52 Amendments of Anne SANDER related to 2017/0359(COD)

Proposal for a regulation
Recital 22

(22) The overall capital requirement under the K-factors is the sum of the requirements of the K-factors under RtC, RtM and RtF. K-AUM, K-ASA, K-CMH, K-COH and K-DTF relate to the volume of activity referred to by each K-factor. The volumes for K-~~CMH, K-ASA,~~AUM, ASA and CMH is calculated on the basis of a rolling average from the previous 12 months. The volumes for K-COH, and K-DTF are calculated on the basis of a rolling average from the previous three months, while for K-AUM it is based on the previous year. The volumes are multiplied by the corresponding coefficients set out in this Regulation in order to determine the capital requirement. The capital requirements for K-NPR is derived from CRR, while the capital requirements for K-CON and K- TCD use a simplified application of the corresponding requirements under CRR for, respectively, the treatment of large exposures in the trading book and of counterparty credit risk. The amount of a K-factor is zero if a firm does not undertake the relevant activity.

2018/06/05
Committee: ECON

Proposal for a regulation
Recital 22

(22) The overall capital requirement under the K-factors is the sum of the requirements of the K-factors under RtC, RtM and RtF. K-AUM, K-ASA, K-CMH~~, K-COH~~ and K-DTF relate to the volume of activity referred to by each K-factor. The volumes for K-CMH, K-ASA, K-COH, and K-DTF are calculated on the basis of a rolling average from the previous three months, while for K-AUM it is based on the previous year. K-OPR is the measurement of operational risk into CRR. The volumes are multiplied by the corresponding coefficients set out in this Regulation in order to determine the capital requirement. The capital requirements for K-NPR is derived from CRR, while the capital requirements for K-CON and K-TCD use a simplified application of the corresponding requirements under CRR for, respectively, the treatment of large exposures in the trading book and of counterparty credit risk. The amount of a K-factor is zero if a firm does not undertake the relevant activity.

2018/06/05
Committee: ECON

Proposal for a regulation
Recital 25

(25) For investment firms which deal on own account, the K-factors for K-TCD and K-CON under RtF constitute a simplified application of CRR rules on counterparty credit risk and large exposure risk, respectively. K-TCD captures the risk to an investment firm of counterparties in over- the-counter (OTC) derivatives, repurchase transactions, securities and commodities lending or borrowing transactions, long- settlement transactions and margin lending transactions failing to fulfil their obligations by multiplying the value of the exposures, based on replacement cost and an add-on for potential future exposure, by risk factors based on Regulation (EU) No 575/2013, accounting for the mitigating effects of effective netting and the exchange of collateral. K-CON captures concentration risk in relation to individual or highly connected private sector counterparties with whom firms have exposures above 25% of their regulatory capital, or specific alternative thresholds in relation to credit institutions or other investment firms, by imposing a capital add-on in line with Regulation (EU) No 575/2013 for excess exposures above these limits. Finally, K-~~DTF~~OPR captures the operational risks to an investment firm in large volumes of trades concluded for its own account or for clients in its own name in one day which could result from inadequate or failed internal processes, people and systems or from external events, based on the notional value of daily trades.

2018/06/05
Committee: ECON

Proposal for a regulation
Article 4 – paragraph 1 – point 31

(31) ‘K-~~DTF’~~OPR' or ‘K-factor in relation to ~~daily trading flow (DTF~~operational risk (OPR)’ means the capital requirement relative to the ~~daily value of transactions that an investment firm enters through dealing on own account or the execution of orders on behalf of clients in its own name~~operational risk that an investment firm is subject to;

2018/06/05
Committee: ECON

Proposal for a regulation
Article 6 – title

Exemptions for investment firms within banking groups

2018/06/05
Committee: ECON

Proposal for a regulation
Article 6 – paragraph 1 – point d – point i

~~(i) the investment firm meets the conditions set out in Article 12(1);~~deleted

