Tài liệu REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL doc

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On 15 June 2011, the Commission services launched a public consultation
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on the core
elements of a possible European framework for venture capital funds, which closed on 10
August 2011. Forty eight answers have been received which can be consulted on the
following website
http://ec.europa.eu/internal_market/consultations/2011/venture_capital_en.htm.
2.2. Impact assessment
In line with its policy on "better regulation", the Commission conducted an impact assessment
of policy alternatives. These alternatives contain a wide range of possible options:
 Introduce a new venture capital passport within Directive 2011/61/EC (AIFMD)
 Lower or abolish the thresholds of the AIFMD
 Create special rules for venture capital as part of the implementing provisions of
AIFM-D ('level 2')
 Create a venture capital passport as a stand-alone legal instrument
 Create an administrative network to enforce mutual recognition of national rules
governing venture capital or 'private placements'.
All these options were analysed against the general objectives, namely to make European
SMEs more competitive in a global market place, but also against the more specific and
operational objectives of this initiative: (i) to establish a European notion of "venture capital
fund" (ii) to create a European system promoting the cross border fund raising of venture
capital funds, (iii) to create a common regulatory approach governing such funds, including
the creation of a network for regulatory cooperation in supervising such investment funds.
The impacts including the costs and benefits on venture capital fund mangers, SMEs, society,
overall economy, environment and the global context were also analysed. Such analysis
concluded in favour of the creation of a venture capital passport as a stand alone instrument.
The impact of the preferred option is expected to benefit venture capital fund managers by
improving their operating conditions in the EU which shall then lead to compliance and
administrative cost reductions and opening up new fund-raising opportunities. This shall
result in more business opportunities and more funding being channelled to young and
innovative SMEs which shall in turn boost the competitiveness and growth of the European
Economy.
The comments by the Impact Assessment Board expressed in their opinion of 11 November
have been taken into account. In particular, the analysis of the problems has been
strengthened by explaining how far low levels of cross-border venture capital fundraising can
be attributed to the fragmentation of rules in the EU. The options have been better linked back
to the specific problems identified and the analysis of their impacts has been deepened.
Finally, monitoring and compliance arrangements have been further clarified.


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http://ec.europa.eu/internal_market/investment/venture_capital_en.htm
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3. LEGAL ELEMENTS OF THE PROPOSAL
3.1. Legal basis
The proposal is based on Article 114 TFEU as the most appropriate legal base in this field.
The proposal aims principally at improving the reliability and legal certainty of marketing
activities undertaken by operators using the designation "European Venture Capital Fund". In
pursuing this aim, the proposal introduces uniform standards concerning the portfolio
composition of "European Venture Capital Funds", the investment instruments that such
funds may use, and the investment targets that are eligible for funding from collective
investment funds that operate under the designation "European Venture Capital Fund".
The proposal also introduces uniform rules on the categories of investors that are considered
as eligible to invest in "European Venture Capital Funds". A Regulation is considered to be
the most appropriate legal instrument to introduce uniform requirements directed to all
participants in the venture capital market - venture capital investors, venture capital funds and
the target companies of venture capital financing. A Regulation is also considered the most
appropriate instrument to create uniform rules on who can be a venture capital investor, on
who can use the designation "European Venture Capital Fund" and on the types of
undertakings that can receive funding from such qualifying funds. Finally, a Regulation is
considered to be the most appropriate instrument to ensure that all participants are subject to
uniform requirements regarding the subscription to "European Venture Capital Funds" and the
investment strategies pursued and investment tools used by "European Venture Capital
Funds".
3.2. Subsidiarity and proportionality
The proposal essentially aims at creating a trusted, safe and legally stable marketing
environment for the marketing of European venture capital funds. The determination of the
essential characteristics of a European venture capital fund, in terms of its portfolio
composition, investment tools, investment targets and eligible investor groups, can not be left
to the discretion of the Member States as this would give rise to different and inconsistent
application of these defining requirements throughout the EU. Uniform definitions and
operating requirements therefore must play a central role in establishing a set of common
rules for the European market for EU venture capital funds and their managers. Furthermore,
all collective investment fund managers operating in this market using the designation
"European Venture Capital Fund" must be subject to the same organisational and conduct of
business requirements.
