Activities of Olle SCHMIDT related to 2011/0298(COD)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on markets in financial instruments repealing Directive 2004/39/EC of the European Parliament and of the Council (recast) PDF (1 MB) DOC (1 MB)
Amendments (217)
Amendment 17 #
Proposal for a directive
Article 2 – paragraph 1 – point d – subparagraph 1
Article 2 – paragraph 1 – point d – subparagraph 1
Amendment 19 #
Proposal for a directive
Article 2 – paragraph 1 – point i – subparagraph 1
Article 2 – paragraph 1 – point i – subparagraph 1
provided that in all cases this is an ancillary activity to their main business, when considered on a group basis, or as regards jointly managed undertakings, an ancillary activity when considered on the basis of their owners and the subsidiaries of their owners, 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 24 #
Proposal for a directive
Article 2 – paragraph 3 – subparagraph 2 – indent 2
Article 2 – paragraph 3 – subparagraph 2 – indent 2
– the proportion of the capital employed for carrying out the activity. in relation to the capital on a group basis;
Amendment 25 #
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 31 #
Proposal for a directive
Title IV
Title IV
POSITION LIMITSMANAGEMENT AND REPORTING
Amendment 33 #
Proposal for a directive
Article 59 – paragraph 1 – subparagraph 1 – introductory part
Article 59 – paragraph 1 – subparagraph 1 – introductory part
1. Member States shall ensure that regulated markets, operators of MTFs and OTFs which admit to trading or trade commodity derivatives apply limits on the number of contractsopen positions in a commodity derivative which any given market members or participants can enter into over a specified period of timehold, or alternative arrangements with equivalent effect such as position management with automatic review thresholds, to be imposed in order to:
Amendment 40 #
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 and the characteristics of the underlying commodity market, including patterns of production, consumption and transportation to market.
Amendment 43 #
Proposal for a directive
Article 59 – paragraph 1 a (new)
Article 59 – paragraph 1 a (new)
1a. Position entered to objectively reduce risk directly related to the commercial activities related to the commodity shall be excluded from the position limits referred to in Article 59(1).
Amendment 45 #
Proposal for a directive
Article 59 – paragraph 3
Article 59 – paragraph 3
3. The Commission shall be empowered to adopt delegated acts in accordance with Article 94 to determine the limits or alternative arrangements on the number of contracts which any person can enter into over a specified period of timeopen positions in a commodity derivative which any person can hold and the necessary equivalent effects of the alternative arrangements established in accordance with paragraph 1, as well as the conditions for exemptions. The limits or alternative arrangements shall take account of the conditions referred to in paragraph 1 and the limits or alternative arrangements that have been set by regulated markets, MTFs and OTFs. The limits or alternative arrangements determined in the delegated acts shall also take precedence over any measures imposed by competent authorities pursuant to Article 72(1) paragraph (g) of this Directive.
Amendment 52 #
Proposal for a directive
Annex I – section C - point 6
Annex I – section C - point 6
(6) Options, futures, swaps, and any other derivative contract relating to commodities that canare not intended to be physically settled provided that they are traded on a regulated market , OTF, or an MTF;
Amendment 53 #
Proposal for a directive
Annex I – section C - point 7
Annex I – section C - point 7
(7) Options, futures, swaps, forwards and any other derivative contracts relating to commodities, that can beare not intended to physically settled not otherwise mentioned in C.6 and not being for commercial purposes, which have the characteristics of other derivative financial instruments, having regards to whether, inter alia, they are cleared and settled through recognised clearing houses or are subject to regular margin calls;
Amendment 229 #
Proposal for a directive
Recital 12
Recital 12
(12) All trading venues, namely regulated markets, MTFs, and OTFs, should lay down transparent rules governing access to the facility. However, while regulated markets and MTFs should continue to be subject to highly similar requirements regarding whom they may admit as members or participants, OTFs should be able to determine and restrict access based inter alia on the role and obligations which their operators have in relation to their clients. In order to provide investors with greater choice and flexibility, operators of regulated markets, MTFs and OTFs may provide for users to be able to specify the type of order flow that their orders interact with prior to their orders entering the system (based on the credit worthiness of the counterparty or other factors).
Amendment 235 #
Proposal for a directive
Recital 13
Recital 13
(13) An investment firm executing client orders against own proprietary capital should be deemed a systematic internaliser, unless the transactions are carried out outside regulated markets, MTFs and OTFs on an occasional, ad hoc and irregular basis. Systematic internalisers should be defined as investment firms which, on an organised, frequent and systematic basis, deal on own account by executing client orders outside a regulated market, an MTF or an OTF. In order to ensure the objective and effective application of this definition to investment firms, any bilateral trading carried out with clients should be relevant and quantitative criteria should complement the qualitative criteria for the identification of investment firms required to register as systematic internalisers, laid down in Article 21 of Commission Regulation No 1287/2006 implementing Directive 2004/39/EC. While an OTF is any system ortrading venues are facilityies in which multiple third party buying and selling interests interact in the system, a systematic internaliser should not be allowed to bring together third party buying and selling interests in functionally the same way as a trading venue.
Amendment 240 #
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 of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions, 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 fregulatory technical standards, taking into account the criteria specified in this Directive. These criteria should represent the ancillary character looking at the size and related risk of the activity in comparison to the size and risk of the main business. These criteria should also ensure that ancillary activities for the purpose of Article 2(1)(i) only include financial instruments used in relation to the main business, and not for purposes that have no link to the main business. By defining whether these activities are carried out on an ancillary basis, it has to be kept in mind that firms trading in OTC derivatives are subject to regulatory oversight by virtue of Regulation [ ] (EMIR), with the aim to make the trading in OTC derivatives more transparent and secure. 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 256 #
Proposal for a directive
Recital 44
Recital 44
(44) The use of trading technology has evolved significantly in the past decade and is now extensively used by market participants. Many market participants now make use of algorithmic trading where a computer algorithm automatically determines aspects of an order with minimal or no human intervention. A specific subset of algorithmic trading is high frequency trading where a trading system analyses data or signals from the market at high speed, typically in milliseconds or microseconds, and then sends or updates large numbers of orders within a very short time period in response to that analysis. High frequency trading is typically done by the traders using their own capital to trade and rather than being a strategy in itself is usually the use of sophisticated technology to implement more traditional trading strategies such as market making or arbitrage.
Amendment 259 #
Proposal for a directive
Recital 46
Recital 46
(46) The use of trading technology has increased the speed, capacity and complexity of how investors trade. It has also enabled market participants to facilitate direct access by their clients to markets through the use of their trading facilities, through direct electronic access or sponsored and direct market access. Trading technology has provided benefits to the market and market participants generally such as wider participation in markets, increased liquidity, narrower spreads, reduced short term volatility and the means to obtain better execution of orders for clients. Yet, this trading technology also gives rise to a number of potential risks such as an increased risk of the overloading of the systems of trading venues due to large volumes of orders, risks of algorithmic trading generating duplicative or erroneous orders or otherwise malfunctioning in a way that may create a disorderly market. In addition there is the risk of algorithmic trading systems overreacting to other market events which can exacerbate volatility if there is a pre-existing market problem. Finally, algorithmic trading or high frequency can lend itself to certain forms of abusive behaviour if misusedIndependently of the above abusive behaviour is not allowed, regardless of the method used to participate in a market. Market abusive behaviour is dealt with in the Market Abuse Directive (2004/109/EC).
Amendment 263 #
Proposal for a directive
Recital 46 a (new)
Recital 46 a (new)
Amendment 275 #
Proposal for a directive
Recital 49
Recital 49
(49) IWhile recognising the role that direct electronic access plays in facilitating investor activity in EU financial markets, and in addition to measures relating to algorithmic and high frequency trading it is appropriate to include controls relating to investment firms providing direct electronic access to markets for clients as electronic trading can be carried out via a firm providing electronic market access and many similar risks. It is also appropriate that firms providing direct electronic access ensure that persons using this service are properly qualified and that risk controls are imposed on the use of the service. It is appropriate that detailed organisational requirements regarding these new forms of trading should be prescribed in more detail in delegated acts. This should ensure that requirements may be amended where necessary to deal with further innovation and developments in this area. It is for the express purpose of delivering the above controls that ESMA has, in consultation with the market, established the Guidelines on systems and controls in an automated trading environment for trading platforms, investment firms and competent authorities (ESMA/2011/456) and this is a welcome development.
