41 Amendments of Fulvio MARTUSCIELLO related to 2013/0314(COD)
Amendment 259 #
Proposal for a regulation
Recital 27
Recital 27
(27) Many benchmarks are determined fromby the application of a formula calculated using input data that is provided by regulated venues, approved publication arrangements or reporting mechanisms, energy exchanges andor emission allowance auctions. TIn these venues are subject tocases, existing regulation and supervision that ensures the integrity and transparency of the input data, and provides for governance requirements and procedures for the notification of breacheinfringements. Therefore these benchmarks are released from certain obligations in order to avoid dual regulation and because their supervision ensures the integrity of the input data used, which are subject to less independent verification, are less vulnerable and less susceptible to manipulation, and are accordingly released from certain obligations. Notwithstanding the above, independent index providers regularly obtain input data from third party data aggregators and data collectors of transactional data and stock prices which might not necessarily qualify as an APA, ARM or CTP under MiFID II. The use of such data should not prevent the resulting benchmarks from qualifying as regulated data benchmarks merely due to the technical classification of the party aggregating the data. For the avoidance of doubt, input data refers only to inbound pricing data, as opposed to any other element of the administrator's methodology or proprietary data or intellectual property of the administrator.
Amendment 283 #
Proposal for a regulation
Recital 44
Recital 44
(44) Taking into consideration the principles set out in the Commission's communication on reinforcing sanctioning regimes in the financial services sector and legal acts of the Union adopted as a follow- up to that Communication, Member States should lay down rules on penalties and administrative measures applicable to persistent or non-remediated intentional infringements of the provisions of this Regulation and should ensure that they are implemented. Those penalties and administrative measures should be effective, proportionate and dissuasive.
Amendment 284 #
Proposal for a regulation
Recital 45
Recital 45
(45) Therefore, a set of administrative measures, sanctions and fines should be provided for to ensure a common approach in Member States and to enhance their deterrent effect. Sanctions applied in specific cases should be determined taking into account where appropriate factors such as the presence or absence of intent, the repayment of any identified financial benefit, the gravity and duration of the breachinfringement, any aggravating or mitigating factors, the need for fines to have a deterrent effect and, where appropriate, include a reduction in return for cooperation with the competent authority. In particular, the actual amount of administrative fines to be imposed in a specific case may reach the maximum level provided for in this Regulation, or the higher level provided for in national law, for very serious breaches, while fines significantly lower than the maximum level may be applied to minor breaches or in case of settlement. The possibility to impose a temporary ban to exercise management functions within benchmark administrators or contributors should be available to the competent authority. This Regulation should not limit Member States in their ability to provide for higher levels of administrative sanctions.
Amendment 290 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
This Regulation introduces a common framework to ensure the accuracquality and integrity of indices used as benchmarks in financial instruments and financial contracts in the Union. The Regulation thereby contributes to the proper functioning of the internal market while achieving a high level of consumer and investor protection.
Amendment 331 #
Proposal for a regulation
Article 3 – paragraph 1 – point 7
Article 3 – paragraph 1 – point 7
(7) ‘contributor’ means a natural or legal person contributing input data; that is not regulated data or transaction data.
Amendment 332 #
Proposal for a regulation
Article 3 – paragraph 1 – point 10
Article 3 – paragraph 1 – point 10
(10) ‘'input data’' means the data in respect of the value of one or more underlying assets, or pricprices or values, including estimated prices, quotes or other values, of one or more underlying assets, used by the administrator to determine the benchmark;
Amendment 334 #
Proposal for a regulation
Article 3 – paragraph 1 – point 11
Article 3 – paragraph 1 – point 11
(11) ‘regulated data’ means the following: i) input data that is contributed dentirectly from: (a) a trading venue as defined in point (254) of paragraph 1 of Article 24 of [MIFIR] orDirective 2014/65/EU; or (b) an approved publication arrangement as defined in point (1852) of paragraph 1 of Article 24 of [MIFIR ] or an approved reporting arrangementDirective 2014/65/EU or a consolidated tape provider as defined in point (53) of paragraph 1 of Article 4 of Directive 2014/65/EU, in accordance with mandatory post-trade transparency requirements, but only with reference to data of transactions concerning financial instruments that are traded on a trading venue; or (c) an approved reporting mechanism as defined in point (2054) of paragraph 1 of Article 2 of [MIFIR]4 of Directive 2014/65/EU, but only with reference to data of transactions concerning financial instruments that are traded on a trading venue and that must be disclosed in accordance with mandatory post -trade datatransparency requirements; or (d) an electricity exchange as referred to in point (j) of paragraph 1 of Article 37 of Directive 2009/72/EC19; or (e) a natural gas exchange as referred to in point (j) of paragraph 1 of Article 41 of Directive 2009/73/EC20 or (f) an auction platform referred to in Article 26 or in Article 30 of Regulation (EU) No 1031/2010 of the European Parliament and of the Council; or (g) data from Union or third country governments or other competent authorities; or (h) a third-country trading venue, platform, exchange, publication arrangement or reporting mechanism determined to be equivalent by the Commission to those specified in paragraphs (a) to (g) above or any other entity such as transactional data aggregators and transactional data collectors whose contribution of input data is already subject to appropriate supervision; ii) net asset values of the units of undertakings for collective investment in transferable securities (UCITS) as defined in Article 1(2) of Directive 2009/65/EU; __________________ 19 OJ L 211, 14.8.2009, p. 55. 19 20 OJ L 9, 14.8.2009, p. 112.
