title: Directive (EU) 2019/1159 of the European Parliament and of the Council of 20 June 2019 amending Directive 2008/106/EC on the minimum level of training of seafarers and repealing Directive 2005/45/EC on the mutual recognition of seafarers' certificates issued by the Member States (Text with EEA relevance.)

text:
                  12.7.2019

                  EN

                  Official Journal of the European Union

                  L 188/94

         DIRECTIVE (EU) 2019/1159 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
         of 20 June 2019
         amending Directive 2008/106/EC on the minimum level of training of seafarers and repealing Directive 2005/45/EC on the mutual recognition of seafarers' certificates issued by the Member States
         (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 100(2) thereof,
         Having regard to the proposal from the European Commission,
         After transmission of the draft legislative act to the national parliaments,
         Having regard to the opinion of the European Economic and Social Committee (1),
         After consulting the Committee of the Regions,
         Acting in accordance with the ordinary legislative procedure (2),
         Whereas:

                     (1)

                     In order to maintain, and to aim to improve, the high level of maritime safety and pollution prevention at sea, it is essential to maintain and possibly to improve the level of knowledge and skills of Union seafarers by developing maritime training and certification in line with international rules and technological progress, as well as to take further action to enhance the European maritime skills base.

                     (2)

                     The training and certification of seafarers is regulated at international level by the International Maritime Organization's International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978, as amended (the ‘STCW Convention’), which was last subject to a major revision in 2010. Amendments to the STCW Convention were adopted in 2015 on the training and qualification requirements for seafarers working on board ships subject to the International Code of Safety for Ships using Gases or other Low-flashpoint Fuels (the ‘IGF Code’). In 2016, amendments to the STCW Convention were adopted in relation to training and qualification of seafarers working on board passenger ships and on board ships operating in polar waters.

                     (3)

                     Directive 2008/106/EC of the European Parliament and of the Council (3) incorporates the STCW Convention into Union law. All Member States are signatories to the STCW Convention and thus a harmonized implementation of their international commitments is to be achieved through the alignment of the Union rules on training and certification of seafarers with the STCW Convention. Therefore, several provisions of Directive 2008/106/EC should be amended in order to reflect the latest amendments to the STCW Convention regarding training and qualification of seafarers working on board ships falling under the IGF Code, on board passenger ships and on board ships operating in polar waters.

                     (4)

                     The Seafarers' Training, Certification and Watchkeeping Code, as adopted by Resolution 2 of the 1995 STCW Conference of Parties, in its up-to-date version (the ‘STCW Code’) already contains guidance on the prevention of fatigue (Section B-VIII/1) as well as on fitness for duty (Section A-VIII/1). In the interest of safety, it is imperative that the requirements of Article 15 of Directive 2008/106/EC are enforced and followed without exception and that due account is taken of that guidance.

                     (5)

                     One of the objectives of the common transport policy in the field of maritime transport is to facilitate the movement of seafarers within the Union. Such movement contributes, among other things, to making the Union maritime transport sector attractive to future generations, thereby avoiding a situation in which the European maritime cluster is faced with a shortage of competent staff with the right mix of skills and competencies. The mutual recognition of seafarers' certificates issued by Member States is essential to facilitate the free movement of seafarers. In the light of the right to good administration, Member States' decisions in respect of acceptance of certificates of proficiency issued to seafarers by other Member States for the purpose of issuing national certificates of competency should be based on reasons that are capable of being ascertained by the seafarer concerned.

                     (6)

                     Directive 2008/106/EC also contains a centralised system for the recognition of seafarers' certificates issued by third countries. The Regulatory Fitness Programme (REFIT) evaluation showed that significant cost savings for the Member States were achieved since the introduction of the centralised system. However, the evaluation also revealed that, with regard to some of the recognised third countries, only a very limited number of endorsements attesting the recognition of certificates were issued by Member States in relation to certificates of competency or certificates of proficiency issued by those third countries. Therefore, in order to use the available human and financial resources in a more efficient way, the procedure for the recognition of third countries should be based on an analysis of the need for such recognition, including but not limited to an indication of the estimated number of masters, officers and radio operators originating from that country who are likely to be serving on ships flying the flags of Member States. That analysis should be submitted for examination to the Committee on Safe Seas and the Prevention of Pollution from Ships (COSS).

                     (7)

                     In view of the experience gained in applying the procedure for the recognition of third countries, the REFIT evaluation revealed that the current 18-month time frame does not take into account the complexity of the process which includes an on field inspection conducted by the European Maritime Safety Agency. The necessary diplomatic arrangements to plan and carry out such an inspection require more time. Furthermore, the 18-month time frame is not sufficient where the third country has to implement corrective actions and undertake legal changes in its system in order to comply with the requirements of the STCW Convention. On those grounds, the deadline for the adoption of a Commission decision should be extended from 18 to 24 months and, where considerable corrective actions, including amendments to legal provisions, have to be implemented by the third country, the deadline should be further extended to 36 months. In addition, the possibility for the requesting Member State to provisionally recognise the third country's system for standards of training, certification and watchkeeping for seafarers should be kept so as to maintain the flexibility of the recognition procedure.

                     (8)

                     In order to ensure the right of all seafarers to decent employment and in order to limit distortions of competition in the internal market, future recognition of third countries should consider whether those third countries have ratified the Maritime Labour Convention, 2006.

                     (9)

                     In order to further increase the efficiency of the centralised system for the recognition of third countries, the reassessment of third countries which provide a low number of seafarers to ships flying the flags of Member States should be performed at longer intervals which should be increased to ten years. However, this longer period of reassessment of the system of such third countries should be combined with priority criteria which take into account safety concerns, balancing the need for efficiency with an effective safeguard mechanism in case of deterioration of the quality of seafarers' training provided in the relevant third countries.

                     (10)

                     Information on the seafarers employed from third countries has become available at Union level through the communication by Member States of the relevant information kept in their national registers regarding issued certificates and endorsements. That information should be used for statistical and policy-making purposes, in particular for the purpose of improving the efficiency of the centralised system for the recognition of third countries. Based on the information communicated by the Member States, the recognition of third countries which have not provided seafarers to ships flying the flags of Member States for a period of at least eight years should be re-examined. The re-examination process should cover the possibility of retaining or withdrawing the recognition of the relevant third country. In addition, the information communicated by the Member States should also be used in order to prioritise the reassessment of the recognised third countries.

                     (11)

                     In order to take account of developments at international level and to ensure the timely adaptation of Union rules to such developments, 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 incorporating amendments to the STCW Convention and Part A of the STCW Code by updating the technical requirements on training and certification of seafarers and by aligning all the relevant provisions of Directive 2008/106/EC in relation to the digital certificates for seafarers. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (4). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

                     (12)

                     In order to ensure uniform conditions for the implementation of the provisions of this Directive concerning the recognition of third countries, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (5).

                     (13)

                     The provisions for recognition of professional qualifications set out in Directive 2005/36/EC of the European Parliament and of the Council (6) are not applicable with regard to the recognition of certificates of seafarers under Directive 2008/106/EC. Directive 2005/45/EC of the European Parliament and of the Council (7) regulated the mutual recognition of seafarers' certificates issued by the Member States. However, the definitions of seafarers' certificates referred to in Directive 2005/45/EC have become obsolete following the 2010 amendments to the STCW Convention. Therefore, the mutual recognition scheme of seafarers' certificates issued by Member States should be amended in order to reflect the international amendments and the definitions of seafarers' certificates included in Directive 2008/106/EC. In addition, the seafarers' medical certificates issued under the authority of Member States should also be included in the mutual recognition scheme. In order to remove ambiguity and the risk of inconsistencies between Directives 2005/45/EC and 2008/106/EC, the mutual recognition of seafarers' certificates should be regulated by Directive 2008/106/EC only. Furthermore, in order to reduce the administrative burden on Member States, an electronic system for the presentation of seafarers' qualifications should be introduced once relevant amendments to the STCW Convention have been adopted.