Amendment 279 #
Proposal for a directive
Recital 50
Recital 50
(50) There is a multitude of trading venues currently operating in the EU , among which a number are trading identical instruments. In order to address potential risks to the interests of investors it is necessary to formalise and further harmonise the processes on the consequences for trading on other venues if one trading venue decides to suspend or remove a financial instrument from trading. In the interest of legal certainty and to adequately address conflicts of interests when deciding to suspend or to remove instruments from trading, it should be ensured that if one regulated market or MTF stops trading due to non disclosure of information about an issuer or financial instrument, the others follow that decision unless continuing trading may be justified due to exceptional circumstances. In addition, it is necessary to further formalise and improve the exchange of information and the cooperation of trading venues in cases of exceptional conditions in relation to a particular instrument that is traded on various venues. Therefore, the primary listing venue should be designated to take the overall responsibility for real-time surveillance and the primary and secondary venues should be required to cooperate. The primary listing venue should not be allowed to use information from the secondary venue for business purposes. There should be in place "Chinese walls", or ethical barriers between the business and surveillance departments of the primary listing venue in order to avoid conflict of interest or market manipulation. The secondary market should be allowed to use any surveillance technology that enables it to comply with its obligations in accordance with this Directive and Regulation … [MAR], irrespective of which surveillance technology the primary listing venue uses.
Amendment 284 #
Proposal for a directive
Recital 51 a (new)
Recital 51 a (new)
(51a) There are many ways in which the return on investments to investors is reduced, including fees, costs and other deductions. These can be embedded in multiple layers so that they are not obvious or even become restated as investment in a subsequent layer or envelope, making it difficult for investors to understand the cumulative level of deductions. Therefore is necessary for all deductions to be elaborated at a cumulative level and for investors to be given an illustration of the long term effect on returns by way of a direct comparison of return to the investor compared with total deduction. This should be given in advance of investment on the basis of a reasonable projection and at least once a year for each actual investment. ESMA should issue guidelines concerning appropriate formats of projections and presentations.
Amendment 286 #
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 on an independent basis and whether theyand whether the investment firms will provide the clients with the on-goinga periodic 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 service 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 possibiliof the acceptance or receipt of third party inducement. When providing portfolio management the investment firm shall not accept or receive fees, commissions or any monetary benefits paid or provided by any third party for firms to accept or receive inducements from third parties, and particularly from issuers or product providers, wa person acting on behalf of a third party in relation to then providingsion of the service of investment advice on an independto clients, except if the client bhasis and the service of portfolio management. In been duly informed of such casfees, only limited non-commissions or monetary benefits as training on the features of the products 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 furbefore the provision of the relevant service or these fees, commissions or monetary benefits are to the ultimate benefit of ther clarified in Directive 2006/73/ECient.
Amendment 294 #
Proposal for a directive
Recital 52 a (new)
Recital 52 a (new)
(52a) When investment advise is provided from the investment firm to the client disclosure of services and costs of advice should be provided in a key services document not exceeding [2 pages] setting out the principal services to be provided to the client, details of the qualification of the adviser as set out in [Article 24(9)] and the aggregate cost of the advice to be provided to the client. ESMA should prepare binding technical standards setting out the mandatory contents of the key services document. Where the cost of fees and inducements cannot be ascertained prior to the provision of the advice, then the manner of calculation should be disclosed in a comprehensive, accurate and understandable manner in the key services documents with the total aggregate cost and its impact on return of the advice being disclosed to the client as soon as practically possible thereafter. Where investment advice is provided on an ongoing basis disclosure as to the cost of investment advice, including inducements, should be provided on a periodic basis and at least annually. The periodic report should disclose all inducements paid or received in the preceding period.
Amendment 297 #
Proposal for a directive
Recital 52 b (new)
Recital 52 b (new)
(52b) For those employees who advise on or sell financial products and instruments to retail clients, Member States should ensure that their remuneration by the firm will not affect employees' impartiality in making a suitable recommendation or appropriate sale or presenting information in a form that is fair, clear and not misleading. Remuneration in such situations should not be solely dependent on sales targets or the profit to the firm from a specific financial instrument.
Amendment 298 #
Proposal for a directive
Recital 52 c (new)
Recital 52 c (new)
(52c) For those employees who advise on or sell financial instruments to retail clients Member States should ensure that they possess an appropriate level of knowledge and competence in relation to the products offered. This is particularly important given the increased complexity and the continuous innovation in the design of investment products. Buying an investment product implies a risk and investors must be able to rely on the information and quality of assessments provided. It is furthermore necessary that employees are given adequate time and resources to be able to provide all relevant information to clients about the products/instruments they provide.
Amendment 302 #
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 316 #
Proposal for a directive
Recital 72
Recital 72
(72) The provision of services by third country firms in the Union is subject to national regimes and requirements. These regimes are highly differentiated and the firms authorised in accordance with them do not enjoy the freedom to provide services and the right of establishment in Member States other than the one where they are established. It is appropriate to introduce a common regulatory framework at Union level. The regime should harmonize the existing fragmented framework, ensure certainty and uniform treatment of third country firms accessWhile Member States should be able to retain those regimes and requirements, it is appropriate to introduce a common regulatory framework at Union level to allow third country firms that establish a branch in the Union to provide services and activities across the Union through the branch, where the branch has been authorised by the competent authorities ing the Union, ensure thatMember State and, among other things, and equivalence assessment has been carried out by the Commission in relation to the regulatory and supervisory framework of the third countries and should provide for a comparable level of protections to investors in the EU receiving services by thiry. It is also appropriate for the common framework to allow a third country firm to provide services or activities to eligible counterparties that are established in a Member State otherwise than through a branch in that Member State without requiring authorisation in that Member State or registration by ESMA. Third country firms that wish to be able to provide services or activities to "per se" professional clients across the Union should be able to do so, if they register with ESMA and (among other things) an equivalence assessment has been carried country firms. t by the Commission in relation to the regulatory and supervisory framework of the third country.
Amendment 319 #
Proposal for a directive
Recital 73
Recital 73
(73) The provision of services to retail clients should always require the establishment of a branch in the Unionird country firms that establish a branch in the Union under the common Union framework for branches should be able to provide service and activities across the Union to retail clients from the branch but this should not prevent a retail client receiving services from a third country firm at the client's own exclusive initiative or otherwise receiving services outside the Union (or in accordance with a national regime). The establishment of the branch shall be subject to authorisation and supervision in the Union. Proper cooperation arrangements should be in place between the competent authority concerned and the competent authority in the third country. Sufficient initial capital should be at free disposal of the branch. Once authorised the branch should be subject to supervision in the Member State where the branch is established; the third country firm should be able to provide services in other Member States through the authorised and supervised branch, subject to a notification procedure. TOnce authorized, the provision of services into the Union by a third country firm without branches should be limited to eligible counterparties and to professional clients. It should be subject to registration by ESMA and to supervision in the third country. Proper cooperation arrangements should be in place between ESMA and the competent authorities in the third country.
Amendment 320 #
Proposal for a directive
Recital 73
Recital 73
(73) The provision of services to retail clients should always require the establishment of a branch in the Unionird country firms that establish a branch in the Union under the common Union framework for branches should be able to provide service and activities across the Union to retail clients from the branch but this should not prevent a retail client receiving services from a third country firm at the client's own exclusive initiative or otherwise receiving services outside the Union (or in accordance with a national regime). The establishment of the branch shall be subject to authorisation and supervision in the Union. Proper cooperation arrangements should be in place between the competent authority concerned and the competent authority in the third country. Sufficient initial capital should be at free disposal of the branch. Once authorised the branch should be subject to supervision in the Member State where the branch is established; the third country firm should be able to provide services in other Member States through the authorised and supervised branch, subject to a notification procedure. The provision of services without branches should be limited to eligible counterparties. It should be subject to registration by ESMA and to supervision in the third country. Proper cooperation arrangements should be in place between ESMA and the competent authorities in the third country.