In respect of the registration and supervision of the managers of "European Venture Capital
Funds" the proposal aims at striking a balance between the need for effective supervision of
European venture capital funds, the interest of the competent national authorities where such
funds are either domiciled or offered to the eligible categories of investors and the
coordinating role of ESMA. In order to create a seamless process for supervision, the
competent authority in the Member State where the manager of the qualifying "European
Venture Capital Fund" is domiciled will verify the registration documents submitted by the
applicant manager and, after having assessed whether the applicant provides sufficient
guarantee of its ability to comply with the requirements of the Regulation, will register the
applicant. In supervising the registered manager, the competent authority that has registered
the manager will cooperate with the competent authorities in those Member States where the
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qualifying fund is marketed. ESMA will maintain a central database listing all registered
managers that are eligible to use the designation European venture capital fund.
As regards proportionality, the proposal strikes the appropriate balance between the public
interest of promoting the development of more liquid venture capital markets and the cost
efficiency of the measures proposed. In providing for a simple registration system, the
proposal has taken full account of the need to balance safety and reliability associated with the
use of the designation "European Venture Capital Fund" with the efficient operation of the
venture capital market and the cost for its various stakeholders.
3.3. Compliance with Articles 290 and 291 TFEU
On 23 September 2009, the Commission adopted proposals for Regulations establishing EBA,
EIOPA, and ESMA. In this respect the Commission wishes to recall the Statements in relation
to Articles 290 and 291 TFEU it made at the adoption of the Regulations establishing the
European Supervisory Authorities according to which: "As regards the process for the
adoption of regulatory standards, the Commission emphasises the unique character of the
financial services sector, following from the Lamfalussy structure and explicitly recognised in
Declaration 39 to the TFEU. However, the Commission has serious doubts whether the
restrictions on its role when adopting delegated acts and implementing measures are in line
with Articles 290 and 291 TFEU."
3.4. Presentation of the Proposal
Article 1 - Scope
Article 1 delineates the scope of the envisaged Regulation. The Article makes clear that the
designation "European Venture Capital Fund" shall be reserved to those fund managers that
comply with a set of uniform quality criteria that apply to the marketing of their qualifying
venture capital funds across the Union. In this respect, Article 1 underscores the aim to set out
a uniform concept of what constitutes a qualifying venture capital fund. This concept is
developed in order to ensure the smooth marketing of such funds across the Union.
Article 2 - Scope of application
Article 2 specifies that this Regulation applies to managers of collective investment
undertakings as defined in Article 3 (b) of this Regulation, provided that these managers are
established in the Union and registered with the competent authority of their home Member
State in accordance with Directive 2011/61/EC and that they manage portfolios of qualifying
venture capital funds, whose assets under management in total do not exceed a threshold of
EUR 500 million.
Article 3 - Definitions
Article 3 contains essential definitions delineating the scope of application for the proposed
Regulation. Key concepts such as the qualifying venture capital fund, the qualifying
investment tools and the qualifying investment targets are defined. Essentially, these
definitions aim to draw a clear demarcation line between the notion of a qualifying venture
capital fund and other funds that engage in other, less specialised, investment strategies, for
example private equity.
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In line with the aim of precisely circumscribing the qualifying funds in relation to which a
venture capital fund manager shall benefit from the rights under this Regulation, Article 3,
paragraph (a) stipulates that a qualifying venture capital fund shall be a fund that dedicates at
least 70 percent of its aggregate capital contributions and uncalled committed capital to
investments in small and medium sizes enterprises (SME) that issue equity or quasi equity
instruments directly to the venture capital investor ("investment targets"). This implies that
e.g. operational expenses to be charged to the qualifying venture capital fund as may be
agreed with investors, must be borne out of the remaining 30 percent of committed capital
contributions.
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It is important to clarify that the venture capital fund has to acquire these instruments directly
from the issuing SME. Direct acquisition is an essential safeguard as it aims to differentiate
qualifying venture capital funds from the broader category of private equity funds (which
trade in issued securities on secondary markets). Article 3 contains further definitions
necessary for the application of the proposed Regulation.
Article 4 – Use of the designation "European Venture Capital fund"
Article 4 contains the key principle that only funds that comply with the uniform criteria laid
down by this Regulation are eligible to use the designation "European venture capital fund" to
market qualifying venture capital funds across the Union.
Article 5 – Portfolio composition
Article 5 contains detailed provision on the portfolio composition that characterises a
European Venture Capital Fund. In this respect, Article 5 contains uniform rules on the
investment targets for qualifying venture capital funds, eligible investment tools, rules on the
limits by which a qualifying venture capital fund can increase its exposure. In order to allow
qualifying venture capital funds a certain degree of flexibility in their investment and liquidity
management, secondary trading would be permitted up to the maximum threshold not
exceeding 30 percent of aggregate capital contributions and uncalled capital investments.