2018/06/05
Committee: ECON

Proposal for a regulation
Article 6 a (new)

Article 6a Exemptions for investment firms within investment firms groups Competent authorities may exempt an investment firm from the application of Article 5 in respect of Parts Two to Seven, where all of the following apply: (a) the investment firm is a subsidiary and is included in the k-factor consolidation of a Union parent investment firm, a Union parent investment holding company or a Union parent mixed financial holding company pursuant to Article 8 of this Regulation; (b) both the investment firm and its parent undertaking are subject to authorisation and supervision by the same Member State; (c) own funds are distributed adequately between the parent undertaking and the investment firm and all of the following conditions are satisfied: (i) there is no current or foreseen material practical or legal impediment to the prompt transfer of capital or repayment of liabilities by the parent undertaking; (ii) upon prior approval by the competent authority, the parent undertaking declares that it guarantees the commitments entered into by the investment firm or that the risks in the investment firm are of negligible interest; (iii) the risk evaluation, measurement and control procedures of the parent undertaking include the investment firm; and (iv) the parent undertaking holds more than 50% of the voting rights attached to shares in the capital of the investment firm or has the right to appoint or remove a majority of the members of the investment firm’s management body.

2018/06/05
Committee: ECON

Proposal for a regulation
Article 7

1. A Union parent investment firm, a Union parent investment holding company, a Union parent mixed financial holding company shall hold at least enough own funds to cover the sum of the following: (a) any holdings, subordinated claims and instruments referred to in points (h) and (i) of Article 36(1), points (c) and (d) of Article 56, and points (c) and (d) of Article 66 of Regulation (EU) No 575/2013 in investment firms, financial institutions, ancillary services undertakings and tied agents in the investment firm group; and (b) liability in favour of investment firms, financial institutions, ancillary services undertakings and tied agents. 2. Union parent investment holding company or a Union parent mixed financial holding company to hold a lower amount of own funds than the amount calculated under paragraph 1, provided that this amount is no lower than the sum of the own funds requirements imposed on an individual basis on investment firms, financial institutions, ancillary services undertakings and tied agents in the group, and the total amount of any contingent liabilities in favour of these entities. For the purposes of paragraph 1, where no Union or national prudential legislation applies for any of the entities referred to in paragraph 1, a notional own funds requirement shall apply. 3. Union parent investment holding company, a Union parent mixed financial holding company shall have systems in place to monitor and control the sources of capital and funding of all investment firms, investment holding companies, mixed financial holding companies, financial institutions, ancillary services undertakings and tied agents within theArticle 7 deleted The group capital test the sum of the full book value of the total amount of any contingent Competent authorities may allow a A Union parent investment firm ~~group.~~, a

2018/06/05
Committee: ECON

Proposal for a regulation
Article 8 – paragraph 1 – introductory part

The competent authorities of a Union parent investment firm or the competent authorities determined in accordance with Article 42(2) of Directive (EU)----/--[IFD] ~~may~~shall require a Union parent investment firm, a Union parent investment holding company or a Union parent mixed financial holding company to comply with the requirements set out in Article 15 on the basis of the K-factor consolidated situation ~~where either of the following conditions applies:~~.

2018/06/05
Committee: ECON

Proposal for a regulation
Article 8 – paragraph 1 – point a

(a) there are significant material risks to customers or to market, stemming from the group as a whole which are not fully captured by the capital requirements applicable to the investment firms in the group on an individual basis; ordeleted

2018/06/05
Committee: ECON

Proposal for a regulation
Article 8 – paragraph 1 – point b

(b) for investment firm groups with a high degree of inter-connectedness in terms of risk management, the application of requirements to the investment firm on an individual basis may lead to a duplication of the requirements for those firms.deleted

2018/06/05
Committee: ECON

Proposal for a regulation
Article 12 – paragraph 1 – subparagraph 1 – point e

~~(e) DTF (daily trading flow) calculated in accordance with Article 32 is zero;~~deleted

2018/06/05
Committee: ECON

Proposal for a regulation
Article 13 – paragraph 4 – subparagraph 1

EBA, in consultation with ESMA, and taking into account Commission Delegated Regulation (EU) 2015/488 shall develop draft regulatory technical standards to further specify the calculation of the requirement referred to in paragraph 1. In preparing those draft regulatory technical standards, EBA may consider variable expenses for raw materials as eligible for subtraction.