Amendment 327 #
Proposal for a directive
Recital 74
Recital 74
(74) The provision of this directive regulating the provision of services or activities by third country firms in the Union should not affect the possibility for persons established in the Union to receive investment services byor activities from a third country firm at their own exclusive initiative, for investment firms authorised under this Directive or credit institutions authorised under Directive 2006/48/EC providing investment services or activities to receive investment services or activities from a third country firm or for clients of such an investment firm or credit institution to receive investment services or activities from a third country firm through the mediation of the investment firm or credit institution or for persons established in the Union to receive investment services or activities from a third country firm where those services or activities are provided outside the Union. When a third country firm provides services or activities at the own exclusive initiative of a person established in the Union, the services or activities should not be deemed as provided in the territory of the Union. In case a third country firm solicits clients or potential clients in the Union or promotes or advertises investment services or activities together with ancillary services in the Union (otherwise than in the context of a continuing relationship between the third country firm and that person relating to the provision of those services or activities), it should not be deemed as a service or activity provided at the own exclusive initiative of the client. When a third country firm provides services or activities to or through the mediation of an investment firm authorised under this Directive or a credit institution authorised under Directive 2006/48/EC providing investment services or activities, the services or activities of the third country firm should not be deemed as provided in the territory of the Union. The investment firm acting as intermediary will remain responsible for providing the client with the protections under this Directive applicable to the service it has provided to the client. When a person established in the Union moves outside the Union to receive services or activities provided by a third country firm or the characteristic performance of the third country firm takes place outside the Union, the services or activities should not be deemed as provided in the Union.
Amendment 328 #
Proposal for a directive
Recital 74
Recital 74
(74) The provision of this directive regulating the provision of services by third country firms in the Union should not affect the possibility for persons established in the Union to receivemake use of investment services by a third country firm at their own exclusive initiative. When a third country firm provides services at own exclusive initiative of a person established in the Union, the services should not be deemed as provided in the territory of the Union. In case a third country firm solicits clients or potential clients in the Union or promotes or advertises investment services or activities together with ancillary services in the Union otherwise than in the course of an existing relationship requiring a continuing service provided by the firm to its client, it should not be deemed as a service provided at the own exclusive initiative of the client.
Amendment 334 #
Proposal for a directive
Recital 78
Recital 78
(78) The introduction of a commercial solution for a consolidated tape for equities should contribute to creating a more integrated European market and make it easier for market participants to gain access to a consolidated view of trade transparency information that is availablemarket data. The envisaged solution is based on an authorisation of approviders working along pre-defined and supervised parameted publication arrangements (APAs) to ensure consistent and accurate market data is made available by regulated markets, MTFs, OTFs, SIs and firms trading OTC to end users and commercial data providers, which are in competition with each other in order to achieo could then compete commercially with each other to deliver technically highly sophisticated and innovative solutions, serving the market to the greatest extent possible.
Amendment 339 #
Proposal for a directive
Recital 83
Recital 83
(83) The G20 summit in Pittsburgh on 25 September 2009 agreed to improve the regulation, functioning and transparency of financial and commodity markets to address excessive commodity price volatility. The Commission Communications of 28 October 2009 on A Better Functioning Food Supply Chain in Europe, and of 2 February 2011 on Tackling the Challenges in Commodity Markets and Raw Materials outlined measures that fall to be taken in the context of the review of Directive 2004/39/EC. The IOSCO Report of September 2011 on Principles for the Regulation and Supervision of Commodity Derivatives Markets set out to help to ensure that the physical commodity derivatives markets serve their fundamental price discovery and hedging functions, while operating free from manipulation and abusive trading schemes, and IOSCO emphasizes the key importance of transparency.
Amendment 346 #
Proposal for a directive
Recital 85
Recital 85
(85) Explicit powers should be granted to competent authorities to limit the ability of any person or class of persons from entering into a derivative contract in relation to a commodity. The application of a limit should be possible both in the case of individual transactions and positions built up over time. In the latter case in particular, the competent authority should ensure that these position limits are non- discriminatory, clearly spelled out, take due account of the specificity of the market in question, and are necessary to secure the integrity and orderly functioning of the market justified by a situation defined by ESMA through regulatory technical standards.
Amendment 348 #
Proposal for a directive
Recital 86
Recital 86
(86) AIn addition to the powers made available to competent authorities to impose position limits, all venues which offer trading in commodity derivatives should have in place appropriate limits or suitable alternativeposition management arrangements designed to support liquidity, prevent market abuse, and ensure the orderly pricing and settlement conditions. ESMA shoulSuch arrangements may include for instance identification of build-up of large position concentrations especially close to settlement, position limits, price movement limits, ordering liquidation or transfer of open positions, suspension of trading, altering delivery terms or conditions, cancelling trades and requiring delivery intentions. It must however be recognised that one trading venue is not able to view the aggregate positions taken by its members or participants in relation to the overall market. ESMA should define the key features of a harmonised position management regime through regulatory technical standards and maintain and publish a list containing summaries of all such measures in force. These limits or arrangements should be applied in a consistent manner and take account of the specific characteristics of the market in question. They should be clearly spelled out as regards to whom they apply and any exemptions thereto, as well as to the relevant quantitative thresholds which constitute the limits or which may trigger other obligations. The Commission should be empowered to adopt delegated acts, including with a view to avoiding any divergent effects of the limits or arrangements applicable to comparable contracts on different venues.
Amendment 361 #
Proposal for a directive
Recital 109
Recital 109
(109) The Commission should adopt the draft regulatory technical standards developed by ESMA in Article 7 regarding procedures for granting and refusing requests for authorisation of investment firms, Articles 9 and 48 regarding requirements for management bodies, Article 12 regarding acquisition of qualifying holding, Article 27 regarding obligation to execute orders on terms most favourable to clients, Articles 34 and 54 regarding cooperation and exchange of information, Article 36 regarding freedom to provide investment services and activities, Article 37 regarding establishment of a branch, Article 44 regarding provision of services by third country firms, Article 59 regarding application of position management in commodity derivatives markets, Article 63 regarding procedures for granting and refusing requests for authorisation of data reporting services providers, Articles 66 and 67 regarding organisational requirements for APAs and CTPs and Article 84 regarding cooperation among competent authorities. The Commission should adopt these draft regulatory technical standards by means of delegated acts pursuant to Article 290 TFEU and in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Amendment 394 #
Proposal for a directive
Article 2 – paragraph 1 – point d – subparagraph 2
Article 2 – paragraph 1 – point d – subparagraph 2
Amendment 397 #
Proposal for a directive
Article 2 – paragraph 1 – point e
Article 2 – paragraph 1 – point e
Amendment 399 #
Proposal for a directive
Article 2 – paragraph 1 – point f
Article 2 – paragraph 1 – point f
(f) persons which provide investment services which only involve both administration of employee-participation schemes and the provision of investment services exclusively for their parent undertakings, for their subsidiaries or for other subsidiaries of their parent undertakings;
Amendment 420 #
Proposal for a directive
Article 2 – paragraph 3 – subparagraph 1
Article 2 – paragraph 3 – subparagraph 1
Amendment 427 #
Proposal for a directive
Article 2 – paragraph 3 – subparagraph 2 – indent 1
Article 2 – paragraph 3 – subparagraph 2 – indent 1
Amendment 428 #
Proposal for a directive
Article 2 – paragraph 3 – subparagraph 2 – indent 2
Article 2 – paragraph 3 – subparagraph 2 – indent 2
Amendment 433 #
Proposal for a directive
Article 2 – paragraph 3 – subparagraph 2 – indent 2 a (new)
Article 2 – paragraph 3 – subparagraph 2 – indent 2 a (new)
c) the extent to which the activity is used for managing the commercial risks or treasury financing risks of the main business;
Amendment 437 #
Proposal for a directive
Article 2 – paragraph 3 – subparagraph 2 – indent 2 b (new)
Article 2 – paragraph 3 – subparagraph 2 – indent 2 b (new)
d) systemic relevance of the sum of net positions and exposures of a firm as referred to in Article 10 of Regulation (EU) No …/…[EMIR].
Amendment 453 #
Proposal for a directive
Article 4 – paragraph 2 – point 1 – paragraph 1
Article 4 – paragraph 2 – point 1 – paragraph 1
Amendment 454 #
Proposal for a directive
Article 4 – paragraph 2 – point 1 – paragraph 2 a (new)
Article 4 – paragraph 2 – point 1 – paragraph 2 a (new)
ESMA shall submit those draft regulatory technical standards to the Commission by [...]*. Power is delegated 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. ________________ *OJ please insert the date: …
Amendment 472 #
Proposal for a directive
Article 4 – paragraph 2 – point 30 a (new)
Article 4 – paragraph 2 – point 30 a (new)
30 a) 'High-frequency trading' means algorithmic trading having the following features: 1) Very high number of orders compared to the average of number of orders placed by participants active on the venue concerned; 2) Rapid order cancellation/replacement; 3) Proprietary trading; 5) No significant net position at end of day (flat position); 6) Taking positions for very short holding periods; 7) Extracting very low margins per trade; 8) Using order handling systems with speeds close to minimal latency of a trade; 9) Use of co-location/proximity services and individual data feeds; 10) Focus on highly liquid instruments; 11) Use of computer programs or algorithms for automated decision making for order initiation, generation, routing, and execution. ESMA shall, on an annual basis, review the appropriateness of the defintion above to ensure that it is consistent with market developments, appropriate for the range of securities concerned, and properly monitored by regulated markets, MTFs and OTFs and report to the European Parliament, the Council and the Commission.
