Activities of Sebastian Valentin BODU related to 2011/0295(COD)
Shadow opinions (1)
OPINION on the proposal for a regulation of the European Parliament and of the Council on insider dealing and market manipulation (market abuse)
Amendments (19)
Amendment 22 #
Proposal for a regulation
Recital 48 a (new)
Recital 48 a (new)
(48a) Investment advice as defined in MiFID, through the provision of a personal recommendation to a client in respect of one or more transactions relating to financial instruments (in particular, informal short-term investment recommendations, originating from inside the sales or trading departments of an investment firm or a credit institution, expressed to their clients), which are not likely to become publicly available, should not be considered in themselves as recommendations within the meaning of this Regulation.
Amendment 23 #
Proposal for a regulation
Recital 48 b (new)
Recital 48 b (new)
(48b) The mere fact that, in good faith market-makers, bodies authorised to act as counterparties, or persons authorised to execute orders on behalf of third parties with inside information confine themselves, in the first two cases, to pursuing their legitimate business of buying or selling financial instruments or, in the last case, to carrying out an order dutifully, should not be deemed alone to constitute use of such inside information.
Amendment 24 #
Proposal for a regulation
Recital 48 c (new)
Recital 48 c (new)
(48c) Having access to inside information relating to another company and using it in the context of a public takeover bid for the purpose of gaining control of that company or proposing a merger with that company should not be deemed alone to constitute insider dealing.
Amendment 25 #
Proposal for a regulation
Recital 48 d (new)
Recital 48 d (new)
(48d) Since the acquisition or disposal of financial instruments necessarily involves a prior decision to acquire or dispose, taken by the person who undertakes one or other of these operations, the carrying out of this acquisition or disposal should not be deemed alone to constitute the use of inside information.
Amendment 26 #
Proposal for a regulation
Recital 48 e (new)
Recital 48 e (new)
(48e) Research and estimates developed from publicly available data should not be regarded as inside information; and, therefore, any transaction carried out on the basis of such research or estimates should not be deemed alone to constitute insider dealing within the meaning of this Regulation.
Amendment 27 #
Proposal for a regulation
Recital 48 f (new)
Recital 48 f (new)
(48f) Information regarding the market participant's own plans and strategies for trading should not be considered as inside information.
Amendment 28 #
Proposal for a regulation
Recital 48 g (new)
Recital 48 g (new)
(48g) Trading in financial instruments for which a firm has received a request for a locate of an individual security, or for a confirmation of reasonable expectation of settlement, in order for a client to satisfy the requirements of the "Regulation on Short Selling and certain aspects of Credit Default Swaps" can be legitimate and should not therefore be alone regarded as insider dealing.
Amendment 33 #
Proposal for a regulation
Article 6 – paragraph 1 – point d a (new)
Article 6 – paragraph 1 – point d a (new)
(da) in relation to spot commodities and financial instruments other than derivatives on commodities, (i) other than relevant information of precise nature which if it were made public, would be likely to have a material and significant effect on the price of such financial instruments, and (ii) where the use of such information would be regarded by a reasonable investor who regularly deals on the market and in the financial instrument concerned as a failure on the part of the person concerned to observe the standard of behaviour reasonably expected of a person in his position in relation to the relevant markets;
Amendment 34 #
Proposal for a regulation
Article 6 – paragraph 1 – point e
Article 6 – paragraph 1 – point e
Amendment 35 #
Proposal for a regulation
Article 6 – paragraph 3
Article 6 – paragraph 3
3. For the purposes of asupplyementing paragraph 1, information which, if it were made public, would be likely to have a significant effect on the prices of the financial instruments, the related spot commodity contracts, or the auctioned products based on the emission allowances shall mean information a reasonable investor would be likely to use as part of the basis of his investment decisions.
Amendment 36 #
Proposal for a regulation
Article 6 – paragraph 3 a (new)
Article 6 – paragraph 3 a (new)
3a. In order to ensure consistent application of Article 6(1)(da), ESMA shall develop draft regulatory technical standards providing assistance in determining appropriate standards of behaviour in relation to relevant markets for the purposes of providing consistent application of these provisions to diverse market activities. ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by [12 months after the Regulation enters into force.] Powers is conferred 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.
