39 Amendments of Markus FERBER related to 2011/0298(COD)
Amendment 255 #
Proposal for a directive
Recital 42
Recital 42
(42) Commission Directive 2006/73/EC of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the Council as regards organisational requirements and operating conditions for investment firms and defined terms for the purposes of that Directive allows Member States to require, in the context of organisational requirements for investment firms, the recording of telephone conversations or electronic communications involving client orders. Recording of telephone conversations or electronic communications involving client orders is compatible with the Charter of Fundamental Rights of the European Union and is justified in order to strenghten investor protection, to improve market surveillance and increase legal certainty in the interest of investment firms and their clients. The importance of such records is also mentioned in the technical advice to the European Commission, released by the Committee of European Securities Regulators on 29 July 2010. For these reasons, it is appropriate to provide in this Directive for the principles of a general regime concerning the recording of telephone conversations or electronic communications involving client orders. For communications between retail clients and financial institutions it is appropriate to allow the Member States to recognise instead appropriate written records of such communications for financial institutions established and branches located within their territory.
Amendment 267 #
Proposal for a directive
Recital 47
Recital 47
(47) These potential risks from increased use of technology are best mitigated by a combination of specific risk controls directed at firms who engage in algorithmic or high frequency trading and other measures directed at operators of all trading venues that are accessed by such firms. It is desirable to ensure that all high frequency trading firms be authorised when they are a direct member of a trading venue. This should ensure they are subject to organisational requirements under the Directive and are properly supervised. It is also appropriate to end the practice of sponsored access to avoid the risk that firms with insufficient controls in place create disorderly market conditions and to ensure that market participants can be identified and held accountable for any disorderly conditions for which they are responsible.
Amendment 276 #
Proposal for a directive
Recital 49
Recital 49
(49) In addition to measures relating to algorithmic and high frequency trading it is appropriate to include controls relating to investment firms providing direct electronicmarket access to markets for clients as electronic trading can be carried out via a firm providing electronic market access and many similar risks. It is also appropriate that firms providing direct electronicmarket access ensure that persons using this service are properly qualified and that risk controls are imposed on the use of the service. It is appropriate that detailed organisational requirements regarding these new forms of trading should be prescribed in more detail in delegated acts. This should ensure that requirements may be amended where necessary to deal with further innovation and developments in this area.
Amendment 351 #
Proposal for a directive
Recital 88
Recital 88
Amendment 359 #
Proposal for a directive
Recital 108
Recital 108
(108) Technical standards in financial services should ensure consistent harmonisation and adequate protection of depositors, investors and consumers across the Union. As a body with highly specialised expertise, it would be efficient and appropriate to entrust ESMA, with the elaboration of draft regulatory and implementing technical standards which do not involve policy choices, for submission to the Commission. To ensure consistent investor and consumer protection across financial services sectors, ESMA should carry out its tasks, to the extent possible, in close cooperation with the other two ESAs within the framework of the Joint Committee.
Amendment 374 #
Proposal for a directive
Article 1 – paragraph 3 – introductory part
Article 1 – paragraph 3 – introductory part
3. The following provisions shall also apply to credit institutions authorised under Directive 2006/48/EC, when providing one or more investment services and/or performing investment activities and credit institutions and investment firms when selling or advising clients in relation to deposits other than those with a rate of return which is determined in relation to an interest rate:
Amendment 384 #
Proposal for a directive
Article 2 – paragraph 1 – point d – point ii a (new)
Article 2 – paragraph 1 – point d – point ii a (new)
(iia) engage in algorithmic trading;
Amendment 412 #
Proposal for a directive
Article 2 – paragraph 1 – point i – paragraph 1 – subparagraph 2 a (new)
Article 2 – paragraph 1 – point i – paragraph 1 – subparagraph 2 a (new)
unless they are a member or a participant on a trading venue;
Amendment 442 #
Proposal for a directive
Article 2 – paragraph 3 a (new)
Article 2 – paragraph 3 a (new)