Amendment 478 #
Proposal for a directive
Article 4 – paragraph 2 – point 30 b (new)
Article 4 – paragraph 2 – point 30 b (new)
30b) 'High-frequency trading strategy' means a trading strategy for dealing on own-account in a financial instrument which involves high-frequency trading and has the following characteristics: (i) it uses co-location facilities; (ii) it relates to a daily portfolio turnover of at least 50 %; (iii) the ratio of orders to trades exceeds 250:1 intraday; (iv) the proportion of orders cancelled exceeds 20 %; (v) the majority of positions taken are unwound within the same day. ESMA shall, on an annual basis, review the appropriateness of the criteria listed above to ensure that they are consistent with market developments, appropriate for the range of securities concerned, and properly monitored by Regulated markets, MTFs and OTFs and shall report to the European Parliament, the Council and the Commission.
Amendment 480 #
Proposal for a directive
Article 4 – paragraph 2 – point 30 d (new)
Article 4 – paragraph 2 – point 30 d (new)
30d) 'Sponsored access' means an arrangement through which an investment firm that is a member or participant or user of a trading platform permits clients to transmit orders electronically and directly to a specified trading platform under the investment firm's trading identification without the orders being transmitted through the investment firm's internal electronic trading systems.
Amendment 481 #
Proposal for a directive
Article 4 – paragraph 2 – point 30 e (new)
Article 4 – paragraph 2 – point 30 e (new)
30e) 'Naked' or 'unfiltered' access to a regulated market or MTF, where a client's orders do not pass through pre- trade controls before being sent to a regulated market or MTF, is prohibited under MiFID. Therefore, an SA client should never be able to send an order to a trading platform without the order passing through pre-trade controls of the investment firm.
Amendment 483 #
Proposal for a directive
Article 4 – paragraph 2 – point 31
Article 4 – paragraph 2 – point 31
31) "Direct eElectronic aAccess" in relation to a trading venue, means an arrangement wheremeans an arrangement through which an investment firm that is a member or a participant or user of a trading venueplatform permits a person to use its trading code so the person can electronically transmit orders relating to a financial instrument directly to the trading venue. This definition includes such an arrangement whether or not it also involves the use by the person of the infrastructure of the member or participant, or any connecting system provided by the member or participant, to transmit the ordersclients to transmit orders electronically to the investment firm's internal electronic trading systems for automatic on-ward transmission under the investment firm's trading identification to a specified trading platform;
Amendment 488 #
Proposal for a directive
Article 4 – paragraph 2 – point 33 a (new)
Article 4 – paragraph 2 – point 33 a (new)
33a) 'Matched principal trading' means a transaction composed of two or more legs, where an investment firm or market operator is interposed as a party to each leg, entered into for the purpose of facilitating one or more client orders and which does not result in the investment firm accepting market risk;
Amendment 499 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. The Commission shall be empowered to adopt delegated acts in accordance with Article 94 concerning measureESMA may develop draft regulatory technical standards to specify some technical elements of the definitions laid down in paragraph 1 of this Article, to adjust them to market developments. ESMA shall submit those draft regulatory technical standards to the Commission by […]*. Power is delegated 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. __________________ *OJ please insert date: …
Amendment 506 #
Proposal for a directive
Article 7 – paragraph 4
Article 7 – paragraph 4
Amendment 507 #
Proposal for a directive
Article 7 – paragraph 5 – subparagraph 1
Article 7 – paragraph 5 – subparagraph 1
ESMA shallmay develop draft implementing technical standards to determine standard forms, templates and procedures for the notification or provision of information provided for in Article 7(2) and Article 9(5) .
Amendment 508 #
Proposal for a directive
Article 7 – paragraph 5 – subparagraph 2
Article 7 – paragraph 5 – subparagraph 2
ESMA shall submit those draft implementing technical standards to the Commission by [31 December 2016].
Amendment 511 #
Proposal for a directive
Article 9 – paragraph 1 – introductory part
Article 9 – paragraph 1 – introductory part
1. Member States shall require that all members of the management body of any investment firm shall at all times be of sufficiently good repute, possess sufficient knowledge, skills and experience and commit sufficient time to perform their duties. Member States shall ensure that members of the management body shall, in particular, fulfil the following requirements:
Amendment 514 #
Proposal for a directive
Article 9 – paragraph 1 – point a – subparagraph 1 and subparagraph 2 – introductory part
Article 9 – paragraph 1 – point a – subparagraph 1 and subparagraph 2 – introductory part
(a) Members of the management body shall commit sufficient time to perform their functions in the investment firm. They shall not combine at the same time more than one of the following combinations in public interest entities:
Amendment 515 #
Proposal for a directive
Article 9 – paragraph 1 – point a – point i
Article 9 – paragraph 1 – point a – point i
(i) one executive directorship with twohree non-executive directorships
Amendment 519 #
Proposal for a directive
Article 9 – paragraph 1 – point a – subparagraph 3
Article 9 – paragraph 1 – point a – subparagraph 3
Executive or non-executive directorships held within (i) the same groupconsolidated group or (ii) a group of companies being subsidiaries, associated companies or participations of the same industrial holding company shall be considered as one single directorship.
Amendment 525 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. Member States shall require investment firms and their respective nomination committees to take into account diversity as one of the criteria for selection of members of the management body. In particular, taking into account the size of their management body, investment firms shall put in place a policy promoting gender, age, educational, professional and geographical diversity on the management body; as well as take concrete steps towards a more balanced representation on boards. Such concrete measures may for example include training of nomination committees, the creation of rosters of competent candidates, and the introduction of a nomination process where at least one candidate of each sex is presented.
Amendment 536 #
Proposal for a directive
Article 9 – paragraph 4 – subparagraph 1 a (new)
Article 9 – paragraph 4 – subparagraph 1 a (new)
ESMA shall also consider the nature, scale and complexity of activities of the investment firm which competent authorities must take into account when they authorise a member of the management body to combine more directorships than permitted as referred to in paragraph 1(a).
Amendment 539 #
Proposal for a directive
Article 9 – paragraph 6 – subparagraph 1 – point a
Article 9 – paragraph 6 – subparagraph 1 – point a
(a) define, approve and oversee the strategic objectives of the firm,
Amendment 540 #
Proposal for a directive
Article 9 – paragraph 6 – subparagraph 1 – point b
Article 9 – paragraph 6 – subparagraph 1 – point b
(b) define, approve and oversee the organization of the firm, including the skills, knowledge and expertise required to personnel, the resources, the procedures and the arrangements for the provision of services and activities by the firm, taking into account the nature, scale and complexity of its business and all the requirements the firm has to comply with,
Amendment 541 #
Proposal for a directive
Article 9 – paragraph 6 – subparagraph 1 – point c
Article 9 – paragraph 6 – subparagraph 1 – point c
(c) define, approve and oversee a policy as to services, activities, products and operations offered or provided by the firm, in accordance with the risk tolerance of the firm and the characteristics and needs of the clients to whom they will be offered or provided, including carrying out appropriate stress testing, where appropriate;
Amendment 550 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. An investment firm shall establish adequate policies and procedures sufficient to ensure compliance of the firm including its managers, employees and tied agents with its obligations under the provisions of this Directive as well as appropriate rules governing personal transactions by such persons. The investment firm shall have a policy and code of conduct rules in place to make an assessments of the compatibility of the product, service or operation with the characteristics and needs of the clients to whom these products would be offered.
Amendment 552 #
Proposal for a directive
Article 16 – paragraph 3
Article 16 – paragraph 3
3. An investment firm shall maintain and operate effective organisational and administrative arrangements with a view to taking all reasonablappropriate steps designed to prevent conflicts of interest as defined in Article 23 from adversely affecting the interests of its clients.
Amendment 553 #
Proposal for a directive
Article 16 – paragraph 7 – subparagraph 1
Article 16 – paragraph 7 – subparagraph 1
Records shall include the recording of telephone conversations or electronic communications involving, at leastll investment advice services including advice of products, transactions concluded when dealing on own account and client orders when the services of reception and transmission of orders and execution of orders on behalf of clients are provided.