Amendment 350 #
Proposal for a regulation
Article 3 – paragraph 1 – point 21
Article 3 – paragraph 1 – point 21
(21) ‘'critical benchmark’' means a benchmark, the majority of contributors to which are supervised entities and that reference financial instrument(i) an interbank interest rate benchmark, , and (ii) any other benchmark (excluding regulated-data benchmarks) designated by the Commission that (a) is referencing the amount payable under at least one financial instrument or one financial contract, of more than [x] in value, (b) is considered by the Commission as important for the proper functioning of markets, and (c) presents conflicts of interest due to (x) the administrator's ownership or control or due to other interests in its group or as a result of other persons that may exercise influence or control over the administrator in relation to setting the benchmark, or due to (y) the fact that the input data consists mainly of a limited number of estimates thaving a notional value of at least 500 billion euro;t are not regulated data, transaction data, data derived from transaction data, or factual data, and the majority of contributors are supervised entities. A benchmark based on regulated data shall not be considered a critical benchmark.
Amendment 365 #
Proposal for a regulation
Article 5 – paragraph 3 a (new)
Article 5 – paragraph 3 a (new)
3a.For the purpose of Article 5a, the shareholders of an administrator that happen to contribute or use benchmarks administered by such administrator are not considered as owning or controlling the administrator if such ownership is completely independent and unrelated to their contribution or use of such benchmarks.
Amendment 378 #
Proposal for a regulation
Article 7 – paragraph 1 – subparagraph 1 – introductory part
Article 7 – paragraph 1 – subparagraph 1 – introductory part
The provision of a benchmark shall be governed by the following requirements in respect of its input data and methodology:
Amendment 381 #
Proposal for a regulation
Article 7 – paragraph 1 – subparagraph 1 – point a – paragraph 2
Article 7 – paragraph 1 – subparagraph 1 – point a – paragraph 2
The input data shall be transaction data. If available or, where appropriate, non-transaction based data, is not sufficient to represenncluding committed quotes and verifiable estimates provided that it accurately and reliably represents the market or economic reality that the benchmark is intended to measure, input data which is not transaction data may be used provided that such data is verifiable.
Amendment 386 #
Proposal for a regulation
Article 7 – paragraph 1 – subparagraph 1 – point b
Article 7 – paragraph 1 – subparagraph 1 – point b
(b) The administrator shall obtain the input data from a reliable and representative panel or sample of contributors so as to ensure that the resultant benchmark is reliable and representative of the market or economic reality that the benchmark is intended to measure (‘Representative contributors’).
Amendment 388 #
Proposal for a regulation
Article 7 – paragraph 1 – subparagraph 1 – point c
Article 7 – paragraph 1 – subparagraph 1 – point c
(c) Where the input data of a critical benchmark is not transaction data and a contributor is a party to more than 50% of value of transactions in the market which that the benchmark intends to measure, the administrator shall verify where possible that the input data represents a market subject to competitive supply and demand forces. Where the administrator finds that the input data does not represent a market subject to competitive supply and demand forces, it shall either change the input data, the contributors or the methodology to ensure that the input data represents a market subject to competitive supply and demand forces, or cease to provide that benchmark (‘Market impact’). Any change referred to in this paragraph shall not be intended as a breach of any financial contract or financial instrument which references that benchmark.