                     (14)

                     Digitalisation of data is part and parcel of technological progress in the area of data collection and communication with a view to helping to bring down costs and making efficient use of human resources. The Commission should consider measures in order to enhance the effectiveness of port State control, including, inter alia, an evaluation of the feasibility and added value of setting up and managing a central database of seafarers' certificates which would be linked to the inspection database referred to in Article 24 of Directive 2009/16/EC of the European Parliament and of the Council (8), and to which all Member States will be connected. That central database should contain all the information set out in Annex V to Directive 2008/106/EC on certificates of competency and endorsements attesting the recognition of certificates of proficiency issued in accordance with Regulations V/1-1 and V/1-2 of the STCW Convention.

                     (15)

                     The education and training of European seafarers to be masters and officers should be supported by exchanges of students between maritime education and training institutions across the Union. In order to cultivate and develop the skills and qualifications of seafarers under a European flag, an exchange of good practices between Member States is necessary. The education and training of seafarers should fully benefit from the opportunities provided by the Erasmus+ programme.

                     (16)

                     The Commission should establish a dialogue with social partners and Member States to develop maritime training initiatives additional to the internationally agreed minimum level of training of seafarers, and which could be mutually recognised by Member States as European Maritime Diplomas of Excellence. Those initiatives should build upon, and be developed in line with, the recommendations of the ongoing pilot projects and strategies in the Commission's Blueprint for sectoral cooperation on skills.

                     (17)

                     In order to increase legal clarity and consistency, Directive 2005/45/EC should be repealed.

                     (18)

                     Directive 2008/106/EC should be amended accordingly,

               HAVE ADOPTED THIS DIRECTIVE:

            Article 1
            Amendments to Directive 2008/106/EC
            Directive 2008/106/EC is amended as follows:

                        (1)

                        In Article 1, the following points are added:

                                    ‘43.

                                    “host Member State” means the Member State in which seafarers seek acceptance or recognition of their certificates of competency, certificates of proficiency or documentary evidence;

                                    44.

                                    “IGF Code” means the International Code of Safety for Ships using Gases or other Low-flashpoint Fuels, as defined in SOLAS 74 Regulation II-1/2.29;

                                    45.

                                    “Polar Code” means the International Code for Ships Operating in Polar Waters, as defined in SOLAS 74 Regulation XIV/1.1;

                                    46.

                                    “Polar waters” means Arctic waters and/or the Antarctic area, as defined in SOLAS 74 Regulations XIV/1.2 to XIV/1.4.’.

                        (2)

                        Article 2 is amended as follows:

                                    (a)

                                    in the sole paragraph, the introductory wording is replaced by the following:

                                       ‘1.   This Directive applies to the seafarers mentioned in this Directive serving on board seagoing ships flying the flag of a Member State with the exception of:’;

                                    (b)

                                    the following paragraph is added:

                                       ‘2.   Article 5b applies to seafarers who hold a certificate issued by a Member State, regardless of their nationality.’.

                        (3)

                        Article 5 is amended as follows:

                                    (a)

                                    paragraph 10 is replaced by the following:

                                       ‘10.   Subject to Article 19(7), any certificate required by this Directive shall be kept available in its original form on board the ship on which the holder is serving, in a hard copy or in a digital format, the authenticity and validity of which may be verified under the procedure laid down in point (b) of paragraph 12 of this Article.’;

                                    (b)

                                    paragraph 13 is replaced by the following:

                                       ‘13.   When relevant amendments to the STCW Convention and Part A of the STCW Code related to digital certificates for seafarers come into force, the Commission is empowered to adopt delegated acts in accordance with Article 27a to amend this Directive by aligning all the relevant provisions thereof with those amendments to the STCW Convention and Part A of the STCW Code in order to digitalise the seafarers' certificates and endorsements.’.

                        (4)

                        Article 5a is replaced by the following:

                           ‘Article 5a
                           Information to the Commission
                           For the purposes of Article 20(8) and Article 21(2) and exclusively for use by the Member States and the Commission for policy-making and statistical purposes, Member States shall submit to the Commission, on a yearly basis, the information listed in Annex V to this Directive on certificates of competency and endorsements attesting the recognition of certificates of competency. They may also provide, on a voluntary basis, information on certificates of proficiency issued to ratings in accordance with Chapters II, III and VII of the Annex to the STCW Convention, such as the information indicated in Annex V to this Directive.’.

                        (5)

                        The following Article is inserted:

                           ‘Article 5b
                           Mutual recognition of seafarers' certificates issued by Member States

                              1.   Every Member State shall accept certificates of proficiency and documentary evidence issued by another Member State, or under its authority, in hard copy or in digital format, for the purpose of allowing seafarers to serve on ships flying its flag.

                              2.   Every Member State shall recognise certificates of competency issued by another Member State or certificates of proficiency issued by another Member State to masters and officers in accordance with Regulations V/1-1 and V/1-2 of Annex I to this Directive, by endorsing those certificates to attest their recognition. The endorsement attesting the recognition shall be limited to the capacities, functions and levels of competency or proficiency prescribed therein. The endorsement shall only be issued if all requirements of the STCW Convention have been complied with, in accordance with Regulation I/2, paragraph 7, of the STCW Convention. The form of the endorsement used shall be that set out in Section A-I/2, paragraph 3, of the STCW Code.

                              3.   Every Member State shall accept, for the purpose of allowing seafarers to serve on ships flying its flag, medical certificates issued under the authority of another Member State in accordance with Article 11.

                              4.   The host Member States shall ensure that the decisions referred to in paragraphs 1, 2 and 3 are issued within a reasonable time. The host Member States shall also ensure that seafarers have the right to appeal against any refusal to endorse or accept a valid certificate, or the absence of any response, in accordance with national legislation and procedures and that seafarers are provided with adequate advice and assistance regarding such appeals in accordance with established national legislation and procedures.

                              5.   Without prejudice to paragraph 2 of this Article, the competent authorities of a host Member State may impose further limitations on capacities, functions and levels of competence or proficiency relating to near-coastal voyages, as referred to in Article 7, or alternative certificates issued under Regulation VII/1 of Annex I.

                              6.   Without prejudice to paragraph 2, a host Member State may, where necessary, allow a seafarer to serve, for a period not exceeding three months on board a ship flying its flag, while holding an appropriate and valid certificate issued and endorsed by another Member State, but not yet endorsed for recognition by the host Member State concerned.
                              Documentary proof that an application for endorsement has been submitted to the competent authorities shall be readily available.

                              7.   A host Member State shall ensure that seafarers who present for recognition certificates for functions at management level have appropriate knowledge of the maritime legislation of that Member State relevant to the functions that they are permitted to perform.’.

                        (6)

                        Article 12 is amended as follows:

                                    (a)

                                    paragraph 1 is replaced by the following:

                                       ‘1.   Every master, officer and radio operator holding a certificate issued or recognised under any chapter of Annex I other than Regulation V/3 of Chapter V or Chapter VI, who is serving at sea or intends to return to sea after a period ashore, shall, in order to continue to qualify for seagoing service, be required at intervals not exceeding five years:

                                                   (a)

                                                   to meet the standards of medical fitness prescribed by Article 11; and

                                                   (b)

                                                   to establish continued professional competence in accordance with Section A-I/11 of the STCW Code.’;

                                    (b)

                                    the following paragraph is inserted:

                                       ‘2b.   Every master or officer shall, for continuing seagoing service on board ships operating in polar waters, meet the requirements of paragraph 1 of this Article and shall be required, at intervals not exceeding five years, to establish continued professional competence for ships operating in polar waters in accordance with Section A-I/11, paragraph 4, of the STCW Code.’;

                                    (c)

                                    paragraph 3 is replaced by the following:

                                       ‘3.   Each Member State shall compare the standards of competence which are required of candidates for certificates of competency and/or certificates of proficiency issued until 1 January 2017 with those specified for the relevant certificate of competency and/or proficiency in Part A of the STCW Code, and shall determine the need to require the holders of such certificates of competency and/or certificates of proficiency to undergo appropriate refresher and updating training or assessment.’;

                                    (d)

                                    the following paragraph is inserted:

                                       ‘3a.   Every Member State shall compare the standards of competence which it required of persons serving on gas-fuelled ships before 1 January 2017 with the standards of competence in Section A-V/3 of the STCW Code, and shall determine the need, if any, for requiring those persons to update their qualifications.’.