Article 6 – Eligible investors
Article 6 contains detailed provisions on the investors eligible to invest in qualifying venture
capital funds: according to this Article, the qualifying funds may only be marketed to
investors recognised as professional investors in Directive 2004/39/EC. Marketing to other
investors such as certain high-net worth individuals is only allowed if they commit a
minimum 'ticket' of EUR 100 000 to the fund and if certain procedures are followed by the
fund manager so that the fund manager is reasonably assured that these other investors are
capable of making their own investment decisions and understanding the risks involved.
Article 7 – Rules of conduct and avoidance of conflicts of interest
Article 7 contains general principles governing the behaviour of a qualifying venture capital
manager, notably in the conduct of its activities and its relationship to investors.
Article 8 – Conflicts of interest
Article 8 contains rules for the handling of conflicts of interest by the venture capital
manager. These rules also require the manager to have the necessary organisational and
administrative arrangements in place to ensure a proper handling of conflicts of interest.
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Article 9 – Other organisational requirements
Article 9 requires that a venture capital fund manager maintains adequate human and
technical resources as well as sufficient own funds as are necessary for the proper
management of qualifying venture capital funds.
Article 10 – Valuation
Article 10 addresses the valuation of the assets of a qualifying venture capital fund. Rules on
this should be laid down in the statutory documents of each qualifying venture capital fund.
Article 11 - Annual report
Article 11
contains rules on annual reports venture capital fund managers should prepare in
relation to the qualifying venture capital funds they manage. The report shall describe the
composition of the portfolio of the fund and the activities of the past year.
Article 12 - Disclosure to investors
Article 12
contains the key disclosure requirements that are incumbent on a venture capital
fund manager in relation to the qualifying venture capital funds. Most importantly, these
requirements set out pre-contractual disclosure obligations related to the qualifying fund's
investment strategy and objectives, the investment instruments which are used, information on
costs and associated charges, and the risk/reward profile of the investment proposed by a
qualifying fund. This also includes information about how the remuneration of the venture
capital fund manager is calculated.
Article 13 – Supervision
Article 13 in order to ensure that the competent authority of the home Member State will be
able to supervise compliance of the venture capital fund manager with the uniform
requirements set out in the Regulation, the venture capital fund manager shall inform the
competent authority of its intention to market qualifying venture capital funds under the
designation "European Venture Capital Fund." The manager shall also provide the necessary
information including about the arrangements to comply with this Regulation and the funds he
intends to market. Once the competent authority is satisfied that the required information is
complete and that the arrangements are suitable to comply with the requirements set out in
this Regulation, it shall register the venture capital fund manager. This registration shall be
valid across the entire Union and allows the venture capital fund manager to market
qualifying venture capital funds under the designation "European Venture Capital Funds".
Article 14 – Update of information on qualifying venture capital funds
Article 14 contains rules on circumstances when information supplied to the competent
authority in the home Member State needs to be updated.
Article 15 - Cross-border notifications
Article 15 describes the cross-border notification process between the competent supervisory
authorities that is triggered by the registration of the venture capital fund manager.
Article 16 – ESMA database
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Article 16 entrusts ESMA with the task to maintain a central database listing all qualifying
venture capital funds that are registered across the Union.
Article 17 –Supervision by competent authority
Article 17 stipulates that the competent authority of the home Member State supervises the
requirements of this Regulation.
Article 18 – Supervisory powers
Article 18 specifies a list of supervisory powers that competent authorities shall have at their
disposal to ensure compliance with the uniform criteria contained in the Regulation.
Article 19 – Sanctions
Article 19 contains provisions on sanctions to ensure proper enforcement of the requirements
of this Regulation.
Article 20 – Breach of key provisions
Article 20 specifies that the breach of key provisions of this Regulation such as on portfolio
composition, the eligible investors and the use of the designation "European Venture Capital
Fund" should be sanctioned by the prohibition of the use of the designation and the removal
of the venture capital fund manager of the register.
Article 21 – Supervisory cooperation
Article 21 contains rules on the exchange of supervisory information between the competent
authorities in the home and host Member States and ESMA.
Article 22 - Professional secrecy
Article 22 contains provisions on the requisite level of professional secrecy that should apply
to all relevant national authorities and to the European Securities and Markets Regulator
(ESMA).
Article 23 – Conditions for empowerment
Article 23
sets out the conditions under which the Commission is empowered to adopt
delegated acts.
Article 24 - Review

Article 24 contains clauses on the review of the proposed Regulation and possible
Commission proposals to modify the latter.
4. BUDGETARY IMPLICATION
There are no budgetary implications.