Amendment 393 #
Proposal for a regulation
Article 7 – paragraph 1 – subparagraph 1 – point d
Article 7 – paragraph 1 – subparagraph 1 – point d
(d) The administrator shallould, as appropriate, use a methodology for the determination of the benchmark that is robust and reliable and that has clear rules identifying how and when discretion may be exercised in the determination of that benchmark (‘Robust and reliable methodology’).
Amendment 394 #
Proposal for a regulation
Article 7 – paragraph 1 – subparagraph 1 – point e
Article 7 – paragraph 1 – subparagraph 1 – point e
Amendment 404 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
1. TWhere a benchmark is based on input data from contributors, the administrator shall adoptdraw up a code of conduct for each benchmark, family of benchmarks or across families of benchmarks, clearly specifying the administrator's and contributors' responsibilities and obligations with respect to the provision of the benchmark which shall include a clear descripcontribution of the input data to be provided, and at least the elements set out in Section D of Annex I.
Amendment 457 #
Proposal for a regulation
Article 14 – paragraph 1 – introductory part
Article 14 – paragraph 1 – introductory part
1. Where contributors, comprising at least 20% of thIf one or more contributors to a critical benchmark haveintend to ceased contributing, or there are sufficient indications that at least 20% of the contributors are likely to cease contributing, in any year, the competent authority input data, they shall promptly notify the benchmark administration in writing, which shall inform ESMA without delay and submit to it an assessment of the implications of the capability of the benchmark to measure the underlying market or economic reality. In case ESA considers that the representativeness ofr the administratorcontinuity of a critical benchmark is put at risk, it, shall have the power to:
Amendment 461 #
Proposal for a regulation
Article 14 – paragraph 1 – point a
Article 14 – paragraph 1 – point a
(a) require supervised entities, selected in accordance with paragraphs 2, to contribute input data to the administrator in accordance with the methodology, code of conduct or other rules;
Amendment 462 #
Proposal for a regulation
Article 14 – paragraph 1 – point a a (new)
Article 14 – paragraph 1 – point a a (new)
(aa) require supervised entities which are not already contributors to the relevant critical benchmark, selected in accordance with paragraph 2, to contribute input data to the administrator in accordance with the methodology, code of conduct or other rules;
Amendment 465 #
Proposal for a regulation
Article 14 – paragraph 1 – point b
Article 14 – paragraph 1 – point b
(b) determine the form in which, and the time by which, any input data is to be contributed, without incurring an obligation to either trade or commit trade;
Amendment 467 #
Proposal for a regulation
Article 14 – paragraph 1 – point c
Article 14 – paragraph 1 – point c
(c) change the code of conduct, methodology or other rules of the critical benchmark; contributors which notified their intention to cease contributing input data shall continue contributing input data until ESMA has finished its assessment.
Amendment 474 #
Proposal for a regulation
Article 14 – paragraph 2 – introductory part
Article 14 – paragraph 2 – introductory part
2. For a critical benchmark, tThe supervised entities that are required to contribute in accordance with paragraph 1 point a a (new) shall be determined by the competent authority of the administratorESMA on the basis of the following criteria:
Amendment 479 #
Proposal for a regulation
Article 14 – paragraph 2 – point b
Article 14 – paragraph 2 – point b
(b) the supervised entity's expertise and ability to provide input data of the necessary quality. New contributors which are required to contribute input data in accordance with paragraph 1 point a a (new) shall have a period of time of at least 1 year to set up the necessary arrangements to make such contribution.
Amendment 481 #
Proposal for a regulation
Article 14 – paragraph 3
Article 14 – paragraph 3
3. The competent authority of a supervised contributor that has been required to contribute to a benchmark through measures taken in accordance with points (a) and (b) of paragraph 1 shall assist the competent authority of the administratoraragraph 1 shall support ESMA in the enforcement of such measures.
Amendment 489 #
Proposal for a regulation
Article 14 – paragraph 4 – introductory part
Article 14 – paragraph 4 – introductory part
4. The competent authority of the administrator shESMA shall annually review each measure adopted under paragraph 1 one year following its adoption. It shall revoke it if:
Amendment 490 #
Proposal for a regulation
Article 14 – paragraph 4 – point a – introductory part
Article 14 – paragraph 4 – point a – introductory part
Amendment 491 #
Proposal for a regulation
Article 14 – paragraph 4 – point a – point 1
Article 14 – paragraph 4 – point a – point 1
Amendment 492 #
Proposal for a regulation
Article 14 – paragraph 4 – point a – point 2
Article 14 – paragraph 4 – point a – point 2
(2) a written report by the administrator to the competent authority providing evidence for its assessment that the criticala) judges that the benchmark's continued viability can be assured once mandatory participation has been revoked which shall be evidenced by a written report provided by the administrator.
