47 Amendments of Jean-Paul GAUZÈS related to 2013/0314(COD)
Amendment 177 #
Proposal for a regulation
Recital 30
Recital 30
(30) The failure of certain critical benchmarks may have a significant impact on financial stability, market orderliness or investors and it is therefore necessary that additional requirements apply to ensure the integrity and robustness of these critical benchmarks. Where a benchmark references a significant value of financial instruments it will have such an impact. It is therefore necessary that the Commission determines those benchmarks that reference financial instruments above a certain threshold andESMA, in close cooperation with the ECB, EBA, and EIOPA, determines those benchmarks in accordance with defined criteria that should be considered critical benchmarks.
Amendment 181 #
Proposal for a regulation
Recital 31
Recital 31
(31) Contributors ceasing to contribute may undermine the credibility of critical benchmarks. In order to address this vulnerability, it is therefore necessary to include a power for the relevantESMA, in close comopetent authorityration with the ECB, EBA, and EIOPA when applicable, to require mandatory contributions to critical benchmarks.
Amendment 186 #
Proposal for a regulation
Recital 34
Recital 34
(34) This Regulation should take into account the Principles for financial benchmarks issued by the International Organization of Securities Commissions (IOSCO) (hereinafter referred to as ‘'IOSCO Principles’') on the 17 July 2013 which serve as a global standard for regulatory requirements for benchmarks. It is necessary for investor protection that, after an appropriate transitional period, an assessment that the supervisions and regulation in any third country are equivalent to Union supervision and regulation of benchmarks takes place before any benchmark provided from that third country can be used in the Union. It is also necessary that any decision recognising the legal framework and supervisory practices of a third country as equivalent to the demands of this Regulation be accompanied by a mutual recognition requirement.
Amendment 195 #
Proposal for a regulation
Recital 39
Recital 39
(39) Existing recordings of telephone conversations and data traffic records from supervised entities may constitute crucial, and sometimes the only evidence to detect and prove the existence of breaches of this Regulation, notably the compliance with governance and control requirements. Such records and recordings can help to verify the identity of the person responsible for the submission, those responsible for its approval, and whether physical separation of employees is maintained. Therefore, competent authorities should be able to require existing recordings of telephone conversations, electronic communications and data traffic records held by supervised entities, in those cases where a reasonable suspicion exists that such recordings or records related to the subject-matter of the inspection or investigation may be relevant to prove a breach of this Regulation.
Amendment 198 #
Proposal for a regulation
Recital 47
Recital 47
(47) Critical benchmarks may involve contributors, administrators and users in more than one Member State. Thus, the cessation of the provision of such a benchmark or any events that may significantly undermine its integrity may have an impact in more than one Member State meaning that the supervision of such a benchmark by the competent authority of the Member State in which it is located alone will not be efficient and effective in terms of addressing the risks that the critical benchmark poses. To ensure the effective exchange of supervisory information among competent authorities, coordination of their activities and supervisory measures, colleges of competent authorities should be formed. The activities of the colleges should contribute to the harmonised application of rules under this Regulation and to the convergence of supervisory practices. ESMA's legally binding mediation is a key element of the achievement of coordination, supervisory consistency and convergence of supervisory practicesmay be ensured by ESMA, in close cooperation with the ECB, EBA, and EIOPA. Benchmarks may reference financial instruments and financial contracts that have a long duration. In certain cases such benchmarks may no longer be permitted to be provided once this Regulation comes into effect because they have characteristics that cannot be adjusted to conform to the requirements of this Regulation. However, prohibiting the continued provision of such a benchmark may result in the termination or frustration of the financial instruments or financial contracts and so harm investors. It is therefore necessary to make provision to allow for the continued provision of such benchmarks for a transitional period.
