of interest are identified, managed, monitored and communicated appropriately to the investors of the AIF. The relevant delegate shall continuously assess the services provided by each sub-delegate. (7) When the sub-delegate delegates any of the functions that have been delegated to him, the conditions laid down in par. ((5) shall apply mutatis mutandis. + Article 20 (. For each AIF managed, the AIFM shall ensure that a single depositary is designated. (. The appointment of the depositary shall be the subject of a written contract. Among other things, the contract regulates the flow of information deemed necessary to enable the depositary to perform its functions for the AIF for which it has been designated as depositary, in accordance with this Law. (3) The depositary is: a) in case of AIFs established in Romania (i) a credit institution in Romania, authorized by the NBR, according to the legislation applicable to credit institutions, or a branch in Romania of a credit institution, authorized in another Member State, approved by A.S.F. for the activity of storage of OPC assets and registered in the A.S.F. Registry that meet the conditions provided by this law and the regulations of the A.S.F. issued in its application; (ii) a financial investment services company (S.S.I.F.) authorised by the A.S.F. or the branch of an investment firm authorised in another Member State registered in the Register of the A.S. F, which is in the activity of the conex storage service in the safety and administration of financial instruments in the account of clients, including custody and services in connection with them, such as the administration of funds or guarantees, provided for in art. 5 5 para. ((1 ^ 1) lit. a) of Law no. 297/2004 and complies with capital adequacy requirements, including capital requirements for operational risks, and holds, in any case, own funds at least equal to the amount of initial capital as required Directive 2013 /36/EU and Regulation (EU) No 575/2013 ; b) in the case of AIFs established in another Member State of the European Union the depositary ((i) a credit institution with registered office in the European Union and authorised in accordance with Directive 2013 /36/EU ; ((ii) an investment firm with registered office in the European Union, which complies with capital adequacy requirements, including capital requirements for operational risks, and is authorised under Directive 2004 /39/EC and which also provides related services for the retention and administration of financial instruments on behalf of clients in accordance with Section B (1) of Annex I to Directive 2004 /39/EC ;; such investment firms hold, in any case, their own funds at least equal to the amount of initial capital provided for in Directive 2013 /36/EU and Regulation (EU) No 575/2013 ;; or (iii) another category of institutions subject to prudential regulation and continuous supervision and which, on 21 July 2011, was within the categories of institutions established by the Member States as eligible for the position of depositary, in accordance with the with art. 23 23 para. ((3) of Directive 2009 /65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to O.P.C.V.M.; c) in the case of AIFs in a third country and in compliance with ((5) lit. b), the depositary may also be a credit institution or any other entity similar to the entities referred to in lett. a) and b), provided that the conditions of par. ((6) lit. b). (4) In order to avoid conflicts of interest between the depositary, AIFM and/or AIF and/or a) an AIFM does not act as depositary; b) a principal broker acting as a counterparty to an AIF shall not act as depositary for the AIF concerned unless it has functionally and hierarchically separated the exercise of its depositary functions from its tasks. of the main broker, and any conflicts of interest are identified, managed, monitored and properly communicated to the investors of the AIF. The depositary's delegation of its custody duties to such a principal broker in accordance with par. ((11) it is permitted if the relevant conditions are met; c) AIFM must be a legal person independent from the depositary and may not have close links with it. ((5) The depositary is established in one of the following locations: a) in the case of the AIF of the European Union, in the home Member State of the AIF; in the case of the AIF in Romania, the depositary b) in the case of AIFs in a third country, the third country in which the AIF is established or in the home Member State of the AIFM managing the AIF or in the reference Member State of the AIFM (6) In compliance with the requirements provided in par. (the designation of a depositary established in a third State shall be subject to the following conditions: a) the competent authorities of the Member States in which the AIF's participation in a third State and the A.S.F. are intended to be distributed, where the Member State of origin of the AIFM is Romania, have signed cooperation agreements and exchange of information with the competent authorities of the depositary; b) the depositary is subject to prudential regulation, including minimum capital requirements, and effective supervisory measures which have the same effects as Union law and are effectively applied; c) the third country in which the depositary is established is not included in the category of non-cooperating countries and territories by the Financial Action Task Force (FATF); d) the Member States in which the AIF's participation in a third State is intended to be distributed and, if different, the Member State of origin of the AIFM have signed with the third country in which the depositary is established an agreement which complies with the the standards referred to in art. 26 of the OECD Model Tax Convention on Income and Capital and guarantees an effective exchange of information in tax matters, including possible multilateral tax arrangements; e) the depositary is contractually liable to the AIF or to the investors of the AIF in accordance with paragraph ((12) and (13) and expressly accept to comply with par. ((11). Where, as the competent authority of a Member State in which the AIF's participation in a third State is intended to be distributed, the A.S.F. does not agree with the assessment of the application of the provisions of the first subparagraph of point (a). a), c) or e) by the competent authorities of the home Member State of the AIFM, it may refer the matter to ESMA, which may act in accordance with the powers conferred on it pursuant to art. 19 19 of Regulation (EU) No 1.095/2010 of the European Parliament and of the Council of 24 November 2010 establishing the European Supervisory Authority (European Securities and Markets Authority), amending Decision no. 716 716 /2009/EC and repealing the Decision 2009 /77/EC of the Commission (7) The depositary shall generally ensure that the cash flows of the AIF are adequately monitored and ensure in particular that all payments made by investors or on their behalf in the subscription of the participation securities of an AIF have been collected and that the cash of the AIF is fully recorded in the cash accounts opened on behalf of the AIF or on behalf of the AIFM acting on behalf of the AIF or on behalf of the depositary acting on behalf of the AIF at a central bank, authorized under Community law or at a bank authorized in a non-member state or to another entity of the same nature on the relevant market where cash accounts are required, provided that that entity is subject to prudential regulation and effective supervision which have the same effects as Union law and which they are effectively applied and in accordance with the principles relating to the safe keeping of customer funds provided for in the regulations issued in application Law no. 297/2004 and Government Emergency Ordinance no. 32/2012 . Where the cash accounts are opened on behalf of the depositary acting on behalf of the AIF, the number of the entity referred to in the first subparagraph shall not be recorded in these accounts and neither the depositary's own cash. ((. The assets of the AIF or AIFM acting on behalf of the AIF shall be entrusted to the depositary for storage as follows: a) in the case of financial instruments which may be held in custody: ((i) the depositary shall retain in custody all financial instruments which may be recorded in an account of financial instruments opened in the depositary's records and all financial instruments which may be physically delivered to the depositary; ((ii) for that purpose, the depositary shall ensure that all financial instruments which can be recorded in a financial instrument account opened in the depositary's records are recorded in the depositary's records in separate accounts, in compliance with the principles relating to the safekeeping of the financial instruments of the clients provided for in the regulations Law no. 297/2004 and Government Emergency Ordinance no. 32/2012 , open on behalf of the AIF or AIFM acting on behalf of the AIF so that it can at any time be clearly identified as belonging to the AIF in accordance with the applicable law; b) for other assets: ((i) the depositary shall verify the ownership of the AIF or the AIFM acting on behalf of the AIF in respect of those assets and keep records of the assets as to which it is certain that the AIF or AIFM acting on behalf of the AIF holds the right property; ((ii) in order to verify that the AIF or AIFM acting on behalf of the AIF owns the ownership, the depositary shall be based on information or documents provided by the AIF or the AIFM and, where available, on external evidence; (iii) the depositary shall keep its records permanently updated. (9) In addition to the duties provided in par. ((7) and (8), the depositary: a) ensure that the sale, issue, redemption, reimbursement and cancellation of the AIF's participation titles are made in accordance with the applicable national law and the rules or instrument of incorporation of the AIF; b) ensure that the value of the AIF's participation titles is calculated in accordance with the applicable national law, the rules or the articles of association of the AIF and the procedures provided for in art. 19 19; c) carry out the instructions of the AIFM, unless they contravene the applicable national law or the rules or articles of association of the AIF d) ensure that, in transactions involving the assets of the AIF, the value is paid to the AIF within the usual time limits; e) ensure that the proceeds of the AIF are used in accordance with applicable national law and the rules or articles of association of the AIF. (10) In the performance of their specific tasks, the AIFM and the depositary shall act honestly, fairly, professionally and independently, and in the interests of the AIF and the investors of the The depositary shall not carry out activities with respect to the AIF or the AIFM acting on behalf of the AIF which may create conflicts of interest between the AIF, the investors in the AIF, the AIFM and the depositary itself, unless the depositary has separated from the point of functional and hierarchical view of the exercise of its depositary tasks from its other potentially conflicting tasks, and any conflicts of interest are identified, managed, monitored and communicated accordingly to the investors of the AIF; ((7) are not reused by the depositary without the prior consent of the AIF or AIFM acting on behalf of the AIF. ((11) The depositary shall not delegate its functions to third parties, except those mentioned in par. ((8). The depositary may delegate to third parties the functions referred to in paragraph 1. (8), subject to the following conditions: a) the powers are not delegated with the intention of circumventing the requirements of this law; b) the depositary can demonstrate the existence of an objective reason for the delegation; c) the depositary to exercise the necessary competence, precaution and diligence when selecting and appoints a third party to whom it wishes to delegate some of its tasks and to provide further proof of competence, precaution and diligence necessary when regularly checking and supervising the third party to which it has delegated part of its tasks and the measures taken by the third entity in relation to the tasks that have been delegated; and d) the depositary shall ensure that the third entity fulfils the following conditions in the course of the performance of the tasks delegated to it: ((i) the third entity has the appropriate and proportionate structures and experience with the nature and complexity of the assets of the AIF or AIFM acting on behalf of the AIF entrusted to it ((ii) in respect of the delegation of custody duties referred to in paragraph 1. ((8) lit. a), the third entity is subject to prudential regulation, including minimum capital requirements, and effective supervision in the jurisdiction in question, and the third entity is subject to periodic external control to verify whether financial instruments are in its possession; ((iii) the third entity separates the assets of the depositary's customers from its own assets and the depositary's assets so that it can be clearly identified at any time as belonging to the customers of a particular depositary; ((iv) the third party does not use the assets without prior consent of the AIF or AIFM acting on behalf of the AIF and without prior notice to the depositary; and (v) the third party complies with the obligations and general prohibitions referred to in paragraph ((8) and (10). (12) With the consideration of the provisions of par. ((11) lit. d) section ((ii), where the legislation of the third country requires that certain financial instruments be kept in custody by a local entity and no local entity meets the delegation requirements set out in that point, the depositary may delegate the functions of such a local entity only to the extent that it is provided for in the legislation of the third country and only as long as there are no local entities that meet the requirements of the delegation, subject to the following requirements: a) the investors of the AIF concerned must be duly informed that the delegation is necessary as a result of the legal constraints in the legislation of the third country and the circumstances justifying the delegation, before making the investment; and b) the AIF or AIFM acting on behalf of the AIF shall require the depositary to delegate the custody of financial instruments to such a local entity. The third party may, in turn, subdelegate these functions, provided that the same requirements are met. In such cases, para. ((14) shall apply mutatis mutandis to the relevant parties. Provision of services by securities settlement systems provided for in Law no. 253/2004 on the definitive nature of settlement in payment systems and settlement systems of operations with financial instruments, with subsequent amendments and completions, or the provision of similar services by settlement systems securities in third countries shall not be deemed to be a delegation of its custody functions. ((13) The depositary shall be liable to the AIF or to the investors of the AIF for the loss by the depositary or by a third party to which the custody of the financial instruments held in custody has been delegated in accordance with paragraph 1. ((8) lit. a); in the event of the loss of a financial instrument from custody, the depositary shall return without delay to the AIF or the AIFM acting on behalf of the AIF an identical financial instrument or corresponding value The depositary is not liable if it can prove that the loss intervened as a result of an outside event beyond its reasonable control, the consequences of which would have been inevitable despite all of its reasonable efforts to counter, according to the provisions of art. 100 100 and 101 of European Union Regulation No 231/2013 . The depositary shall also respond to the AIF or to the investors of the AIF for all other losses incurred by them as a result of the intentional or negligent failure of its obligations under this Act. ((14) The liability of the depositary shall not be affected by the delegations mentioned in paragraph 1. ((11). In case of loss of financial instruments held in custody by a third party entity in accordance with paragraph 1. ((11), the depositary may be released from liability if it can prove that: a) all the requirements for the delegation of his duties on the custody provided in par. ((11) the second subparagraph; b) a written contract between the depositary and the third entity expressly transfers the liability of the depositary to the third party concerned and provides the AIF or the AIFM acting on behalf of the AIF to request the third entity to compensate the loss of financial instruments or depositary the possibility to claim those damages on their behalf; and c) a written contract between the depositary and the AIF or the AIFM acting on behalf of the AIF expressly allows an exemption of the depositary and sets out the objective reason for such an exemption. ((15) Where the legislation of the third State requires that certain financial instruments be kept in custody by a local entity and there are no local entities that meet the delegation requirements referred to in paragraph 1. ((11) lit. d) section ((ii), the depositary may be exempt from liability if the following conditions are met: a) the rules or articles of association of the AIF in question expressly permit such an exemption under the conditions laid down in this Law; b) the investors of the AIF concerned have been adequately informed of the exemption and the circumstances justifying the exemption before making the investment; c) the AIF or AIFM acting on behalf of the AIF has requested the depositary to delegate the custody of financial instruments to a local entity; d) there is a written contract between the depositary and the AIF or the AIFM acting on behalf of the AIF expressly allowing such exemption; and e) there is a written contract between the depositary and the third entity that expressly transfers the liability of the depositary to the local entity concerned and provides the AIF or the AIFM acting on behalf of the AIF to request the local entity compensation for the loss of financial instruments or depositary the possibility to claim those damages on their behalf. ((16) The liability to the investors of the AIF may be invoked directly or indirectly through the AIFM, depending on the legal nature of the relationship between the depositary, the AIFM and the investors. (17) If the depositary is established in Romania, it shall make available to the A.S.F., upon request, all the information it has obtained in the performance of its tasks and which may be necessary to the authority for monitoring the