3a. ESMA shall develop draft regulatory technical standards to specify the criteria for determining whether an activity is ancillary to the main business, taking into account at least the following: (a) the extent to which the activity is objectively measurable as reducing risks directly related to the commercial activity or treasury financing activity; (b) the need for ancillary activities to constitute a minority of activities at group level, and at an entity level unless services provided only to other members of the same group; (c) the level of trading undertaken or investment services provided relative to that undertaken by financial institutions undertaking the same activities or providing the same services; (d) the desirability of limiting net credit risk exposures to non-systemically significant levels; (e) the scale of market risk associated with the activity relative to the market risk arising from the main business. ESMA shall submit those draft regulatory technical standards to the Commission by [...]*. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. __________________ *OJ please insert date: 12 months after the entry into force of this Directive
Amendment 476 #
Proposal for a directive
Article 4 – paragraph 2 – point 30 a (new)
Article 4 – paragraph 2 – point 30 a (new)
30a) 'High-frequency trading strategy' means a trading strategy for dealing on own-account in a financial instrument which involves high-frequency trading and has at least four of the following characteristics: (i) it uses co-location facilities or direct market access; (ii) it relates to a daily portfolio turnover of at least 50 %; (iii) the ratio of orders to trades exceeds 4:1; (iv) the proportion of orders cancelled exceeds 20 %; (v) the majority of positions taken are unwound within the same day; (vi) over 50 % of the orders or transactions are made on trading venues offering discounts or rebates to orders which provide liquidity are eligible for such rebates;
Amendment 482 #
Proposal for a directive
Article 4 – paragraph 2 – point 31
Article 4 – paragraph 2 – point 31
Amendment 486 #
Proposal for a directive
Article 4 – paragraph 2 – point 31 a (new)
Article 4 – paragraph 2 – point 31 a (new)
31a) "Direct market access" means an arrangement where a member or participant of a trading venue permits a person to use its trading code so the person can transmit orders electronically to the investment firm's internal electronic trading systems for automatic onward transmission under the investment firm's trading code to a specified trading venue;
Amendment 487 #
Proposal for a directive
Article 4 – paragraph 2 – point 31 b (new)
Article 4 – paragraph 2 – point 31 b (new)
31b) "Sponsored access" means an arrangement where a member or participant of a trading venue permits a person to use its trading code so the person can transmit orders electronically under the investment firm's trading code to a specified trading venue without the orders being routed through the investment firm's internal electronic trading systems;
Amendment 498 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. The Commission shall be empowered to adopt delegated acts in accordance with Article 94 concerning measures to specify some technical elements of or amend the definitions laid down in paragraph 1 of this Article, to adjust them to market developmentsif appropriate, to take into account: (a) technical developments in financial markets; (b) the list of abusive practices referred to in Article 34b(b) of Regulation (EU) No …/… of the European Parliament and of the Council of ... [MAR] in particular with regard to high-frequency trading and including, but not limited to, spoofing, quote stuffing and layering.
Amendment 542 #
Proposal for a directive
Article 9 – paragraph 6 – subparagraph 1 – point c a (new)
Article 9 – paragraph 6 – subparagraph 1 – point c a (new)
(ca) define, approve and oversee the firm's remuneration of sales staff which should be designed to encourage responsible business conduct, fair treatment of consumers and to avoid conflicts of interest. The remuneration structure should be disclosed to customers where appropriate, such as where potential conflicts of interest cannot be managed or avoided;
Amendment 557 #
Proposal for a directive
Article 16 – paragraph 7 – subparagraph 1
Article 16 – paragraph 7 – subparagraph 1
Amendment 602 #
Proposal for a directive
Article 17 – paragraph 4
Article 17 – paragraph 4
4. Investment firms shall not provide sponsored access to a trading venue. An investment firm that provides direct electronicmarket access to a trading venue shall have in place effective systems and controls which ensure a proper assessment and review of the suitability of persons using the service, that persons using the service are prevented from exceeding appropriate pre set trading and credit thresholds, that trading by persons using the service is properly monitored and that appropriate risk controls prevent trading that may create risks to the investment firm itself or that could create or contribute to a disorderly market or be contrary to Regulation (EU) No [MAR] or the rules of the trading venue. The investment firm shall ensure that there is a binding written agreement between the firm and the person regarding the essential rights and obligations arising from the provision of the service and that under the agreement the firm retains responsibility for ensuring trading using that service complies with the requirements of this Directive, the Regulation (EU) No [MAR] and the rules of the trading venue.
Amendment 636 #
Proposal for a directive
Article 19 – paragraph 4
Article 19 – paragraph 4
4. Member States shall require a MTF to comply with the conditions in Articles 51 and 51a and to have in place effective systems, procedures and arrangements to comply with the conditions in Article 51do so.
Amendment 662 #
Proposal for a directive
Article 20 – paragraph 4
Article 20 – paragraph 4
4. Member States shall require that, where OTFs allow for or enable algorithmic trading to take place through their systems, theyOTFs to comply with the conditions of Article 51 and 51a and to have in place effective systems, procedures and arrangements to comply with the conditions of Article 51do so.