Amendment 253 #
Proposal for a regulation
Article 3 – paragraph 1 – point 14 – point b a (new)
Article 3 – paragraph 1 – point 14 – point b a (new)
(b a) market operators as defined in point (13) of paragraph 1 of Article 4 of Directive 2004/39/EC;
Amendment 254 #
Proposal for a regulation
Article 3 – paragraph 1 – point 14 – point e
Article 3 – paragraph 1 – point 14 – point e
(e) managers of undertakings for collective investment in transferable securities (UCITS) as defined in Article 1(2) of Directive 2009/65/EU23 ; __________________ 23 OJ L 302, 17.11.2009, p. 32.
Amendment 255 #
Proposal for a regulation
Article 3 – paragraph 1 – point 14 – point f
Article 3 – paragraph 1 – point 14 – point f
(f) alternative investment fund managers (AIFMs) as defined in point (b) of Article 4(1) of Directive 2011/61/EU of the European Parliament and of the Council24 ; __________________ 24including managers referred to in Article 3 of Directive 2011/61/EU of the European Parliament and of the Council; __________________ 24 OJ L 174, 1.7.2011, p. 1. OJ L 174, 1.7.2011, p. 1.
Amendment 256 #
Proposal for a regulation
Article 3 – paragraph 1 – point 14 – point i a (new)
Article 3 – paragraph 1 – point 14 – point i a (new)
(i a) market participants as defined in Regulation (EU) No 1227/2011 of the European Parliament and of the Council of 25 October 2011 on wholesale energy market integrity and transparency.
Amendment 265 #
Proposal for a regulation
Article 3 – paragraph 1 – point 21
Article 3 – paragraph 1 – point 21
(21) ‘'critical benchmark’' means a benchmark, the majority of contributors to which are supervised entities and that reference financial instruments having a notional value of at least 500 billion euro;located in more than one Member State or in a different Member State to the administrator and that, in the event that it were to cease to be provided or were provided using an unrepresentative set of contributors or input data, this would have a significant adverse impact on financial stability, the orderly functioning of the markets, consumers or the real economy in one or more Member States or States or other jurisdictions which are different to the Member State where the benchmark's administrator is located. Critical benchmarks should not only be defined as regards the notional value of the financial instruments they reference but also taking into account their potential impact on price formation for the physical markets (commodities benchmarks).
Amendment 338 #
Proposal for a regulation
Article 11 – paragraph 1 – introductory part
Article 11 – paragraph 1 – introductory part
1. The following governance and control requirements shall apply to a supervised contributor:
Amendment 339 #
Proposal for a regulation
Article 11 – paragraph 1 – point a
Article 11 – paragraph 1 – point a
(a) The supervised contributor shall ensure that the provision of input data is not affected by any existing or potential conflict of interest and that, where any discretion is required, it is independently and honestly exercised based on relevant information in accordance with the code of conduct (‘Conflicts of interest’).
Amendment 341 #
Proposal for a regulation
Article 11 – paragraph 1 – point b
Article 11 – paragraph 1 – point b
(b) The supervised contributor shall have a control framework that ensures the integrity, accuracy and reliability of the input data and that the input data is provided in accordance with the provisions of this Regulation and the code of conduct (‘Adequate controls’).
Amendment 344 #
Proposal for a regulation
Article 11 – paragraph 2
Article 11 – paragraph 2
2. A supervised contributor shall comply with the requirements concerning systems and controls set out in Section E of Annex I.
Amendment 346 #
Proposal for a regulation
Article 11 – paragraph 3
Article 11 – paragraph 3
3. A supervised contributor shall fully cooperate with the administrator and the relevant competent authority in the auditing and supervision of the provision of a benchmark and make available the information and records kept in accordance with Section E of Annex 1.
Amendment 349 #
Proposal for a regulation
Article 11 – paragraph 4 – subparagraph 2
Article 11 – paragraph 4 – subparagraph 2
The Commission shall take into account the different characteristics of benchmarks and supervised contributors, notably in terms of differences in input data provided and methodologies used, the risks of manipulation of the input data and the nature of the activities carried out by the supervised contributors, and the developments in benchmarks and financial markets in light of international convergence of supervisory practices in relation to benchmarks.