2018/06/05
Committee: ECON

Proposal for a regulation
Article 15 – paragraph 2 – table 1 – column Coefficient – second row

Client money held K-CMH0 ~~0.45~~1.6%

2018/06/05
Committee: ECON

Proposal for a regulation
Article 15 – paragraph 2 – table 1 – 2 rows “Daily trading flow”

~~Daily~~0,1% deleted cash trades K -DTF ~~trading flow~~0,01% derivatives

2018/06/05
Committee: ECON

Proposal for a regulation
Article 18 – paragraph 1 – subparagraph 1

For the purposes of calculating K-CMH, CMH shall be the rolling average of the value of total daily client money held, measured at the end of each business day for the previous 312 calendar months excluding the 3 most recent monthly measurements.

2018/06/05
Committee: ECON

Proposal for a regulation
Article 18 – paragraph 1 – subparagraph 3

K-CMH shall be calculated ~~by the end of business day following the measurement referred to in the first subparagrap~~within the first 14 days of each calendar month.

2018/06/05
Committee: ECON

Proposal for a regulation
Article 19 – paragraph 1 – subparagraph 1

For the purposes of calculating K-ASA, ASA shall be the rolling average of the value of the total daily assets safeguarded and administered, measured at the ~~end of each~~last business day for the previous 615 calendar months, excluding the 3 most recent calendar months.

2018/06/05
Committee: ECON

Proposal for a regulation
Article 19 – paragraph 1 – subparagraph 2

ASA shall be the average or simple arithmetic mean of the daily measurements from the remaining 312 calendar months.

2018/06/05
Committee: ECON

Proposal for a regulation
Article 24 – paragraph 1 – subparagraph 1

K-TCD +K-~~DTF~~OPR + K-CON

2018/06/05
Committee: ECON

Proposal for a regulation
Article 24 – paragraph 1 – subparagraph 2 – subparagraph 2

~~K-DTF is equal to DTF measured in accordance with Article 32, multiplied by the corresponding coefficient established in Article 15(2) an~~deleted

2018/06/05
Committee: ECON

Proposal for a regulation
Article 24 – paragraph 1 – subparagraph 2 – subparagraph 5

K-DTF shall be based on the transactions recorded in the trading book of an investment firm dealing on own account, whether for itself or on behalf of a client, and the transactions that an investment firm enters into through the execution of ordersOPR is equal to the own funds requirement for operational risk which is the maximum between 15% of the average over three years of the relevant indicator as set out in Article 316 of Regulation (EU) No 575/2013 and own ~~behalf of clients in its own name~~funds requirements from the other K-factors.

2018/06/05
Committee: ECON

Proposal for a regulation
Article 25 – paragraph 1 – point a – point ii

(ii) OTC derivatives cleared through a qualifying central counterparty (QCCP); or through a clearing bank which is clearing member of a QCCP;

2018/06/05
Committee: ECON

Proposal for a regulation
Article 27 – paragraph 1 – subparagraph 1

Exposure value = Max (0; α (RC + PFE ~~- C~~))

2018/06/05
Committee: ECON

Proposal for a regulation
Article 27 – paragraph 1 – subparagraph 2 – subparagraph 1 a (new)

α = 1.4

2018/06/05
Committee: ECON

Proposal for a regulation
Article 27 – paragraph 1 – subparagraph 2 – subparagraph 3

~~C = collateral as determined in Article 30.~~deleted

2018/06/05
Committee: ECON

Proposal for a regulation
Article 27 – paragraph 1 – subparagraph 2 – subparagraph 4

The replacement cost (RC) ~~and collateral (C)~~ shall apply to all transactions referred to in Article 25.

