31 Amendments of Markus FERBER related to 2010/0251(COD)
Amendment 146 #
Proposal for a regulation
Recital 4 a (new)
Recital 4 a (new)
(4a) Short selling contributes to the efficiency of markets. It increases market liquidity (as the short seller sells securities and then later repurchases those securities to cover the short sale). Also, by allowing investors to act when they believe a security is overvalued short selling leads to the more efficient pricing of securities, helps to mitigate price bubbles and can act as an early indicator of underlying problems relating to an issuer. It is also an important tool for hedging and other risk management activities and market making.
Amendment 153 #
Proposal for a regulation
Recital 6
Recital 6
(6) Enhanced transparency relating to significant net short positions in specific financial instruments is likely to be of benefit to both the regulator and to market participants. For shares admitted to trading on a trading venue in the Union, a two-tier model should be introduced that provides for greater transparency of significant net short positions in shares at the appropriate level. At a lowerbove a certain threshold notification of a position should be made privately to the regulators concerned to enable them to monitor and, where necessary, investigate short selling that may create systemic risks or be abusive; at a higher threshold, positions should also be publicly disclosed to the market in order to provide useful information to other market participants about significant individual short selling positions in shares.
Amendment 166 #
Proposal for a regulation
Recital 12
Recital 12
Amendment 180 #
Proposal for a regulation
Recital 16
Recital 16
(16) Uncovered short selling of shares and sovereign debt is sometimes viewed as increasing the potential risk of settlement failure and, volatility and market abuse. To reduce such risks it is appropriate to place proportionate restrictions on uncovered short selling. The detailed restrictions should take into account the different arrangements currently used for covered short selling. It is also appropriate to include requirements on trading venues relating to buy-in procedures and fines for failed settlement of transactions in those instruments. The buy-in procedures and late settlement requirements should set basic standards relating to settlement discipline.
Amendment 187 #
Proposal for a regulation
Recital 16 a (new)
Recital 16 a (new)
(16a) Settlement discipline regimes (buy- ins and penalties) have existed in the Union for many years. The need to harmonise those regimes as well as the wider regimes on settlement cycles led to the creation in 2009 of the Harmonisation of Settlement Cycles Working Group, formed by the Commission and the industry. A sub-group of the Harmonisation of Settlement Cycles Working Group is currently looking at how to harmonise buy-in and penalty regimes in the Union. It is likely that the work of that sub-group will have been finalised in time to inform the Commission's legislative proposal on Central Securities Depositories, in which the detailed functioning of those regimes will be defined.
Amendment 205 #
Proposal for a regulation
Recital 31
Recital 31
(31) This Regulation respects the fundamental rights and observes the principles recognized in particular in the Treaty on the Functioning of the European Union and in the Charter of Fundamental Rights of the European Union, notably the right to the protection of personal data recognized in Article 16 of the Treaty and in Article 8 of the Charter. In particular, transparency regarding significant net short positions, including public disclosure above a certain threshold where provided for under this Regulation, is necessary for reasons of financial market stability and investor protection. Such transparency will enable regulators to monitor the use of short selling in connection with abusive strategies and the implications on the well functioning of the markets. In addition, such transparency may help avoiding information asymmetries, ensuring that all market participants are adequately informed about the extent to which short selling is affecting prices. Any exchange or transmission of information by competent authorities should be in accordance with the rules on the transfer of personal data as laid down in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data17 . Any exchange or transmission of information by ESA(ESMA) should be in accordance with the rules on the transfer of personal data as laid down in Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data18 , which should be fully applicable to the processing of personal data for the purposes of this Regulation.
Amendment 224 #
Proposal for a regulation
Article 2 – paragraph 1 – point s a (new)
Article 2 – paragraph 1 – point s a (new)
(sa) "legal holder" means the shareholder, bondholder or holder of other financial instruments, as defined by the national law under which the relevant securities are constituted.