                        (7)

                        In Article 19, paragraphs 2 and 3 are replaced by the following:

                           ‘2.   A Member State which intends to recognise, by endorsement, the certificates of competency or the certificates of proficiency referred to in paragraph 1 of this Article issued by a third country to a master, officer or radio operator, for service on ships flying its flag, shall submit a request to the Commission for the recognition of that third country, accompanied by a preliminary analysis of the third country's compliance with the requirements of the STCW Convention by collecting the information referred to in Annex II to this Directive. In that preliminary analysis, further information on the reasons for recognition of the third country shall be provided by the Member State, in support of its request.
                           Following the submission of such a request by a Member State, the Commission shall process without delay that request and shall decide, in accordance with the examination procedure referred to in Article 28(2), on the initiation of the assessment of the training and certification system in the third country within a reasonable time with due regard to the time limit set out in paragraph 3 of this Article.
                           When a positive decision for initiating the assessment has been adopted, the Commission, assisted by the European Maritime Safety Agency and with the possible involvement of the Member State submitting the request and any other interested Member States, shall collect the information referred to in Annex II to this Directive and shall carry out an assessment of the training and certification systems in the third country for which the request for recognition was submitted, in order to verify that the country concerned meets all the requirements of the STCW Convention and that appropriate measures have been taken to prevent issuance of fraudulent certificates, and to consider whether it has ratified the Maritime Labour Convention, 2006.

                           3.   Where, as a result of the assessment referred to in paragraph 2 of this Article, the Commission concludes that all those requirements are fulfilled, it shall adopt implementing acts laying down its decision on the recognition of a third country. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 28(2), within 24 months of the submission of the request by a Member State referred to in paragraph 2 of this Article.
                           In case the third country concerned needs to implement major corrective actions, including amendments to its legislation, its education, training and certification system in order to meet the requirements of the STCW Convention, the implementing acts referred to in the first subparagraph of this paragraph shall be adopted within 36 months of the submission of the request by a Member State referred to in paragraph 2 of this Article.
                           The Member State submitting that request may decide to recognise the third country unilaterally until an implementing act is adopted pursuant to this paragraph. In case of such a unilateral recognition, the Member State shall communicate to the Commission the number of endorsements attesting recognition issued in relation to certificates of competency and certificates of proficiency referred to in paragraph 1, issued by the third country until the implementing act regarding the recognition of that third country is adopted.’.

                        (8)

                        In Article 20, the following paragraph is added:

                           ‘8.   If there are no endorsements attesting recognition issued by a Member State in relation to certificates of competency or certificates of proficiency, referred to in Article 19(1), issued by a third country for a period of more than eight years, the recognition of that country's certificates shall be re-examined. The Commission shall adopt implementing acts laying down its decision following that re-examination. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 28(2), after notifying the Member States as well as the third country concerned at least six months in advance.’.

                        (9)

                        In Article 21, paragraphs 1 and 2 are replaced by the following:

                           ‘1.   The third countries that have been recognised under the procedure referred to in the first subparagraph of Article 19(3), including those referred to in Article 19(6), shall be reassessed by the Commission, with the assistance of the European Maritime Safety Agency, on a regular basis and at least within ten years of the last assessment, to verify that they fulfil the relevant criteria set out in Annex II and whether the appropriate measures have been taken to prevent issuance of fraudulent certificates.

                           2.   The Commission, with the assistance of the European Maritime Safety Agency, shall carry out the reassessment of the third countries based on priority criteria. Those priority criteria shall include the following:

                                       (a)

                                       performance data by the port State control pursuant to Article 23;

                                       (b)

                                       the number of endorsements attesting recognition in relation to certificates of competency, or certificates of proficiency issued in accordance with Regulations V/1-1 and V/1-2 of the STCW Convention, issued by the third country;

                                       (c)

                                       the number of maritime education and training institutions accredited by the third country;

                                       (d)

                                       the number of seafarers' training and professional development programmes approved by the third country;

                                       (e)

                                       the date of the Commission's last assessment of the third country and the number of deficiencies in critical processes identified during that assessment;

                                       (f)

                                       any significant change in the maritime training and certification system of the third country;

                                       (g)

                                       the overall numbers of seafarers certified by the third country, serving on ships flying the flags of Member States and the level of training and qualifications of those seafarers;

                                       (h)

                                       information concerning education and training standards in the third country provided by any concerned authorities or other stakeholders, if available.

                                 In case of non-compliance of a third country with the requirements of the STCW Convention in accordance with Article 20 of this Directive, the reassessment of that third country shall take priority in relation to the other third countries.’.

                        (10)

                        In Article 25a, paragraph 1 is replaced by the following:

                           ‘1.   The Member States shall communicate the information referred to in Annex V to the Commission for the purposes of Article 20(8) and Article 21(2) and for use by the Member States and the Commission in policy making.’.

                        (11)

                        Article 26 is replaced by the following:

                           ‘Article 26
                           Evaluation report
                           No later than 2 August 2024 the Commission shall submit to the European Parliament and to the Council an evaluation report, including suggestions for follow up actions to be taken in the light of that evaluation. In that evaluation report, the Commission shall analyse the implementation of the mutual recognition scheme of seafarers' certificates issued by Member States, and any developments regarding digital certificates for seafarers at international level. The Commission shall also evaluate any developments regarding a future consideration of the European Maritime Diplomas of Excellence, as underpinned by the recommendations provided by the social partners.’.

                        (12)

                        Article 27 is replaced by the following:

                           ‘Article 27
                           Amendment

                              1.   The Commission is empowered to adopt delegated acts in accordance with Article 27a amending Annex I to this Directive and the related provisions of this Directive in order to align that Annex and those provisions with the amendments to the STCW Convention and Part A of the STCW Code.

                              2.   The Commission is empowered to adopt delegated acts in accordance with Article 27a amending Annex V to this Directive with respect to specific and relevant content and details of the information that needs to be reported by Member States provided that such acts are limited to taking into account the amendments to the STCW Convention and Part A of the STCW Code and respect the safeguards on data protection. Such delegated acts shall not change the provisions on anonymisation of data set out in Article 25a(3).’.

                        (13)

                        Article 27a is replaced by the following:

                           ‘Article 27a
                           Exercise of the delegation

                              1.   The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

                              2.   The power to adopt delegated acts referred to in Article 5(13) and Article 27 shall be conferred on the Commission for a period of five years from 1 August 2019. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

                              3.   The delegation of power referred to in Article 5(13) and Article 27 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

                              4.   Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

                              5.   As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

                              6.   A delegated act adopted pursuant to Article 5(13) and Article 27 shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.’.

                        (14)

                        Annex I to Directive 2008/106/EC is amended in accordance with the Annex to this Directive.

            Article 2
            Repeal
            Directive 2005/45/EC is repealed.

            Article 3
            Transposition

               1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 2 August 2021. They shall immediately inform the Commission thereof.
               When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

               2.   Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive.

            Article 4
            Entry into force
            This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

            Article 5
            Addressees
            This Directive is addressed to the Member States.

            Done at Brussels, 20 June 2019.

                  For the European Parliament

                  The President

               A. TAJANI

                  For the Council

                  The President

               G. CIAMBA

            (1)  OJ C 110, 22.3.2019, p. 125.