activity AIF/AIFM. If the A.S.F. is not the competent authority to monitor the AIF or the AIFM concerned, the information received shall be transmitted without delay to the competent authorities in this regard. + Chapter IV Transparency requirements + Article 21 ((1) The AIFM established in Romania must make available, for each AIF in the European Union which it manages and for each AIF whose shareholdings it distributes in the Union, an annual report for each financial year, within 6 months of the end of the financial year. The annual report shall be made available to investors on request, free of charge, and transmitted to the A.S.F. and, where appropriate, to the competent authorities of the home Member State of the AIF under management. Where the AIF is required to publish an annual financial report in accordance with the provisions of the Law no. 297/2004 ,, as well as with the regulations relating to reports drawn up by issuers whose securities are admitted to trading on a regulated market, must be communicated to investors, upon request, only the additional information referred to in para. ((2), either separately or as a supplementary part of the annual financial report. In the latter case, the annual financial report shall be published no later than 4 months after the end of the year. (. The annual financial report shall contain at least: a) a balance sheet or a statement of assets and liabilities; b) a revenue and expenditure account for the financial year; c) a report of the activities of the financial year; d) any substantial modification of the information listed in art. 22 which took place in the financial year covered by the report, established in accordance with the provisions of art. 106 106 of European Union Regulation No 231/2013 ; e) the total amount of remuneration for the financial year, broken down into fixed remuneration and variable remuneration, paid by the AIFM to its staff, and the number of beneficiaries, and, where applicable, the performance fees paid by FIA; f) the aggregate amount of remuneration, broken down for persons in management positions and for members of staff of the AIFM whose actions have a significant impact on the risk profile of the AIF. ((3) The accounting information in the annual reports is prepared in accordance with the accounting standards in Romania, where Romania is a home Member State of the AIF, respectively with the accounting standards of the Member State of origin of the AIF established in other Member States, or in accordance with the accounting standards of the third country in which the AIF is established and with the accounting rules laid down in the rules or articles of incorporation of the AIF, being audited by persons empowered by law in this regard, in accordance with the provisions Government Emergency Ordinance no. 90/2008 on the statutory audit of the annual financial statements and the consolidated annual financial statements and the public interest supervision of the accounting profession, approved with amendments by Law no. 278/2008 , with subsequent amendments and completions. The audit report, including the assessments contained, shall be fully reproduced in the annual report. + Article 22 ((1) The AIFM shall provide investors, before investing in the AIF, for each AIF in the European Union which it manages and for each AIF whose shareholdings it distributes in the European Union, in accordance with its rules the constitutive act of the AIF, the following information, as well as the changes that may determine the investors ' decision to invest or maintain the investment or not in such collective investment undertakings: a) a description of the investment strategy and objectives of the AIF, information on the place where the master AIF is established and the place where the basic funds are established, whether the AIF is a fund of funds, a description of the types of assets in which the AIF may invest, the techniques it may use, all associated risks, any applicable investment restriction, the situations in which the AIF may use leverage, authorised types and sources of leverage and risks associated with it, any restriction in the use of leverage and any agreements of reuse of assets and guarantees as well as information on the maximum level of leverage that the AIFM is entitled to use for the AIF; b) a description of the procedures by which the AIF may change its investment strategy or policy or both; c) a description of the main legal implications of the contractual relationship established for the purpose of the investment, including information on jurisdiction, applicable law and the possible existence of legal instruments allowing recognition and enforcement of judgments in the territory on which the AIF is established; d) the identity of the AIFM, the depositary, the auditor and any other service providers of the AIF and a description of their duties as well as the rights of investors; e) a description of how the AIFM complies with the requirements laid down in art. 9 9 para. ((7); f) a description of any management function delegated by the AIFM in accordance with Annex no. 1 1 and any delegated custody function of the depositary, the identity of the delegate and any conflicts of interest which may arise as a result of such delegations; g) a description of the valuation procedure of the AIF and the methodology for determining the value of the assets, including the methods used for the valuation of assets that are difficult to assess in accordance with 18 18; h) a description of the AIF's liquidity risk management, including redemption rights in both normal and exceptional circumstances, and repurchase agreements with existing investors; i) a description of all the fees, charges and expenses that are directly or indirectly incurred by the investors and their maximum amount; j) a description of how AIFM ensures fair treatment of investors and, if an investor gets preferential treatment or the right to obtain preferential treatment, description of that preferential treatment, type of investors who obtain such preferential treatment and, where appropriate, their legal or economic ties with the AIF or AIFM; k) the last annual report in accordance with art. 21 21; l) the procedure and conditions of issue and sale of the participation titles; m) the latest value of the net asset of the AIF or the most recent market price for AIF participation titles, in accordance with art. 18 18; n) where applicable, the performance history of the o) the identity of the principal broker and a description of any significant agreement of the AIF with its main brokers and the manner in which conflicts of interest are managed in relation to them and the clause in the contract concluded with the depositary relating to the possibility of transfer and reuse of the assets of the AIF and information on any possible transfer of liability to the principal broker; p) a description of the way and of the moment in which the information provided in par. ((4) and (5). ((2) The AIFM shall inform investors before investing in the AIF of any agreement concluded by the depositary to be contractually cleared of liability in accordance with art. 20 20 para. ((14). The AIFM shall also, without delay, inform investors of any changes in the liability of the depositary. ((3) Where the AIF is required to publish a prospectus in accordance with the provisions of Law no. 297/2004 and of the regulations issued in its application, only the information mentioned in par. (1) and (2) supplementing the information in the prospectus must be provided separately or as additional information in the prospectus ((. For each AIF in the European Union which it manages and for each AIF whose participation titles distribute them in the European Union, the AIFM shall periodically communicate to investors: a) the percentage of the AIF's assets subject to special measures because of their illiquid nature; b) new measures to manage the liquidity of the AIF; c) the current risk profile of the AIF and the risk management systems used by the AIFM to manage these risks. ((5) AIFMs managing the European Union AIF using the leverage or AIFM that distributes in the European Union the participation titles of one or more AIFs that use leverage shall communicate periodically for each such AIF: a) any changes in the maximum level of leverage that the AIFM may use for the AIF, as well as the rights to reuse collateral or any other type granted under the leverage agreement; b) the total amount of leverage used by that AIF. + Article 23 ((1) The AIFM shall periodically report to the A.S.F. the main markets on which it operates and the main instruments it trades on behalf of the AIF it manages. This information looks at the main 5 instruments it trades, the 5 main markets on which are members or on which it actively trades, as well as the main 10 exposures and the 5 most important concentrations of each AIF administered, determined according European Union Regulation no. 231/2013 . ((. For each AIF in the European Union which it manages and for each AIF whose participation titles distribute them in the European Union, the AIFM shall transmit to the A.S.F. the following information: a) the percentage of the AIF's assets subject to special measures because of their illiquid nature; b) any new measure to manage the liquidity of the AIF; c) the current risk profile of the AIF and the risk management systems used by the AIFM for the management of market risks, liquidity risk, counterparty risk and other risks, including operational risks; d) information on the main categories of assets in which the AIF has invested; and e) the results of the stress tests carried out in accordance with art. 15 15 para. ((3) lit. b) and art. 16 16 para. ((1) the second subparagraph. (3) At the request of the A.S.F., the AIFM are obliged to transmit the following a) an annual report for each AIF in the European Union managed by the AIFM and for each AIF whose participation titles distribute them in the European Union for each financial year, in accordance with art. 21 21 para. ((1); b) at the end of each quarter, a detailed list of all AIFs that the AIFM administers. (4) An AIFM managing one or more AIFs that use leverage considerably shall provide, on a regular basis, to the A.S.F. information relating to the overall leverage used by each AIF managed, a leverage breakdown resulting from cash or securities lending and leverage embedded in derivatives as well as the extent to which the AIF's assets have been reused under agreements that have yielded Leverage effect. The information shall include the identity of the 5 largest sources of cash loan or securities for each AIF managed by the AIFM and the amount of the leverage received from each of those sources for each of those AIFs. In the case of AIFMs in third countries, the reporting obligations shall be limited to the AIFs of the European Union which they manage and to the AIF of a third State whose shareholdings distribute them in Romania. (5) When effective monitoring of systemic risk requires it, the A.S.F. may request additional information, both periodically and on an ad hoc basis. A.S.F. shall inform ESMA of the obligations to provide additional information to the AIFM. At the request of ESMA, the A.S.F. requires additional reporting obligations to the AIFM + Chapter V AIFM managing certain types of AIF + Article 24 (1) The A.S.F. shall use the information to be transmitted pursuant to art. 23 to determine to what extent the use of leverage contributes to the creation of systemic risks in the financial system, the risk of disorderly markets or risks that may affect the long-term growth of the economy. (2) A.S.F. envisages that all information transmitted pursuant to art. 23, with regard to all the AIFMs they supervise, as well as the information collected pursuant to art. 7 be communicated to the competent authorities of the other Member States, ESMA and the ESRB, by the procedures laid down in Article 58 58 on supervisory cooperation. The A.S.F. also provides, without delay, information through those procedures and bilaterally to the competent authorities of other Member States directly concerned, where an AIFM established in Romania or an AIF administered by this AIFM could become an important source of counterparty risk for a credit institution or other systemically important institutions in other Member States. ((3) The AIFM demonstrates that the limits of the leverage established by it for each AIF it manages are reasonable and that it complies with them at all times with the consideration of the provisions of art. 112 112 of European Union Regulation No 231/2013 . A.S.F. assesses the risks related to the use of leverage by an AIFM in respect of the AIF it manages and, where it considers necessary to ensure the stability and integrity of the financial system, after the notification of ESMA, The ESRB and the competent authorities for the AIF concerned may have the leverage cap on which the AIFM is entitled to use or other restrictions on the management of AIFM in respect of the AIF administered to limit the extent to which the AIFM is the use of leverage contributes to the creation of systemic risks in the financial system or the risk of disorderly markets. A.S.F. shall duly inform ESMA, the ESRB and the competent authorities of the AIF of the measures taken to do so, in accordance with the provisions of art. 58. ((4) The notification referred to in paragraph ((3) shall be made at least 10 working days before the proposed measure takes effect or is renewed. The notification includes details of the proposed measure, the reasons for the adoption of the measure and the time provided for its entry In exceptional circumstances, the A.S.F. may decide that the measure proposed to enter into force during the period referred to in the first sentence. (5) If the A.S.F. proposes to take measures contrary to the recommendations submitted by ESMA on the corrective measures to be imposed on the AIFM, it shall notify ESMA thereof and explain the reasons for it. + Article 25 (1) Provisions of para. ((5) and (6) and art. 26 26-29 shall apply: a) AIFM managing one or more AIFs which, either individually or jointly, pursuant to an agreement to obtain control, obtain control over an unlisted company in accordance with paragraph 1. ((5); b) the AIFM which cooperates with one or more other AIFMs pursuant to an agreement to which the AIF managed by those AIFMs jointly obtain control over an unlisted company in accordance with paragraph 1. ((5). (2) Provisions of para. ((5) and (6) and art. 26 26-29 shall not apply where the non-listed companies concerned are: a) small and medium-sized enterprises as defined in art. 3 3 of Law no. 346/2004 on stimulating the establishment and development of small and medium-sized enterprises, with subsequent amendments and completions; or b) special purpose entities aimed at the acquisition, possession or administration of real estate. (3) In compliance with the provisions of ((1) and (2), art. 26 26 para. (1) The AIFM which manages the AIF which obtain a participation in an unlisted company, but without having control over it, shall also apply. (4) The provisions of art. 27 27 para. ((1)-(3) and art. 29 29 applies also to AIFMs managing AIFs that have gained control over issuers. For the purposes of those Articles, para. ((1) and (2) shall apply mutatis mutandis. (5) In the case of an unlisted company, with the consideration and provisions of art. 26-29, control means more than 50% of the voting rights of companies. In calculating the percentage of voting rights held by the relevant AIF, in addition to voting rights held directly by the relevant AIF, the voting rights of the following shall also be taken into account, subject to the condition that control, within the meaning of the first paragraph, be determined by: a) an AIF-controlled company; and b) a natural or legal person, acting in his own name, but representing the AIF or a company controlled by the AIF. (6) The percentage of voting rights shall be calculated on the basis of the total number of shares conferring voting rights, even if their exercise is suspended. In compliance with art. 3 3 section 17, within the meaning of art 28 28 para. ((1)-(3) and art. 30 30, with regard to issuers, the control shall be determined in accordance with art. 203 203 para. ((1) of Law no. 297/2004 and with the regulations issued in its application. (7) The provisions of par. ((1)-(6) and art. 26 26-29 shall apply in accordance with the relevant conditions and restrictions of the Law no. 467/2006 and taking into account the stricter rules laid down in the Law no. 297/2004 and Company law no. 31/1990 , republished, with subsequent amendments and completions, hereinafter referred to as Law no. 31/1990 ,, as regards the acquisition of holdings in the capital of issuers and non-listed companies, which shall apply accordingly. + Article 26 (1) Where an AIF obtains, estates or holds shares of an unlisted company, the AIFM managing that AIF notifies the A.S.F. the proportion of the voting rights of the non-listed company held by the AIF whenever the proportion that it reaches, exceeds or falls below the thresholds of 10%, 20%, 30%, 50% and 75%. ((2) If, individually or jointly, an AIF obtains control over an unlisted company in accordance with art. 25 25 para. (1) in conjunction with para. ((5), the AIFM managing the AIF concerned shall notify the A.S.F. in connection with the acquisition of the control, and a) the unlisted company; b) the shareholders whose identity and address the AIFM knows or may be communicated by the unlisted company or by a register to which the AIFM has or may obtain access. (3) The notification provided in par. (2) shall contain the following additional information: a) the situation resulting from the operation in respect of voting rights; b) the conditions under which control was obtained, including information about the identity of the various shareholders involved, about any natural person or legal person entitled to exercise voting rights for shareholders and, as the case may be, the series of companies through which voting rights are actually held; c) date of obtaining control. (4) In the notification to the non-listed company, the AIFM requires the board of directors of the company to inform the employees ' representatives without delay or, if there are no such representatives, the employees themselves, with regard to when obtaining control by the AIF managed by the AIFM and to transmit them the information referred to in paragraph ((3). The AIFM shall make every effort to ensure that the employees ' representatives or, where there are no such representatives, the employees themselves are duly informed by the Management Board. (5) Notification provided