Amendment 258 #
Proposal for a regulation
Article 4 – paragraph 1
Article 4 – paragraph 1
1. For the purposes of this Regulation, a natural or legal person shall be considered to have an uncovered position in a credit default swap relating to an obligation of a Member State or the Union, to the extent that the credit default swap is not serving to hedge against the risk of default of the issuer where the natural or legal person has a long position inve risk exposure to the sovereign debt of that issuer or any long position in positive risk exposure to the debt of an issuer for which the price of its debt has a high correlation with the price of the obligation of a Member State or the Union. The party under a credit default swap that is obliged to make the payment or pay the compensation in the event of a default or a credit event relating to the reference entity does not by reason of that obligation have an uncovered position for the purposes of this paragraph.
Amendment 265 #
Proposal for a regulation
Article 5 – paragraph 3
Article 5 – paragraph 3
3. The Commission mayIf necessary, ESA (ESMA) may issue and send to the European Parliament, the Council and the Commission an opinion on adjusting the thresholds referred to in paragraph 2, taking into account the developments in financial markets. The Commission may, within three months of receipt of the opinion of ESA (ESMA), by means of delegated acts in accordance with Article 36 and subject to the conditions of Articles 37 and 38, modify the thresholds mentioned in paragraph 2, taking into account the developments in financial markets.
Amendment 269 #
Proposal for a regulation
Article 6
Article 6
Amendment 282 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. A natural or legal person who has a net short position in relation to the issued share capital of a company that has shares admitted to trading on a trading venue shall disclose to theThe relevant competent authority shall publicsh details of the position whenever the position reaches or falls below a relevant publication threshold referred to in paragraph 2.
Amendment 288 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
2. A relevant publication threshold is a percentage that equals 0.53 % of the value of the issued share capital of the company concerned and each 0.,1% above that.
Amendment 292 #
Proposal for a regulation
Article 7 – paragraph 3
Article 7 – paragraph 3
3. The Commission mayIf necessary, ESA (ESMA) may issue and send to the European Parliament, the Council and the Commission an opinion on adjusting the thresholds referred to in paragraph 2, taking into account the developments in financial markets. The Commission may, within three months of receipt of the opinion of ESA (ESMA), by means of delegated acts in accordance with Article 36 and subject to the conditions of Articles 37 and 38, modify the thresholds mentioned in paragraph 2, taking into account the developments in financial markets. .
Amendment 306 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
2. The relevant notification thresholds shall consist of an initial amount and then additional incremental levels in relation to each Member State and the Union, as specified in the measures taken by the Commission in accordance with paragraph 3. The notification thresholds shall be published in a central database.
Amendment 315 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. The relevant time for calculation of a net short position shall be at 12.00 pmthe end of the trading day on which the natural or legal person has the relevant position, except for automated night trades where the reference should be T+1. The notification or disclosure shall be made not later than 3.30 pm on the next trading day.
Amendment 327 #
Proposal for a regulation
Article 12 – title
Article 12 – title
Restrictions on uncovered short sales and credit default swaps
Amendment 335 #
Proposal for a regulation
Article 12 – paragraph 1 – introductory part
Article 12 – paragraph 1 – introductory part
1. A natural or legal person may only enter into a short sale of a share admitted to trading on a trading venue or a short sale of a sovereign debt instrument where one of the following conditions is fulfilled at the end of the trading day:
Amendment 357 #
Proposal for a regulation
Article 12 – paragraph 1 – point c
Article 12 – paragraph 1 – point c
(c) the natural or legal person has an arrangement with a third party under which that third party has confirmed that the share or sovereign debt instrument has been located andor reserved for lending for the natural or legal person so that settlement can be effected when it is due.
Amendment 366 #
Proposal for a regulation
Article 12 – paragraph 2 – subparagraph 4
Article 12 – paragraph 2 – subparagraph 4
ESA (ESMA) shall submit drafts for those implementing technical standards to the Commission by 1 January 2012] at the latest. Furthermore ESA (ESMA) shall develop criteria to determine when a natural or legal person may enter into credit default swap transactions relating to an obligation of a Member State or the Union without having a long position in the sovereign debt of that issuer.