Amendment 382 #
Proposal for a regulation
Article 13 – paragraph 1 – subparagraph 1
Article 13 – paragraph 1 – subparagraph 1
Amendment 384 #
Proposal for a regulation
Article 13 – paragraph 1 – subparagraph 2
Article 13 – paragraph 1 – subparagraph 2
Amendment 388 #
Proposal for a regulation
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Within 5 working days from the date of application of the decision including a critical benchmark in the list referred to in paragraph 1of this Article, the administrator of that critical benchmark shall notify the code of conduct to the relevant competent authority. The relevant competent authorityESMA. ESMA shall verify within 30 days whether the content of the code of conduct complies with the requirements of this Regulation. In case the relevant competent authorityESMA finds elements which do not comply with the requirements of this Regulation, it shall inform the administrator. The administrator shall adjust the code of conduct to ensure that it complies with the requirements of this Regulation within 30 days of such a request. When applicable, ESMA should work with the ECB, EBA, EIOPA to carry out its tasks.
Amendment 394 #
Proposal for a regulation
Article 14 – paragraph 1 – introductory part
Article 14 – paragraph 1 – introductory part
1. Where contributors, comprising at least 20% of the contributors toEvery two years, the administrator of a critical benchmark shave ceased contributing, or there are sufficient indications that at least 20% of the contributors are likely to cease contributing, in any year, the competent authority of the administrator of a critical benchmark shall have the power to: (a) require supervised entities, selected in accordance with paragraphs 2, to contribute input data to the administrator in accordance with the methodology, code of conduct or other rules; (b) determine the form in which, and the time by which, any input data is to be contributed; (c) change the code of conduct, methodology or other rulll submit to ESMA an assessment regarding the representativeness of each critical benchmark it administers. A contributor of a critical benchmark which intends to cease contributing shall notify in writing the administrator, which in turn shall promptly inform ESMA and submit to it [at the latest 14 days after the date of the notification] a structural assessment of the implications of the contributor ceasing contributing as regards the size and representativeness of the critical benchmarkpanel.
Amendment 398 #
Proposal for a regulation
Article 14 – paragraph 2
Article 14 – paragraph 2
2. For a critical benchmark, the supervised entities that are required to contribute in accordance with paragraph 1 shall be determined by Upon receipt of an assessment mentioned under paragraph 2, ESMA, withe competent authority of the administrator on the basis of the following criteria: (a) the size of the supervised entity’s actual and potential participation in the market that the benchmark seeks to measure; (b) the supervised entity’s expnsultation of the ECB, EBA, or EIOPA when applicable, shall assess whether the critical benchmark is lacking representativeness. This may in particular result from a reduced number of contributors over tisme and ability to provide input data of the necessary qualityor from structural market developments.
Amendment 403 #
Proposal for a regulation
Article 14 – paragraph 3
Article 14 – paragraph 3
3. The competent authority of a supervised contributor that has been required to contribute to a benchmark through measures taken in accordance with points (a) and (b) of paragraph 1 shall assist the competent authority of the administrator in the enforcement of such measuresIf ESMA considers that the benchmark lacks representativeness, it shall have the power to: (a) require a contributor that has notified its intention to cease contributing in accordance with paragraph 2 to contribute input data to the administrator in accordance with the methodology, code of conduct or other rules; (b) determine the form in which, and the time by which, any input data is to be contributed; (c) change the code of conduct, methodology or other rules of the critical benchmark.