2018/06/05
Committee: ECON

Proposal for a regulation
Part 3 – title 2 – chapter 4 – section 2 – title

~~Daily trading flow~~Operational risk

2018/06/05
Committee: ECON

Proposal for a regulation
Article 32 – title

Measuring ~~DTF~~OPR for the purposes of calculating K-~~DTF~~OPR

2018/06/05
Committee: ECON

Proposal for a regulation
Article 32 – paragraph 1

1. For the purposes of calculating K- DTF, DTF shall be the rolling average of the value of the total daily trading flow, measured at the end of each business day over the previous 6 calendar months, excluding the 3 most recent calendar months. DTF shall be the average or simple arithmetic mean of the daily measurements for the remaining 3 calendar months K-DTF shall be calculated within the first 14 days of each quarter.An investment firm which meets the criteria of Article 12 [small and non- interconnected] of this Regulation shall apply the capital requirement for operational risk using the elementary approach as defined in Articles 315 and 316 of Regulation (EU) No 575/2013. The own funds requirement for operational risk shall be the maximum between 15% of the average over three years of the relevant indicator as set out in Article 316 of Regulation (EU) No 575/2013 and own funds requirements from the other K- factors. K-OPR = MAX (0; OPR EFP – SUM(RTC K-Factors))

2018/06/05
Committee: ECON

Proposal for a regulation
Article 32 – paragraph 2

2. DTF shall be measured as the sum of the absolute value of buys and the absolute value sells for both cash trades and derivatives in accordance with the following: (a) amount paid or received on each trade. (b) trade is the notional amount of the contract.deleted for cash trades, the value is the for derivatives, the value of the

2018/06/05
Committee: ECON

Proposal for a regulation
Article 32 – paragraph 3

3. DTF shall exclude transactions executed by an investment firm providing portfolio management services on behalf of investment funds. DTF shall include transactions executed by an investment firm in its own name either for itself or on behalf of a client.deleted

2018/06/05
Committee: ECON

Proposal for a regulation
Article 32 – paragraph 4

4. Where an investment firm has been in operation for less than 3 months, it may use business projections to calculate K-DTF subject to the following cumulative requirements: (a) becomes available; (b) deleted historical data is used as soon as it the businves~~tment firm submitted in accordance with Article 7 of Directive 2014/65/EU have been positively assessed by the competent authority.~~s projections of the

2018/06/05
Committee: ECON

Proposal for a regulation
Article 40 – paragraph 2 – point d

(d) exposures to recognised exchanges as defined in Article 4(1)(72) of Regulation (EU) 575/2013. , to qualifying central counterparties (QCCP) or to clearing members.

2018/06/05
Committee: ECON

Proposal for a regulation
Article 59 – paragraph 1 – introductory part

1. By [3 years from the date of ~~entry into force~~application of this Regulation], the Commission shall carry out a review the application of the following:

2018/06/05
Committee: ECON

Proposal for a regulation
Article 59 – paragraph 2 a (new)

2a. The Commission shall assess (by implementation date +4 years) the unintended impacts of the modification of this definition related to different European directives and regulations, and, if appropriate, submit legislative proposal to the European Parliament and Council in order to address them.