Amendment 493 #
Proposal for a regulation
Article 14 – paragraph 4 – point b
Article 14 – paragraph 4 – point b
(b) judges that an acceptable substitute benchmark is available and users of the critical benchmark can switch to this substitute at minimal costs which shall be evidenced by at least a written report by the administrator detailing the means of transition to a substitute benchmark and the ability and costs to users of transferring to this benchmark.
Amendment 498 #
Proposal for a regulation
Article 14 – paragraph 5
Article 14 – paragraph 5
5. The administrator shall notify the relevant competent authorityESMA in the event that any contributors breach the requirements of paragraph 1 of this Article as soon as is technically possible.
Amendment 542 #
Proposal for a regulation
Article 20 – paragraph 1 – introductory part
Article 20 – paragraph 1 – introductory part
1. Benchmarks provided by an administrator establishlocated in a third country may be used by supervised entities in the Union provided that the following conditions are complied withmet, unless Article 21a applies:
Amendment 550 #
Proposal for a regulation
Article 20 – paragraph 1 – subparagraph 1a (new)
Article 20 – paragraph 1 – subparagraph 1a (new)
or provided that (i) a functionally independent auditor has confirmed that the administrator complies with the IOSCO principles or equivalent international standards in respect of the relevant benchmarks; (ii) the administrator has notified ESMA that it consents to its benchmarks being used by supervised entities in the Union and of the list of the benchmarks which may be used in the Union; and (iii) that the relevant benchmarks are duly registered under Article 25a.
Amendment 619 #
Proposal for a regulation
Article 25 – paragraph 2
Article 25 – paragraph 2
2. Within 10 working days of any notification ESMA shall notify the relevant administrator of the benchmark providing full details of its use and requesting the administrator to confirm that it consents to this use of the benchmark within 10 working days.The register shall be updated within 10 days of ESMA receiving updated information
Amendment 649 #
Proposal for a regulation
Article 31 – paragraph 1 – introductory part
Article 31 – paragraph 1 – introductory part
1. Without prejudice to the supervisory powers of competent authorities in accordance with Article 34, Member States shall, in conformity with national law, provide for competent authorities to have the power to take appropriate administrative measures and impose proportionate administrative measures and sanctions which will distinguish critical and non-critical benchmarks providers, at least for:
Amendment 653 #
Proposal for a regulation
Article 31 – paragraph 1 – point a
Article 31 – paragraph 1 – point a
(a) the breaches of Articles 5(1), 6, 7(1)persistent or non-remediated intentional infringements of Articles 5, 5a, 5b, 5c, 5d, 6, 7, 7a, 7b, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19, 22 and 237, 19,23, 23a and of Annex I of this Regulation; and
Amendment 655 #
Proposal for a regulation
Article 31 – paragraph 2 – introductory part
Article 31 – paragraph 2 – introductory part
2. In case of a breachthe event of an infringement referred to in paragraph 1, Member States shall, in conformity with national law, confer on competent authorities the power to apply at least the following administrative measures and sanctions:
Amendment 666 #
Proposal for a regulation
Article 31 a (new)
Article 31 a (new)
Article 31a The Commission shall be empowered to adopt delegated acts in accordance with Article 37 with a view to specifying further the circumstances in which an administrative measure or sanction is proportionate for the purposes of paragraph 1.
Amendment 667 #
Proposal for a regulation
Article 32 – paragraph 1 – introductory part
Article 32 – paragraph 1 – introductory part
1. Member States shall ensure that, when determining the type and level, level and proportionality of administrative sanctions, competent authorities take into account all relevant circumstances, including where appropriate:
Amendment 668 #
Proposal for a regulation
Article 32 – paragraph 1 – point a
Article 32 – paragraph 1 – point a
(a) the gravity and duration of the breachinfringement;
Amendment 669 #
Proposal for a regulation
Article 32 – paragraph 1 – point a a (new)
Article 32 – paragraph 1 – point a a (new)
(aa) whether the benchmark is critical or not;
Amendment 670 #
Proposal for a regulation
Article 32 – paragraph 1 – point b
Article 32 – paragraph 1 – point b
(b) the presence or absence of intent and the degree of responsibility of the responsible person;