14 Amendments of Corien WORTMANN-KOOL related to 2011/0298(COD)
Amendment 292 #
Proposal for a directive
Recital 52
Recital 52
(52) In order to give all relevant information to investors, it is appropriate to require investment firms providing investment advice to clarify the basis of the advice they provide, notably the range of products they consider in providing personal recommendations to clients, whether they provide investment advice is provided on an independent basis and whether they investment firms provide the clients with the on-goingperiodic assessment of the suitability of the financial instruments recommended to them. It is also appropriate to require investment firms to explain their clients the reasons of the advice provided to them. In order to further define the regulatory framework for the provision of investment advice, while at the same time leaving choice to investment firms and clients, it is appropriate to establish the conditions for the provisions of this service when firms inform clients that the seradvice is provided on an independent basis. In order to strengthen the protection of investors and increase clarity to clients as to the service they receive, it is appropriate to further restrict the possibility for firms to accept or receive inducements from third parties, and particularly from issuers or product providers, when providing the investment services of investment advice on an independent basis and the service of portfolio management, portfolio management or another investment service whereby the client relies upon the judgement of the investment firm. In such cases, only limited non-monetary benefits such as training on the features of the products or the provision of investment research should be allowed subject to the condition that they do not impair the ability of investment firms to pursue the best interest of their clients, as further clarified in Directive 2006/73/EC.
Amendment 441 #
Proposal for a directive
Article 2 – paragraph 3 a (new)
Article 2 – paragraph 3 a (new)
3 a. 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 capital employed for carrying out the activity and the risk stemming from the activity, both as a proportion to the activities of the group; (c) the activity relates solely to the management of commodity risks or other risks arising from the commercial business of the group.
Amendment 572 #
Proposal for a directive
Article 16 – paragraph 12 a (new)
Article 16 – paragraph 12 a (new)
12a. An investment firm shall have in place a product approval process and shall take all the necessary operational and procedural measures to implement this product approval process. Before investment products and financial instruments are placed or distributed in the market, these products and instruments need approval according to the product approval process. All the relevant risks shall be carefully assessed and products and instruments shall only be placed or distributed when this is in the interests of the targeted group of clients. The product approval process shall be reviewed annually. An investment firm shall at all times be able to provide its Competent Authority an up to date and detailed description of the nature and details of its product approval process.
Amendment 580 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. An investment firm that engages in algorithmic trading shall at least annuallyall times be able to, and at least annually on its own initiative, provide to its home Competent Authority an up to date and detailed description of the nature of its algorithmic trading strategies, details of the trading parameteres or limits to which the system is subject, the key compliance and risk controls that it has in place to ensure the conditions in paragraph 1 are satisfied and details of the testing of its systems. The investment firm shall arrange for records to be kept in relation to the matters above, and shall assure for these to be sufficient to enable the Competent Authority to monitor compliance with the requirements of this Directive, [MiFIR], and [MAR]. A competent authority may at any time request the above and further information from an investment firm about its algorithmic trading and the systems used for that trading.
Amendment 593 #
Proposal for a directive
Article 17 – paragraph 3
Article 17 – paragraph 3
3. An algorithmic trading strategyinvestment firm that takes part in a market making scheme offered by a trading venue shall enter into a binding written agreement between the firm and the trading venue regarding the essential obligations arising from the participation in the market making scheme and shall adhere to the terms and conditions of that scheme, including, but not limited to, liquidity provision under prevailing market conditions. The investment firm shall have in place effective systems and risk controls to ensure that it can fulfill its obligations under the binding written agreement at all times. Any algorithmic trading strategy deployed by an investment firm in order to take part in a market making scheme shall be in continuous operation during the trading hours of the trading venue to which it sends orders or through the systems of which it executes transactions, unless provided otherwise by the provisions of the binding written agreement. The trading parameters or limits of an algorithmic trading strategy shall ensure that the strategy posts firm quotes at competitive prices with the result of providing liquidity on a regular and ongoing basis to these trading venues at all times, regardless offor a minimum proportion of continuous trading hours, taking into account prevailing market conditions, rules and regulations.