Amendment 37 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
2. For the purposes of this Regulation, attempting to engage in insider dealing arises where a person possesses inside information and uses that information to attempts to acquire or dispose of, for his own account or for the account of a third party, either directly or indirectly, financial instruments to which that information relates. The attempt to cancel or amend an order concerning a financial instrument to which the information relates on the basis of inside information where the order was placed before the person concerned possessed the inside information, shall also be considered an attempt to engage in insider dealing.
Amendment 40 #
Proposal for a regulation
Article 7 – paragraph 8
Article 7 – paragraph 8
8. Paragraphs 1, 2 and 3 shall not apply to a person, who possesses inside information where: (a) transactions are conducted in the discharge of an obligation that has become due to acquire or dispose of financial instruments where that obligation results from an agreement concluded, an order to trade already placed, or is to satisfy a legal or regulatory obligation that arose, before the person concerned possessed inside information. before the person concerned possessed inside information; (b) that person is a legal person and the natural persons who made the decision on its behalf to carry out the transactions or to make the recommendation or inducement, did not possess the information and the legal person had established, implemented and maintained adequate internal arrangements designed to ensure that those natural persons comply with the prohibitions laid down in paragraphs 1, 2, 3 and 4; (c) that person carries out transactions as a result of orders placed before he possessed the information; (d) that person carries out transactions in accordance with a plan made by that person before he possessed the information, specifying the amount of financial instruments proposed to be acquired or disposed of and the proposed dates and prices for the transactions (or a formula, algorithm or computer programme for determining those matters) or giving another person who does not possess the information the discretion to determine those matters; (e) that person is a market maker or a body authorised to act as counterparty which is pursuing its legitimate business of buying or selling financial instruments or is a person authorised to execute orders on behalf of third parties which carries out an order dutifully; (f) that person possesses inside information relating to another company and uses that information in the context of a public takeover bid for the purposes of gaining control of the company or proposing a merger with that company; (g) the information concerns that person's prior decision to carry out transactions and he carries out or tries to carry out transactions based on that decision; (h) that person establishes that he has another legitimate reason for using the information to carry out transactions or acting on the basis of the information to recommend or induce others to carry out transactions.
Amendment 41 #
Proposal for a regulation
Article 7 – paragraph 9 a (new)
Article 7 – paragraph 9 a (new)
9a. In order to ensure the uniform conditions of implementation or application of Article 7, ESMA shall develop implementing technical standards to determine cases where a person who possesses inside information shall not be regarded as using that information by carrying out transactions or acting on the basis of that information to recommend or induce another to carry out transactions. ESMA shall submit the draft implementing technical standards referred to in the first subparagraph to the Commission by [12 months after the Regulation enters into force.] The draft implementing technical standards referred to in the first subparagraph shall be adopted in accordance with Article 15 of Regulation (EU) No 1095/2010.
Amendment 43 #
Proposal for a regulation
Article 8 – paragraph 2 – point a
Article 8 – paragraph 2 – point a
(a) intentionally attempting to enter into a transaction, trying to place an order to trade or trying to engage in any other behaviour as defined in paragraph 1(a) or (b); or
Amendment 44 #
Proposal for a regulation
Article 8 – paragraph 2 – point b
Article 8 – paragraph 2 – point b
(b) intentionally attempting to disseminate information as defined in paragraph 1(c).
Amendment 52 #
Proposal for a regulation
Article 17 – paragraph 5 a (new)
Article 17 – paragraph 5 a (new)
5a. A person shall not be considered in breach of any restriction on disclosure of information posed by a contract or by any legislative, regulatory or administrative provision when making information available in accordance with paragraph 2.
Amendment 53 #
Proposal for a regulation
Article 24 – paragraph 2 a (new)
Article 24 – paragraph 2 a (new)
Amendment 54 #
Proposal for a regulation
Article 27 – paragraph 2 a (new)
Article 27 – paragraph 2 a (new)
2a. An infringement of the provisions under this Regulation shall not of itself affect the validity of any transaction, render any transaction unenforceable nor give rise to any claim for compensation, when the transaction has been entered on good faith.