Amendment 404 #
Proposal for a regulation
Article 14 – paragraph 4 – introductory part
Article 14 – paragraph 4 – introductory part
4. The competent authority of the administratorESMA shall review each measure adopted under paragraph 14 one year following its adoption. It shall revoke it if:
Amendment 407 #
Proposal for a regulation
Article 14 – paragraph 4 – point a – point 1
Article 14 – paragraph 4 – point a – point 1
(1) a written commitment by the contributors to the administrator and the competent authorityESMA to continue contributing input data to the critical benchmark for at least one year if the mandatory contribution power were revoked;
Amendment 410 #
Proposal for a regulation
Article 14 – paragraph 4 – point a – point 2
Article 14 – paragraph 4 – point a – point 2
(2) a written report by the administrator to the competent authorityESMA providing evidence for its assessment that the critical benchmark’s continued viability can be assured once mandatory participation has been revoked.
Amendment 412 #
Proposal for a regulation
Article 14 – paragraph 5
Article 14 – paragraph 5
5. The administrator shall notify the relevant competent authorityESMA in the event that any contributors breach the requirements of paragraph 1 of this Article as soon as is technically possible.
Amendment 440 #
Proposal for a regulation
Article 18 – title
Article 18 – title
Amendment 441 #
Proposal for a regulation
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Where a supervised entity intends to enter into a financial contract with a consumer, that supervised entity shall first obtain the necessary information regarding the consumer’s knowledge and experience with respect to the benchmark, his financial situation and his objectives in respect of that financial contract, and the benchmark statement published in accordance with Article 15 and shall assess whether referenccommunicate to the consumer, in good time and once the supervised entity has obtained the benchmark statement on the benchmark published under Article 15, the available information on the benchmark included ing the financial contract to that benchmark is suitable for him.
Amendment 445 #
Proposal for a regulation
Article 18 – paragraph 2
Article 18 – paragraph 2
2. WhereOn such basis, the supervised entity considers, on the basis of the assessment under paragraph 1, that the benchmark is not suitable for the consumer, tprovides to the consumer all information which can enable him to determine if the financial contract is adapted to his/her needs and his/her objectives. The supervised entity shall wparn the consumer in writing with reasonsticularly draw the consumer’s attention on the risk incurred by the use of the benchmark, the key characteristics of the benchmark and its compatibility with its financial situation.
Amendment 456 #
Proposal for a regulation
Article 20 – paragraph 1 – introductory part
Article 20 – paragraph 1 – introductory part
1. BAs from [30 months after entry into force of this Regulation], benchmarks provided by an administrator established in a third country may only be used by supervised entities in the Union provided that the following conditions are complied with:
Amendment 459 #
Proposal for a regulation
Article 20 – paragraph 1 – point a
Article 20 – paragraph 1 – point a
(a) the Commission has adopted an equivalence decision in accordance with paragraph 2 and paragraph 2a, recognising the legal framework and supervisory practice of that third country as equivalent to the requirements of this Regulation and as providing an effective equivalent system for the recognition of administrators authorised under foreign legal regimes;
Amendment 467 #
Proposal for a regulation
Article 20 – paragraph 1 – point c
Article 20 – paragraph 1 – point c
(c) the administrator has notified ESMA of its consent that its actual or prospective benchmarks may be used by supervised entities in the Union, the list of the benchmarks which may be used in the Union and the competent authority responsible for its supervision in the third country;
Amendment 477 #
Proposal for a regulation
Article 20 – paragraph 2 – subparagraph 1 – point a
Article 20 – paragraph 2 – subparagraph 1 – point a
(a) administrators authorised or registered in that third country, and contributors in that third country, comply with binding requirements which are equivalent to the requirements resulting from this Regulation, in particular taking into account if the legal framework and supervisory practice of a third country ensures compliance with the IOSCO principles on financial benchmarks published on 17 July 2013; and
Amendment 482 #
Proposal for a regulation
Article 20 – paragraph 2 – subparagraph 1 – point a a (new)
Article 20 – paragraph 2 – subparagraph 1 – point a a (new)
(aa) Decisions by the Commission determining third country legal regimes as equivalent to the requirements resulting from this Regulation should be adopted only if the legal regime of the third country provides for an effective equivalent system for the recognition of administrators authorised under foreign legal regimes.