Amendment 780 #
Proposal for a directive
Article 24 – paragraph 7 – subparagraph 2
Article 24 – paragraph 7 – subparagraph 2
ESMA, in cooperation with EBA and EIOPA, through the Joint Committee, shall develop by [] at the latest, and update periodically, guidelines for the assessment and the supervision of cross- selling practices indicating, in particular, situations in which cross-selling practices are not compliant with obligations in paragraph 1.
Amendment 928 #
Proposal for a directive
Article 41 – paragraph 1 – point g
Article 41 – paragraph 1 – point g
(g) the firm has requested membership ofbelongs to an investor- compensation scheme authorised or recognised in accordance with Directive 97/9/EC of the European Parliament and of the Council of 3 March 1997 on Investor- Compensation Schemes, at the time of authorisation.
Amendment 951 #
Proposal for a directive
Article 43 – paragraph 1 – subparagraph 1 – point b
Article 43 – paragraph 1 – subparagraph 1 – point b
(b) the competent authority is satisfied that the branch of the third country firm will be able to comply with the provisions under paragraph 32.
Amendment 1000 #
Proposal for a directive
Article 51 – paragraph 2 a (new)
Article 51 – paragraph 2 a (new)
2a. Member States shall require a regulated market to be able to temporarily halt trading if there is a significant price movement in a financial instrument on that market or a related market during a short period and, in exceptional cases, to be able to cancel, vary or correct any transaction. Member States shall require a regulated market to ensure that the parameters for halting trading are calibrated in a way which takes into account the liquidity of different asset classes and sub-classes and is sufficient to avoid significant disruptions to the orderliness of trading. Member States shall ensure that a regulated market reports the parameters for halting trading and any material changes to those parameters to the competent authority which shall in turn report them to ESMA. ESMA shall publish the parameters on its website. Member States shall require that where a regulated market which is material in terms of liquidity [in that instrument] halts trading, in any Member State, other venues on which the instrument is traded are also required to halt trading until trading resumes on the original market.
Amendment 1015 #
Proposal for a directive
Article 51 – paragraph 4 – subparagraph 1
Article 51 – paragraph 4 – subparagraph 1
Member States shall require regulated markets to prohibit members or participants from providing sponsored access. Member States shall require a regulated market that permits direct electronicmarket access to have in place effective systems procedures and arrangements to ensure that members or participants are only permitted to provide such services if they are an authorised investment firm under this Directive, that appropriate criteria are set and applied regarding the suitability of persons to whom such access may be provided and that the member or participant retains responsibility for orders and trades executed using that service.
Amendment 1020 #
Proposal for a directive
Article 51 – paragraph 4 – subparagraph 2
Article 51 – paragraph 4 – subparagraph 2
Member States shall also require that the regulated market set appropriate standards regarding risk controls and thresholds on trading through such access and is able to distinguish and if necessary to stop orders or trading by a person using direct electronicmarket access separately from orders or trading by the member or participant.
Amendment 1044 #
Proposal for a directive
Article 51 – paragraph 7 – point c
Article 51 – paragraph 7 – point c
(c) to set out the maximum and minimum ratio of unexecuted orders to transactions that may be adopted by regulated markets and minimum tick sizes that should be adopted;
Amendment 1046 #
Proposal for a directive
Article 51 – paragraph 7 – point c
Article 51 – paragraph 7 – point c
(c) to set out the maximum and minimum ratio of unexecuted orders to transactions that may be adopted by regulated markets and minimum tick sizes that should be adopted;
Amendment 1049 #
Proposal for a directive
Article 51 – paragraph 7 – point d
Article 51 – paragraph 7 – point d
(d) to establish controls concerning direct electronic accesidentify the circumstances in which it could be appropriate to slow down the flow of orders;
Amendment 1054 #
Proposal for a directive
Article 51 – paragraph 7 – point e a (new)
Article 51 – paragraph 7 – point e a (new)
(ea) to determine where a regulated market is material in terms of liquidity [in that instrument];
Amendment 1059 #
Proposal for a directive
Article 51 a (new)
Article 51 a (new)
Article 51 a Tick sizes 1. Member States shall require regulated markets to adopt tick size regimes in shares, depositary receipts, exchange- traded funds, certificates and other similar financial instruments. 2. The tick size regimes referred to in the paragraph 1 shall: a) be calibrated to reflect the liquidity profile of the financial instrument and the average bid-ask spread, taking into account the desirability of enabling reasonably stable prices without unduly constraining further narrowing of spreads; b) adapt the tick size for each financial instrument appropriately to the price as well as absolute tick size. 3. ESMA shall develop draft regulatory technical standards to specify minimum tick sizes or tick size regimes for specific financial instruments where this is necessary to ensure the orderly functioning of markets, in accordance with the factors in paragraph 2. ESMA shall submit those draft regulatory technical standards to the Commission by […]*. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No. 1095/2010. __________________ * OJ please insert date: 12 months after entry into force of this Directive