Amendment 562 #
Proposal for a directive
Article 16 – paragraph 7 – subparagraph 2
Article 16 – paragraph 7 – subparagraph 2
Records of telephone conversation or electronic communications recorded in accordance with sub-paragraph 1 shall be provided to the clients involved upon request and shall be kept for a period of threone years after the investment has ended.
Amendment 571 #
Proposal for a directive
Article 16 – paragraph 12
Article 16 – paragraph 12
Amendment 575 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
1. An investment firm that engages in algorithmic trading shall have in place effective systems and risk controls to ensure that its trading systems are resilient and have sufficient capacity, are subject to appropriate trading thresholds and limits and take appropriate steps to prevent the sending of erroneous orders or the system otherwise functioning in a way that may create or contribute to a disorderly market. Such a firm shall also have in place effective systems and risk controls to ensure the trading systems cannot be used for any purpose that is contrary tofunction in accordance with Regulation (EU) No [MAR] or toand the rules of a trading venue to which it is connected. The firm shall have in place effective continuity business arrangements to deal with any unforeseen failure of its trading systems and shall ensure its systems are fully tested and properly monitored to ensure they meet the requirements in this paragraph.
Amendment 581 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. An investment firm that engages in algorithmic high frequency trading strategy shall at least annually and at any time on request provide to its home Competent Authority a description of the nature of its algorithmic trading strategies, details of the trading parameters 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. A competent authority may at any time request further information from an investment firm about its algorithmic trading and the systems used for that trading.
Amendment 594 #
Proposal for a directive
Article 17 – paragraph 3
Article 17 – paragraph 3
3. An algorithmicHigh-frequency trading strategy shall be inies which meet the conditions of Article 4(30b) shall, to the extent specified by ESMA and necessary to ensure the orderly functioning of markets, have the ability to continuously operatione during the trading hours of the trading venue to which it sends orders or through the systems of which it executes transactions. The trading parameters or limits of an algorithmic tradFirms that are using market making strategyies 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, rcomply with specific requirements determined by trading venues in consultation with competent authorities with a view to liquidity on the trading venue concerned and safeguardless of prevailing market conditionsing investors trust in the market place.
Amendment 597 #
Proposal for a directive
Article 17 – paragraph 3 a (new)
Article 17 – paragraph 3 a (new)
3a. ESMA shall develop draft implementing technical standards on the requirements referred to in paragraph 3, in particular in case of market stress. Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010. ESMA shall submit those draft implementing technical standards to the Commission by […]*. ________________ *OJ please insert date: …
Amendment 599 #
Proposal for a directive
Article 17 – paragraph 3 b (new)
Article 17 – paragraph 3 b (new)
3b. Trading venues shall have the ability to impose charges to its members or participants in order to keep the transaction to order ratio to a level avoiding the risk of undermining the orderly functioning of the market place.
Amendment 600 #
Proposal for a directive
Article 17 – paragraph 4
Article 17 – paragraph 4
4. An investment firm that provides direct electronic access or sponsored access to a trading venue shall have in place effective systems and controls which ensure a proper assessment and review of the suitability of persons using the service, that persons using the service are prevented from exceeding appropriate pre set trading and credit thresholds, that trading by persons using the service is properly monitored and that appropriate risk controls parevent trading that may create risks to the investment firm itself or that could create or contribute to a disorderly market or be contrary to applied in accordance with Regulation (EU) No [MAR] or the rules of the trading venue. The investment firm shall ensure that there is a binding written agreement between the firm and the person regarding the essential rights and obligations arising from the provision of the service and that under the agreement the firm retains responsibility for ensuring trading using that service complies with the requirements of this Directive, the Regulation (EU) No [MAR] and the rules of the trading venue is clear. Investment firms shall not provide 'naked' or 'unfiltered' sponsored access to a trading venue.
Amendment 611 #
Proposal for a directive
Article 17 – paragraph 6
Article 17 – paragraph 6
6. The Commission shall be empowered to adopt delegated acts in accordance with Article 94 concerning measureESMA shall develop draft regulatory technical standards to specify the detailed organisational requirements laid down in paragraphs 1 to 5 to be imposed on investment firms performing different investment services and/or activities and ancillary services or combinations thereof. ESMA shall submit those draft regulatory technical standards to the Commission by [...]*. Power is delegated 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. _________________ *OJ please insert date: …
Amendment 619 #
Proposal for a directive
Article 18 – paragraph 3
Article 18 – paragraph 3
3. Member States shall require that investment firms or market operators operating an MTF or an OTF establish, publish and maintain transparent and non- discriminatory rules, based on objective criteria, governing access to its facility.
Amendment 621 #
Proposal for a directive
Article 18 – paragraph 3 a (new)
Article 18 – paragraph 3 a (new)
3a. Member States shall require investment firms or market operators operating an MTF or an OTF to have arrangements to identify clearly and manage the potential adverse consequences, for the operation of the MTF or the OTF or its participants, of any conflict of interest between the interest of the MTF, the OTF, its owners or its operator and the sound functioning of the MTF or the OTF.
Amendment 624 #
Proposal for a directive
Article 18 – paragraph 6
Article 18 – paragraph 6
6. Member States shall require that any investment firm or market operator operating an MTF or an OTF comply immediately with any instruction from its competent authority pursuant to Article 72(1 (d) and (e) to suspend or remove a financial instrument from trading.
Amendment 629 #
Proposal for a directive
Article 18 – paragraph 9 a (new)
Article 18 – paragraph 9 a (new)
9a. ESMA shall develop draft implementing technical standards to specify the extent to which compound transaction services (as defined in Article 2 of Regulation (EU) No....[MiFIR]) shall be subject to Article 18(1)-18(3) and Article 20(3). ESMA shall submit those draft implementing technical standards to the Commission by […]*. Power is conferred to the Commission to adopt the implementing technical standards in accordance with Article 15 of Regulation (EU) No 1095/2010. ___________________ * OJ please insert date: …
Amendment 634 #
Proposal for a directive
Article 19 – paragraph 3
Article 19 – paragraph 3
Amendment 644 #
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 OTF in shares, depositary receipts, exchange traded funds, certificates and other similar financial instruments 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. The investment firm 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. , except where this is undertaken on a matched principal basis or with the consent of the client. The operator of the OTF shall publish on a regular basis data in accordance with Article 27(2) disaggregated by orders executed against the proprietary capital of the operator and orders between third party buying and selling interests. An OTF shall not connect with another OTF in a way which enables orders in different OTFs to interact unless the operator of the OTF can demonstrate compliance with the requirements in this Directive and Regulation (EU) No …/… [MiFIR] and that such an operational arrangement supports the requirements in Article 27.
Amendment 652 #
Proposal for a directive
Article 20 – paragraph 1 a (new)
Article 20 – paragraph 1 a (new)
1 a. Investment firms or market operators operating an OTF shall have discretion over how a transaction is to be executed and how clients interact.
Amendment 654 #
Proposal for a directive
Article 20 – paragraph 1 b (new)
Article 20 – paragraph 1 b (new)
1 b. Member States shall require that investment firms and market operators operating an OTF for bonds, structured finance products, emission allowances and derivatives, establish arrangements to identify clearly and manage the potential adverse consequences, for the operation of the OTF or for its participants, of any conflict of interest between the interest of the OTF, its owners or its operator and the sound functioning of the OTF.
Amendment 666 #
Proposal for a directive
Article 22 – paragraph 1 a (new)
Article 22 – paragraph 1 a (new)
1 a. ESMA shall conduct peer reviews to identify best practices concerning on- going supervision in the Member States and shall advise the Commission by[…]* at the latest on measures that could ensure a stronger supervision among the Member States. __________________ *OJ please insert date: two years after the entry into force of this Directive
Amendment 669 #
Proposal for a directive
Article 23 – paragraph 2
Article 23 – paragraph 2
2. Where organisational or administrative arrangements made by the investment firm in accordance with Article 16(3) to manage and avoid conflicts of interest are not sufficient to ensure, with reasonable confidence, that risks of damage to client interests will be prevented, the investment firm shall clearly disclose the general nature and/or sources of conflicts of interest to the client before undertaking business on its behalf.
Amendment 674 #
Proposal for a directive
Article 23 – paragraph 3 – introductory part
Article 23 – paragraph 3 – introductory part
3. The Commission shall be empowered to adopt by means of delegated acts in accordance with Article 94 measureESMA shall develop draft regulatory technical standards to:
Amendment 676 #
Proposal for a directive
Article 23 – paragraph 3 – point b
Article 23 – paragraph 3 – point b
(b) establish appropriate criteria for determining the types of conflict of interest whose existence may damage the interests of the clients or potential clients of the investment firm. This includes disproportionate use of sales targets for investment products, which is potentially damaging to the quality and objectiveness of the provision of investment services.