Amendment 484 #
Proposal for a regulation
Article 20 – paragraph 3 – introductory part
Article 20 – paragraph 3 – introductory part
3. ESMA shall establish cooperation arrangements withbetween the competent authorities of Member States and the competent authorities of third countries whose legal framework and supervisory practice have been recognised as equivalent in accordance with paragraph 2. Such arrangements shall specify at least:
Amendment 485 #
Proposal for a regulation
Article 20 – paragraph 3 – point a
Article 20 – paragraph 3 – point a
(a) the mechanism for the exchange of information between ESMAthe competent authorities of Member States and the competent authorities of third countries concerned, including access to all information regarding the administrator authorised in that third country that is requested by ESMAa competent authority of a Member State;
Amendment 486 #
Proposal for a regulation
Article 20 – paragraph 3 – point b
Article 20 – paragraph 3 – point b
(b) the mechanism for prompt notification to ESMAthe relevant competent authority of a Member State where a third country competent authority deems that the administrator authorised in that third country that it is supervising is in breach of the conditions of its authorisation or other national legislation;
Amendment 487 #
Proposal for a regulation
Article 20 – paragraph 3 – point c
Article 20 – paragraph 3 – point c
(c) the procedures concerning the coordination of supervisory activities between the competent authorities of Member States and the competent authorities of third countries concerned including on-site inspections.
Amendment 489 #
Proposal for a regulation
Article 20 – paragraph 4 – subparagraph 1
Article 20 – paragraph 4 – subparagraph 1
ESMA shall develop draft regulatory technical standards to determine the minimum content of the cooperation arrangements referred to in paragraph 3 so as to ensure that the competent authorities and ESMAof Member States are able to exercise all their supervisory powers under this Regulation:
Amendment 527 #
Proposal for a regulation
Article 29 – paragraph 1
Article 29 – paragraph 1
1. For administrators and supervised contributors, each Member State shall designate the relevant competent authority responsible for carrying out the duties resulting from this Regulation and shall inform the Commission and ESMA thereof.
Amendment 529 #
Proposal for a regulation
Article 30 – paragraph 1 – point f
Article 30 – paragraph 1 – point f
(f) require existing recordings of telephone conversations, electronic communications or other data traffic records held by supervised entities;
Amendment 543 #
Proposal for a regulation
Article 34
Article 34
Amendment 575 #
Proposal for a regulation
Article 39 – paragraph 4
Article 39 – paragraph 4
4. The use of a benchmark shall be permitted by the relevant competent authority of the Member State where the administrator is located until such time as the benchmark references financial instruments and financial contracts worth no more than 5% by valuethe termination of the financial instruments and financial contracts that referenced this benchmark at the time of entry into force of this Regulation. No financial instruments or financial contracts shall reference such an existing benchmark after the entry into application of this Regulation, unless its administrator has been authorized pursuant to Article 23.
Amendment 591 #
Proposal for a regulation
Annex 1 – section 1 – part I – point 8 – point b
Annex 1 – section 1 – part I – point 8 – point b
Amendment 630 #
Proposal for a regulation
Annex 1 – section 5 – title
Annex 1 – section 5 – title
Contributor governance and controls requirements applied to supervised contributors to ensure compliance with Article 11
Amendment 631 #
Proposal for a regulation
Annex 1 – section 5 – point 1 – introductory part
Annex 1 – section 5 – point 1 – introductory part
1. A supervised contributor shall have effective systems and controls to ensure the integrity and reliability of all contributions of input data to the administrator, including:
Amendment 632 #
Proposal for a regulation
Annex 1 – section 5 – point 2
Annex 1 – section 5 – point 2
2. Where the input data is not transaction data, supervised contributors shall establish in addition to the systems and controls referred to in point (1) policies guiding any use of judgment or exercise of discretion and retain records of the rationale for any such judgement or discretion, where proportionate taking into account the nature of the benchmark and input data.