2018/06/05
Committee: ECON

Proposal for a regulation
Article 60 – paragraph 1 – point 2 – point a

Regulation (EU) No 575/2013
Article 4 – paragraph 1 – point b – point i

(i) the total value of the assets of the undertaking exceeds EUR ~~30 b~~5 billion or the gross revenues stemming from the activities referred to in points (3) and (6) of Section A of Annex I of Directive 2014/65/EU exceeds EUR 500 million, or

2018/06/05
Committee: ECON

Proposal for a regulation
Article 60 – paragraph 1 – point 2 – point a

Regulation (EU) No 575/2013
Article 4 – paragraph 1 – point b – point ii

(ii) the total value of the assets of the undertaking is below EUR ~~30 b~~5 billion and the gross revenues stemming from the activities referred to in points (3) and (6) of Section A of Annex I of Directive 2014/65/EU is below EUR 500 million, and the undertaking is part of a group in which either (a) the combined total value of the consolidated assets of all undertakings in the group ~~that carry out any of the activities referred to in points (3) and (6) of Section A of Annex I of Directive 2014/65/EU and have total assets below EUR 30 billion~~at the highest level of consolidation exceeds EUR 5 billion, or (b) the total gross revenues stemming from the activities referred to in points (3) and (6) of Section A of Annex I of Directive 2014/65/EU of all undertakings in the group that carry out any of these activities and which do not individually meet the criteria in point i) exceeds EUR 3500 bmillion,; or

2018/06/05
Committee: ECON

Proposal for a regulation
Article 60 – paragraph 1 – point 2 – point a

Regulation (EU) No 575/2013
Article 4 – paragraph 1 – point b – point iii

(iii) the total value of the assets of the undertaking is below EUR ~~30 b~~5 billion and the gross revenues stemming from the activities referred to in points (3) and (6) of Section A of Annex I of Directive 2014/65/EU is below 500 million, and the undertaking is part of a group in which either (a) the combined total value of the assets of all undertakings in the group ~~that carry out any of~~at the highest level of consolidation exceeds EUR 5 billion, or (b) the total gross revenues stemming from the activities referred to in points (3) and (6) of Section A of Annex I of Directive 2014/65/EU of all undertakings in the group that carry out any of these activities exceeds EUR 3500 bmillion, where the European consolidating supervisor in consultation with the supervisory college so decides in order to address potential risks of circumvention and potential risks for the financial stability of the Union.

2018/06/05
Committee: ECON

Proposal for a regulation
Article 60 – paragraph 1 – point 12 a (new)

Regulation (EU) No 575/2013
Article 119 – paragraph 5

12a. In Article 119, paragraph 5 is replaced by the following: "5. Exposures to financial institutions authorised and supervised by the competent authorities and subject to prudential requirements comparable to those applied to institutions in terms of robustness shall be treated as exposures to institutions." For the purpose of this paragraph, the prudential requirements defined in Regulation (EU) ---/--- [IFR] shall be considered comparable to those applied to institutions in terms of robustness." Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32013R0575)

2018/06/05
Committee: ECON

Proposal for a regulation
Article 61 – paragraph 1 – point 1 – point -a (new)

Regulation (EU) No 600/2014
Article 46 – paragraph 1

~~"1. A~~(-a) paragraph 1 is replaced by the following: "1. Without prejudice to the provisions of Article 49b, a third-country firm may provide investment services or perform investment activities with or without any ancillary services to eligible counterparties and to professional clients within the meaning of Section I of Annex II to Directive 2014/65/EU established throughout the Union without the establishment of a branch where it is registered in the register of third-country firms kept by ESMA in accordance with Article 47. " Or. en (https://eur-lex.europa.eu/legal- content/EN/TXT/HTML/?uri=CELEX:32014R0600&from=FR)

2018/06/05
Committee: ECON

Proposal for a regulation
Article 61 – paragraph 1 – point 1 – point a a (new)

Regulation (EU) No 600/2014
Article 46 – paragraph 4 a (new)

(aa) the following paragraph is inserted: “4a. The third-country firm shall comply with the obligations laid down in paragraphs 3 and 6 to 10 of Article 16, in Articles 17, 23, 24,25, 27, 28 and 30 of Directive 2014/65/EU and in Articles 14 to 28 of this Regulation and the measures adopted pursuant thereto and shall be subject to the supervision of ESMA. Where the registered third-country firm chooses to establish a branch in the EU, ESMA shall have the right to examine branch arrangements and to request such changes as are needed to enable it to enforce the obligations and measures referred to in the first subparagraph with respect to the services and/or activities provided by the branch in the Union.”

