33 Amendments of Werner LANGEN related to 2011/0298(COD)
Amendment 239 #
Proposal for a directive
Recital 14
Recital 14
(14) Persons administering their own assets and undertakings, who do not provide investment services and/or perform investment activities other than dealing on own account should not be covered by the scope of this Directive unless they are market makers , members or participants of a regulated market or MTF or they execute orders from clients by dealing on own account. By way of exception, persons who deal on own account in financial instruments as members or participants of a regulated market or MTF, including as market makers in relation to commodity derivatives, emission allowances, or derivatives thereof, as an ancillary activity to their main business, which on a group basis is neither the provision of investment services within the meaning of this Directive nor of banking services within the meaning of Directive 2006/48/EC, should not be covered by the scope of this Directive. Technical criteria for when an activity is ancillary to such a main business should be clarified in delegated acts. Dealing on own account by executing client orders should include firms executing orders from different clients by matching them on a matched principal basis (back to back trading), which should be regarded as acting as principals and should be subject to the provisions of this Directive covering both the execution of orders on behalf of clients and dealing on own account. The execution of orders in financial instruments as an ancillary activity between two persons whose main business, on a group basis, is neither the provision of investment services within the meaning of this Directive nor of banking services within the meaning of Directive 2006/48/EC should not be considered as dealing on own account by executing client orders.
Amendment 248 #
Proposal for a directive
Recital 22 a (new)
Recital 22 a (new)
(22 a) For a well-functioning internal market in electricity and natural gas, and for the carrying out of the Transmission System Operators' (TSOs) tasks under Directive 2009/72/EC, Directive 2009/73/EC, Regulation (EC) No 714/2009, Regulation (EC) No 715/2009, or network codes and guidelines adopted pursuant to those Regulations, it is necessary that TSOs and their service providers are exempted when issuing transmission rights, in the form of either Physical Transmission Rights or Financial Transmission Rights, and when providing a platform for secondary trading. In order to enable efficient trade in transmission rights it is further necessary to exempt any person when buying or selling those transmission rights.
Amendment 304 #
Proposal for a directive
Recital 53
Recital 53
(53) Investment firms are allowed to provide investment services that only consist of execution and/or the reception and transmission of client orders, without the need to obtain information regarding the knowledge and experience of the client in order to assess the appropriateness of the service or the instrument for the client. Since these services entail a relevant reduction of clients' protections, it is appropriate to improve the conditions for their provision. In particular, it is appropriate to exclude the possibility to provide these services in conjunction with the ancillary service consisting of granting credits or loans to investors to allow them to carry out a transaction in which the investment firm is involved, since this increases the complexity of the transaction and makes more difficult the understanding of the risk involved. It is also appropriate to better define the criteria for the selection of the financial instruments to which these services should relate in order to exclude the financial instruments, including collective investment in transferable securities (UCITS), which embed a derivative or incorporate a structure which makes it difficult for the client to understand the risk involved.
Amendment 352 #
Proposal for a directive
Recital 88
Recital 88
(88) Considering the communiqué of G20 finance ministers and central bank governors of 15 April 2011 on ensuring that participants on commodity derivatives markets should be subject to appropriate regulation and supervision, the exemptions from Directive 2004/39/EC.for various participants active in commodity derivative markets should be modified to ensure that activities by firms, which are not part of a financial group, involving the hedging of production-related and other risks as well as the provision of investment services in commodity or exotic derivatives on an ancillary basis to clients of the main business remain exempt, but that f. It must be taken into account that firms whose main business is producing or supplying commodities and which trade on own account in commodity derivatives as an ancillary activity are already, under sector-specific rules, for example, subject to tailor-made regulatory oversight and to regulatory reporting obligations specifically concerning spot and physical forward transactions by virtue of Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency (REMIT) and are subject to regulatory reporting obligations in respect of standard derivative transactions and regulatory oversight by virtue of Regulation (EU) No .../... (EMIR). Firms specialising in trading commodities and commodity derivatives arshould be brought within this Directive, however.
Amendment 354 #
Proposal for a directive
Recital 88 a (new)
Recital 88 a (new)
(88a) In line with the communiqué of G20 and in order to promote global harmonization and avoid regulatory arbitrage, the definition of derivative financial instrument should more clearly exclude any contract of sale of a commodity for future delivery or deferred shipment as long as the transaction does not have the characteristics of other derivative financial instruments.