in par. ((1) and (2) shall be made as soon as possible, but no later than 10 working days from the date on which the AIF has reached, exceeded or fallen below the relevant threshold, or where it has gained control of the non-listed company. + Article 27 ((. If, individually or jointly, an AIF obtains control over an unlisted company or an issuer in accordance with art. 25 25 para. (1) in conjunction with para. (the AIFM managing the AIF concerned shall communicate the information referred to in paragraph 5. ((2): a) the company concerned; b) to the shareholders of the company whose identity and address the AIFM knows or may be communicated by the company or through a register to which the AIFM has or may obtain access; c) A.S.F. (2) The communication referred to in paragraph (1) includes the following information: a) the identity of the AIFM which, either individually or in agreement with other AIFMs, administers the AIF which have b) the policy of preventing and managing conflicts of interest, in particular between the AIFM, the AIF and the company, including information about the specific protection measures established to ensure that any agreement between the AIFM and/or the AIF and the company ends under objective conditions; and c) the internal and external communication policy of the company, especially with regard to employees. (3) In the notification to the company in accordance with par. ((1) lit. a), the AIFM requests the board of directors of the company to communicate them without delay to the employees ' representatives or, if there are no such representatives, to the employees themselves the information mentioned in par. ((1). The AIFM shall make every effort to ensure that the employees ' representatives or, where there are no such representatives, the employees themselves are duly informed by the Management Board. ((4) If, individually or jointly, an AIF obtains control over an unlisted company in accordance with art. 25 25 para. (1) in conjunction with para. ((5), the AIFM managing the AIF concerned shall communicate or ensure that the AIF or AIFM acting on behalf of the AIF communicates the AIF's intentions with regard to the activity of the unlisted company and the likely consequences for employment, any substantial modification, as established by the A.S.F. regulations, of the conditions of employment: a) to unlisted company b) the shareholders of the non-listed company whose identity and address the AIFM knows or may be communicated by the unlisted company or through a register to which the AIFM has or may obtain access. ((5) The AIFM managing the AIF concerned shall request and make every effort to ensure that the board of directors of the non-listed company communicates the information referred to in the first subparagraph to the representatives of the employees of the if there are no such representatives, the employees themselves. ((6) If an AIF obtains control over an unlisted company in accordance with art. 25 25 para. (1) in conjunction with para. ((5), the AIFM managing that AIF must communicate to the AIF the AIF concerned information on the financing of the acquisition. + Article 28 ((. Where, individually or jointly, an AIF obtains control over a non-listed company in accordance with art. 25 25 para. (1) in conjunction with para. ((5), the AIFM managing the AIF should: a) either request and make every effort to ensure that the annual report of the non-listed company, drawn up in accordance with par. (2), is transmitted by the board of directors of the company to all employees ' representatives or, if there are no such representatives, to the employees themselves, within the period provided by the applicable national legislation; or b) for each such AIF, to include in the annual report referred to in art. 21 the information referred to in paragraph ((2) relating to the non-listed company concerned. (2) Additional information to be included in the annual report of the company or AIF, in accordance with paragraph 1. ((1), shall include at least a fair analysis of the evolution of the activity of the company which presents the situation at the end of the period The report also indicates: a) any important events occurring after the end of the financial year; b) the probable evolution of society; and c) in respect of purchases of own shares, the information provided for art. 105 ^ 1 of Law no. 31/1990 . ((3) AIFM managing the AIF concerned: a) request and make every effort to ensure that the board of directors of the non-listed company of the obligation to communicate the information referred to in par. ((2) relating to the company concerned to the representatives of its employees or, if there are no such representatives, to the employees themselves, within the period provided for in art. 21 21 para. ((1); or b) communicate to the investors the information referred to in paragraph (2) in so far as they are already available, within the period provided for in art. 21 21 para. ((1) and, in any event, no later than the date on which the annual report of the unlisted company is drawn up in accordance with the applicable national law. + Article 29 ((. Where, individually or jointly, an AIF obtains control over a non-listed company or an issuer in accordance with art. 25 25 para. (1) in conjunction with para. ((5), within the period of 24 months after the AIF has acquired control of the company, the AIFM managing that AIF shall: a) is not authorized to facilitate, support or request distribution, capital reduction, redemption of shares and/or acquisition of own shares by the concerned company in accordance with par. ((2); b) to the extent that the AIFM is authorized to vote for the AIF in the meetings of the management bodies of the company, does not vote in favour of distribution, capital reduction, share repurchase and/or acquisition of own shares of to the company concerned in accordance with paragraph 1. ((2); and c) make every effort to prevent distribution, reduction of capital, redemption of shares and/or acquisition of own shares by the concerned company, in accordance with par. ((2). ((. Obligations imposed on AIFMs in accordance with paragraph 1. (1) cover the following: a) any distribution to shareholders made if, on the closing date of the last financial year, the net value of the assets presented in the company's annual accounts is or, as a result of such distribution, would become less than the amount of subscribed capital plus reserves that cannot be distributed according to the law or the statute, being understood that, if the non-written part of the subscribed capital is not included in the assets shown in the balance sheet, this value shall be deduct from the amount of subscribed capital; b) any distribution to shareholders whose amount would exceed the amount of the profit at the end of the last financial year plus the possible retained profit and the amounts withdrawn from the reserves available for this purpose, minus any losses carried over and amounts entered in accordance with the law or statute; c) to the extent that purchases of own shares are permitted, purchases made by the company, including shares previously acquired by the company and in its possession and shares acquired by a person acting in his own name, but for the company, the effect of which would be to decrease the net value of assets below the value referred to in a). (3) For the purposes of paragraph ((2): a) the term "distribution" referred to in par. ((2) lit. a) and b) includes, in particular, the payment of dividends and interest on shares; b) the provisions on capital reduction do not apply to a reduction of the subscribed capital, its purpose being to compensate for losses incurred or to enroll certain amounts in a reserve that cannot be distributed, provided that, following the amount of this reserve does not exceed 10% of the reduced subscribed capital; and c) the restriction provided in par. ((2) lit. c) the provisions applicable art. 104 104 of Law no. 31/1990 . + Chapter VI Conditions for the distribution and administration by the AIFM of an EU Member State of the EU AIF in the European Union + Article 30 (1) An AIFM established in Romania authorized under this law may distribute to professional investors in Romania the participation titles of any AIF in the European Union that it manages, as soon as the conditions are met provided by this law. Where the AIF of the European Union is feeder, the right of distribution referred to in the first subparagraph shall be subject to the condition that the master AIF is also an AIF in the European Union administered by an authorised AIFM in the European Union. ((2) The AIFM shall notify the A.S.F. of each AIF in the European Union whose participation titles intend to distribute them in Romania. The notification shall contain the documentation and information set out in Annex 2. (3) Within 20 working days from the date of receipt of the complete documentation related to the notification, the A.S.F. shall inform the AIFM of the possibility of starting the distribution of the participation titles of the AIF identified in the notification. If the A.S.F. considers that the AIFM's management mode by the AIFM does not comply with this law or that the AIFM does not comply with this law, the authority may order the non-commencement of the distribution of the participation titles of the respective In the case of a positive decision of A.S.F., AFIA may start the distribution of AIF shares or units in Romania from the date of information carried out by A.S.F. Where the AIF previously indicated is an AIF in another Member State, the AIF shall also inform the competent authorities of the AIF that the AIFM may start distributing the AIF's participation titles. (4) In the case of a substantial modification established by the A.S.F. regulations, the information communicated in accordance with par. ((2), the AIFM shall notify this in writing to the A.S.F., at least 30 days before its implementation, in the event of a planned modification or immediately after the occurrence of an unplanned one. If, as a result of a planned change, the AIFM's management of the AIF would no longer comply with this law or if the AIFM no longer complies with this Act, the A.S.F. shall without delay inform the AIFM that the amendment does not is to be implemented. (5) If a planned change is implemented in compliance with the provisions of par. (1) and (2) or if there has been an unplanned change as a result of which the management of the AIF by the AIFM no longer complies with this law or the AIFM no longer complies with this law, the A.S.F. shall take all necessary measures in accordance with art. 50 50, including, if necessary, the express prohibition of the distribution of the participation titles of the AIF. (6) In compliance with art. 47 47 para. (1), AIFs managed by an AIFM established in Romania authorized according to this law can only be distributed to professional investors. + Article 31 (1) An AIFM established in Romania authorized under this law may distribute to professional investors in other Member States the participation titles of an AIF in the European Union that they manage, as soon as they are satisfied. the conditions provided in par. ((2)-(8). Where the AIF of the European Union is feeder, the right of distribution referred to in the first subparagraph shall be subject to the condition that the master AIF is also an AIF in the European Union administered by an authorised AIFM in the European Union. ((2) The AIFM shall send to the A.S.F. a notification relating to each AIF in the European Union whose participation titles intend to distribute them. The notification shall contain the documentation and information set out in Annex 3. ((3) Within 20 working days from the date of receipt of the complete documentation related to the notification, the A.S.F. shall forward it to the competent authorities of the Member States in which the distribution of the AIF's participation titles is intended, including a statement that the AIFM concerned is authorised to manage the AIF on the basis of a particular investment strategy. The transmission shall only take place if the AIFM's management of the AIF complies with this law and that the AIFM complies with this law. ((4) The A.S.F. shall notify the AIFM without delay of the transmission. The AIFM may start distributing the AIF's participation titles in the host Member State of the AIFM as of the date of that notification. Where the AIF indicated above is an AIF in another Member State, the AIF shall also inform the competent authorities of the AIF that the AIFM may commence the distribution of the AIF's shareholdings in the host Member State of the AIFM. (5) The provisions set out in Annex no. 3 lit. h) fall under the laws and surveillance measures of the host Member State of the AIFM. (6) The notification letter sent by the AIFM in accordance with par. ((2) and the declaration referred to in par. ((3) are transmitted in a common language in the international financial environment, including by electronic means. (7) In the case of a substantial modification established by the A.S.F. regulations of the information communicated in accordance with par. ((2), the AIFM shall notify this in writing to the A.S.F., at least 30 days prior to the implementation of the planned change or immediately after the occurrence of an unplanned change. If, as a result of the planned change, the AIFM's management mode by the AIFM no longer complies with this law or if the AIFM no longer complies with this law, the A.S.F. shall without delay inform the AIFM that that amendment is not to be implemented. (8) If a planned change is implemented in compliance with the provisions of par. (1) and (2) or if there has been an unplanned change as a result of which the management of the AIF by the AIFM no longer complies with this law or the AIFM no longer complies with this law, the A.S.F. shall take all necessary measures in accordance with art. 50 50, including, if necessary, the express prohibition of the distribution of the participation titles of the AIF. If the changes are acceptable because it does not affect the compliance of the AIF administration mode by the AIFM with the present law or compliance by the AIFM with this law, the A.S.F. shall, without delay, inform the competent authorities of the host Member State of the AIFM in relation to those changes. (9) With the consideration of the provisions of art. 47 47 para. ((1), AIFs that are administered and whose participation titles are distributed by the AIFM indicated in par. (1) may be distributed only to professional investors. + Article 32 (1) If an AIFM established in another Member State intends to distribute to professional investors in Romania the participation titles of an AIF in the European Union which it manages, the competent authority of the Member State of The origin of the AIFM must transmit to A.S.F. a notification according to those provided in art. 31 31 para. (3), accompanied by that declaration, according to the regulations of A.S.F. ((2) The AIFM may start distributing the participation titles of the AIF in Romania from the date of that notification. (3) With the consideration of the provisions of art. 47 47 para. ((1), AIFs that are administered and whose participation titles are distributed by the AIFM referred to in par. (1) may be distributed only to professional investors. + Article 33 (1) An AIFM established in Romania authorized under this law may either directly or by creating a branch: a) to administer the AIF of the European Union established in another Member State, provided that the AIFM is authorised to administer that type of AIF; b) to provide in other Member States the services referred to in art. 5 5 para. ((5) for which it was authorized. ((2) AIFMs who intend to carry out and/or to provide for the first time the activities and services referred to in par. (1) communicate the following information to A.S.F.: a) the Member State in which it wishes to administer the AIF directly or by creating a branch or to provide the services referred to in art. 5 5 para. ((5); b) an activity program that specialize in particular the services it wishes to provide and the AIF it wishes to administer. (3) If the AIFM wishes to create a branch, it shall communicate, in addition to the information provided in par. (2), and the following information: a) the organizational structure of the branch; b) the address in the home Member State of the AIF from which the documents may be obtained; c) the names and contact details of the persons responsible for the administration of the branch. (4) Within 30 days of receipt of the complete documentation in accordance with par. ((2) or within 60 days of receipt of the complete documentation in accordance with par. ((3), A.S.F. shall submit this complete documentation to the competent authorities of the host Member State of the AIFM The transmission shall only take place if the AIFM's management of the AIF complies with this law and that the AIFM complies with this law. The documentation also includes a statement of the A.S.F. regarding the fact that the AIFM in question is authorized in Romania. A.S.F. shall immediately inform the AIFM of the transmission, the AIFM may commence the provision of those services in its host Member State, from the moment of receipt from the A.S.F. of the confirmation on the transmission. (5) In case of modification of the information communicated in accordance with par. (2) and, as the case may be, with para. (3), the AIFM notifies this in writing to the A.S.F. at least 30 days prior to the implementation of the planned change or immediately after an unplanned change has occurred; if, as a result of the planned change, the mode of the AIFM's management of the AIF no longer complies with this law or if the AIFM no longer complies with this law, the A.S.F. shall without delay inform the AIFM that the amendment is not to be implemented. (6) If a planned change is implemented in compliance with the provisions of par. (5) or if there has been an unplanned change as a result of which the management of the AIF by the AIFM no longer complies with this law or the AIFM no longer complies with this law, the A.S.F. takes all necessary measures in accordance with art. 50. (7) If the changes are acceptable because it does not affect the compliance of the AIF administration mode by the AIFM with the present law or compliance by the AIFM with this law, the A.S.F. shall inform, without undue delay, the competent authorities of the host Member States of the AIFM in relation to those changes. + Article 34 (1) If the A.S.F. receives a notification according to art. 33 33 para. ((2) and (3), accompanied by a statement of the nature of the one referred to in art. 33 33 para. ((4), from a