6 Amendments of Daniel BUDA related to 2020/0268(COD)
Amendment 1 #
Proposal for a directive
Recital 1
Recital 1
(1) The Union needs to adequately and comprehensively address digital risks to all financial entities stemming from an increased use of information and communication technology (ICT) in the provision and consumption of financial services, ensuring further support to the potential of digital finance in terms of innovation and competition.
Amendment 2 #
Proposal for a directive
Recital 3
Recital 3
(3) At Union level the requirements related to ICT risk for the financial sector are currently spread over Directives 2006/43/EC,18 2009/66/EC,19 2009/138/EC,20 2011/61/EC,21 EU/2013/36,22 2014/65/EU,23 (EU) 2015/2366,24 (EU) 2016/234125 of the European Parliament and of the Council and are diverse and occasionally incomplete. The existing norms are not fully harmonised and it is necessary to ensure the avoidance of over-regulation and to guarantee the adequacy of the norms with regard to the reality in the field, which is constantly evolving. In some cases, ICT risk has only been implicitly addressed as part of the operational risk, whereas in others it has not been addressed at all. This should be remedied by aligning Regulation (EU) xx/20xx of the European Parliament and of the Council26 [DORA] and those acts. This Directive puts forward a set of amendments that appear necessary to bring legal clarity and consistency in relation to the application by financial entities that are authorised and supervised in accordance with those Directives of various digital operational resilience requirements that are necessary in the pursuit of their activities, thus guaranteeing the smooth functioning of the internal market. _________________ 18 Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing Council Directive 84/253/EEC (OJ L 157, 9.6.2006, p. 87). 19 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). 20Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 335, 17.12.2009, p. 1) . 21Directive 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). 22Directive 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). 23Directive 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). 24Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35). 25 Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 2016 on the activities and supervision of institutions for occupational retirement provision (IORPs) (OJ L 354, 23.12.2016, p. 37). 26 OJ L […], […], p. […].
Amendment 3 #
Proposal for a directive
Recital 6
Recital 6
(6) Currently, the definition of ‘financial instrument’ in Directive 2014/65/EU does not explicitly include financial instruments issued using a class of technologies which support the distributed recording of encrypted data (distributed ledger technology, “DLT”), thus not reflecting the reality of the market . In order to ensure that such financial instruments can be traded on the market under the current legal framework, in order to avoid any potential risk due to non-regulation, the definition in Directive 2014/65/EU should be amended to include them.
Amendment 4 #
Proposal for a directive
Recital 7
Recital 7
(7) In particular, in order to allow for the development of crypto-assets that would qualify as financial instruments and DLT, while preserving a high level of financial stability, market integrity, transparency and investor and consumer protection, it would be beneficial to create a temporary regime for DLT market infrastructures. This temporary legal framework should allow competent authorities to temporarily permit DLT market infrastructures to operate under an alternative set of requirements with regard to access to them compared to those otherwise applicable under the Union financial services legislation that could prevent them from developing solutions for the trading and settlement of transactions of crypto-assets that would qualify as financial instruments. This legal framework should be temporary in order to enable the European Supervisory Authorities (ESAs) and the national competent authorities to gain experience on the opportunities and specific risks created by crypto-assets traded on those infrastructures but should not set any limits on innovation. This Directive is consequently accompanying Regulation [on a pilot regime for market infrastructures based on distributed ledger technology] by supporting this new Union regulatory framework on DLT market infrastructures with a targeted exemption from specific provisions of Union financial services legislation applying to activities and services in relation to financial instruments as defined in point (15) of Article 4(1) of Directive 2014/65/EU that would otherwise not offer the full flexibility required when deploying solutions in the trading and post trading stages of transactions involving crypto- assets.
Amendment 5 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13 a) The regulatory process must take into account the proper balance between, on the one hand, efficient management regarding risk limitation and, on the other hand, the insurance of fair competition in terms of encouraging the development of innovation in the market and protecting all actors involved.
Amendment 10 #
Proposal for a directive
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
Directive 2009/65/EC
Article 12 – paragraph 1 – subparagraph 2 – point a
Article 12 – paragraph 1 – subparagraph 2 – point a
(a) has sound administrative, operational and accounting procedures and control and safeguard arrangements for electronic data processing, including information and communication technology systems that are set up and managed in accordance with Article 6 of Regulation (EU) 2021/xx of the European Parliament and of the Council* [DORA], as well as adequate internal control mechanisms including rules for personal transactions by its employees or for the holding and management of investments in financial instruments in order to invest on its own account and ensuring, at least, that each transaction involving the UCITS may be reconstructed according to its origin, the parties to it, its nature, and the time and place at which it was effected and that the assets of the UCITS managed by the management company are invested according to the fund rules or the instruments of incorporation and the legal provisions in force; (-) Or. en (-)