            (2)  Position of the European Parliament of 4 April 2019 (not yet published in the Official Journal) and decision of the Council of 6 June 2019.

            (3)  Directive 2008/106/EC of the European Parliament and of the Council of 19 November 2008 on the minimum level of training of seafarers (OJ L 323, 3.12.2008, p. 33).

            (4)  OJ L 123, 12.5.2016, p. 1.

            (5)  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

            (6)  Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ L 255, 30.9.2005, p. 22).

            (7)  Directive 2005/45/EC of the European Parliament and of the Council of 7 September 2005 on the mutual recognition of seafarers' certificates issued by the Member States and amending Directive 2001/25/EC (OJ L 255, 30.9.2005, p. 160).

            (8)  Directive 2009/16/EC of the European Parliament and of the Council of 23 April 2009 on port State control (OJ L 131, 28.5.2009, p. 57).

            ANNEX
            In Annex I to Directive 2008/106/EC, Chapter V is amended as follows:

                        (1)

                        Regulation V/2 is replaced by the following:
                        ‘Regulation V/2

                           Mandatory minimum requirements for the training and qualifications of masters, officers, ratings and other personnel on passenger ships

                                    1.

                                    This Regulation applies to masters, officers, ratings and other personnel serving on board passenger ships engaged on international voyages. Member States shall determine the applicability of these requirements to personnel serving on passenger ships engaged on domestic voyages.

                                    2.

                                    Before being assigned shipboard duties, all persons serving on a passenger ship shall meet the requirements of Section A-VI/1, paragraph 1, of the STCW Code.

                                    3.

                                    Masters, officers, ratings and other personnel serving on board passenger ships shall complete the training and familiarization required by paragraphs 5 to 9 below, in accordance with their capacity, duties and responsibilities.

                                    4.

                                    Masters, officers, ratings and other personnel who are required to be trained in accordance with paragraphs 7 to 9 below shall, at intervals not exceeding five years, undertake appropriate refresher training or be required to provide evidence of having achieved the required standard of competence within the previous five years.

                                    5.

                                    Personnel serving on board passenger ships shall complete passenger ship emergency familiarization appropriate to their capacity, duties and responsibilities as specified in Section A-V/2, paragraph 1, of the STCW Code.

                                    6.

                                    Personnel providing direct service to passengers in passenger spaces on board passenger ships shall complete the safety training specified in Section A-V/2, paragraph 2, of the STCW Code.

                                    7.

                                    Masters, officers, ratings qualified in accordance with Chapters II, III and VII of this Annex and other personnel designated on the muster list to assist passengers in emergency situations on board passenger ships, shall complete passenger ship crowd management training as specified in Section A-V/2, paragraph 3, of the STCW Code.

                                    8.

                                    Masters, chief engineer officers, chief mates, second engineer officers and any person designated on the muster list of having responsibility for the safety of passengers in emergency situations on board passenger ships shall complete approved training in crisis management and human behaviour as specified in Section A-V/2, paragraph 4, of the STCW Code.

                                    9.

                                    Masters, chief engineer officers, chief mates, second engineer officers and every person assigned immediate responsibility for embarking and disembarking passengers, for loading, discharging or securing cargo, or for closing hull openings on board ro-ro passenger ships, shall complete approved training in passenger safety, cargo safety and hull integrity as specified in Section A-V/2, paragraph 5, of the STCW Code.

                                    10.

                                    Member States shall ensure that documentary evidence of the training which has been completed is issued to every person found qualified in accordance with paragraphs 6 to 9 of this Regulation.’.

                        (2)

                        The following Regulations are added:
                        ‘Regulation V/3

                           Mandatory minimum requirements for the training and qualifications of masters, officers, ratings and other personnel on ships subject to the IGF Code

                                    1.

                                    This Regulation applies to masters, officers and ratings and other personnel serving on board ships subject to the IGF Code.

                                    2.

                                    Prior to being assigned shipboard duties on board ships subject to the IGF Code, seafarers shall have completed the training required by paragraphs 4 to 9 below in accordance with their capacity, duties and responsibilities.

                                    3.

                                    All seafarers serving on board ships subject to the IGF Code shall, prior to being assigned shipboard duties, receive appropriate ship and equipment specific familiarization as specified in point (d) of Article 14(1) of this Directive.

                                    4.

                                    Seafarers responsible for designated safety duties associated with the care, use or in emergency response to the fuel on board ships subject to the IGF Code shall hold a certificate in basic training for service on ships subject to the IGF Code.

                                    5.

                                    Every candidate for a certificate in basic training for service on ships subject to the IGF Code shall have completed basic training in accordance with the provisions of Section A-V/3, paragraph 1, of the STCW Code.

                                    6.

                                    Seafarers responsible for designated safety duties associated with the care, use or in emergency response to the fuel on board ships subject to the IGF Code who have been qualified and certified according to Regulation V/1-2, paragraphs 2 and 5, or Regulation V/1-2, paragraphs 4 and 5, on liquefied gas tankers, shall be considered to have met the requirements specified in Section A-V/3, paragraph 1, of the STCW Code for basic training for service on ships subject to the IGF Code.

                                    7.

                                    Masters, engineer officers and all personnel with immediate responsibility for the care and use of fuels and fuel systems on ships subject to the IGF Code shall hold a certificate in advanced training for service on ships subject to the IGF Code.

                                    8.

                                    Every candidate for a certificate in advanced training for service on ships subject to the IGF Code shall, while holding the certificate of proficiency described in paragraph 4, have:

                                                8.1.

                                                completed approved advanced training for service on ships subject to the IGF Code and meet the standard of competence as specified in Section A-V/3, paragraph 2, of the STCW Code; and

                                                8.2.

                                                completed at least one month of approved seagoing service that includes a minimum of three bunkering operations on board ships subject to the IGF Code. Two of the three bunkering operations may be replaced by approved simulator training on bunkering operations as part of the training in paragraph 8.1 above.

                                    9.

                                    Masters, engineer officers and any person with immediate responsibility for the care and use of fuels on ships subject to the IGF Code who have been qualified and certified according to the standards of competence specified in Section A–V/1-2, paragraph 2, of the STCW Code for service on liquefied gas tankers shall be considered to have met the requirements specified in Section A-V/3, paragraph 2, of the STCW Code for advanced training for ships subject to the IGF Code, provided they have also:

                                                9.1.

                                                met the requirements of paragraph 6;

                                                9.2.

                                                met the bunkering requirements of paragraph 8.2 or have participated in conducting three cargo operations on board the liquefied gas tanker; and

                                                9.3.

                                                completed sea going service of three months in the previous five years on board:

                                                            9.3.1.

                                                            ships subject to the IGF Code;

                                                            9.3.2.

                                                            tankers carrying as cargo, fuels covered by the IGF Code; or

                                                            9.3.3.

                                                            ships using gases or low flashpoint fuel as fuel.

                                    10.

                                    Member States shall ensure that a certificate of proficiency is issued to seafarers, who are qualified in accordance with paragraph 4 or 7, as appropriate.

                                    11.

                                    Seafarers holding certificates of proficiency in accordance with paragraph4 or 7 above shall, at intervals not exceeding five years, undertake appropriate refresher training or be required to provide evidence of having achieved the required standard of competence within the previous five years.

                           Regulation V/4

                           Mandatory minimum requirements for the training and qualifications of masters and deck officers on ships operating in polar waters

                                    1.

                                    Masters, chief mates and officers in charge of a navigational watch on ships operating in polar waters shall hold a certificate in basic training for ships operating in polar waters, as required by the Polar Code.

                                    2.

                                    Every candidate for a certificate in basic training for ships operating in polar waters shall have completed an approved basic training for ships operating in polar waters and meet the standard of competence specified in Section A-V/4, paragraph 1, of the STCW Code.

                                    3.