Amendment 678 #
Proposal for a directive
Article 23 – paragraph 3 – subparagraph 1 a and 1 b (new)
Article 23 – paragraph 3 – subparagraph 1 a and 1 b (new)
ESMA shall submit those draft regulatory technical standards to the Commission by […]*. Power is delegated 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. _______________________ *OJ please insert date: …
Amendment 681 #
Proposal for a directive
Article 24 – paragraph 1 a (new)
Article 24 – paragraph 1 a (new)
1 a. Member States shall ensure that where investment firms design investment products or structured deposits for sale to professional or retail clients those products are designed to meet the needs of an identified target market within the relevant category of clients and that the investment firm takes reasonable steps to ensure that (i) when an investment firm or its affiliates conduct direct marketing to retail investors, the investment product is marketed and distributed to clients within the target group and/or, (ii) materials appropriate for the target market are prepared and made available by the investment firm to any third party distributing the investment product or structured deposit to retail clients.
Amendment 691 #
Proposal for a directive
Article 24 – paragraph 3 – subparagraph 1 – indent 1
Article 24 – paragraph 3 – subparagraph 1 – indent 1
– the investment firm and its services; when investment advice is provided, information shall specify whether the advice is provided on an independent basis andin advance the basis on which the advice is provided including whether it is based on a broad or on a more restricted analysis of the market and shall indicate whether or not the investment firm will provide the client with the on- goinga periodic assessment of the suitability of the financial instruments recommended to clients, and inform its client as to the total cost of investment advice as a single monetary amount including both fees paid directly by the client to the investment adviser as well as any inducements paid by a third party. This disclosure shall be provided to the client prior to the provision of the investment advice.
Amendment 708 #
Proposal for a directive
Article 24 – paragraph 3 – subparagraph 1 – indent 4
Article 24 – paragraph 3 – subparagraph 1 – indent 4
– costs and associated charges related both to the investment services and the financial instruments recommended to clients.
Amendment 709 #
Proposal for a directive
Article 24 – paragraph 3 – subparagraph 1 – indent 4
Article 24 – paragraph 3 – subparagraph 1 – indent 4
– costs and associated charges, including the cost of advice and how the client may pay for it.
Amendment 722 #
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 on an independent basisprovides investment advice, the firm shall:
Amendment 733 #
Proposal for a directive
Article 24 – paragraph 5 – point i
Article 24 – paragraph 5 – point i
(i) shall assess a sufficiently large number of financial instruments available on the market. The financial instruments shouldconsidered shall be diversified with regard to their type and issuers or product providers and shouldall not be limited to financial instruments issued or provided by entities having close links with the investment firm,
Amendment 739 #
Proposal for a directive
Article 24 – paragraph 5 – point ii
Article 24 – paragraph 5 – point ii
Amendment 753 #
Proposal for a directive
Article 24 – paragraph 5 a (new)
Article 24 – paragraph 5 a (new)
5 a. When the investment firm provides investment advice, the firm: (i) shall consider a sufficiently large number of financial instruments within the firm's product range and (ii) recommend one or several suitable financial instruments according to the client's preferences, needs, financial situation and personal circumstances.
Amendment 756 #
Proposal for a directive
Article 24 – paragraph 5 a (new)
Article 24 – paragraph 5 a (new)
5 a. The investor shall be provided with details of all deductions, including fees and costs, elaborated at a cumulative level. This shall include an illustration of the long term effect on returns by way of a direct comparison of return to the investor compared with total deductions. This shall be given in advance of investment on the basis of a reasonable projection and at least once a year for each actual investment. ESMA shall issue guidelines concerning appropriate formats of projections and presentations.
Amendment 758 #
Proposal for a directive
Article 24 – paragraph 5 b (new)
Article 24 – paragraph 5 b (new)
5 b. Where an investment firm is providing advice, portfolio management or other services where the client may reasonably depend upon the firm to act in their best interests, Member States shall ensure that firms do not accept fees, commissions or monetary benefits where these could influence or bias advice or decisions made on behalf of the client.
Amendment 761 #
Proposal for a directive
Article 24 – paragraph 6
Article 24 – paragraph 6
6. When providing portfolio management 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, except if: a) the client has been duly informed of such fees, commissions or monetary benefits before the provision of the relevant service; b) these fees, commissions or monetary benefits are to the ultimate benefit of the client.
Amendment 772 #
Proposal for a directive
Article 24 – paragraph 6 a (new)
Article 24 – paragraph 6 a (new)
6 a. Member States shall ensure that an investment firm's remuneration policies in relation to its employees, representatives or other associated investment firms do not impair its ability to act in the best interests of clients. For those employees who advise on or sell financial instruments to retail clients, Member States shall ensure that their remuneration by the firm will not affect employees' impartiality in making a suitable recommendation or appropriate sale or presenting information in a form that is fair, clear and not misleading. Remuneration in such situations shall not be solely dependent on sales targets or the profit to the firm from a specific financial instrument.
Amendment 783 #
Proposal for a directive
Article 24 – paragraph 8
Article 24 – paragraph 8
Amendment 799 #
Proposal for a directive
Article 25 – paragraph 3 – subparagraph 1 – introductory part
Article 25 – paragraph 3 – subparagraph 1 – introductory part
Member States shall allow investment firms when providing investment services that only consist of execution or the reception and transmission of client orders with or without ancillary services , with the exclusion of the ancillary service specified in Section B (1) of Annex 1 , to provide those investment services to their clients without the need to obtain the information or make the determination provided for in paragraph 2 where all the following conditions are met:
Amendment 805 #
Proposal for a directive
Article 25 – paragraph 3 – subparagraph 1 – point a – point i
Article 25 – paragraph 3 – subparagraph 1 – point a – point i
(i) shares admitted to trading on a regulated market or on an equivalent third-country market or on a MTF, where these are shares in companies, and excluding shares in non-UCITS collective investment undertakings and shares that embed a derivative unless the derivative does not increase risk to the investor;
Amendment 809 #
Proposal for a directive
Article 25 – paragraph 3 – subparagraph 1 – point a – point ii
Article 25 – paragraph 3 – subparagraph 1 – point a – point ii
(ii) bonds or other forms of securitised debt, admitted to trading on a regulated market or on an equivalent third country market or on a MTF, excluding those that embed a derivative or incorporate a structure which would makes it difficult for thea client to understand the risk involved or the derivative does not increase risk to the investor;
Amendment 813 #
Proposal for a directive
Article 25 – paragraph 3 – subparagraph 1 – point a – point iii
Article 25 – paragraph 3 – subparagraph 1 – point a – point iii
(iii) money market instruments, excluding those that embed a derivative or incorporate a structure which would makes it difficult for thea client to understand the risk involved or the derivative does not increase the risk to the investor;
Amendment 818 #
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 830 #
Proposal for a directive
Article 25 – paragraph 5
Article 25 – paragraph 5
5. The client must receive from the investment firm adequate reports on the service provided to its clients. TIn case of portfolio management or under the condition that an investment firm offers and concludes such a service with its clients these reports shall include periodic communications to clients, taking into acc abount the type and the complexity of financial instruments involved and the nature of the service provided to the client andperformance of the relevant financial instruments and periodic assessment of the suitability of the recommended financial instruments. These reports shall include, where applicable, the costs associated with the transactions and services undertaken on behalf of the client. When providing investment advice in accordance with Article 24(3), the investment firm shall specify how the advice given meets the preferences, needs and other personal characteristics of the client.
Amendment 835 #
Proposal for a directive
Article 25 – paragraph 6 – introductory part
Article 25 – paragraph 6 – introductory part
6. The Commission shall be empowered to adopt by means of delegated acts in accordance with Article 94ESMA shall develop draft regulatory technical standards to specify the measures to ensure that investment firms comply with the principles set out therein when providing investment or ancillary services to their clients. ESMA shall submit those draft regulatory technical standards to the Commission by […]*. Power is delegated 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. ___________________ *OJ please insert date: …
Amendment 843 #
Proposal for a directive
Article 26 a (new)
Article 26 a (new)
Article 26 a Minimum competence requirements 1. Member States shall ensure that the staff of investment firms possess an appropriate level of knowledge and competence in relation to investment services or, where appropriate, ancillary services in order to satisfy the requirements of Article 24 of this Directive. 2. Member States shall ensure that the appropriate level of knowledge and competence is determined on the basis of qualifications they recognise or experience. 3. Member States shall ensure that investment firms provide sufficient and appropriate training to their staff to ensure that these provisions are complied with. 4. Member States shall make public the criteria they have established in order for investment firms' staff to meet their competence requirements. Such criteria shall include a list of any qualifications they recognise. 5. The Commission shall be empowered to adopt by means of delegated acts in accordance with Article 94 measures to specify the requirements provided in paragraphs 1 and 2, and in particular, the necessary requirements for appropriate knowledge and competence.