2018/06/05
Committee: ECON

Proposal for a regulation
Article 61 – paragraph 1 – point 1 – point a b (new)

Regulation (EU) No 600/2014
Article 46 – paragraph 5

(ab) paragraph 5 is replaced by the following: "5. Third-country firms providing services in accordance with this Article shall inform clients established in the Union, before the provision of any investment services, that they are not allowed to provide services to clients other than eligible counterparties and professional clients within the meaning of Section I of Annex II to Directive 2014/65/EU and that they are ~~not~~ subject to supervision by ESMA in the Union only as regards the requirements referred to in paragraph 4a. They shall indicate the name and the address of the competent authority ~~responsible for supervision~~which authorised the third- country firm in the third country. The information in the first subparagraph shall be provided in writing and in a prominent way. Member States shall ensure that where an eligible counterparty or professional client within the meaning of Section I of Annex II to Directive 2014/65/EU established or situated in the Union initiates at its own exclusive initiative the provision of an investment service or activity by a third-country firm, this Article does not apply to the provision of that service or activity by the third- country firm to that person including a relationship specifically related to the provision of that service or activity. An initiative by such clients shall not entitle the third-" Or. en (https://eur-lex.europa.eu/legal- count~~ry firm to market new categories of investment product or investment service to that individual. "~~ ent/EN/TXT/HTML/?uri=CELEX:32014R0600&from=FR)

2018/06/05
Committee: ECON

Proposal for a regulation
Article 61 – paragraph 1 – point 1 – point a c (new)

Regulation (EU) No 600/2014
Article 46 – paragraph 6

"6. Third-country firms providing services or performing activities in accordance with this Article shall, before providing any service or performing any activity in relation to a client established in the Un(ac) paragraph 6 is replaced by the following: "6. Any dispute relating to the services or activities provided by a third-country firm in accordance with this Article to a client established in the Union shall be submitted: (i) where the third-country firm has established a branch in the EU, to the jurisdiction, of~~fer to submit any disputes relating to those services or activiti~~ a court or arbitral tribunal in the Member State of establishment of the branch; (ii) in all other cases, to the jurisdiction of a court or arbitral tribunal in athe Member State." where the client is domiciled or established." Or. en (https://eur-lex.europa.eu/legal- content/EN/TXT/HTML/?uri=CELEX:32014R0600&from=FR)

2018/06/05
Committee: ECON

Proposal for a regulation
Article 61 – paragraph 1 – point 2 – point a

Regulation (EU) No 600/2014
Article 47 – paragraph 1 – subparagraph 1 – point a

(a) that firms authorised in that third country comply with legally binding prudential and ~~business conduct~~organisational requirements which have equivalent effect to the requirements set out in this Regulation, in Directive 2013/36/EU, in Regulation (EU) No 575/2013, in Directive (EU) ----/-- [IFD] and in Regulation (EU)--- -/---[IFR] and in Articles 5 to 13, 15, and in paragraphs 2, 4 and 5 of Article 16 of Directive 2014/65/EU and in the corresponding implementing measures adopted under those Regulations and Directives;

2018/06/05
Committee: ECON

Proposal for a regulation
Article 61 – paragraph 1 – point 2 – point a

Regulation (EU) No 600/2014
Article 47 – paragraph 1 – subparagraph 1 – point b

(b) that firms authorised in that third country are subject to effective supervision and enforcement ensuring compliance with the applicable legally binding prudential and ~~business conduct~~organizational requirements; and

2018/06/05
Committee: ECON

Proposal for a regulation
Article 61 – paragraph 1 – point 2 – point a

Regulation (EU) No 600/2014
Article 47 – paragraph 1 – subparagraph 2

Where the services provided and the activities performed by third-country firms in the Union following the adoption of the decision referred to in the first subparagraph are likely to be of systemic importance for the Union, tThe legally binding prudential and ~~business conduct~~organisational requirements referred to in the first subparagraph may only be considered to have equivalent effect to the requirements set out in the acts referred to in that subparagraph after a detailed and granular assessment. For these purposes, the Commission shall also assess and take into account the supervisory convergence between the third country concerned and the Union.