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2011/0417 (COD)
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on European Venture Capital Funds
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular
Article 114 thereof,
Having regard to the proposal from the European Commission,
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After transmission of the draft legislative act to the national Parliaments,
Having regard to the opinion of the European Central Bank,
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Having regard to the opinion of the European Economic and Social Committee,
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Acting in accordance with the ordinary legislative procedure,
Whereas:
(1) Venture capital provides finance to undertakings that are generally very small, in the
initial stages of their corporate existence and display a strong potential for growth and
expansion. In addition, venture capital funds provide these undertakings with valuable
expertise and knowledge, business contacts, brand-equity and strategic advice. By
providing finance and advice to these undertakings, venture capital funds stimulates
economic growth, contribute to the creation of jobs, boost innovative undertakings,
increase their investment in research and development and foster entrepreneurship,
innovation and competitiveness in the Union.
(2) It is necessary to lay down a common framework of rules regarding the use of the
designation "European Venture Capital Fund", in particular the composition of the
portfolio of funds that operate under this designation, their eligible investment targets,
the investment tools they may employ and the categories of investors that are eligible
to invest in such funds by uniform rules in the Union. In the absence of such a
common framework, there is a risk that Member States take diverging measures at
national level having a direct negative impact on, and creating obstacles to, the good

10
OJ C , , p. .
11
OJ C …p…
12
OJ C , , p. .
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functioning of the internal market, since venture capital funds that wish to operate
across the Union would be subject to different rules in different Member States.
Moreover, diverging quality requirements on portfolio composition, investment targets
and eligible investors could lead to different levels of investor protection and generate
confusion as to the investment proposition associated with a "European Venture
Capital Fund". Investors should, furthermore, be able to compare the investment
propositions of different venture capital funds. It is necessary to remove significant
obstacles to cross-border fundraising by venture capital funds and to avoid distortions
of competition between those funds, and to prevent any further likely obstacles to
trade and significant distortions of competition from arising in the future.
Consequently, the appropriate legal basis is Article 114 TFEU, as interpreted in
accordance with the consistent case law of the Court of Justice of the European Union.
(3) It is necessary to adopt a Regulation establishing uniform rules applicable to the
European Venture Capital Funds and imposing corresponding obligations on their
managers in all Member States that wish to raise capital across the Union using the
designation "European Venture Capital Fund". These requirements should ensure the
confidence of investors that wish to invest in venture capital funds.
(4) Defining the quality requirements for the use of the designation "European Venture
Capital Fund" in the form of a Regulation would ensure that those requirements will
be directly applicable to the managers of collective investment undertakings that raise
funds using this designation. This would ensure uniform conditions for the use of this
designation by preventing diverging national requirements as a result of the
transposition of a Directive. This Regulation would entail that managers of collective
investment undertakings that use this designation would need to follow the same rules
in all of the Union, which would also boost confidence of investors that wish to invest
in venture capital funds. A Regulation would also reduce regulatory complexity and
the managers' cost of compliance with often divergent national rules governing
venture capital funds, especially for those managers that want to raise capital on a
cross-border basis. A Regulation should also contribute to eliminating competitive
distortions.
(5) In order to clarify the relationship between this Regulation and rules on collective
investment undertakings and their managers, it is necessary to establish that this
Regulation should only apply to managers of collective investment undertakings, other
than UCITS in accordance with Article 1 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 undertakings for collective investment in
transferable securities (UCITS),
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who are established in the Union and are registered
with the competent authority in their home Member State in accordance with Directive
2011/61/EC of the European Parliament and of the Council of 8 June 2011 on
Alternative Investment Fund Managers and amending Directives 2003/41/EC and
2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010.
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Furthermore, it should only apply to managers who manage portfolios of qualifying
venture capital funds whose assets under management in total do not exceed a
threshold of EUR 500 million. In order to make the calculation of this threshold

13
OJ L 302, 17.11.2009, p. 32.
14
OJ L 174, 1.7.2011, p.1.
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operational, the power to adopt acts in accordance with Article 290 of the Treaty on
the Functioning of the European Union should be delegated to the Commission in
respect of specifying the calculation of this threshold. When exercising this
empowerment, the Commission should, in order to ensure consistency in rules on
collective investment undertakings, take into account measures adopted by the
Commission in accordance with point (a) of Article 3 (6) of Directive 2011/61/EC.
(6) Where managers of collective investment undertakings do not wish to use the
designation "European Venture Capital Fund", this Regulation should not apply. In
these cases, existing national rules and general Union rules should continue to apply.