Amendment 647 #
Proposal for a directive
Article 20 – paragraph 1
Article 20 – paragraph 1
1. Member States shall require that investment firms and market operators operating an OTFs establish arrangements preventing the execution of client orders in an OTF against the proprietary capital of the investment firm or market operator operating the OTF, except where the proprietary capital is applied to enable the investment firm to fulfil orders initiated by clients, respond to a client's request to trade or otherwise obtain best execution on behalf of its client; or execute a hedge to unwind the risk related to client trades or reflect interests and positions that emanate from risks that it warehouses on the back of client trades. The deployment of proprietary capital in an OTF shall be subject to strict order handling rules to prevent conflicts of interest and the investment firm shall disclose to its clients how its proprietary capital may be applied in the OTF. The investment firm operating an OTF shall not act as a systematic internaliser in an OTF operated by itself. An OTF shall not connect with another OTF in a way which enables orders in different OTFs to interact.
Amendment 725 #
Proposal for a directive
Article 24 – paragraph 5 – introductory part
Article 24 – paragraph 5 – introductory part
5. When the investment firm informs the client that investment advice is provided the firm shall also inform the client whether the financial instruments recommended will be limited to financial instruments issued or provided by entities having close links with the investment firm. When the investment firm informs the client that investment advice is provided on an independent basis, the firm:
Amendment 769 #
Proposal for a directive
Article 24 – paragraph 6
Article 24 – paragraph 6
6. When providing portfolio management, investment advice or another service whereby the client is entitled to rely upon its judgement, the investment firm shall not accept or receive fees, commissions or any monetary benefits paid or provided by any third party or a person acting on behalf of a third party in relation to the provision of the service to clients.
Amendment 989 #
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 in place market making schemes and to ensure that a sufficient number of investment firms take part in such schemes, who will post firm quotes at competitive prices with the result of providing liquidity to the market on a regular and ongoing basis for a minimum proportion of continuous trading hours, taking into account prevailing market conditions, rules and regulations, unless such a requirement is not appropriate to the nature and scale of the trading on that regulated market. Member States shall require a regulated market to enter into a binding written agreement between the regulated market and the investment firm regarding the obligations arising from the participation in such a scheme, including but not limited to liquidity provision. The regulated market shall be responsible for ensuring that the investment firm complies with the requirements of such binding written agreements. The regulated market shall inform its Competent Authority about the content of the binding written agreement and shall satisfy its Competent Authority of its compliance with the requirements in this paragraph. ESMA shall develop guidelines regarding which investment firms are obliged to enter into the binding written agreement referred to in this paragraph.
Amendment 1034 #
Proposal for a directive
Article 51 – paragraph 7 – introductory part
Article 51 – paragraph 7 – introductory part
7. The Commission shall be empowered to adopt delegated acts in accordance with Article 94, and after consultation with ESMA, concerning the requirements laid down in this Article, and in particular:
Amendment 1051 #
Proposal for a directive
Article 51 – paragraph 7 – point e a (new)
Article 51 – paragraph 7 – point e a (new)
(ea) to set out clear conditions under which a regulated market shall ensure that investment firms take part in a market making scheme;
Amendment 1055 #
Proposal for a directive
Article 51 – paragraph 7 – point e b (new)
Article 51 – paragraph 7 – point e b (new)
(eb) to ensure market making schemes are fair and non-discriminatory and to establish minimum market making obligations that regulated markets must adhere to when designing a market making scheme and the conditions under which the requirements to have in place a market making scheme is not appropriate;
Amendment 1220 #
Proposal for a directive
Article 71 – paragraph 2 – point d
Article 71 – paragraph 2 – point d
(d) require existing telephone and existing data traffic records or equivalent records referred to in Article 16(7) held by investment firms where a reasonable suspicion exists that such records related to the subject- matter of the inspection may be relevant to prove a breach by the investment firm of its obligations under this Directive; these records shall however not concern the content of the communication to which they relate;
Amendment 1320 #
Proposal for a directive
Annex 2 – part II – point II.1 – paragraph 6
Annex 2 – part II – point II.1 – paragraph 6
Member States mayshall adopt specific and stringent criteria for the assessment of the expertise and knowledge of municipalities and local public authorities requesting to be treated as professional clients. These criteria can be alternative or additional to the ones listed in the previous paragraph.