Amendment 377 #
Proposal for a regulation
Article 13 – title
Article 13 – title
Buy-in procedures and fineadministrative sanctions for late settlement
Amendment 378 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
Amendment 383 #
Proposal for a regulation
Article 13 – paragraph 1 – point a
Article 13 – paragraph 1 – point a
(a) where a natural or legal person who sells shares or sovereign debt instruments on the venue is not able to deliver the shares or sovereign debt instrument for settlement within four trading days after the day on which the trade takes place, or six trading days afterand fails to deliver the shares or sovereign debt instrument for settlement by the dayte on which the trade takes place in the case of market making activities, then procedures are automatically triggered for the trading venue or central counterparty to buy-in the shares or sovereign debt instrument to ensure delivery for settlement;settlement is due, a market discipline regime will be applied consisting of a buy-in regime as well as a penalty regime to which such natural or legal person will be subject.
Amendment 393 #
Proposal for a regulation
Article 13 – paragraph 2 – subparagraph 1
Article 13 – paragraph 2 – subparagraph 1
Amendment 399 #
Proposal for a regulation
Article 13 – paragraph 2 – subparagraph 2
Article 13 – paragraph 2 – subparagraph 2
The daily paymentpenalties shall be sufficiently high not to allow the seller to make a profit from the settlement failure and to act as a deterrent to natural or legal persons failing to settle.
Amendment 402 #
Proposal for a regulation
Article 13 – paragraph 3
Article 13 – paragraph 3
3. A trading venue that has shares or sovereign debt admitted to trading shall have in place rullthough settlement discipline is an important component of well-functioning financial markets, the technical details of the settlement discipline regimes tshat enable it to prohibit a natural or legal person that is a member of the trading venull not be included in the scope of this Regulation and shall be defined in the appropriate post-trading legislative fprom entering into further short sales of shares or sovereign debtposal of the Commission taking into account the work done by the Commission and the industruments on the trading venue as long as that person fails to settle a transaction resulting from a short sale on that trading venuey on this matter. The Commission shall therefore make concrete proposals by the end of 2011, in parallel with a proposal to create a harmonised legal framework for central securities depositories.
Amendment 417 #
Proposal for a regulation
Article 15 – paragraph 1 – introductory part
Article 15 – paragraph 1 – introductory part
1. Articles 5, 6, 7, to 8 and 12 shall not apply to the activities of an investment firm or a third country entity or a local firm that is a member of a trading venue or of a market in a third country, whose legal and supervisory framework has been declared equivalent pursuant to paragraph 2, when it deals as principal in a financial instrument, whether traded on or outside a trading venue, in either or bothone or more of the following capacities:
Amendment 426 #
Proposal for a regulation
Article 15 – paragraph 1 – point b
Article 15 – paragraph 1 – point b
(b) as part of its usual business, by fulfilling orders initiated by clients or in response to clients' requests to trade, andor by hedging positions arising out of those dealings.
Amendment 428 #
Proposal for a regulation
Article 15 – paragraph – point b a (new)
Article 15 – paragraph – point b a (new)
(ba) in a way that ordinarily has the effect of providing liquidity on a regular basis to the market on both bid and offer sides of the market of comparable size.
Amendment 513 #
Proposal for a regulation
Article 40 – paragraph 1 – introductory part
Article 40 – paragraph 1 – introductory part
By 30 June 20143, the Commission shall, in light of discussions with the competent authorities and ESA (ESMA), report to the Council and the European Parliament and the Council on:
Amendment 514 #
Proposal for a regulation
Article 40 – paragraph 1 – point a
Article 40 – paragraph 1 – point a
(a) the appropriateness of the reporting and public disclosure thresholds under Articles 5, 7 and 8;
Amendment 515 #
Proposal for a regulation
Article 40 – paragraph 1 – point a a (new)
Article 40 – paragraph 1 – point a a (new)
(aa) the appropriateness of the public disclosure requirement and the disclosure requirement and the disclosure thresholds under Article 7, with a specific view to their impact on the liquidity and volatility of financial markets;