(7) This Regulation should establish uniform rules on the nature of qualifying venture
capital funds, notably on the portfolio undertakings into which the qualifying venture
capital funds are to be permitted to invest and the investment instruments to be used.
This is necessary so that a clear demarcation line can be drawn between a qualifying
venture capital fund and other alternative investment funds that engage in other, less
specialised, investment strategies, for example private equity.
(8) In line with the aim of precisely circumscribing the collective investment undertakings
which will be covered by this Regulation and in order to ensure their focus on
providing capital to small undertakings in the initial stages of their corporate
existence, the designation "European Venture Capital Fund" should be restricted only
to those funds that dedicate at least 70 percent of their aggregate capital contributions
and uncalled committed capital to investments in such undertakings in the form of
equity or quasi equity instruments.
(9) In order to put in place an essential safeguard that differentiates qualifying venture
capital funds under this Regulation from the broader category of alternative investment
funds which trade in issued securities on secondary markets, it is necessary to restrict
qualifying venture capital funds to making investments only in directly issued
instruments.
(10) In order to allow venture capital fund managers a certain degree of flexibility in the
investment and liquidity management of their qualifying venture capital funds,
secondary trading should be permitted up to a maximum threshold not exceeding 30
percent of aggregate capital contributions and uncalled capital investments. Short term
holdings of cash and cash equivalents should not be taken into account when
calculating this limit.
(11) In order to ensure that the designation "European Venture Capital Fund" is reliable and
easily recognisable for investors across the Union this Regulation should establish that
only venture capital fund managers which comply with the uniform quality criteria as
set out in this Regulation shall be eligible to use the designation "European Venture
Capital Fund" when marketing qualifying venture capital funds across the Union.
(12) In order to ensure that qualifying venture capital funds have a distinct and identifiable
profile which is suited to their purpose, there should be uniform rules on the
composition of the portfolio and on the investment techniques which are permitted for
such qualifying funds.
(13) In order to ensure that qualifying venture capital funds do not contribute to the
development of systemic risks, and so as to ensure that such funds concentrate, in their
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investment activities, on supporting qualifying portfolio companies, borrowing or
leverage at the level of the fund should not be permitted. However, in order to permit
the fund to cover extraordinary liquidity needs that might arise between the call of
committed capital from investors and the actual reception of the capital in its accounts,
short-term borrowing should be allowed.
(14) In order to ensure that qualifying venture capital funds are marketed to investors who
have the knowledge, experience and capacity to take on the risks these funds carry,
and in order to maintain investor confidence and trust in qualifying venture capital
funds, certain specific safeguards should be laid down. Therefore, qualifying venture
capital funds should in general only be marketed to investors who are professional
clients or who can be treated as professional clients under Directive 2004/39/EC of the
European Parliament and of the Council of 21 April 2004 on markets in financial
instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive
2000/12/EC of the European Parliament and of the Council and repealing Council
Directive 93/22/EEC.
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This category includes venture capital fund managers who
themselves invest into venture capital funds. However, in order to have a sufficiently
broad investor base for investment into venture capital funds it is also desirable that
certain other investors have access to qualifying venture capital funds, including high
net worth individuals. For those other investors, however, specific safeguards should
be laid down in order to ensure that qualifying venture capital funds are only marketed
to investors that have the appropriate profile for making such investments. These
safeguards exclude marketing through the use of periodic savings plans.
(15) To ensure that only venture capital fund managers who fulfil uniform quality criteria
as regards their behaviour in the market use the designation "European Venture
Capital Fund", this Regulation should establish rules on the conduct of business and
the relationship of the venture capital fund manager to its investors. For the same
reason this Regulation should lay down uniform conditions concerning the handling of
conflicts of interest by such managers. These rules should also require the manager to
have the necessary organisational and administrative arrangements in place to ensure a
proper handling of conflicts of interest.
(16) In order to ensure the integrity of the designation "European Venture Capital Fund"
this Regulation should also contain quality criteria as regards the organisation of a
venture capital fund manager. Therefore, this Regulation should lay down uniform,
proportionate requirements for the need to maintain adequate technical and human
resources as well as sufficient own funds for the proper management of qualifying
venture capital funds.
(17) It is necessary for the purpose of investor protection to ensure that the assets of the
qualifying venture capital fund are properly evaluated. Therefore, the statutory
documents of qualifying venture capital funds should contain rules on the valuation of
assets. This should ensure the integrity and transparency of the valuation.
(18) In order to ensure that venture capital fund managers which make use of the
designation "European Venture Capital Funds" give sufficient account of their
activities, uniform rules on annual reports should be established.

15
OJ L 145, 30.4.2004, p. 1.