                                    Masters and chief mates on ships operating in polar waters shall hold a certificate in advanced training for ships operating in polar waters, as required by the Polar Code.

                                    4.

                                    Every candidate for a certificate in advanced training for ships operating in polar waters shall:

                                                4.1.

                                                meet the requirements for certification in basic training for ships in polar waters;

                                                4.2.

                                                have at least two months of approved seagoing service in the deck department, at management level or while performing watchkeeping duties at the operational level, within polar waters or other equivalent approved seagoing service; and

                                                4.3.

                                                have completed approved advanced training for ships operating in polar waters and meet the standard of competence specified in Section A-V/4, paragraph 2, of the STCW Code.

                                    5.

                                    Member States shall ensure that a certificate of proficiency is issued to seafarers who are qualified in accordance with paragraph 2 or 4, as appropriate.

                                    6.

                                    Until 1 July 2020, seafarers who commenced approved seagoing service in polar waters prior to 1 July 2018 shall be able to establish that they meet the requirements of paragraph 2 by:

                                                6.1.

                                                having completed approved seagoing service on board a ship that operates in polar waters or equivalent approved seagoing service, performing duties in the deck department at the operational or management level, for a period of at least three months in total during the preceding five years; or

                                                6.2.

                                                having successfully completed a training course organised in accordance with the training guidance established by the International Maritime Organization for ships operating in polar waters.

                                    7.

                                    Until 1 July 2020, seafarers who commenced approved seagoing service in polar waters prior to 1 July 2018 shall be able to establish that they meet the requirements of paragraph 4 by:

                                                7.1.

                                                having completed approved seagoing service on board a ship operating in polar waters or equivalent approved seagoing service, performing duties in the deck department at management level, for a period of at least three months in total during the preceding five years; or

                                                7.2.

                                                having successfully completed a training course meeting the training guidance established by the International Maritime Organization for ships operating in polar waters and having completed approved seagoing service on board a ship operating in polar waters or equivalent approved seagoing service, performing duties in the deck department at the management level, for a period of at least two months in total during the preceding five years.’.


title: Directive (EU) 2019/1160 of the European Parliament and of the Council of 20 June 2019 amending Directives 2009/65/EC and 2011/61/EU with regard to cross-border distribution of collective investment undertakings (Text with EEA relevance.)

text:
                  12.7.2019

                  EN

                  Official Journal of the European Union

                  L 188/106

         DIRECTIVE (EU) 2019/1160 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
         of 20 June 2019
         amending Directives 2009/65/EC and 2011/61/EU with regard to cross-border distribution of collective investment undertakings
         (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 53(1) thereof,
         Having regard to the proposal from the European Commission,
         After transmission of the draft legislative act to the national parliaments,
         Having regard to the opinion of the European Economic and Social Committee (1),
         Acting in accordance with the ordinary legislative procedure (2),
         Whereas:

                     (1)

                     Common objectives of Directive 2009/65/EC of the European Parliament and of the Council (3) and Directive 2011/61/EU of the European Parliament and of the Council (4) include ensuring a level playing field among collective investment undertakings and removing restrictions to the free movement of units and shares of collective investment undertakings in the Union, at the same time ensuring more uniform protection for investors. While those objectives have been largely achieved, certain barriers still hamper the ability of fund managers to fully benefit from the internal market.

                     (2)

                     This Directive is complemented by Regulation (EU) 2019/1156 of the European Parliament and of the Council (5). That Regulation lays down additional rules and procedures concerning undertakings for collective investment in transferable securities (UCITS) and alternative investment fund managers (AIFMs). That Regulation and this Directive should collectively further coordinate the conditions for fund managers operating in the internal market and facilitate cross-border distribution of the funds they manage.

                     (3)

                     It is necessary to fill in the regulatory gap and align the procedure for notifying competent authorities of changes regarding UCITS with the notification procedure laid down in Directive 2011/61/EU.

                     (4)

                     Regulation (EU) 2019/1156 further strengthens the principles applicable to marketing communications governed by Directive 2009/65/EC and extends the application of those principles to AIFMs, thereby resulting in a high standard of investor protection, regardless of the type of investor. The corresponding provisions of Directive 2009/65/EC relating to marketing communications and accessibility of national laws and regulations relevant to the arrangement of marketing units of UCITS are therefore no longer necessary and should be deleted.

                     (5)

                     The provisions of Directive 2009/65/EC which require UCITS to provide facilities to investors, as implemented by certain national legal systems, have proven to be burdensome. In addition, local facilities are rarely used by investors in the manner intended by that Directive. The preferred method of contact has shifted to direct interaction between investors and fund managers, either electronically or by telephone, whereas payments and redemptions are executed through other channels. While those local facilities are currently used for administrative purposes such as cross-border recovery of regulatory fees, such issues should be addressed via other means including cooperation between competent authorities. Consequently, rules should be established which modernise and specify the requirements for providing facilities to retail investors, and Member States should not require a local physical presence for the provision of such facilities. In any case, those rules should ensure that investors have access to the information to which they are entitled.

                     (6)

                     In order to ensure the consistent treatment of retail investors, it is necessary that the requirements relating to facilities be also applied to AIFMs where Member States allow them to market units or shares of alternative investment funds (AIFs) to retail investors in their territories.

                     (7)

                     The absence of clear and uniform conditions for the discontinuation of marketing of units or shares of a UCITS or an AIF in a host Member State creates economic and legal uncertainty for fund managers. Therefore, Directives 2009/65/EC and 2011/61/EU should set out clear conditions under which de-notification of the arrangements made for marketing as regards some or all of the units or shares could take place. Those conditions should balance, on the one hand, the ability of collective investment undertakings or their managers to terminate their arrangements made for marketing of their shares or units when the established conditions are met and, on the other hand, the interests of investors in such undertakings.

                     (8)

                     The possibility to cease marketing UCITS or AIFs in a particular Member State should neither come at a cost to investors nor diminish their safeguards under Directive 2009/65/EC or Directive 2011/61/EU, in particular with regard to their right to accurate information on the continued activities of those funds.

                     (9)

                     There are cases where an AIFM wishing to test investor appetite for a particular investment idea or investment strategy is faced with diverging treatment of pre-marketing in different national legal systems. The definition of pre-marketing and the conditions under which it is permitted vary considerably between those Member States in which it is permitted, whereas in other Member States there is no concept of pre-marketing at all. To address those divergences, a harmonised definition of pre-marketing should be provided and the conditions under which an EU AIFM can engage in pre-marketing should be established.

                     (10)

                     For pre-marketing to be recognised as such under Directive 2011/61/EU, it should be addressed to potential professional investors and concern an investment idea or investment strategy in order to test their interest in an AIF or a compartment which is not yet established, or which is established, but not yet notified for marketing in accordance with that Directive. Accordingly, during the course of pre-marketing, it should not be possible for investors to subscribe to the units or shares of an AIF and the distribution of subscription forms or similar documents to potential professional investors, whether in draft or final form, should not be permitted. EU AIFMs should ensure that investors do not acquire units or shares in an AIF through pre-marketing and that investors contacted as part of pre-marketing can only acquire units or shares in that AIF through marketing permitted under Directive 2011/61/EU.
                     Any subscription by professional investors, within 18 months of the EU AIFM having begun pre-marketing, to units or shares of an AIF referred to in the information provided in the context of pre-marketing, or of an AIF established as a result of the pre-marketing, should be considered to be the result of marketing and should be subject to the applicable notification procedures referred to in Directive 2011/61/EU. To ensure that national competent authorities can exercise control over pre-marketing in their Member State, an EU AIFM should send, within two weeks of having begun pre-marketing, an informal letter, in paper form or by electronic means, to the competent authorities of its home Member State, specifying inter alia in which Member States it is or has engaged in pre-marketing, the periods during which the pre-marketing is taking or has taken place and including, where relevant, a list of its AIFs and compartments of AIFs which are or were the subject of pre-marketing. The competent authorities of the home Member State of the EU AIFM should promptly inform the competent authorities of the Member States in which the EU AIFM is or has engaged in pre-marketing thereof.