Amendment 846 #
Proposal for a directive
Article 27 – paragraph 2
Article 27 – paragraph 2
2. Member States shall require that each execution venue makes available to the public, without any charg on reques,t data relating to the quality of execution of transactions on that venue on at least an annual basis. Periodic reports shall include details about price, speed of execution and likelihood of execution for individual financial instruments.
Amendment 854 #
Proposal for a directive
Article 27 – paragraph 5 – subparagraph 2
Article 27 – paragraph 5 – subparagraph 2
Member States shall require investment firms to summarize and make public on an annual basisrequest, for each class of financial instruments, the top five execution venues where they executed client orders in the preceding year.
Amendment 856 #
Proposal for a directive
Article 27 – paragraph 7 – introductory part
Article 27 – paragraph 7 – introductory part
7. The Commission shall be empowered to adopt delegated acts in accordance with Article 94 concerningESMA shall develop draft regulatory technical standards to specify:
Amendment 859 #
Proposal for a directive
Article 28 – paragraph 3 – introductory part
Article 28 – paragraph 3 – introductory part
3. The Commission shall be empowered to adopt delegated acts in accordance with Article 94 concerning measures which defineESMA shall develop draft regulatory technical standards to specify:
Amendment 860 #
Proposal for a directive
Article 28 – paragraph 3 – subparagraph 1 a and 1 b (new)
Article 28 – paragraph 3 – subparagraph 1 a and 1 b (new)
ESMA shall submit those draft regulatory technical standards to the Commission by […]*. Power is delegated 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. ________________ *OJ please insert date: …
Amendment 870 #
Proposal for a directive
Article 30 – paragraph 1 – subparagraph 1
Article 30 – paragraph 1 – subparagraph 1
Member States shall ensure that investment firms authorised to execute orders on behalf of clients and/or to deal on own account and/or to receive and transmit orders, may bring about or enter into transactions with eligible counterparties without being obliged to comply with the obligations under Articles 24 (with the exception of paragraph 3), 25 (with the exception of paragraph 5) , 25, 27 and 28(1) in respect of those transactions or in respect of any ancillary service directly related to those transactions.
Amendment 876 #
Proposal for a directive
Article 30 – paragraph 5
Article 30 – paragraph 5
Amendment 886 #
Proposal for a directive
Article 32 – paragraph 1
Article 32 – paragraph 1
1. Member States shall require that an investment firm or a market operator operating an MTF thato suspends or removes from trading a financial instrument following the decision of the regulated market where the instrument was primarily admitted to trading and when the reason for the suspension is of global nature, makes public this decision, communicates it to regulated markets, other MTFs and OTFs trading the same financial instrument and communicates relevant information to the competent authority. The competent authority shall inform the competent authorities of the other Member States. Member States shall require thate other regulated markets, MTFs and OTFs trading the same financial instrument shall also suspend or remove that financial instrument from trading where theo communicate their decision not to suspensiond or removal is due to the non-disclosure of information about the issuer or financial instrument except where this could cause significant damage to the investors' interests or the orderly functioning of the market. Member States shall require the other regulated markets, MTFs and OTFs to communicate their decisione the financial instrument from trading to their competent authority and all regulated markets, MTFs and OTFs trading the same financial instrument, including an explanation ifwhy the decision was not to suspend or remove the financial instrument from trading.
Amendment 889 #
Proposal for a directive
Article 32 – paragraph 2
Article 32 – paragraph 2
Amendment 891 #
Proposal for a directive
Article 32 – paragraph 3
Article 32 – paragraph 3
3. The Commission shall be empowered to adopt delegated acts in accordance with Article 94ESMA shall develop draft regulatory technical standards to list the specific situations constituting significant damage to the investors' interests and the orderly functioning of the internal market referred to in paragraphs 1 and 2 and to determine issues relating to the non-disclosure of information about the issuer or financial instrument as referred to in paragraph 1. ESMA shall submit those draft regulatory technical standards to the Commission by […]*. Power is delegated 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. __________________ *OJ please insert date: …
Amendment 894 #
Proposal for a directive
Article 33 – paragraph 2
Article 33 – paragraph 2
Amendment 897 #
Proposal for a directive
Article 34 – paragraph 1 a (new)
Article 34 – paragraph 1 a (new)
1 a. Member States shall require that an investment firm or a market operator operating a regulated market, an MTF or an OTF cooperates with the regulated market where a security is admitted to trading and which is designated to carry out cross-market surveillance in accordance with Article 11 [MAR].
Amendment 900 #
Proposal for a directive
Article 34 – paragraph 2 – subparagraph 1
Article 34 – paragraph 2 – subparagraph 1
ESMA shall develop draft regulatory technical standards to determine the specific circumstances that trigger an information requirement as referred to in paragraph 1 and the specific requirements and conditions for the cooperation between primary and secondary listing venues referred to in paragraph 1a.
Amendment 906 #
Proposal for a directive
Article 37 – paragraph 8 – subparagraph 1
Article 37 – paragraph 8 – subparagraph 1
The competent authority of the Member State in which the branch is located shall assume responsibility for ensuring that the services provided by the branch within its territory comply with the obligations laid down in Articles 24, 25, 26a, 27, 28, of this Directive and Articles 13 to 23 of Regulation (EU) No …/….../... [MiFIR] and in measures adopted pursuant thereto.
Amendment 907 #
Proposal for a directive
Article 37 – paragraph 8 – subparagraph 2
Article 37 – paragraph 8 – subparagraph 2
The competent authority of the Member State in which the branch is located shall have the right to examine branch arrangements and to request such changes as are strictly needed to enable the competent authority to enforce the obligations under Articles 24, 25, 26a, 27, 28, of this Directive and Articles 13 to 23 of Regulation (EU) No …/….../... [MiFIR] and measures adopted pursuant thereto with respect to the services and/or activities provided by the branch within its territory.
Amendment 911 #
Proposal for a directive
Article 40 – paragraph 1 a (new)
Article 40 – paragraph 1 a (new)
1 a. The provision of this Directive regulating the provision of services by third country firms in the Union should not affect the possibility for persons established in the Union to make use of investment services provided by a third country firm at their own initiative. When a third country firm provides services at the own initiative of a person established in the Union, the services should not be deemed as provided in the territory of the Union. In case a third country firm solicits clients or potential clients in the Union or promotes or advertises investment services or activities together with ancillary services in the Union, otherwise than in the course of an existing relationship requiring a continuing service provided by the firm to its client, it should not be deemed as a service provided at the own initiative of the client.
Amendment 915 #
Proposal for a directive
Chapter 4 – title
Chapter 4 – title
Provision of services or activities by third country firms
Amendment 916 #
Proposal for a directive
Chapter 4 – section 1 – title
Chapter 4 – section 1 – title
Provision of services withor activities by establishment of a branch with a passport
Amendment 917 #
Proposal for a directive
Article 41 – title
Article 41 – title
Establishment of a branch with a passport
Amendment 918 #
Proposal for a directive
Article 41 – paragraph 1 – introductory part
Article 41 – paragraph 1 – introductory part
1. Member States shall requiensure that a third country firm intending tomay provide investment services or perform investment activities together with any ancillary services in their territory through a branch acquire a prior authorisationestablished in their territory or in another Member State, where the branch has been authorised by the competent authorities ofin those Member States in which the branch is established in accordance with the following provisions:
Amendment 922 #
Proposal for a directive
Article 41 – paragraph 1 – point a
Article 41 – paragraph 1 – point a
(a) the Commission has adopted a decision in accordance with paragraph 3 recognising that the prudential framework of the third country is equivalent;
Amendment 924 #
Proposal for a directive
Article 41 – paragraph 1 – point b
Article 41 – paragraph 1 – point b
(b) the provision of services for which the third country firm requests authorisation is subject to authorisation and supervision in the third country where the head office of the firm is established and the requestingthird country firm is properly authorised in that country. The third country where the head office of the third country firm is established shall not be listed as Non- Cooperative Country and Territory by the Financial Action Task Force on anti-money laundering and terrorist financing;
Amendment 925 #
Proposal for a directive
Article 41 – paragraph 1 – point c
Article 41 – paragraph 1 – point c
(c) cooperation arrangements, that include provisions regulating the exchange of information for the purpose of preserving the integrity of the market and protecting investors, are in place between the competent authorities in the Member State concernwhere the branch is established and the competent supervisory authorities of the third country where the head office of the third country firm is established;
Amendment 926 #
Proposal for a directive
Article 41 – paragraph 1 – point d
Article 41 – paragraph 1 – point d
Amendment 927 #
Proposal for a directive
Article 41 – paragraph 1 – point f
Article 41 – paragraph 1 – point f
(f) the third country where the head office of the third country firm is established has signed an agreement with the Member State where the branch ishould be established, which fully complyies with the standards laid down in Article 26 of the OECD Model Tax Convention on Income and on Capital and ensures an effective exchange of information in tax matters, including, if any, multilateral tax agreements;
Amendment 929 #
Proposal for a directive
Article 41 – paragraph 1 – point g
Article 41 – paragraph 1 – point g
(g) the firm has requested membership of an investor-compensation scheme authorised or recognised in the Member State in which the branch is established in accordance with Directive 97/9/EC of the European Parliament and of the Council of 3 March 1997 on Investor-Compensation Schemes unless the firm is not conducting investment business with investors covered by any such scheme.