competent authority in another Member State with regard to the intention of an AIFM established in that Member State to manage an AIF in Romania, either directly or through the establishment of a branch, or to provide the services referred to in art. 5 5 para. ((5), the A.S.F. does not impose on the AIFM concerned additional obligations related to matters covered by this Law. ((2) The AIFM may start carrying out the management activities of the AIF in Romania from the date of that notification. + Chapter VII Specific rules on third countries + Article 35 An AIFM established in Romania authorized under this law may administer the AIF from a third State whose participation titles are not distributed in the European Union under the following conditions: a) AFIA complies with all requirements of this law, except art. 20 20 and 21; and b) there are appropriate cooperation mechanisms between the A.S.F. and the supervisory authorities of the third country in which the AIF of a third State is established to ensure at least an effective exchange of information enabling the A.S.F. to fulfil its the powers incumbent upon it in accordance with this Law. + Article 36 (1) An AIFM established in Romania authorized under this law may distribute to professional investors in Romania or from another Member State the participation titles of the AIF from a third State which it manages and the AIF of the Union European type "feeder" to which the requirements referred to in art. 30 30 para. (1), as soon as the conditions established by this law are met. ((. The AIFM shall comply with all the requirements laid down by this Law, except for the VI. In addition, the following conditions shall apply: a) it is necessary to have appropriate cooperation agreements between the A.S.F. and the supervisory authorities of the third country in which the AIF of a third State is established, in order to ensure at least an effective exchange of information, having regard to Art. 58 58 para. ((3), allowing the A.S.F. to perform its duties in accordance with this law; b) the third State in which the AIF is established is not included in the category of non-cooperative states and territories by the FATF; c) the third state in which the AIF is established has signed an agreement with Romania and with each Member State in which it is intended to distribute the participation titles of the AIF from a third State, which fully complies with the standards provided for in art. 26 of the OECD Model Tax Convention on Income and Capital and guarantees an effective exchange of information in tax matters, including possible multilateral tax arrangements. ((3) If the AIFM established in Romania authorized under this law intends to distribute participation titles of an AIF from a third state in Romania, the AIFM shall send an A.S.F. notification to each of the AIFs. from a third country whose participation titles intend to distribute them. The notification shall contain the documentation and information set out in Annex 2. ((. Within 20 working days from the date of receipt of the complete notification pursuant to paragraph 1. (3), A.S.F. informs the AIFM if it can start the distribution on the territory of Romania of the participation titles of the AIF identified in the notification mentioned in ((3). A.S.F. may prohibit the distribution of the respective AIF's participation titles only if the AIFM's management of the AIF does not comply with this law or if the AIFM does not comply with this law In the case of a positive decision, the AIFM may start marketing the participation titles of the AIF in Romania from the date of notification submitted by A.S.F. in this regard. At the same time, A.S.F. informs ESMA that the AIFM may start distributing the participation titles of the AIF in Romania. ((5) Where the AIFM intends to distribute shareholdings of unui/AIFs from a third State in a Member State other than Romania, that AIFM shall send an A.S.F. notification to each AIF in a third State whose Participation titles intend to distribute them. The notification shall contain the documentation and information set out in Annex 3. ((6) Within 20 working days from the date of receipt of the complete documentation related to the notification, the A.S.F. shall forward it to the competent authorities of the Member State in which the distribution of the AIF's participation titles is intended The transmission shall only take place if the AIFM's management of the AIF complies with this law and that the AIFM complies with this law. The notification indicated above also includes a statement given by A.S.F. regarding the fact that the AIFM in question is authorised to administer the AIF on the basis of a particular investment strategy. (7) On the occasion of the submission of the complete documentation related to the notification, A.S.F. shall notify the AIFM without delay of the The AIFM may commence the distribution of the AIF's participation titles in the relevant host Member States of the AIFM from the date of that notification by the A.S.F. Simultaneously, the A.S.F. shall inform ESMA that the AIFM may commence the distribution the participation of AIF in the host Member States of the AIFM. ((8) The provisions mentioned in lett. h) of Annex no. 3 3 is subject to the legislation and surveillance measures of the host Member States of the AIFM. (9) The notification letter sent by the AIFM in accordance with paragraph 1. ((5) and the declaration referred to in par. (6) are transmitted in a common language in the international financial environment, the transmission and completion of the documents referred to in par. (6) being able to be carried out including electronic means. (10) In the case of a substantial modification established by the A.S.F. regulations of the information communicated in accordance with par. ((3) or para. (5), the AIFM shall announce this in writing to the A.S.F. at least 30 days prior to the implementation of the planned change or immediately after the occurrence of an unplanned change. If, as a result of the planned change, the AIFM's management mode by the AIFM no longer complies with this law or if the AIFM no longer complies with this law, the A.S.F. shall without delay inform the AIFM that that amendment should not be made in application. If the changes are acceptable because it does not affect the compliance of the AIF's management of the AIF with this law or the AIFM's compliance with this law, the A.S.F. shall, without delay, inform ESMA, in so far as the amendments concern the termination of the distribution of the participation titles of certain AIFs or the distribution of the participation titles of additional AIFs, and, where applicable, the competent authorities of the host Member States of the AIFM those changes. (11) In compliance with art. 47 47 para. ((1), in the case of distribution of titles of participation in another Member State, AIFs that are administered and whose titles of participation are distributed by the AIFM referred to in paragraph 1. ((1)-(10) can only be distributed to professional investors. + Article 37 (1) If an AIFM established in another Member State intends to distribute to professional investors in Romania the participation titles of an AIF from a third State it manages, the A.S.F. must receive from the authority the competence of the Member State of origin of the AIFM shall be notified in accordance with Article 2 36 36 para. ((6), together with the declaration that the AIFM concerned is authorised to administer the AIF on the basis of a particular investment strategy. ((. Where the A.S.F., as the competent authority of a Member State other than the home Member State of the AIFM, does not agree with the assessment of the application of the provisions of art. 36 36 para. ((2) lit. a) and b) by the competent authorities of the home Member State of the AIFM, the A.S.F. may refer the matter to ESMA, which may act in accordance with the powers conferred on it pursuant to art. 19 19 of Regulation (EU) No 1.095/2010 . ((3) The AIFM may start distributing the participation titles of the AIF in Romania from the date of that notification. (4) In compliance with art. 47 47 para. ((1), AIFs that are administered and whose participation titles are distributed by the AIFM referred to in paragraph 1. ((1)-(3) can only be distributed to professional investors. + Article 38 (1) In compliance with art. 36, an AIFM established in Romania or in another Member State may distribute to professional investors, exclusively on the territory of Romania, the participation titles of the AIF of a third State which it manages and of the 'feeder' AIF which does not comply with the requirements of art. 30 30 para. ((1), subject to the cumulative fulfilment of the following conditions: a) the AIFM complies with all the requirements established by this law, except art. 20. The AIFM concerned shall, however, ensure that one or more entities are designated to carry out the tasks referred to in Article 1. 20 20 para. ((9)-(11) if the AIFM does not perform the said functions. The AIFM shall provide its supervisory authorities with information on the identity of the entities responsible for carrying out the tasks provided 20 20 para. ((9)-(11); b) there are adequate cooperation arrangements for the purpose of systemic risk surveillance and in accordance with international standards between the A.S.F. and the home Member State of the AIFM established in another Member State and the supervisory authorities from the third State in which the AIF is established, in order to ensure at least an effective exchange of information enabling the A.S.F. and the competent authorities of other Member States to carry out their duties under this Regulation. laws; c) the third country in which the AIF is established from a third State is not included in the category of non-cooperating countries and territories by the FATF. (2) A.S.F. issues regulations in the application of para. ((1). + Article 39 ((1) An AIFM established in a third State intending to manage the AIF of the European Union and/or to distribute the participation titles of AIFs which it manages in the European Union in accordance with art. 40 and 41 or with art. 42 and 43 must obtain a prior authorization from the A.S.F. in accordance with this law, if Romania is defined as the reference member state of the AIFM, in accordance with the provisions of par. ((4). ((2) An AIFM established in a third State which intends to obtain the prior authorization, as provided in par. (1), comply with this law, except for the head. VI. In the case and to the extent that compliance with a provision of this Act is incompatible with the legislation applicable to the AIFM of a third State and/or the AIF of a third State whose shareholdings are distributed in the European Union, AIFMs is required to comply with that provision in this law if it can demonstrate that: a) it is impossible to comply at the same time with that provision and a mandatory provision of the legislation applicable to the AIFM established in the third State and/or the AIF of the third State whose shareholdings are distributed in the b) the legislation applicable to the AIFM established in the third State and/or the AIF of the third State provides for an equivalent rule which has the same regulatory object and provides the same level of protection for c) AIFM established in the third State and/or the AIF of the third State ((3) An AIFM established in a third State which intends to obtain the prior authorization referred to in paragraph 1. (1) must designate a legal representative established in Romania. The legal representative shall be the contact point of the AIFM in the European Union and any official correspondence between the competent authorities and the AIFM and the investors of the European Union of that Fund and the AIFM in accordance with this Law. is carried out through this legal representative. The legal representative shall perform together with the AIFM the function of ensuring compliance with regard to the management and distribution activities carried out by the AIFM under this law. (. The Member State of reference of the AIFM established in a third State shall be determined as follows: a) if the AIFM established in a third State intends to administer only one AIF from the European Union or more such funds from the European Union established in the same Member State and does not intend to distribute shareholdings of the AIF in the European Union in accordance with Article 40 and 41 or with art. 42 42 and 43, then the Member State of origin of that fund or of those funds shall be considered the Member State of reference and the competent authorities of that Member State shall be the competent authorities for the authorisation procedure and for supervision of AIFM b) if the AIFM established in a third State intends to administer more than one AIF from the European Union established in different Member States and does not intend to distribute in the European Union the participation titles of AIFs in accordance with Article 40 and 41 or with art. 42 and 43, then the Member State of reference shall be: ((i) either the Member State where most of the funds are established; or ((ii) the Member State in which most of the assets are administered; c) if the AIFM established in a third State intends to distribute shareholdings of a single AIF in the European Union in a single Member State of the European Union, then the reference Member State shall be determined as follows: ((i) the home Member State of the Fund or the Member State in which the AIFM intends to distribute the fund's participation titles, where the Fund is authorised or registered in a Member State; (ii) the Member State in which the AIFM intends to distribute securities of the Fund, where the Fund is not authorised or registered in a Member State; d) if the AIFM established in a third State intends to distribute shareholdings of a single AIF from a third State in a single Member State, the Member State of reference shall be that Member State; e) if the AIFM established in a third State intends to distribute shareholdings of a single AIF in the European Union, but in different Member States, then the Member State of reference shall be determined as follows: ((i) the Member State of origin of the Fund or one of the Member States in which the AIFM intends to carry out an effective distribution, where the Fund is authorised or registered in a Member State; or (ii) one of the Member States in which the AIFM intends to carry out an effective distribution, where the Fund is not authorised or registered in a Member State; f) if the AIFM established in a third State intends to distribute shareholdings of a single AIF from a third State, but in different Member States, then the Member State of reference shall be one of those Member States; g) if the AIFM established in a third State intends to distribute shareholdings of several AIFs in the European Union in the European Union, then the reference Member State shall be determined as follows: ((i) the home Member State of such funds or the Member State in which the AIFM intends to carry out an effective distribution for the majority of such funds, in so far as those funds are all registered or authorised in the same Member State; (ii) the Member State in which the AIFM intends to carry out an effective distribution for the majority of those funds, insofar as not all those funds are registered or authorised in the same Member State; h) if the AIFM established in a third State intends to distribute participation titles of several AIFs in the European Union and a third State or of several such funds from a third State in the European Union, then the Member State of the reference is the Member State in which the AIFM intends to carry out an effective distribution for the majority of those funds. (5) In accordance with the criteria provided in par. ((4) lit. b), lit. c) section ((i), lit. e), f) and lit. g) section ((i) it is possible to have more than one reference Member State. In such a case, Member States shall require that the AIFM of a third State intending to administer the AIF of the European Union without distributing such funds and/or distributing any of the AIF's participation titles which it administer them in the European Union in accordance with art. 40 and 41 or with art. 42 42 and 43 to submit an application to the competent authorities of all Member States which may be Member States of reference in accordance with the criteria laid down in paragraph 1. ((4) and referred to above in order to establish the Member State of reference for their part; the competent authorities concerned shall jointly decide the Member State of reference for the AIFM in a third State, within 30 days of receipt of an application in the that sense. The competent authorities of the Member State which is designated as a Member State of reference shall without delay inform the AIFM of a third State of that designation; if the AIFM in a third State is not properly informed of the decision the relevant competent authorities within 7 days of the decision or if the relevant competent authorities have not taken a decision within 30 days, the AIFM of a third State may choose its Member State of reference; the AIFM may communicate the intention to carry out an effective distribution in a given Member State by submitting its marketing strategy to the competent authorities of the Member State indicated by it. ((6) AIFMs of a third State intending to administer the AIF of the European Union without distributing their participation titles and/or to distribute, in accordance with art. 40 and 41 or with art. 42 42 and 43, the participation titles of the AIF it manages in the European Union shall submit an application for authorisation to the A.S.F., if Romania is a Member State of reference. (7) After receiving the application for authorization, the A.S.F. shall assess whether the AIFM has established that the reference Member State Romania complies with the criteria set out in paragraph 1. ((4). If the A.S.F. finds non-compliance with these criteria, it refuses the application for authorization of the AIFM from a third state and explains the reasons for the refusal. If the A.S.F. finds compliance with the criteria provided in par. ((4), it shall inform ESMA thereof and request it to issue an opinion on its assessment. In the notification to ESMA, the A.S.F. shall also include the justification provided by the AIFM in respect of its assessment of the Member State of reference and shall provide information on the marketing strategy of the AIFM; 8 8 para. ((6) is suspended during the evaluation of the deliberation of ESMA (8) If the A.S.F. proposes to grant the authorisation despite the negative opinion of ESMA, it shall inform