                     (11)

                     EU AIFMs should ensure that their pre-marketing is adequately documented.

                     (12)

                     National laws, regulations and administrative provisions necessary to comply with Directive 2011/61/EU and, in particular, with harmonised rules on pre-marketing, should not in any way disadvantage EU AIFMs vis-à-vis non-EU AIFMs. This concerns both the current situation in which non-EU AIFMs do not have passporting rights, and a situation in which the provisions on such passporting in Directive 2011/61/EU become applicable.

                     (13)

                     In order to ensure legal certainty, it is necessary to synchronise the application dates of national laws, regulations and administrative provisions implementing this Directive and Regulation (EU) 2019/1156 with regard to relevant provisions on marketing communications and pre-marketing.

                     (14)

                     In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (6), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified,

               HAVE ADOPTED THIS DIRECTIVE:

            Article 1
            Amendments to Directive 2009/65/EC
            Directive 2009/65/EC is amended as follows:

                        (1)

                        in Article 17(8), the following subparagraphs are added:
                        ‘Where, pursuant to a change as referred to in the first subparagraph, the management company would no longer comply with this Directive, the competent authorities of the management company's home Member State shall inform the management company within 15 working days of receipt of all the information referred to in the first subparagraph that it is not to implement that change. In that case, the competent authorities of the management company's home Member State shall inform the competent authorities of the management company's host Member State accordingly.
                        Where a change referred to in the first subparagraph is implemented after information has been transmitted in accordance with the second subparagraph and pursuant to that change the management company no longer complies with this Directive, the competent authorities of the management company's home Member State shall take all appropriate measures in accordance with Article 98 and shall notify the competent authorities of the management company's host Member State without undue delay of the measures taken.’;

                        (2)

                        Article 77 is deleted;

                        (3)

                        in Article 91, paragraph 3 is deleted;

                        (4)

                        Article 92 is replaced by the following:

                           ‘Article 92

                              1.   Member States shall ensure that a UCITS makes available, in each Member State where it intends to market its units, facilities to perform the following tasks:

                                          (a)

                                          process subscription, repurchase and redemption orders and make other payments to unit-holders relating to the units of the UCITS, in accordance with the conditions set out in the documents required pursuant to Chapter IX;

                                          (b)

                                          provide investors with information on how orders referred to in point (a) can be made and how repurchase and redemption proceeds are paid;

                                          (c)

                                          facilitate the handling of information and access to procedures and arrangements referred to in Article 15 relating to the investors' exercise of their rights arising from their investment in the UCITS in the Member State where the UCITS is marketed;

                                          (d)

                                          make the information and documents required pursuant to Chapter IX available to investors under the conditions laid down in Article 94, for the purposes of inspection and obtaining copies thereof;

                                          (e)

                                          provide investors with information relevant to the tasks that the facilities perform in a durable medium; and

                                          (f)

                                          act as a contact point for communicating with the competent authorities.

                              2.   Member States shall not require a UCITS to have a physical presence in the host Member State or to appoint a third party for the purposes of paragraph 1.

                              3.   The UCITS shall ensure that the facilities to perform the tasks referred to in paragraph 1, including electronically, are provided:

                                          (a)

                                          in the official language or one of the official languages of the Member State where the UCITS is marketed or in a language approved by the competent authorities of that Member State;

                                          (b)

                                          by the UCITS itself, by a third party which is subject to regulation and supervision governing the tasks to be performed, or by both.

                                    For the purposes of point (b), where the tasks are to be performed by a third party, the appointment of that third party shall be evidenced by a written contract, which specifies which of the tasks referred to in paragraph 1 are not to be performed by the UCITS and that the third party will receive all the relevant information and documents from the UCITS.’;

                        (5)

                        Article 93 is amended as follows:

                                    (a)

                                    in paragraph 1, the following subparagraph is added:
                                    ‘The notification letter shall also include the details necessary, including the address, for the invoicing or for the communication of any applicable regulatory fees or charges by the competent authorities of the host Member State and information on the facilities for performing the tasks referred to in Article 92(1).’;

                                    (b)

                                    paragraph 8 is replaced by the following:

                                       ‘8.   In the event of a change to the information in the notification letter submitted in accordance with paragraph 1, or a change regarding share classes to be marketed, the UCITS shall give written notice thereof to the competent authorities of both the UCITS home Member State and the UCITS host Member State at least one month before implementing that change.
                                       Where, pursuant to a change as referred to in the first subparagraph, the UCITS would no longer comply with this Directive, the competent authorities of the UCITS home Member State shall inform the UCITS within 15 working days of receipt of all the information referred to in the first subparagraph that it is not to implement that change. In that case, the competent authorities of the UCITS home Member State shall notify the competent authorities of the UCITS host Member State accordingly.
                                       Where a change referred to in the first subparagraph is implemented after information has been transmitted in accordance with the second subparagraph and pursuant to that change the UCITS no longer complies with this Directive, the competent authorities of the home Member State of the UCITS shall take all appropriate measures in accordance with Article 98, including, where necessary, the express prohibition of marketing of the UCITS and shall notify the competent authorities of the UCITS host Member State without undue delay of the measures taken.’;

                        (6)

                        the following article is inserted:

                           ‘Article 93a

                              1.   Member States shall ensure that a UCITS may de-notify arrangements made for marketing as regards units, including, where relevant, in respect of share classes, in a Member State in respect of which it has made a notification in accordance with Article 93, where all the following conditions are fulfilled:

                                          (a)

                                          a blanket offer is made to repurchase or redeem, free of any charges or deductions, all such units held by investors in that Member State, is publicly available for at least 30 working days, and is addressed, directly or through financial intermediaries, individually to all investors in that Member State whose identity is known;

                                          (b)

                                          the intention to terminate arrangements made for marketing such units in that Member State is made public by means of a publicly available medium, including by electronic means, which is customary for marketing UCITS and suitable for a typical UCITS investor;

                                          (c)

                                          any contractual arrangements with financial intermediaries or delegates are modified or terminated with effect from the date of de-notification in order to prevent any new or further, direct or indirect, offering or placement of the units identified in the notification referred to in paragraph 2.

                                    The information referred to in points (a) and (b) of the first subparagraph shall clearly describe the consequences for investors if they do not accept the offer to redeem or repurchase their units.
                              The information referred to in points (a) and (b) of the first subparagraph shall be provided in the official language or one of the official languages of the Member State in respect of which the UCITS has made a notification in accordance with Article 93 or in a language approved by the competent authorities of that Member State. As of the date referred to in point (c) of the first subparagraph, the UCITS shall cease any new or further, direct or indirect, offering or placement of its units which were the subject of de-notification in that Member State.

                              2.   The UCITS shall submit a notification to the competent authorities of its home Member State containing the information referred to in points (a), (b) and (c) of the first subparagraph of paragraph 1.

                              3.   The competent authorities of the UCITS home Member State shall verify whether the notification submitted by the UCITS in accordance with paragraph 2 is complete. The competent authorities of the UCITS home Member State shall, no later than 15 working days from the receipt of a complete notification, transmit that notification to the competent authorities of the Member State identified in the notification referred to in paragraph 2, and to ESMA.
                              Upon transmission of the notification pursuant to the first subparagraph, the competent authorities of the UCITS home Member State shall promptly notify the UCITS of that transmission.

                              4.   The UCITS shall provide investors who remain invested in the UCITS as well as the competent authorities of the UCITS home Member State with the information required under Articles 68 to 82 and under Article 94.

                              5.   The competent authorities of the UCITS home Member State shall transmit to the competent authorities of the Member State identified in the notification referred to in paragraph 2 of this Article information on any changes to the documents referred to in Article 93(2).