2018/06/05
Committee: ECON

Proposal for a regulation
Article 61 – paragraph 1 – point 2 – point a a (new)

Regulation (EU) No 600/2014
Article 47 – paragraph 1 – subparagraph 2

(aa) the second subparagraph of paragraph 1 is replaced by the following: "The prudential and ~~business conduct~~organisational framework of a third country may be considered to have equivalent effect where that framework fulfils all the following conditions: (a) firms providing investment services and activities in that third country are subject to authorisation and to effective supervision and enforcement on an ongoing basis; (b) firms providing investment services and activities in that third country are subject to sufficient capital requirements and appropriate requirements applicable to shareholders and members of their management body; (c) firms providing investment services and activities are subject to adequate organisational requirements in the area of internal control functions; (d) firms providing investment services and activities are subject to appropriate conduct of business rules; (e) and integrity by preventing market abuse in the form of insider dealing and market manipulation" , outsourcing and security mechanisms;" it ensures market transparency Or. en (https://eur-lex.europa.eu/legal- content/EN/TXT/HTML/?uri=CELEX:32014R0600&from=FR)

2018/06/05
Committee: ECON

Proposal for a regulation
Article 61 – paragraph 1 – point 2 a (new)

Regulation (EU) No 600/2014
Article 48 – paragraph 1

(2a) in Article 48, paragraph 1 is replaced by the following: “ESMA shall keep a register of the third- country firms allowed to provide investment services or perform investment activities in the Union in accordance with Article 46. The register shall be publicly accessible on the website of ESMA and shall contain information on the services or activities which the third-country firms are permitted to provide or perform and the reference of the competent authority responsible for their ~~supervis~~authorization in the third country.” Or. en (https://eur-lex.europa.eu/legal- content/EN/TXT/HTML/?uri=CELEX:32014R0600&from=FR)

2018/06/05
Committee: ECON

Proposal for a regulation
Article 61 – paragraph 1 – point 2 b (new)

Regulation (EU) No 600/2014
Article 49 a (new)

(2b) The following Article is inserted: “Article 49a Provision of services at the exclusive initiative of the client 1. Where an eligible counterparty or professional client within the meaning of Section I of Annex II to Directive 2014/65/EU established or situated in the Union initiates at its own exclusive initiative the provision of an investment service or activity by a third-country firm, Article 46 shall not apply to the provision of that service or activity by the third- country firm to that person including a relationship specifically related to the provision of that service or activity. Where a third-country firm, including through an entity acting on its behalf or having close links with such third-country firm or any other person acting on behalf of such entity, solicits clients or potential clients in the Union or promotes or advertises investment services or activities together with ancillary services in the Union, regardless of the means of communication used, it shall not be deemed as a service provided at the own exclusive initiative of the client. Any contractual clause or disclaimer purporting to state that a third country firm shall be deemed to respond to the exclusive initiative of the client shall be null and void. 2. An initiative by any client referred to in paragraph 1 shall not in itself entitle the third-country firm to market new categories of investment products or investment services to that client. 3. ESMA shall develop draft regulatory technical standards to further specify the conditions for considering that investment products or investment services constitute new categories of investment products or investment services for the purpose of paragraph 2. ESMA shall submit those draft regulatory technical standards to the Commission by [date to be inserted]. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.”

2018/06/05
Committee: ECON