ESMA thereof and explain its reasons. If the A.S.F. proposes to grant the authorization despite the negative opinion of ESMA, and the AIFM intends to distribute participation titles of the AIF it manages in Member States other than Romania, then the A.S.F. shall inform thereof and the competent authorities of the Member States concerned and explain their reasons. Where appropriate, the A.S.F. shall also inform the competent authorities of the home Member States of the AIF managed by the AIFM of its decision and explain its reasons. (9) In compliance with the provisions of paragraph ((11), the A.S.F. does not grant the authorization, unless the following additional conditions are met: a) Romania is indicated by the AIFM as a reference member state in accordance with the criteria provided in par. ((4), the decision of the AIFM is justified by the presentation of its marketing strategy and the procedure set out in paragraph ((5) was followed; b) AFIA has appointed a legal representative established in Romania; c) the legal representative, together with the AIFM, is the contact person of the AIFM in a third country for the investors of the AIF concerned, for ESMA and for the competent authorities in respect of the activities for which the AIFM has an authorisation European and has the tools to perform the compliance function under this law; d) there are appropriate cooperation agreements between the A.S.F., the competent authorities of the home Member State of the AIF of the European Union concerned and the supervisory authorities of the third State in which the AIFM is established to ensure at least one effective exchange of information enabling the competent authorities to carry out their duties; e) the third State in which the AIFM is established is not included in the category of non-cooperating states and territories by the FATF; f) the third state in which the AIFM is established has signed an agreement with Romania, which fully complies with the standards provided for in art. 26 of the OECD Model Tax Convention on Income and Capital and guarantees an effective exchange of information in tax matters, including possible multilateral tax arrangements; g) the effective exercise by the A.S.F. of its supervisory functions under this law is not obstructed by the laws, regulations or administrative acts of a third country that apply to the AIFM and no limitations of the powers surveillance and investigation by the supervisory authorities of third countries. ((10) Where a competent authority for an AIF in the European Union does not conclude the necessary cooperation agreements referred to in paragraph 1. ((9) lit. d) within a reasonable time, the A.S.F., acting as the competent authority of the Member State of reference, may refer the matter to ESMA. (11) A.S.F. grants the authorization in accordance with the provisions of the head II, which shall apply mutatis mutandis, being understood as: a) the information mentioned in art. 7 7 para. (2) are supplemented by: ((i) a justification drawn up by the AIFM on its assessment of the establishment of the reference Member State in accordance with the criteria laid down in paragraph 1. ((4), together with information on its marketing strategy; (ii) a list of the provisions of this law that the AIFM cannot comply with, as, in accordance with paragraph 1, the ((2), the AIFM's compliance with these provisions is incompatible with compliance with a provision of the legislation applicable to the AIFM established in a third State and/or the AIF of a third State whose shareholdings are distributed in the Union European; (iii) written evidence based on regulatory technical standards developed by ESMA, according to which the relevant legislation of the third country provides for a rule that is equivalent to the provisions the observance of which is impossible, which has the same objective of regulation and provide the same level of protection for the investors of the fund in question and the AIFM complies with the equivalent rule in question; this written evidence is accompanied by a legal opinion on the existence of the incompatible binding provision relevant in third country legislation and include a description of the regulatory objective pursued and the nature of the protection offered to investors ((iv) the name of the legal representative of the AIFM and the place of establishment; b) the information mentioned in art. 7 7 para. ((3) may be restricted to the AIF of the European Union which the AIFM intends to administer and to those funds managed by AIFMs whose shareholdings the AIFM intends to distribute in the European Union on the basis of a passport; c) provisions of art. 8 8 para. ((1) lit. a) are applicable without prejudice to the provisions of paragraph 1. ((2); d) the provisions of art. 8 8 para. ((1) lit. d); e) the phrase " the information referred to in art. 7 7 para. ((2) lit. a)-d), f) and g) " from art. 8 8 para. (6) read " the information referred to in par. ((7) lit. a) ". (12) If the A.S.F. considers that, in order to obtain a derogation from compliance with certain provisions of this law, the AIFM may invoke the applicability of the provisions of par. ((2), the Authority shall notify ESMA without delay and shall document this assessment with the information provided by the AIFM in accordance with paragraph 1. ((11) lit. a) section ((ii) and (iii). The term mentioned in art. 8 8 para. ((6) shall be suspended for the period of the evaluation carried out by ESMA; if the A.S.F. proposes to grant the authorisation despite the negative opinion of ESMA, it shall inform ESMA thereof and explain its reasons; if the A.S.F. proposes to grant the authorisation despite the negative opinion of ESMA, and the AIFM intends to distribute the AIF's participation titles in the Member States other than Romania, then the A.S.F. also informs the competent authorities of the Member States concerned and explains his reasons. (13) As the competent authority of the Member State of reference, the A.S.F. shall inform ESMA without delay of the initial authorisation process, any amendments to the authorisation of the AIFM and any withdrawal of the authorisation. A.S.F. shall inform ESMA of the requests for authorisation which it has rejected, providing information on the AIFM which has applied for an authorisation and the reasons for such rejection. ((14) If an AIFM from a third State, referred to in par. ((1), change its marketing strategy in the next 2 years after its initial authorisation and if this change had affected the establishment of the Member State of reference if the amended strategy was the original strategy, then the AIFM must inform the A.S.F. as the competent authority of the original reference Member State, of its new marketing strategy prior to its implementation and shall indicate the new Member State of reference in accordance with the criteria provided in par. ((4) and on the basis of the new strategy; the AIFM justifies its assessment by presenting its new marketing strategy to the initial reference Member States; at the same time, the AIFM shall provide information on its legal representative, including the name and place in the which is established in the new Member State of reference. ((15) The A.S.F. assesses whether the establishment by the AIFM in accordance with the first subparagraph is correct and notifies ESMA of this assessment; in its notification to ESMA, the A.S.F. also includes the justification presented by the AIFM on its assessment of the reference Member State and presents information on the new marketing strategy of the AIFM; after receiving the opinion of ESMA, the A.S.F. shall inform the AIFM of the third State, its legal representative and ESMA of the decision Her. (16) If the A.S.F. agrees with the assessment by the AIFM, then it shall also inform the competent authorities of the new reference Member State of the change; the A.S.F. shall, without delay, transfer a copy of the authorisation and the supervision of the AIFM to the new Member State of reference; from the date of transmission of the authorisation and the surveillance file, the competent authorities of the new Member State of reference shall become competent to authorise and supervise the AIFM. (17) The procedure provided for in paragraph ((14)-(16) shall also apply where the A.S.F. becomes the competent authority of the new Member State of reference. If the final assessment of the A.S.F. is contrary to the opinion of ESMA: a) the A.S.F. shall inform ESMA thereof and explain its reasons; b) where the AIFM distributes the AIF's participation in the Member States other than Romania, then the A.S.F. shall also inform the competent authorities of the Member States concerned and explain the reasons; A.S.F. shall also inform the competent authorities of the home Member States of the AIF managed by the AIFM of their decision and explain the reasons. (18) Where the evolution of the current economic activity of the AIFM in the European Union over 2 years after the authorisation appears that the marketing strategy, as submitted by the AIFM at the time of authorisation, has not been complied with, or it appears that the AIFM made false statements in relation to the strategy or the AIFM did not comply with the provisions of ((14)-(17) when it changed its marketing strategy, then A.S.F., as the competent authority of the original Member State of reference, requires the AIFM to indicate the correct reference Member State on the basis of the marketing strategy. which actually applies it; the procedure referred to in paragraph ((14)-(17) shall apply mutatis mutandis; if the AIFM does not comply with the application of the A.S.F., according to the A.S.F. regulations, it may withdraw the authorization of the AIFM (19) If the AIFM changes its marketing strategy after the period referred to in par. ((14) and intend to change its Member State of reference on the basis of its new marketing strategy, the AIFM may submit to the A.S.F. a request for a change of the Member State of reference. The procedure referred to in paragraph ((14)-(16) shall apply mutatis mutandis. ((20) Any dispute arising between the AIFM and the A.S.F., as the competent authority of the Member State of reference of the AIFM, shall be settled in accordance with the Romanian law, being the competence of the Romanian courts. Any dispute arising between the AIFM or the AIF and the investors of the European Union of AIFs shall be settled in accordance with the laws of a Member State and shall enter its jurisdiction ((21) The A.S.F., if it is not a Member State of reference for the AIFM in a third State, may refer to ESMA where it does not agree with: a) the establishment of another Member State of reference by the AIFM; b) the assessment of the application of the conditions ((7), (8) and para. ((9) lit. a)-e) and g) by the competent authority of the Member State of reference of the AIFM; c) the authorization issued by the competent authority of the Member State of reference of the d) the assessment applicable to the provisions ((12); e) the assessment of the establishment of a given Member State of reference in accordance with paragraph 1 ((14)-(17). (22) Where a competent authority of another Member State refuses the A.S.F. request for the exchange of information in accordance with the technical standards adopted by the European Commission, the A.S.F. may refer the matter to ESMA, which may act in compliance with the prerogatives conferred on it pursuant to art. 19 19 of Regulation (EU) No 1.095/2010 . + Article 40 ((1) An AIFM established in a duly authorised third State which intends to distribute to professional investors in the European Union, on the basis of a passport, the participation titles of an AIF in the European Union which it administer and for which Romania is designated as a Member State of reference must meet the conditions set out in paragraph 1. ((2)-(11). ((2) If the AIFM intends to distribute participation titles of an AIF from the European Union in Romania, that AIFM shall send an A.S.F. notification to each AIF in the European Union whose participation titles intends to distribute them; the notification shall contain the documentation and information set out in Annex no 2. ((3) Within 20 working days from the date of receipt of the complete notification under par. (2), A.S.F. shall inform the AIFM if it can start distributing on its territory the participation titles of the AIF identified in the notification referred to in par. ((2). A.S.F. may prevent the distribution of the respective AIF's participation titles only if the AIFM's management of the AIF is not in accordance with this law or if the AIFM does not comply with this law. In the case of a positive decision, the AIFM may commence the distribution of the participation titles of the AIF in the European Union from the date of notification to that effect by the A.S.F.; The AIF on the fact that the AIFM can start distributing the participation titles of the AIF in Romania. ((4) Where the AIFM intends to distribute participation titles of an AIF from the European Union to Member States other than Romania, that AIFM shall send an A.S.F. notification to each AIF of the European Union whose Participation titles intend to distribute them. The notification shall contain the documentation and information set out in Annex 3. ((5) Within 20 working days from the date of receipt of the complete documentation related to the notification, the A.S.F. shall transmit it to the competent authorities of the Member States where the distribution of the AIF's participation titles is intended Transmission shall only take place if the AIFM's management of the fund complies with this law and that the AIFM complies with this law. In the full documentation related to the notification A.S.F. also includes a statement that the AIFM concerned is authorised to administer the AIF on the basis of a particular investment strategy. (6) When submitting the complete documentation related to the notification, the A.S.F. shall notify the AIFM without delay of the transmission. The AIFM may commence the distribution of the AIF's participation titles in the relevant host Member States of the AIFM from that date. Simultaneously, the A.S.F. also informs ESMA, and the competent authorities for the AIF that the AIFM may commence the distribution of the AIF's participation titles in the host Member States of the AIFM. ((7) The provisions mentioned in lett. h) of Annex no. 3 3 is subject to the legislation and supervision of the host Member States of the AIFM. (8) The notification letter sent by the AIFM in accordance with paragraph 1. ((4) and the declaration referred to in par. ((5) are transmitted in a common language in the international financial environment, the transmission and completion of documents related to the notification documentation being possible including by electronic means. (9) In case of substantial modification of the information communicated in accordance with par. ((2) and/or para. ((4), the AIFM shall notify this in writing to the A.S.F. at least 30 days prior to the implementation of the planned change or immediately after the occurrence of an unplanned change. If, as a result of the planned change, the AIFM's management mode by the AIFM no longer complies with this law or if the AIFM no longer complies with this law, the A.S.F. shall without delay inform the AIFM that that amendment is not to be implemented. (10) If a planned change is implemented in compliance with the provisions of the first and second subparagraphs, or if there has been an unplanned change following which the AIFM's management of the AIF is no longer comply with this law or the AIFM no longer complies with this law, A.S.F. adopts all necessary measures in accordance with art. 50 50, including, if necessary, the express prohibition of the distribution of the participation titles of the AIF. (11) If the changes are acceptable because it does not affect the compliance of the AIF administration mode by the AIFM with the present law or compliance by the AIFM with this law, the A.S.F. shall, without delay, inform ESMA, as far as which changes concern the cessation of the distribution of the participation titles of certain AIFs or the distribution of the participation titles of additional AIFs and, where applicable, the competent authorities of the host Member States in relation to changes. (12) In compliance with art. 47, in the case of distribution of participation titles in Romania or in other Member States, AIFs that are administered and whose participation titles are distributed by the AIFM referred to in par. ((1)-(11) may be distributed only to professional investors. + Article 41 (1) If an AIFM established in a duly authorised third State intends to distribute to professional investors in Romania, on the basis of a passport, the participation titles of an AIF in the European Union which it administers, the competent authorities of the Member State of reference of the AIFM must submit to the A.S.F. a complete documentation, including a declaration, provided for in art. 40 40 para. ((5). ((2) The AIFM established in a third State may start distributing the participation titles of the AIF in Romania from the date of notification of the A.S.F. by the competent authorities of the reference Member State of the AIFM. (3) In compliance with art. 47 47 para. ((1), AIFs that are administered and whose participation titles are distributed by the AIFM referred to in paragraph 1. ((1) and (2) may only be distributed to professional investors. + Article 42 (1) An AIFM established in a duly authorised third State which intends to distribute the participation titles of an AIF from a third State which it manages to professional investors in the European Union, on the basis of a passport, and for which Romania has been designated as a Member State of reference of the AIFM must comply with the conditions set out in paragraph 1. ((2)-(11). ((2) In addition to the requirements of this Law on AIFM in the European Union, the following conditions must be met in the case of AIFM established in a) there are appropriate cooperation agreements between the A.S.F. and the supervisory authorities of the third State in which the AIF is established, in order to ensure at least an effective exchange of information enabling the A.S.F. to carry out its tasks which it return in accordance with this Law; b) the third State in which the AIF is established is not included in the category of non-cooperating countries and territories by the FATF; c) the third state in which the AIF is established has signed an agreement with Romania and with each Member State in which it is intended to distribute the participation titles of the AIF of the third State, which fully complies with the standards