                              6.   The competent authorities of the Member State identified in the notification referred to in paragraph 2 of this Article shall have the same rights and obligations as the competent authorities of the UCITS host Member State as set out in Article 21(2), Article 97(3) and Article 108. Without prejudice to other monitoring activities and supervisory powers as referred to in Article 21(2) and Article 97, as from the date of transmission under paragraph 5 of this Article, the competent authorities of the Member State identified in the notification referred to in paragraph 2 of this Article shall not require the UCITS concerned to demonstrate compliance with national laws, regulations and administrative provisions governing marketing requirements referred to in Article 5 of Regulation (EU) 2019/1156 of the European Parliament and of the Council (*1).

                              7.   Member States shall allow for the use of any electronic or other distance communication means for the purposes of paragraph 4, provided that the information and communication means are available for investors in the official language or one of the official languages of the Member State where the investor is located or in a language approved by the competent authorities of that Member State.

                           (*1)  Regulation (EU) 2019/1156 of the European Parliament and of the Council of 20 June 2019 on facilitating cross-border distribution of collective investment undertakings and amending Regulations (EU) No 345/2013, (EU) No 346/2013 and (EU) No 1286/2014 (OJ L 188, 12.7.2019, p. 55).’;"

                        (7)

                        in Article 95(1), point (a) is deleted.

            Article 2
            Amendments to Directive 2011/61/EU
            Directive 2011/61/EU is amended as follows:

                        (1)

                        in Article 4(1), the following point is inserted:

                                    ‘(aea)

                                    “pre-marketing” means provision of information or communication, direct or indirect, on investment strategies or investment ideas by an EU AIFM or on its behalf, to potential professional investors domiciled or with a registered office in the Union in order to test their interest in an AIF or a compartment which is not yet established, or which is established, but not yet notified for marketing in accordance with Article 31 or 32, in that Member State where the potential investors are domiciled or have their registered office, and which in each case does not amount to an offer or placement to the potential investor to invest in the units or shares of that AIF or compartment;’;

                        (2)

                        the following article is inserted at the beginning of Chapter VI:

                           ‘Article 30a
                           Conditions for pre-marketing in the Union by an EU AIFM

                              1.   Member States shall ensure that an authorised EU AIFM may engage in pre-marketing in the Union, except where the information presented to potential professional investors:

                                          (a)

                                          is sufficient to allow investors to commit to acquiring units or shares of a particular AIF;

                                          (b)

                                          amounts to subscription forms or similar documents whether in a draft or a final form; or

                                          (c)

                                          amounts to constitutional documents, a prospectus or offering documents of a not-yet-established AIF in a final form.

                                    Where a draft prospectus or offering documents are provided, they shall not contain information sufficient to allow investors to take an investment decision and shall clearly state that:

                                          (a)

                                          they do not constitute an offer or an invitation to subscribe to units or shares of an AIF; and

                                          (b)

                                          the information presented therein should not be relied upon because it is incomplete and may be subject to change.

                                    Member States shall ensure that an EU AIFM is not required to notify the competent authorities of the content or of the addressees of pre-marketing, or to fulfil any conditions or requirements other than those set out in this Article, before it engages in pre-marketing.

                              2.   EU AIFMs shall ensure that investors do not acquire units or shares in an AIF through pre-marketing and that investors contacted as part of pre-marketing may only acquire units or shares in that AIF through marketing permitted under Article 31 or 32.
                              Any subscription by professional investors, within 18 months of the EU AIFM having begun pre-marketing, to units or shares of an AIF referred to in the information provided in the context of pre-marketing, or of an AIF established as a result of the pre-marketing, shall be considered to be the result of marketing and shall be subject to the applicable notification procedures referred to in Articles 31 and 32.
                              Member States shall ensure that an EU AIFM sends, within two weeks of it having begun pre-marketing, an informal letter, in paper form or by electronic means, to the competent authorities of its home Member State. That letter shall specify the Member States in which and the periods during which the pre-marketing is taking or has taken place, a brief description of the pre-marketing including information on the investment strategies presented and, where relevant, a list of the AIFs and compartments of AIFs which are or were the subject of pre-marketing. The competent authorities of the home Member State of the EU AIFM shall promptly inform the competent authorities of the Member States in which the EU AIFM is or was engaged in pre-marketing. The competent authorities of the Member State in which pre-marketing is taking or has taken place may request the competent authorities of the home Member State of the EU AIFM to provide further information on the pre-marketing that is taking or has taken place on its territory.

                              3.   A third party shall only engage in pre-marketing on behalf of an authorised EU AIFM where it is authorised as an investment firm in accordance with Directive 2014/65/EU of the European Parliament and of the Council (*2), as a credit institution in accordance with Directive 2013/36/EU of the European Parliament and of the Council (*3), as a UCITS management company in accordance with Directive 2009/65/EC, as an AIFM in accordance with this Directive, or acts as a tied agent in accordance with Directive 2014/65/EU. Such a third party shall be subject to the conditions set out in this Article.

                              4.   An EU AIFM shall ensure that pre-marketing is adequately documented.

                           (*2)  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 Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349)."

                           (*3)  Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).’;"

                        (3)

                        in Article 32(7), the second, third and fourth subparagraphs are replaced by the following:
                        ‘If, pursuant to a planned change, the AIFM's management of the AIF would no longer comply with this Directive or the AIFM would otherwise no longer comply with this Directive, the relevant competent authorities of the home Member State of the AIFM shall inform the AIFM within 15 working days of receipt of all the information referred to in the first subparagraph that it is not to implement the change. In that case, the competent authorities of the home Member State of the AIFM shall notify the competent authorities of the host Member State of the AIFM accordingly.
                        If a planned change is implemented notwithstanding the first and second subparagraphs, or if an unplanned change has taken place pursuant to which the AIFM's management of the AIF would no longer comply with this Directive or the AIFM otherwise would no longer comply with this Directive, the competent authorities of the home Member State of the AIFM shall take all due measures in accordance with Article 46, including, if necessary, the express prohibition of marketing of the AIF and shall notify the competent authorities of the host Member State of the AIFM accordingly without undue delay.
                        If the changes do not affect the compliance of the AIFM's management of the AIF with this Directive, or the compliance by the AIFM with this Directive otherwise, the competent authorities of the home Member State of the AIFM shall within one month inform the competent authorities of the host Member State of the AIFM of those changes.’;

                        (4)

                        the following article is inserted:

                           ‘Article 32a
                           De-notification of arrangements made for the marketing of units or shares of some or all EU AIFs in the Member States other than in the home Member State of the AIFM

                              1.   Member States shall ensure that an EU AIFM may de-notify arrangements made for marketing as regards units or shares of some or all of its AIFs in a Member State in respect of which it has made a notification in accordance with Article 32, where all the following conditions are fulfilled:

                                          (a)

                                          except in the case of closed-ended AIFs and funds regulated by Regulation (EU) 2015/760 of the European Parliament and of the Council (*4), a blanket offer is made to repurchase or redeem, free of any charges or deductions, all such AIF units or shares held by investors in that Member State, is publicly available for at least 30 working days, and is addressed, directly or through financial intermediaries, individually to all investors in that Member State whose identity is known;

                                          (b)

                                          the intention to terminate arrangements made for marketing units or shares of some or all of its AIFs in that Member State is made public by means of a publicly available medium, including by electronic means, which is customary for marketing AIFs and suitable for a typical AIF investor;

                                          (c)

                                          any contractual arrangements with financial intermediaries or delegates are modified or terminated with effect from the date of de-notification in order to prevent any new or further, direct or indirect, offering or placement of the units or shares identified in the notification referred to in paragraph 2.

                                    As of the date referred to in point (c) of the first subparagraph, the AIFM shall cease any new or further, direct or indirect, offering or placement of units or shares of the AIF it manages in the Member State in respect of which it has submitted a notification in accordance with paragraph 2.