Amendment 382 #
Proposal for a directive
Article 2 – paragraph 1 – point d – point ii
Article 2 – paragraph 1 – point d – point ii
(ii) are a member of or a participant in a regulated market or MTF and their activity does constitute high frequency trading; or
Amendment 395 #
Proposal for a directive
Article 2 – paragraph 1 – point d – subparagraph 2
Article 2 – paragraph 1 – point d – subparagraph 2
This exemption does not apply to persons exempt under Article 2(1)(i) who deal on own account in financial instruments as members or participants of a regulated market or MTF, including as market makers in relation to commodity derivatives, emission allowances, or derivatives thereof, to be exempted under any other applicable exemption included in article 2;
Amendment 404 #
Proposal for a directive
Article 2 – paragraph 1 – point i – indent 1 a (new)
Article 2 – paragraph 1 – point i – indent 1 a (new)
– deal on own account in financial instruments by executing orders of their owners and their affiliates in the case of jointly managed undertakings;
Amendment 407 #
Proposal for a directive
Article 2 – paragraph 1 – point i – subparagraph 2
Article 2 – paragraph 1 – point i – subparagraph 2
provided that in all cases this is an ancillary activity to their main business, when considered on a group basis,the basis of either a consolidated or not consolidated group, or to the main business of the owners and their affiliates in case of jointly managed undertakings and that main business is not the provision of investment services within the meaning of this Directive or banking services under Directive 2006/48/EC;
Amendment 415 #
Proposal for a directive
Article 2 – paragraph 1 – point n
Article 2 – paragraph 1 – point n
(n) transmission, distribution, storage and LNG system operators as defined in Article 2(4) and Article 2(6) of Directive 2009/72/EC, or Article 2(4), Article 2(6) or Article 2(9) of Directive 2009/73/EC when carrying out their tasks under those Directives or Regulation (EC) 714/2009 or Regulation (EC) 715/2009 or network codes or guidelines adopted pursuant those Regulations.
Amendment 417 #
Proposal for a directive
Article 2 – paragraph 1 – point n a (new)
Article 2 – paragraph 1 – point n a (new)
(na) non-financial counterparties which are not subject to the clearing obligation under Article 10 of Regulation (EU) No .../... [EMIR].
Amendment 429 #
Proposal for a directive
Article 2 – paragraph 3 – subparagraph 2 – indent 2
Article 2 – paragraph 3 – subparagraph 2 – indent 2
– the capital employed for carrying out the activity or the risk stemming from the activity, in both cases as a proportion of the activities of the group as a whole, with the ancillary activity taking place at least on the markets related to the other activities.
Amendment 434 #
Proposal for a directive
Article 2 – paragraph 3 – subparagraph 2 – indent 2 a (new)
Article 2 – paragraph 3 – subparagraph 2 – indent 2 a (new)
– the activity relates to the management of commodity risks or other risk arising from the commercial business of the group.
Amendment 438 #
Proposal for a directive
Article 2 – paragraph 3 – subparagraph 2 – indent 2 b (new)
Article 2 – paragraph 3 – subparagraph 2 – indent 2 b (new)
– intra-group transactions within the meaning of Article 3 of Regulation (EU) No .../... [EMIR] for purposes of liquidity and/or risk management.
Amendment 439 #
Proposal for a directive
Article 2 – paragraph 3 – subparagraph 2 – indent 2 c (new)
Article 2 – paragraph 3 – subparagraph 2 – indent 2 c (new)
– obligations for market making on regulated markets and MTF.
Amendment 460 #
Proposal for a directive
Article 4 – paragraph 2 – point 6
Article 4 – paragraph 2 – point 6
6) ‘'Market maker’' means a person who holds himself out on the financial markets on a continuous basis as being willing to deal on own account by buying and selling financial instruments against his proprietary capital at prices defined by himbeing present simultaneously on both the bid and the ask side of the market against his proprietary capital at prices defined by him. This definition excludes persons acting as market makers by virtue of obligations or regulatory imposition;
Amendment 465 #
Proposal for a directive
Article 4 – paragraph 2 – point 24
Article 4 – paragraph 2 – point 24
24) ‘Parent undertaking’ means a parent undertaking as defined in Articles 1 and 2 as well as a jointly managed undertaking as defined in Article 32 of Seventh Council Directive 83/349/EEC of 13 June 1983 on consolidated accounts;
Amendment 466 #
Proposal for a directive
Article 4 – paragraph 2 – point 25
Article 4 – paragraph 2 – point 25
25) ‘Subsidiary’ means a subsidiary undertaking as defined in Articles 1 and 2 as well as a jointly managed undertaking as defined in Article 32 of Directive 83/349/EEC, including any subsidiary of a subsidiary undertaking of an ultimate parent undertaking;
Amendment 467 #
Proposal for a directive
Article 4 – paragraph 2 – point 25 a (new)
Article 4 – paragraph 2 – point 25 a (new)
25a) "group basis" covers consolidated and not consolidated groups of companies which provide the ancillary activity for their shareholders and their affiliated companies, when they are engaged in the same commercial activity that is the main business of the group.