provided for in art. 26 of the OECD Model Tax Convention on Income and Capital and guarantees an effective exchange of information in tax matters, including any multilateral tax agreements. ((3) If the AIFM intends to distribute in Romania, as a Member State of reference of the AIFM, the participation titles of the AIF of a third State, the A.S.F. shall notify the AIF of each AIF of a third State whose Participation titles intend to distribute them in Romania. The notification shall contain the documentation and information set out in Annex 2. ((. Within 20 working days from the date of receipt of the complete notification pursuant to paragraph 1. (3), A.S.F. informs the AIFM if it can start the distribution on the territory of Romania of the participation titles of the fund identified in the notification referred to in ((3). A.S.F. may prohibit AIFM from distributing the respective AIF's participation titles only if the AIFM's management of the AIF does not comply with this law or if the AIFM does not comply with this law. In the case of a positive decision, the AIFM may start distributing the participation titles of the AIF in Romania from the date of notification in this regard by A.S.F. Simultaneously, A.S.F. informs ESMA that the AIFM may start distributing the participation titles of the FIA in Romania. ((5) Where the AIFM intends to distribute shareholdings of an AIF from a third State and Member States other than Romania, that AIFM shall send an A.S.F. notification in relation to each AIF in a third State whose securities of participation intends to distribute them. The notification shall contain the documentation and information set out in Annex 3. ((6) Within 20 working days from the date of receipt of the complete documentation related to the notification, the A.S.F. shall transmit it to the competent authorities of the Member States where the distribution of the AIF's participation titles is intended The transmission shall only take place if the AIFM's management of the fund complies with this law and if, in general, the AIFM complies with this law. In the full documentation related to the notification A.S.F. also includes a statement that the AIFM concerned is authorised to administer the AIF on the basis of a particular investment strategy. (7) After transmission, the A.S.F. shall notify the AIFM without delay of the transmission of the related complete documentation. The AIFM may commence the distribution of the AIF's participation titles in the relevant host Member States of the AIFM from that date. At the same time, the A.S.F. also informs ESMA that the AIFM may start distributing the AIF's participation titles in the host Member States of the AIFM. ((8) The provisions laid down in subparagraph h) of Annex no. 3 3 is subject to the legislation and supervision of the host Member States of the AIFM. (9) The notification letter sent by the AIFM in accordance with paragraph 1. ((5) and the declaration referred to in par. (6) are transmitted in a common language in the international financial environment, the transmission and completion of the documents referred to in par. (6) being possible also by electronic means. (10) In case of substantial modification of the information communicated in accordance with par. ((3) or with para. ((5), the AIFM shall notify this in writing to the A.S.F. at least 30 days prior to the implementation of the planned change or immediately after an unplanned change. If, as a result of the planned change, the AIFM's management mode by the AIFM no longer complies with this law or if the AIFM no longer complies with this law, the A.S.F. shall without delay inform the AIFM that that amendment is not to be implemented. (11) If a planned change is implemented in compliance with the provisions of the first and second subparagraphs, or if there has been an unplanned change following which the AIFM's management of the AIF is no longer comply with this law or the AIFM no longer complies with this law, A.S.F. has all necessary measures in accordance with art. 50 50, including, if necessary, the express prohibition of the distribution of the participation titles of the AIF. If the changes are acceptable because it does not affect the compliance of the AIF's management of the AIF with this law or the AIFM's compliance with this law, the A.S.F. shall, without delay, inform ESMA, in so far as the amendments concern the termination of the distribution of the participation titles of certain AIFs or the distribution of the participation titles of additional AIFs, and, where applicable, the competent authorities of the host Member States of the AIFM those changes. (12) In compliance with art. 47 47 para. ((1), in the case of distribution of participation titles in Romania or in other Member States, AIFs that are administered and whose participation titles are distributed by the AIFM referred to in par. ((2)-(11) may be distributed only to professional investors. + Article 43 (1) If an AIFM established in a third State authorised in another Member State intends to distribute to professional investors in Romania, on the basis of a passport, the participation titles of an AIF in a third State which it administers, the competent authorities of the Member State of reference of the AIFM must transmit to the A.S.F. the full documentation of the notification, including a declaration, provided for in Article 5 42 42 para. ((6). ((. Where the A.S.F., as the competent authority of a Member State other than the reference State of the AIFM, does not agree with the assessment of the application of the conditions corresponding to Article 1 (2), 42 42 para. ((2) lit. a) and b) by the competent authorities of the Member State of reference of the AIFM, then the A.S.F. may refer the matter to ESMA, which may act in accordance with the powers conferred on it pursuant to art. 19 19 of Regulation (EU) No 1.095/2010 . (3) An AIFM established in a third State may start distributing the participation titles of the AIF in Romania from the date of notification of the A.S.F. by the competent authorities of the Member State of reference of the AIFM. (4) In compliance with art. 47 47 para. ((1), AIFs that are administered and whose participation titles are distributed by the AIFM referred to in paragraph 1. ((1)-(3) may be distributed only to professional investors. + Article 44 (1) An AIFM established in a third State authorised by the A.S.F. may administer an AIF from the European Union established in a Member State other than Romania, in its capacity as a Member State of reference, either directly or through the creation of a branch, provided that that the AIFM is authorised to administer that type of AIF. (2) An AIFM established in a third State intending to administer for the first time an AIF from the European Union established in a Member State other than Romania, shall transmit to the A.S.F. the following information: a) the Member State in which it intends to manage the AIF, directly or by creating a branch b) an activity programme which speciates in particular the services it intends to provide and the AIF it intends to manage. ((3) If an AIFM established in a third State intends to create a branch, additional to the information provided in par. (2), it shall also communicate the following information: a) the organizational structure of the branch; b) the address in the home Member State of the AIF from which the documents may be obtained; c) the names and contact details of the persons responsible for the administration of the branch. (4) A.S.F. transmits, within 30 days from the receipt of the complete documentation in accordance with par. ((2) or within 60 days of receipt of the complete documentation in accordance with par. ((3), this complete documentation to the competent authorities of the host Member State of the AIFM The transmission shall only take place if the AIFM's management of the AIF complies with this law and that the AIFM complies with this law. (5) In the full documentation A.S.F. also includes a statement that the AIFM in question is authorized in Romania. A.S.F. immediately notifies the AIFM about the transmission. Upon receipt of the notification of transmission, the AIFM may start providing those services in the host Member State of the AIFM At the same time, the A.S.F. informs ESMA that the AIFM has been authorised to start the management of AIF in the host Member States of the AIFM. (6) In case of modification of the information communicated in accordance with par. ((2) and, if relevant, with para. ((3), the AIFM shall notify this in writing to the A.S.F. at least 30 days prior to the implementation of the planned change or immediately after an unplanned change. If, as a result of the planned change, the AIFM's management mode by the AIFM no longer complies with this law or if the AIFM no longer complies with this law, the A.S.F. shall without undue delay inform the AIFM that the amendment does not is to be implemented. (7) If a planned change is implemented in compliance with the provisions of the first and second subparagraphs, or if there has been an unplanned change following which the AIFM's management of the AIF no longer complies with the this law or the AIFM no longer complies with this law, A.S.F. may order all necessary measures in accordance with art. 50 50, including, if necessary, the explicit prohibition of the distribution of the participation titles of the AIF. If the changes are acceptable because it does not affect the compliance of the AIF management mode by the AIFM with the present law or compliance by the AIFM with this law, the competent authorities of the reference Member State inform, without undue delay, the competent authorities of the host Member States of the AIFM in relation to those changes. + Article 45 (. An AIFM established in a third State may administer an AIF from the European Union established in Romania either directly or through the establishment of a branch, provided that the competent authorities of the Member State of reference of the AIFM transmit the A.S.F. the information and documents provided in art. 44 44 para. ((2) and (3). (2) An AIFM established in a third State may commence the distribution to professional investors in Romania of the participation titles of the AIF from the date of notification of the A.S.F. by the competent authorities of the Member State of reference of the AIFM. + Article 46 (1) In compliance with art. 39-43, an AIFM established in a third State may distribute to professional investors in Romania the participation titles of the AIF it manages, subject to the following conditions: a) the AIFM established in a third country complies with the provisions 21 21-23 in the case of each AIF whose participation titles distribute them, as well as the provisions of art. 25 25-29 if an AIF whose participation titles are distributed by the AIFM concerned falls within the scope of Article 4 (1). 25 25 para. ((1); b) appropriate cooperation arrangements are concluded for the supervision of systemic risk, in accordance with international standards, between the competent authorities of the Member States in which the AIF's participation titles are distributed and, where applicable, the competent authorities of the AIF of the European Union concerned and the supervisory authorities of the third country in which the AIFM is established and, where applicable, the supervisory authorities of the third country in which the AIF is established, to ensure a effective exchange of information to enable the competent authorities to fulfil their the tasks assigned to them in accordance with this Law; c) the third State in which the AIFM is established or the AIF is not included in the category of non-cooperating countries and territories by the FATF. ((2) A.S.F. may refer to ESMA where, as the authority of the Member State of reference in which the AIF is intended to be distributed, it finds that the competent authority for the AIF of the European Union is not conclude the necessary cooperation agreements referred to in paragraph 1 ((1) lit. b) in a reasonable time. (3) The A.S.F. may establish by regulations stricter rules for AIFMs established in third states regarding the distribution of AIF participation titles to investors in Romania. + Chapter VIII Distribution to retail investors + Article 47 ((1) AIFMs established in Romania, in another Member State or in a third country may distribute to retail investors in Romania the participation titles of the AIF they manage in accordance with this Law and with the regulations issued by A.S.F., regardless of whether the participation titles of the AIFs are distributed on the national market or on the cross-border market or whether these AIFs are established in the European Union or in a third State. ((2) A.S.F. establishes by regulations: a) the types of AIFs whose AIFM participation titles indicate in par. (1) may distribute them to retail investors in Romania; b) additional obligations imposed for the distribution of AIF's participation titles to retail investors in Romania. ((3) The information of the European Commission and the ESMA carried out in accordance with the provisions of 1 1 para. (8) also includes information on the regulations indicated in par. ((2) and any subsequent amendments thereto. + Chapter IX Competent authorities + Article 48 (1) A.S.F. is responsible for the prudential supervision of the AIFM established in Romania, regardless of whether the AIFM manages and/or distributes the participation titles of an AIF in another Member State or not and in compliance with the provisions of this Law. ((2) Where an AIFM established in Romania and authorised under this law which manages or distributes holdings of AIFs in the territory of another Member State, directly or through a branch, refuses to provide the competent authorities of its host Member State with the information that falls within the scope of their responsibility or does not take the necessary measures to cease the breach of the relevant rules, the A.S.F. shall be informed by competence in the host Member State. In the shortest time, A.S.F.: a) take all appropriate measures for the AIFM concerned to provide the information requested by the competent authorities of its host Member State or to cease the infringements notified; b) request the necessary information to the supervisory authorities of third States, if it is a Member State of reference of that AIFM; c) inform the competent authority of the host Member State of the nature of the measures taken. ((3) Where a competent authority of the host Member State of the AIFM considers that the AIFM is in breach of its obligations under the rules in relation to which it does not have a responsibility in respect of monitoring compliance and communicating this to the A.S.F., in its capacity as the competent authority of the home Member State, the A.S.F. shall adopt the necessary measures and, if so required, request further information to the competent supervision of the third country. (4) If the A.S.F. does not agree to the application of the measures corresponding to the procedures of art. 49 49 para. ((3)-(8) by the host Member State of the AIFM in Romania, may refer the matter to ESMA, which may act in accordance with the powers conferred on it pursuant to art. 19 19 of Regulation (EU) No 1.095/2010 . + Article 49 ((1) Where the AIFM of another Member State administers and/or distributes holdings of AIFs through a branch in Romania, the A.S.F., in its capacity as the competent authority of the host Member State of the AIFM, shall be responsible for supervision of compliance by the AIFM of art. 12 12 and 14. ((2) AIFM from another Member State which manages or distributes the participation titles of AIFs on the territory of Romania, either directly or through a branch, must provide the A.S.F. with the information necessary for its supervision. compliance by the AIFM with the applicable rules pertaining to the responsibility of the A.S.F. These requirements may not be more stringent than those which the A.S.F. imposes on the AIFM for which it is a Member State of origin in order to monitor its compliance with the same rules. ((3) If the A.S.F. finds that an AIFM for which it is a host Member State, which manages and/or distributes participation titles of an AIF on the territory of Romania either directly or through a branch, violates one of the rules in relation to which it has a responsibility for the supervision of compliance, then the A.S.F. requires the AIFM concerned to terminate that infringement and to inform the competent authority of the home Member State of this, according to A.S.F. regulations ((4) If the AIFM referred to in par. (3) refuse to provide A.S.F. the information that falls within its sphere of responsibility or does not take the necessary measures to end the violation referred to in par. ((3), then the A.S.F. shall inform the competent authorities of the home Member State of that AIFM accordingly. A.S.F. is subsequently informed of the nature of the measures taken by the competent authorities of the home Member State of the AIFM. ((. Where, although the competent authorities of the home Member State of the AIFM have adopted measures pursuant to paragraph 1, ((4) or, even if they were adopted, those measures did not have the desired effect in that Member State, the AIFM still refuses to provide the A.S.F. with the information requested in accordance with paragraph 1. (2) or persist in violation of the laws, regulations or administrative provisions referred to in par. (3) and in force in Romania, then, after informing the competent authorities of the home Member State of the AIFM, the A.S.F. may take additional measures, according to the legal prerogatives available to it, including those provided for in art. 50 and 51, in order to sanction the violation of these laws or administrative norms and to prevent the AIFM concerned from carrying out new operations on the territory of Romania. If the AIFM carries out the management activity of some AIFs in Romania, the A.S.F. may request the AIFM to stop taking those AIFs (6) If the A.S.F., as the competent authority of the host Member State, justifies justified that the AIFM infringes its obligations under the rules in relation to which it does not have a responsibility in respect of monitoring compliance, then the A.S.F. shall communicate these findings to the competent authority of the home Member State of the AIFM ((7) Where, although the competent authorities of the home Member State of the AIFM have adopted measures or, even if they have been adopted, these measures prove inadequate or the home Member State of the AIFM does not act within a period of time reasonable, the AIFM continues to act in a way that damages the interests of the investors of the AIF concerned and the financial stability or integrity of the Romanian market, then, having informed the competent authorities of the Member State of origin of the AIFM, A.S.F. has the appropriate measures necessary to protect the Romanian investors of the The AIF in question and the financial stability and integrity of the Romanian capital market, these measures including the possibility of prohibiting the AIFM from distributing the relevant AIF participation titles in Romania. (8) The procedures provided in par. ((6) and (7) shall also apply where the A.S.F. considers it justified that it cannot agree to the authorisation of an AIFM from a third State by the Member State of reference. + Article 50 (1) A.S.F. is invested with all supervisory and investigative powers necessary for the exercise of its functions. These powers shall be exercised in any of the following ways: a) directly; b) in collaboration with other authorities; c) under their responsibility, by delegation to entities entrusted with tasks; d) by notifying the competent judicial authorities. ((2) The A.S.F. has the following powers: a) to have access to any documents held by natural or legal persons on which this law is the incidence, regardless of their form, and to receive a copy thereof; b) to request information from any natural or legal persons to whom the AIFM has outsourced certain operational functions or activities or related to the activities of the AIFM or the AIF and, where necessary, to obtain written or verbal explanations from those persons; c) to carry out inspections at the premises of legal persons subjects of this law, with or without prior warning; d) to request AFIA telephone and data exchange records in connection with those facts found by A.S.F. as contrary to this law or on which there are suspicions that it could be classified as such; e) to request the AIFM or the natural or legal persons to whom the AIFM has outsourced certain operational functions or activities the cessation of any practice contrary to the provisions adopted pursuant to this Law; e ^ 1) to ask the competent judicial authorities for the preservation or seizure of the assets of the AIF managed by the AIFM subjects of this law; ---------- Lit. e ^ 1 of par. ((2) of art. 50 50 was introduced by section 4.2. 