Amendment 1099 #
Proposal for a directive
Article 59 – paragraph 1 – subparagraph 1 – introductory part
Article 59 – paragraph 1 – subparagraph 1 – introductory part
Member States shall ensure that regulated markets, operators of MTFs and OTFs which admit to trading or trade commodity derivatives apply limits on the number of contracts which any given market members or participants can enter into over a specified period of time, or alternative arrangements with equivalent effect such as position management with automatic review thresholds , to be imposedcarry out position checks in order to:
Amendment 1117 #
Proposal for a directive
Article 59 – paragraph 1 – subparagraph 2
Article 59 – paragraph 1 – subparagraph 2
The limits or arrangements shall beposition checks shall be carried out in a transparent and non-discriminatory way, specifying the persons to whom they apply and any exemptions, particularly in the case of commodity derivatives, which reduce risks in an objectively measurable way, and taking account of the nature and composition of market participants and of the use they make of the contracts admitted to trading. They shall specify clear quantitative thresholds such as the maximum number of contractset position persons can enter, taking account of the characteristics of the underlying commodity market, including patterns of production, consumption and transportation to market.
Amendment 1124 #
Proposal for a directive
Article 59 – paragraph 1 a (new)
Article 59 – paragraph 1 a (new)
Amendment 1135 #
Proposal for a directive
Article 59 – paragraph 3
Article 59 – paragraph 3
3. The Commission shall be empowered to adopt delegated acts in accordance with Article 94 to determine the limits or alternative arrangements on the number of contracts which any person can enter into over a specified period of time and the necessary equivalent effects of the alternative arrangements established in accordance with paragraph 1, as well as the conditions for exemptions. The limits or alternative arrangementsESMA shall draft regulatory technical standards to determine the position check in accordance with paragraph 1, in particular the limits on the net position which any person can enter into over a specified period of time as well as the conditions for exemptions, particularly for commodity derivatives which reduce risks in an objectively measurable way. The position check shall take account of the conditions referred to in paragraph 1 and the limitrules that have been set by regulated markets, MTFs and OTFs. The limits or alternative arrangements determined in the delegated actAfter conducting an open public consultation, ESMA shall submit those draft regulatory technical standards, to the Commission by […]*. Power shall be delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. The position check determined in the regulatory technical standards shall also take precedence over any measures imposed by competent authorities pursuant to Article 72(1) paragraph (g) of this Directive. ____________________ *OJ: please insert date: 12 months after the entry into force of this Directive
Amendment 1215 #
Proposal for a directive
Article 71 – paragraph 2 – point b
Article 71 – paragraph 2 – point b
(b) demandrequire the provision of information from any person and if necessary to summon and question a person with a view to obtaining information;
Amendment 1223 #
Proposal for a directive
Article 71 – paragraph 2 – point i
Article 71 – paragraph 2 – point i
(i) demandrequire the provision of information including all relevant documentation from any person regarding the size and purpose of a position or exposure entered into via a commodity derivative, and any assets or liabilities in the underlying market.
Amendment 1226 #
Proposal for a directive
Article 72 – paragraph 1 – point b
Article 72 – paragraph 1 – point b
(b) requestire the freezing and/or the sequestration of assets;
Amendment 1237 #
Proposal for a directive
Article 75 – paragraph 1 – point r
Article 75 – paragraph 1 – point r
(r) a regulated market or a market operator failing to have in place systems, procedures, arrangements and rules or failing to grant access to data in accordance with national rules implementing Article 51 or failing to implement the tick size regime required under Article 51a;
Amendment 1276 #
Proposal for a directive
Article 91 a (new)
Article 91 a (new)
Article 91a ESMA advisory committee on high- frequency trading By 30 June 2014, ESMA shall set up an advisory committee of national experts to determine developments of high- frequency trading that could potentially constitute market manipulation with a view to: (a) increasing ESMA's knowledge about high-frequency trading; and (b) providing a list of abusive practices with regard to high-frequency trading, including spoofing, quote stuffing and layering, for the purpose of Article 5(1a) of Regulation (EU) No .../2012 of the European Parliament and of the Council of ... [MAR].