Amendment 493 #
Proposal for a directive
Article 4 – paragraph 2 – point 33 a (new)
Article 4 – paragraph 2 – point 33 a (new)
33a) "Activities to reduce risks of the main business" means hedging of production-related, sales-related and other risks.
Amendment 569 #
Proposal for a directive
Article 16 – paragraph 10
Article 16 – paragraph 10
10. An investment firm shall not conclude title transfer collateral arrangements with retail clients for the purpose of securing or covering clients' present or future, actual or contingent or prospective obligations.
Amendment 776 #
Proposal for a directive
Article 24 – paragraph 7
Article 24 – paragraph 7
Amendment 822 #
Proposal for a directive
Article 25 – paragraph 3 – subparagraph 1 – point a – point iv
Article 25 – paragraph 3 – subparagraph 1 – point a – point iv
(iv) shares or units in UCITS excluding structured UCITS as referred to in Article 36 paragraph 1 subparagraph 2 of Commission Regulation 583/2010;
Amendment 861 #
Proposal for a directive
Article 29 – paragraph 2 – subparagraph 2
Article 29 – paragraph 2 – subparagraph 2
Member States shall prohibitmay allow, in accordance with Article 16(6), (8) and (9), tied agents registered in their territory fromto handlinge clients' money and/or financial instruments on behalf of and under the full responsibility of the investment firm of which they are acting within their territory or, in the case of a cross-border operation, in the territory of a Member State which allows a tied agent to handle clients' money, provided that the investment firm, for which the tied agent is acting, is authorised to handle clients' money.
Amendment 992 #
Proposal for a directive
Article 51 – paragraph 1 a (new)
Article 51 – paragraph 1 a (new)
1a. Member States shall require a regulated market to have effective systems, procedures and arrangements in place to ensure that all orders entered into the system by a member or participant are valid for a minimum of 5 seconds. No more than 2 tasks may be entered for the same product during this 5-second period.
Amendment 1091 #
Proposal for a directive
Article 59
Article 59
Amendment 1120 #
Proposal for a directive
Article 59 – paragraph 1 – subparagraph 2
Article 59 – paragraph 1 – subparagraph 2
The limits or arrangements shall be transparent and non-discriminatory, specifying the persons to whom they apply and any exemptions, 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 contracts persons can enter, taking account of the characteristics of the underlying commodity market, including patterns of production, consumption and transportation to market. In particular, they shall differentiate between positions which reduce risks directly related to commercial activities in connection with the commodity and other positions.
Amendment 1126 #
Proposal for a directive
Article 59 – paragraph 1 a (new)
Article 59 – paragraph 1 a (new)
1 a. Commercial firms shall not be subject to position limits for those products that are used for risk management activities or which use results from regulatory compliance obligations.
Amendment 1127 #
Proposal for a directive
Article 59 – paragraph 1 b (new)
Article 59 – paragraph 1 b (new)
1b. Financial instruments of non- financial firms which contribute to risk reduction in an objectively measurable way and are directly linked to the commercial activity or treasury financing activity shall be exempt from limits or alternative arrangements with equivalent effects.
Amendment 1161 #
Proposal for a directive
Article 60 – paragraph 2
Article 60 – paragraph 2
Amendment 1164 #
Proposal for a directive
Article 60 – paragraph 2
Article 60 – paragraph 2
2. In order to enable the publication mentioned in point (a) of paragraph 1, Member States shall require members and participants of regulated markets, MTFs and OMTFs to report to the respective trading venue the details of their positions in real-timeon a daily basis, including any positions held on behalf of their clients.
Amendment 1305 #
Proposal for a directive
Annex 1 – Section C – point 6
Annex 1 – Section C – point 6
6. Options, futures, swaps, and any other derivative contract relating to commodities that can be physically settled provided that they are traded on a regulated market , OTF, or an MTF, are not entered into for commercial purposes and do not display any characteristics of other derivative financial instruments;
Amendment 1314 #
Proposal for a directive
Annex 1 – Section C – point 11 a (new)
Annex 1 – Section C – point 11 a (new)
(11a) For the avoidance of doubts, forward contracts relating to commodities that are concluded over-the-counter and which are physically settled are not defined as a derivative financial instrument.