1 1 of art. IV of LAW no. 268 268 of 6 November 2015 , published in MONITORUL OFFICIAL no. 857 857 of 18 November 2015. f) to order, by issuing individual acts provided for in art. 6 6 para. (3) of Government Emergency Ordinance no. 93/2012 , approved with amendments and additions by Law no. 113/2013 , with subsequent amendments and completions, the temporary prohibition of the exercise of professional activity by the AIFM, the AIF, the depositing of the AIF, the individuals involved in the activity of the AIFM 51 51 para. ((2), namely natural or legal persons to whom the AIFM has outsourced certain operational functions or activities; g) to adopt, within the limits of its legal powers, measures to ensure that AIFM or the depositaries of the AIF comply with this law; h) to require the AIFM or the AIF to be managed internally to suspend the issuance or redemption of the AIF's participation titles in the interest of the holders of such securities or in the public interest; i) to withdraw, under the conditions of art. 11 11 and 52, the authorization granted to an AIFM or the opinion granted to an AIF depositary, both as a main sanction, given that those entities no longer meet the conditions at the time of authorization/notice, and as a complementary sanction; j) to notify the competent bodies in the field of criminal prosecution; k) prohibit the distribution in the European Union of the participation titles of AIFs managed by AIFMs established in third States or AIFs from a third State managed by the AIFM of a Member State in the absence of the necessary authorisation Art. 39 39 or the notification imposed pursuant to art. 36 36 para. ((3), art. 40 40 para. ((2) and art. 42 42 para. (3) or in case of non-compliance with the conditions provided in art. 46 46; l) impose restrictions on AIFMs established in third countries with regard to the management of an AIF in the event of an excessive concentration of risks in a particular market or on a cross-border basis. ((3) Where the A.S.F., as the competent authority of the Member State of reference, considers that an unauthorised AIFM in a third State is in breach of its obligations under this Act, it shall notify ESMA thereof, immediately and in detail. ((4) The A.S.F. may use its prerogatives to take the necessary measures to ensure orderly functioning of the markets where the activities of one or more AIFs on the market of a financial instrument could affect the orderly functioning of that market. + Article 51 (1) The violation of the provisions of this law and of the regulations adopted in its application shall entail contravention or criminal liability, under the law. (2) The following acts committed by AIFM, self-administered AIFs, depositaries of the AIF and/or by the members of the supervisory board of the AIFM or the self-administered AIF, directors or members the directorate of the AIFM or the self-administered AIF and the representatives of the internal control department of an AIFM or the self-administered AIF, as well as by the natural persons exercising managerial positions or exercising professional activities regulated by this law, depending on the obligations under their responsibility, under this law: a) non-compliance with the conditions that were the basis for the authorization/approval and the operating conditions provided for in art. 2 2, 4 and 6-10; b) non-compliance with the prudential rules provided in 12 12; c) non-compliance with 13 13 on remuneration policies; d) non-compliance with 14 on the identification, prevention, management and monitoring of situations referred to in art. 30 30-37 of European Union Regulation No 231/2013 generating conflicts of interest; e) non-compliance with 15 15 para. (1)-(3) and (5) on risk management and art. 16 on the administration of liquidity; f) non-compliance with 18 18 para. ((1), (3)-(9), (11) and (12) on the valuation of the AIF's assets; g) non-compliance with 19 19 on the delegation of the management activity of the collective portfolio or risk management; h) non-compliance with 20 20 para. ((1)-(11) relating to depositaries and to the agreement between the depositary and the S.A.I.; i) non-compliance with the transparency and reporting obligations provided in art. 21 21 and 23, respectively of the transparency referred to in art. 22 22; j) non-compliance with the obligations of the AIFM as a result of obtaining control over non-listed companies and issuers provided in art. 25-29 25-29; k) non-compliance with the conditions regarding the cross-border operations provided in 30 30 para. ((2) and (4)-(6), art. 31 31 para. ((2) and (6)-(9), art. 32 32 para. ((2) and (3), art. 33 33 para. ((2), (3) and (5)-(7), art. 34 34 para. ((2), art. 35 lit. a), art. 36 36 para. ((2), (3), (5) and (9)-(11), art. 37 37 para. ((3) and (4), art. 38 38 para. ((1) lit. a), art. 39 39 para. ((1), (2), (6)-(8) and (14)-(18), art. 40 40 para. ((2), (4) and (8)-(12), art. 41 41 para. ((2) and (3), art. 42 42 para. ((3), (5), (9)-(12), art. 43 43 para. ((3) and (4), art. 44 44 para. ((2), (3), (6) and (7), art. 45 45 para. ((2), art. 46 46 para. ((1) lit. a) and art. 47 47 para. ((2); l) preventing without right the exercise of the rights conferred by law A.S.F., as well as the unjustified refusal to respond to the requests of the A.S.F. in the exercise of its prerogatives. + Article 51 ^ 1 ((1) Violation of provisions Regulation (EU) No 345/2013 The European Parliament and of the Council of 17 April 2013 on European venture capital funds and regulations adopted in its application shall be found and sanctioned by the A.S.F., as the competent authority, and attracts contravention liability, under the law. (2) The facts provided in art. 21 21 para. ((1) of Regulation (EU) No 345/2013 , committed by the administrator of EuVECA, the depositaries of EuVECA and/or the members of the Board of Directors or the Supervisory Board of the EuVECA administrator, the directors or members of the directorate of the EuVECA representatives of the internal control department of a EuVECA administrator, as well as by natural persons exercising managerial positions or exercising professionally regulated activities Regulation (EU) No 345/2013 , depending on the obligations under their responsibility, according to the provisions of the same regulation. (3) Violation of provisions Regulation (EU) No 346/2013 The European Parliament and of the Council of 17 April 2013 on the European Social Entrepreneurship Funds and the regulations adopted in its application shall be found and sanctioned by the A.S.F., as the competent authority, and attracts contravention liability, under the law. (4) The facts provided in art. 22 22 para. ((1) of Regulation (EU) No 346/2013 , committed by the EuSEF administrator, the EuSEF depositaries and/or the members of the Board of Directors or the Supervisory Board of the EuSEF administrator, the directors or members of the Directorate of the EuSEF administrator and representatives of the internal control department of a EuSEF administrator, as well as by natural persons exercising managerial positions or exercising professionally regulated activities Regulation (EU) No 346/2013 , depending on the obligations under their responsibility, according to the provisions of the same regulation. ---------- Art. 51 ^ 1 was introduced by item 1. 2 2 of art. IV of LAW no. 268 268 of 6 November 2015 , published in MONITORUL OFFICIAL no. 857 857 of 18 November 2015. + Article 52 ((1) By way of derogation from provisions art. 8 8 para. (2) of Government Ordinance no. 2/2001 on the legal regime of contraventions, approved with amendments and additions by Law no. 180/2002 , with subsequent amendments and completions, the commission of the contraventions provided in art. 51 51 and art. 51 ^ 1 para. ((2) and (4) shall be sanctioned as follows: ---------- The introductory part of para. ((1) of art. 52 52 has been amended by section 4.2 3 3 of art. IV of LAW no. 268 268 of 6 November 2015 , published in MONITORUL OFFICIAL no. 857 857 of 18 November 2015. a) with warning or fine from 1,000 lei to 50,000 lei, for individuals; b) with warning or fine from 0.1% to 5% of the net turnover made in the financial year before the sanction, depending on the seriousness of the act committed, for legal entities. (2) If the turnover made in the financial year before the sanction is not available at the time of the sanction, the net turnover of the financial year in which the legal person registered the turnover is taken into account, year immediately prior to the reference year. The reference year is understood the year before the sanction. ((3) By way of derogation from provisions art. 8 8 para. (2) of Government Ordinance no. 2/2001 , approved with amendments and additions by Law no. 180/2002 , with subsequent amendments and completions, in the case of the newly established legal entity and which did not register the turnover in the year before the sanction, it is sanctioned with a fine of 10,000 lei to 1,000,000 lei. (4) In the case of contraventions provided by art. 51 51 para. (2), with the main contravention sanction, the A.S.F. may also apply one of the following complementary sanctions: a) suspension of authorization; b) withdrawal of authorization; c) prohibition for a period between 90 days and 5 years of the right to occupy a position, to carry out an activity or to provide a service for which authorization is required under the conditions of this law. (4 ^ 1) In the case of contraventions provided in art. 51 ^ 1 para. (2), with the main contravention sanction, A.S.F. may also apply the complementary sanction of deletion from the A.S.F. Register for the commission of the facts provided in art. 21 21 para. ((1) lit. b) and lit. e)-i) of Regulation (EU) No 345/2013 . ---------- Alin. (4 ^ 1) of art. 52 52 has been introduced by section 4 4 of art. IV of LAW no. 268 268 of 6 November 2015 , published in MONITORUL OFFICIAL no. 857 857 of 18 November 2015. (4 ^ 2) In the case of contraventions provided in art. 51 ^ 1 para. (4), with the main contravention sanction, A.S.F. may also apply the complementary sanction of deletion from the A.S.F. Register for the commission of the facts provided in art. 22 22 para. ((1) lit. b) and lit. e)-i) of Regulation (EU) No 346/2013 . ---------- Alin. (4 ^ 2) of art. 52 52 has been introduced by section 4 4 of art. IV of LAW no. 268 268 of 6 November 2015 , published in MONITORUL OFFICIAL no. 857 857 of 18 November 2015. (5) A.S.F. makes public any measure or penalty imposed for non-compliance with the provisions of this law and the regulations adopted in its application, unless this publication risks seriously disrupting the markets financial, harm the interests of investors or cause disproportionate damage to the parties concerned. + Article 53 The conduct without authorization of any activities or operations for which this law requires authorization constitutes a crime and is sanctioned according to art. 348 of the Criminal Code. + Article 54 (1) The commission of the contraventions provided in art. 51 51 para. (2) is found by the A.S.F. through specialized personnel empowered to exercise powers regarding the supervision, investigation and control of compliance with the legal provisions and regulations applicable to the capital market. (2) Upon receipt of the verification documents resulting from the authorization, supervision or control activity, according to which it is found to commit one of the contraventions provided in art. 51 51 para. (2), A.S.F. has, by issuing individual acts, the application of the sanctions provided in art. 52. Also, by individual acts, the A.S.F. may order the extension of investigations, the taking of measures conservatives and/or the hearing of the persons concerned by the verification acts. + Article 55 The individualization of the sanction is considered the provisions of art. 5 5 para. ((5) and (6) and art. 21 21 para. (3) of Government Ordinance no. 2/2001 , approved with amendments and additions by Law no. 180/2002 , with subsequent amendments and completions. + Article 56 ((1) By way of derogation from provisions art. 13 and 14 of Government Ordinance no. 2/2001 , approved with amendments and additions by Law no. 180/2002 , with subsequent amendments and completions, the limitation period for the application and execution of the contravention sanction is 3 years from the date of the act. (2) In the case of continuous contraventions, the 3-year limitation period flows from the date of the finding of the deed. + Article 57 (1) The provisions on contraventions shall be supplemented by the provisions Government Ordinance no. 2/2001 , approved with amendments and additions by Law no. 180/2002 , with subsequent amendments and completions, insofar as they are not contrary to this law. (2) The sanctioning acts issued by A.S.F. can be challenged at the Bucharest Court of Appeal, according to the provisions Law of Administrative Litigation no. 554/2004 , with subsequent amendments and completions. (3) If the A.S.F. has not settled the application for the authorization of the AIFM within 6 months after the submission by the latter of the complete documentation provided by this law and the regulations issued in its application, the AIFM may address in administrative litigation at the Bucharest Court of Appeal. + Article 58 ((1) The A.S.F. shall exercise its powers for the purpose of cooperation with the competent authorities of the other Member States, as well as with ESMA and the ESRB, whenever necessary for the performance of its duties or for the exercise of its powers in the Under this law ((2) The A.S.F. shall cooperate with the competent authorities of the other Member States, including in cases where the practices which are the subject of an investigation do not constitute a breach of a rule in force in Romania. ((3) The A.S.F. shall transmit to the competent authorities of the other Member States and to ESMA the information necessary to carry out its duties under this Law. A.S.F., as the competent authority of the home Member State, shall transmit to the host Member States of the AIFM concerned a copy of the relevant cooperation agreements which they have concluded in accordance with art. 35 and 36, art. 39 39 and/or 42 42 and 43, as well as the information received from the supervisory authorities of third States in accordance with the cooperation agreements concluded with them in respect of the AIFM or, as the case may be, pursuant to art. 48 48 para. ((3) or art. 49 49 para. ((5) and art. 49 49 para. (6), to the competent authorities of the host Member State of the AIFM concerned. If the A.S.F., as the competent authority of a host Member State, considers that the cooperation agreement concluded between the Member State of origin of the AIFM, respectively in accordance with art. 35 and 36, art. 39 39 and/or 42 42 and 43, has a content that does not comply with the requirements of the applicable regulatory technical standards, the A.S.F. may refer the matter to ESMA, which may act in accordance with the powers conferred on it pursuant to art. 19 19 of Regulation (EU) No 1.095/2010 . (4) If the A.S.F. has clear and demonstrable grounds to suspect that an AIFM that is not subject to its supervision commits or has committed acts that violate this law, it shall notify ESMA, the competent authorities of the home Member State and those of the host Member State of the AIFM concerned, as detailed as possible. ((5) If the A.S.F. receives from the competent authorities of a Member State information in accordance with paragraph 1. ((4), it shall adopt the necessary measures, ESMA shall inform ESMA, communicate the results of its intervention to the competent authorities which have notified them and, to the extent possible, communicate to them the important elements This provision shall not affect the powers of the competent authorities which have sent + Article 59 ((1) With regard to the transfer of personal data between the A.S.F. and the competent authorities of other Member States or third parties, the A.S.F. is considered a data controller according to Law no. 677/2001 for the protection of persons with regard to the processing of personal data and the free movement of such data, with subsequent amendments and completions, and subject to the conditions stipulated by that normative act. (2) The personal data are kept by the A.S.F. for a maximum of 5 years, following that at the expiration of this period the respective data will be archived in accordance with the legal provisions in