                              2.   The AIFM shall submit a notification to the competent authorities of its home Member State containing the information referred to in points (a), (b) and (c) of the first subparagraph of paragraph 1.

                              3.   The competent authorities of the home Member State of the AIFM shall verify whether the notification submitted by the AIFM in accordance with paragraph 2 is complete. The competent authorities of the home Member State of the AIFM shall, no later than 15 working days from the receipt of a complete notification, transmit that notification to the competent authorities of the Member State identified in the notification referred to in paragraph 2, and to ESMA.
                              Upon transmission of the notification pursuant to the first subparagraph, the competent authorities of the home Member State of the AIFM shall promptly notify the AIFM of that transmission.
                              For a period of 36 months from the date referred to in point (c) of the first subparagraph of paragraph 1, the AIFM shall not engage in pre-marketing of units or shares of the EU AIFs referred to in the notification, or in respect of similar investment strategies or investment ideas, in the Member State identified in the notification referred to in paragraph 2.

                              4.   The AIFM shall provide investors who remain invested in the EU AIF as well as the competent authorities of the home Member State of the AIFM with the information required under Articles 22 and 23.

                              5.   The competent authorities of the home Member State of the AIFM shall transmit to the competent authorities of the Member State identified in the notification referred to in paragraph 2, information on any changes to the documentation and information referred to in points (b) to (f) of Annex IV.

                              6.   The competent authorities of the Member State identified in the notification referred to in paragraph 2 of this Article shall have the same rights and obligations as the competent authorities of the host Member State of the AIFM as set out in in Article 45.

                              7.   Without prejudice to other supervisory powers referred to in Article 45(3), as from the date of transmission under paragraph 5 of this Article, the competent authorities of the Member State identified in the notification referred to in paragraph 2 of this Article, shall not require the AIFM concerned to demonstrate compliance with national laws, regulations and administrative provisions governing marketing requirements as referred to in Article 5 of Regulation (EU) 2019/1156 of the European Parliament and of the Council (*5).

                              8.   Member States shall allow for the use of any electronic or other distance communication means for the purposes of paragraph 4.

                           (*4)  Regulation (EU) 2015/760 of the European Parliament and of the Council of 29 April 2015 on European long-term investment funds (OJ L 123, 19.5.2015, p. 98)."

                           (*5)  Regulation (EU) 2019/1156 of the European Parliament and of the Council of 20 June 2019 on facilitating cross-border distribution of collective investment undertakings and amending Regulations (EU) No 345/2013, (EU) No 346/2013 and (EU) No 1286/2014 (OJ L 188, 12.7.2019, p. 55).’;"

                        (5)

                        in Article 33(6), the second and third subparagraphs are replaced by the following:
                        ‘If, pursuant to a planned change, the AIFM's management of the AIF would no longer comply with this Directive or the AIFM would otherwise no longer comply with this Directive, the relevant competent authorities of the home Member State of the AIFM shall inform the AIFM within 15 working days of receipt of all the information referred to in the first subparagraph that it is not to implement the change.
                        If a planned change is implemented notwithstanding the first and second subparagraphs or if an unplanned change has taken place pursuant to which the AIFM's management of the AIF would no longer comply with this Directive or the AIFM otherwise would no longer comply with this Directive, the competent authorities of the home Member State of the AIFM shall take all due measures in accordance with Article 46 and shall notify accordingly the competent authorities of the host Member State of the AIFM without undue delay.’;

                        (6)

                        the following article is inserted:

                           ‘Article 43a
                           Facilities available to retail investors

                              1.   Without prejudice to Article 26 of Regulation (EU) 2015/760, Member States shall ensure that an AIFM makes available, in each Member State where it intends to market units or shares of an AIF to retail investors, facilities to perform the following tasks:

                                          (a)

                                          process investors' subscription, payment, repurchase and redemption orders relating to the units or shares of the AIF, in accordance with the conditions set out in the AIF's documents;

                                          (b)

                                          provide investors with information on how orders referred to in point (a) can be made and how repurchase and redemption proceeds are paid;

                                          (c)

                                          facilitate the handling of information relating to the exercise of investors' rights arising from their investment in the AIF in the Member State where the AIF is marketed;

                                          (d)

                                          make the information and documents required pursuant to Articles 22 and 23 available to investors for the purposes of inspection and obtaining copies thereof;

                                          (e)

                                          provide investors with information relevant to the tasks that the facilities perform in a durable medium as defined in point (m) of Article 2(1) of Directive 2009/65/EC; and

                                          (f)

                                          act as a contact point for communicating with the competent authorities.

                              2.   Member States shall not require an AIFM to have a physical presence in the host Member State or to appoint a third party for the purposes of paragraph 1.

                              3.   The AIFM shall ensure that the facilities to perform the tasks referred to in paragraph 1, including electronically, are provided:

                                          (a)

                                          in the official language or one of the official languages of the Member State where the AIF is marketed or in a language approved by the competent authorities of that Member State;

                                          (b)

                                          by the AIFM itself, by a third party which is subject to regulation and supervision governing the tasks to be performed, or by both.

                                    For the purposes of point (b), where the tasks are to be performed by a third party, the appointment of that third party shall be evidenced by a written contract, which specifies which of the tasks referred to in paragraph 1 are not to be performed by the AIFM and that the third party will receive all the relevant information and documents from the AIFM.’;

                        (7)

                        the following article is inserted:

                           ‘Article 69a
                           Assessment of the passport regime
                           Before the entry into force of the delegated acts referred to in Article 67(6) pursuant to which the rules set out in Article 35 and Articles 37 to 41 become applicable, the Commission shall submit a report to the European Parliament and to the Council, taking into account the result of an assessment of the passport regime provided in this Directive including the extension of that regime to non-EU AIFMs. That report shall be accompanied, where appropriate, by a legislative proposal.’;

                        (8)

                        in Annex IV, the following points are added:

                                    ‘(i)

                                    the details necessary, including the address, for the invoicing or for the communication of any applicable regulatory fees or charges by the competent authorities of the host Member State;

                                    (j)

                                    information on the facilities for performing the tasks referred to in Article 43a.’;

            Article 3
            Transposition

               1.   By 2 August 2021, Member States shall adopt and publish the national laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately inform the Commission thereof.
               They shall apply those provisions from 2 August 2021.
               When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

               2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

            Article 4
            Evaluation
            By 2 August 2024, the Commission shall, on the basis of a public consultation and in light of discussions with ESMA and competent authorities, conduct an evaluation of the application of this Directive. By 2 August 2025, the Commission shall present a report on the application of this Directive.

            Article 5
            Review
            By 2 August 2023, the Commission shall present a report assessing, inter alia, the merits of harmonising the provisions applicable to UCITS management companies testing investor appetite for a particular investment idea or investment strategy, and whether any amendments to Directive 2009/65/EC are needed to that end.

            Article 6
            Entry into force
            This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

            Article 7
            This Directive is addressed to the Member States.

            Done at Brussels, 20 June 2019.

                  For the European Parliament

                  The President

               A. TAJANI

                  For the Council

                  The President

               G. CIAMBA

            (1)  OJ C 367, 10.10.2018, p. 50.

            (2)  Position of the European Parliament of 16 April 2019 (not yet published in the Official Journal) and decision of the Council of 14 June 2019.

            (3)  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) (OJ L 302, 17.11.2009, p. 32).

            (4)  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 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (OJ L 174, 1.7.2011, p. 1).

            (5)  Regulation (EU) 2019/1156 of the European Parliament and of the Council of 20 June 2019 on facilitating cross-border distribution of collective investment undertakings and amending Regulations (EU) No 345/2013, (EU) No 346/2013 and (EU) No 1286/2014 (see page 55 of this Official Journal).

            (6)  OJ C 369, 17.12.2011, p. 14.