force. + Article 60 (1) The A.S.F. is entitled to transfer data and analysis of data to a third country for each individual case, where the relevant conditions of the Law no. 677/2001 , with subsequent amendments and completions, and shall ensure that the transfer is necessary under this law. The third State concerned does not transfer the data to another third State without the express written consent of the A.S.F. ((2) The A.S.F. may not disclose information received from a competent authority in another Member State to a supervisory authority in a third State if it has not received the express consent of the competent authority which transmitted its information and if, where applicable, the information shall be disclosed only for the purpose for which that competent authority has given its consent. + Article 61 ((1) The A.S.F. shall communicate information to the competent authorities of other Member States, ESMA and the ESRB, where this is relevant to the monitoring and response to the potential implications of the work of an individual AIFM or to many AIFMs taken together on the stability of systemically important financial institutions and the orderly functioning of the markets on which the AIFM operates. (2) Subject to the conditions provided in art. 35 35 of Regulation (EU) No 1.095/2010 , A.S.F. shall communicate all information relating to the activities of the AIFM under its responsibility to ESMA and the ESRB. + Article 62 (. The competent authorities of a Member State may request the cooperation of the A.S.F. in the framework of a surveillance activity or for the purposes of an on-the-spot check or investigation in the latter's territory, within the framework of the the powers conferred by this Law. If the A.S.F. receives a request for verification on the spot or investigation, it shall undertake one of the following actions: a) carry out the verification or investigation itself; b) allow the requesting authority to carry out the verification or investigation; c) allow auditors or experts to carry out the verification or investigation. (2) In the case referred to in par. ((1) lit. a), the competent authority of the Member State which requested the cooperation may require that members of their own staff assist the personnel carrying out the verification or investigation by the A.S.F. The verification or investigation, however, is subject to the general control of In the case referred to in paragraph ((1) lit. b), A.S.F. may require that members of their own staff assist personnel conducting the verification or investigation. ((3) The A.S.F. may refuse to exchange information or to act on a request for cooperation in order to carry out an investigation or a spot check only in the following situations: a) the investigation, the on-site verification or the exchange of information may affect the national security or public order of Romania; b) a judicial procedure has already been committed for the same facts and against the same persons in addition to the Romanian authorities; c) a final decision has already been made in Romania for the same facts and against the same persons. A.S.F. notifies the requesting competent authorities of any decision taken pursuant to the first subparagraph, stating the reasons for their decision + Chapter X Transitional and final provisions + Article 63 (1) The administrators of the A.O.P.C. of Romania provided in art. 114 114 para. ((1) and art. 115 115 para. ((1) and (2) of Law no. 297/2004 , which operates before the date of entry into force of this Law, shall take all necessary measures to comply with this law, being obliged within a maximum of 12 months after the entry into force of this Law: a) to request A.S.F., depending on the value of the portfolios administered and with the consideration of the provisions of art. 2 2 para. (2), either the authorisation or their registration as AIFM; or, where applicable, b) to ensure that the supervisory authority of the home Member State submits to the A.S.F. a notification in accordance with the procedure laid down in Article 34. (2) The registration obligation at A.S.F. provided in par. ((1) also returns to the managers of venture capital funds, respectively to the managers of social entrepreneurship funds, who wish to distribute the titles of participation in the territory of the EEA under the title EuVECA or EuSEF, whose activity it is regulated as of July 22, 2013 by the provisions Regulation (EU) No 345/2013 of the European Parliament and of the Council of 17 April 2013 on European venture capital funds and those of Regulation (EU) No 346/2013 of the European Parliament and of the Council of 17 April 2013 on European social entrepreneurship funds. (3) Article 30-32 shall not apply to the distribution of AIF participation titles which are the subject of an ongoing sale offer to the public according to a prospectus drawn up and published in accordance with the provisions of Law no. 297/2004 and of the regulations issued in its application, during the validity of the prospectus. (4) In so far as it administers the closed-type AIF before the date of entry into force of this Act, AIFMs which do not make further investments after that date may nevertheless continue to administer such AIFs without an authorisation under this law. (5) In so far as it manages the closed-type AIF, and the subscription period for their investors has ended before the entry into force of this Law and the duration of operation of the funds expires at the latest 3 years from July 22 2013 2013, the AIFM may nevertheless continue to administer such AIFs without the need to comply with the provisions of this law, except art. 21 21 and art. 25-29 25-29, or submit an application for authorization under this law. (6) The A.S.F. issues regulations in the application of the provisions of this law, with the consideration of technical standards adopted by the European Commission and the guidelines issued by ESMA in connection with the establishment and operation of the AIFM, including in what concerns the treatment applicable to A.O.P.C. whose participation titles are admitted to trading on a regulated market or alternative trading system, within 60 days of the entry into force of this Law. + Article 64 This law shall enter into force 30 days from the date of publication in the Official Gazette of Romania, Part I. + Article 65 Annexes no. 1-3 are an integral part of this law. * This law transposes: 1. Directive 2011 /61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003 /41/EC and 2009 2009 /65/EC and a Regulations (EC) No 1.060/2009 and ((EU) No 1.095/2010 ,, published in the Official Journal of the European Union, L series, no. 174 174 of 1 July 2011; 2. provisions of art. 3 3 of Directive 2013 /14/EU of the European Parliament and of the Council of 21 May 2013 amending the Directive 2003 /41/EC on the activities and supervision of institutions for occupational retirement provision, Directive 2009 /65/EC coordinating the laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) and Directive 2011 /61/EU on the managers of alternative investment funds in respect of excessive credit ratings, published in the Official Journal of the European Union, L series, no. 145 145 of 31 May 2013; 3. provisions of art. 92 92 of Directive 2014 /65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002 /92/EC and a Directive 2011 /61/EU ,, published in the Official Journal of the European Union, L series, no. 173 173 of 12 June 2014. This law was adopted by the Romanian Parliament, in compliance with the provisions of art. 75 75 and art. 76 76 para. (2) of the Romanian Constitution, republished.
CHAMBER OF DEPUTIES PRESIDENT
VALERIU-STEFAN ZGONEA
SENATE PRESIDENT
CĂLIN-CONSTANTIN-ANTON POPESCU-TARICEANU
Bucharest, April 14, 2015. No. 74. + Annex 1 Remuneration policies and practices 1. When establishing and applying policies on total remuneration, including salaries and discretionary pension payments, for those categories of staff whose professional activities have a significant impact on the risk profile of alternative investment fund managers (AIFMs) or alternative investment funds (AIFs) that they manage, including those in management positions, those who take risks and those with functions control, as well as any employee who receives a total remuneration that place in the same category of remuneration with persons in management positions and persons who take risks, the AIFM shall, in a manner and to an appropriate extent, comply with its size, with its internal organisation as well as with nature, extent and complexity of its activities, the following principles: a) the remuneration policy is compatible with sound and effective risk management and promotes this type of administration, without encouraging risk-taking that is not in line with the risk profile, rules or constitutive act of the AIF which administer them; b) the remuneration policy is compatible with the business strategy, objectives, values and interests of the AIFM and the AIF it manages, as well as with the interests of the investors of the AIF and includes measures to avoid conflicts of interest; c) the management body of the AIFM, within the framework of its supervisory function, shall regularly adopt and review the general principles of the remuneration policy and shall be responsible for its application; d) the application of the remuneration policy shall be subject, at least once a year, to a central and independent internal evaluation of the remuneration policies and procedures adopted by the management body in its supervisory function; e) the members of the staff holding control functions shall be remunerated according to the achievement of the objectives relating to their functions, independently of the results of the commercial sectors they control; f) the remuneration of persons in risk management and compliance functions is directly supervised by the remuneration committee; g) when the remuneration depends on the performance, its total value is calculated according to an assessment combining the individual performance and the operational unit in question or the respective AIF and the overall results of the AIFM, and the the assessment of individual performance shall take into account both financial and non-financial criteria; h) performance evaluation is carried out in a multiannual framework appropriate to the AIF life cycle managed by the AIFM, to ensure that the evaluation process is based on longer-term performance and that the actual payment of the components the performance-dependent remuneration shall be carried out over a period that takes into account the redemption policy of the AIF under management and their investment risks; i) the guaranteed variable remuneration is exceptional, intervenes only in the case of new personnel employment and is limited to the first year; j) between the fixed and the variable component of the total remuneration there is an adequate balance and the fixed component represents a high enough percentage of the total remuneration to allow the application of a policy as flexible as possible on variable components of remuneration, including the possibility of paying no variable component of remuneration; k) payments related to the early termination of a contract reflect the performance achieved over time and are designed so as not to reward failures; l) the measurement of performance used in the calculation of variable components of remuneration or of the set of variable components of remuneration includes a comprehensive adaptation mechanism including all relevant types of possible risks; m) according to the legal structure of the AIF and its rules or its constitutive act, a significant percentage, which is at least 50% of any variable remuneration, consists of the participation titles of the AIF concerned or in property rights equivalent or in instrument-related instruments or in equivalent instruments other than cash, unless the management of the AIF accounts for less than 50% of the total portfolio managed by the AIFM, the 50% minimum not being applied in this case. The instruments referred to in this point shall be subject to an appropriate restraint policy aimed at harmonising incentives with the interests of the AIFM, the managed AIF and the investors of such AIFs. Member States or their competent authorities may limit the types of such instruments or the manner in which they are designed or may prohibit certain instruments, as appropriate. This principle applies both to the percentage of the variable component of the remuneration that is deferred in accordance with lit. n), and the percentage of the variable component of the remuneration that is not deferred; n) a substantial percentage, in any case of at least 40% of the variable component of remuneration, shall be postponed for an appropriate period from the point of view of the life cycle and redemption policy of the AIF concerned and shall be correctly aligned the nature of the risks assumed by the The period referred to in this point shall be at least 3 to 5 years, unless the life cycle of the AIF concerned is shorter; the remuneration due under deferral measures shall not be granted more quickly than on a proportional basis; in the case of a variable component of remuneration with a particularly high value, the payment of at least 60% of the amount shall be deferred; o) the variable remuneration, including the deferred part, is paid or is granted only if it is sustainable according to the financial situation of the AIFM as a whole and is justified by the performance of the operational unit of the AIF and the person concerned. The total variable remuneration is generally significantly reduced, where there is a weak or negative performance of the AIFM or the AIF concerned, taking into account both the current remuneration and the payment reductions. amounts previously earned, including through the application of the malus principle or recovery mechanisms; p) the pension policy is compatible with the business strategy, objectives, values and long-term interests of the AIFM and the AIF managed. If the employee leaves the AIFM before retiring, the discretionary pension payments are retained by the AIFM for 5 years in the form of instruments such as those defined in lett. m). If an employee reaches retirement age, discretionary pension payments are paid to the employee in question in the form of instruments such as those defined in lett. m), retained for 5 years; q) staff are required to engage in not using personal or insurance coverage strategies relating to remuneration or liability in order to undermine the effects of aligning the risks set out in their remuneration regimes; r) variable remuneration is not paid by means of instruments or methods to facilitate the avoidance of compliance with the requirements of this Law. 2. The principles set out in point 1 1 applies to any type of remuneration paid by the AIFM, to any amount paid directly by the AIF, including performance commissions, or to any assignment of AIF's participation titles, for those categories of staff whose activities professional have a significant impact on their risk profile or the risk profile of the AIF they manage, including those in management positions, those taking risks and those with control functions, as well as any employee receiving a total remuneration which places him in the same remuneration category with persons in management positions and persons taking risks. 3. Important AIFMs in terms of their size or the size of the AIF they manage, their internal organisation and nature, the scope and complexity of their activities shall establish a remuneration committee. The remuneration committee shall be constituted in a manner that allows it to exercise a competent and independent review of the remuneration policies and practices and incentives created for risk management. The remuneration committee shall be responsible for the preparation of decisions on remuneration, including decisions which have implications for risks and the management of the risks of AIFM or the AIF concerned and to be taken by the management body in the framework of the His surveillance function. The remuneration committee shall be chaired by a member of the management body who does not hold executive positions in the AIFM concerned. The members of the remuneration committee shall be members of the management body who do not hold executive positions in the AIFM. Respectively. + Annex 2 Documentation and information to be provided in the event that the distribution in Romania is intended a) A notification letter containing an activity programme to identify alternative investment funds (AIFs) whose participation titles of alternative investment fund managers (AIFMs) intend to distribute and information on where the AIF is established b) AIF Rules or Articles of Association c) Identification details of the AIF depositary d) A description of the AIF or any information on it made available to investors e) Information on the place where the master AIF is established, if the AIF in question is a feeder fund f) Any additional information referred to in art. 22 22 para. ((1) of the law for each AIF whose participation titles the AIFM intends to distribute g) As the case may be, information on the provisions taken to prevent the distribution of AIF's participation titles to retail investors, including where the AIFM relies on the work of independent entities to provide investment services with respect to the AIF. + Annex 3 Documentation and information to be provided in the case of which is intended to be distributed in Member States other than Romania a) A notification letter containing an activity programme to identify alternative investment funds (AIFs) whose participation titles of alternative investment fund managers (AIFMs) intend to distribute and information on where the AIF is established b) AIF Rules or Articles of Association c) Identification details of the AIF depositary d) A description of the AIF or any information on it, made available to investors e) Information on the place where the master AIF is established, if the AIF in question is a feeder fund f) Any additional information referred to in art. 22 22 para. ((1) of the law for each AIF whose participation titles the AIFM intends to distribute g) Indication of the Member State (s) in which the AIFM intends to distribute to the professional investors the participation titles of an AIF h) Information on the provisions taken for the distribution of the AIF's participation titles and, where applicable, information on the provisions taken to prevent the distribution of AIF's shareholdings to retail investors, including where the AIFM relies on the work of independent entities to provide investment services in respect of the AIF. -------