Amendment 930 #
Proposal for a directive
Article 41 – paragraph 2
Article 41 – paragraph 2
2. Without prejudice to Articles 46a and 46b, Member States shall require that a third country firm intending to provide investment services or activities together with any ancillary services to retail clients in those Member States' territory shall establish a branch in the Union. except where those services are provided at the exclusive initiative of the person to whom the service is provided or are otherwise provided outside the Union.
Amendment 933 #
Proposal for a directive
Article 41 – paragraph 3 – subparagraph 1
Article 41 – paragraph 3 – subparagraph 1
The Commission may adopt a decision in accordance with the procedure referred to in Article 95 in relation to a third country if the legal and supervisory arrangements of that third country ensure that firms authorised in that third country comply with legally binding requirements with respect to prudential matters which have equivalent effect to the requirements with respect to the prudential matters set out in this Directive, in Regulation (EU) No …/… [MiFIR] and in Directive 2006/49/EC [Capital Adequacy Directive] and their implementing measures and that third country provides for equivalent reciprocalffective equivalent recognition of the prudential framework applicable to investment firms authorised in accordance with this directive.
Amendment 938 #
Proposal for a directive
Article 41 – paragraph 3 – subparagraph 2 – introductory part
Article 41 – paragraph 3 – subparagraph 2 – introductory part
The prudential framework of a third country mayshall be considered equivalent where that framework fulfils all the following conditions:
Amendment 942 #
Proposal for a directive
Article 41 – paragraph 3 – subparagraph 2 a (new)
Article 41 – paragraph 3 – subparagraph 2 a (new)
A decision of the Commission under this paragraph may be limited to a category or categories of firms. In that case, a third country firm may be authorised for the purposes of paragraph 1 if it falls within a category covered by the Commission's decision.
Amendment 944 #
Proposal for a directive
Article 41 – paragraph 4
Article 41 – paragraph 4
4. The third country firm referred to in paragraph 1 shall submit its application to the competent authority of the Member State where it intends toin which the branch is or will be establish a branched after the adoption by the Commission of the decision determining that the legal and supervisory framework of the third country in which the third country firm is authorised with respect to prudential matters is equivalent to the requirements described in paragraph 3.
Amendment 946 #
Proposal for a directive
Article 42 – introductory part
Article 42 – introductory part
A third country firm intending to obtain authorisation for the provisionurposes of Article 41 for the provision or performance of any investment services and/or activities together with any ancillary services through a branch established in the territory of a Member State shall provide the competent authority of that Member State with the following:
Amendment 947 #
Proposal for a directive
Article 42 – point d
Article 42 – point d
Amendment 948 #
Proposal for a directive
Article 43 – paragraph 1 – subparagraph 1 – introductory part
Article 43 – paragraph 1 – subparagraph 1 – introductory part
The competent authority of the Member State where the third country firm has established or intends to establish its branch shall only grant the authorisation for the purposes of Article 41 when the following conditions are met:
Amendment 949 #
Proposal for a directive
Article 43 – paragraph 1 – subparagraph 1 – point a
Article 43 – paragraph 1 – subparagraph 1 – point a
(a) the competent authority is satisfied that the conditions under Article 41 are fulfilled;
Amendment 950 #
Proposal for a directive
Article 43 – paragraph 1 – subparagraph 1 – point b
Article 43 – paragraph 1 – subparagraph 1 – point b
(b) the competent authority is satisfied that the branch of the third country firm will be able to comply with the provisions under paragraph 32.
Amendment 952 #
Proposal for a directive
Article 43 – paragraph 2 – subparagraph 1
Article 43 – paragraph 2 – subparagraph 1
The branch of the third country firm authorised in accordance with paragraph 1, shall comply with the obligations laid down in Articles 16, 17, 18, 19, 20, 23, 24, 25, 27, 28(1) and 30 of this Directive and in Articles 13 to 23 of Regulation (EU) No …/….../... [MiFIR] and the measures adopted pursuant thereto and shall be subject to the supervision of the competent authority in the Member State where the authorisation was granted.
Amendment 953 #
Proposal for a directive
Article 43 – paragraph 2 – subparagraph 2
Article 43 – paragraph 2 – subparagraph 2
Member States shall not impose any additional requirements on the organisation and operation of the branch in respect of the matters covered by this directive or Regulation (EU) No. .../.... [MiFIR].
Amendment 954 #
Proposal for a directive
Article 44 – title
Article 44 – title
Provision of services and activities in other Member States
Amendment 955 #
Proposal for a directive
Article 44 – paragraph 1 – subparagraph 1 – introductory part
Article 44 – paragraph 1 – subparagraph 1 – introductory part
A third country firm authorised in accordance with Article 43 shall be able to provide or perform the services and activities covered under the authorisation in other Member States of the Union without the establishment of new branches. To this purpose, it shall communicate the following information to the competent authority of the Member State where the branch is established:
Amendment 956 #
Proposal for a directive
Article 45 – paragraph 1
Article 45 – paragraph 1
Member States shall register the firms authorised in accordance with Articles 413. The register shall be publicly accessible and shall contain information on the services or activities which the third country firms are authorised to provide. It shall be updated on a regular basis. Every authorisation shall be notified to the ESMA.
Amendment 957 #
Proposal for a directive
Article 45 – paragraph 2
Article 45 – paragraph 2
ESMA shall establish a list of all third country firms authorised under Article 43 to provide services and activities in the Union. The list shall contain information on the services or activities for which the non-EU firm is authorised and it shall be updated on a regular basis. ESMA shall publish that list on its website and update it.
Amendment 958 #
Proposal for a directive
Article 46 – title
Article 46 – title
Amendment 959 #
Proposal for a directive
Article 46 a (new)
Article 46 a (new)
Amendment 961 #
Proposal for a directive
Article 46 b (new)
Article 46 b (new)
Article 46 b Provision of cross-border services by third country firms in Member States without a passport Without prejudice to Sections 1 and 2 of this Chapter and Title VIII of Regulation (EU) No. .../... [MiFIR], Member States may allow third country firms to provide investment services and perform investment activities together with ancillary services in their territory otherwise than through a branch established in their territory or through a branch in another Member State authorised under Article 43, subject to such conditions as they may establish for that purpose.
Amendment 963 #
Proposal for a directive
Article 48 – paragraph 1 – introductory part
Article 48 – paragraph 1 – introductory part
Member States shall require that all members of the management body of any market operator be at all times of sufficiently good repute, possess sufficient knowledge, skills and experience and commit sufficient time to perform their duties. Member States shall ensure that members of the management body shall, in particular, fulfil the following requirements in public interest entities:
Amendment 965 #
Proposal for a directive
Article 48 – paragraph 1 – point a – point i
Article 48 – paragraph 1 – point a – point i
(i) one executive directorship with twohree non-executive directorships
Amendment 968 #
Proposal for a directive
Article 48 – paragraph 1 – point a – subparagraph 3
Article 48 – paragraph 1 – point a – subparagraph 3
Executive or non-executive directorships held within (i) the same groupconsolidated group or (ii) a group of companies being subsidiaries, associated companies or participations of the same industrial holding company shall be considered as one single directorship.
Amendment 971 #
Proposal for a directive
Article 48 – paragraph 3
Article 48 – paragraph 3
3. Member States shall require market operatorinvestment firms and their respective nomination committees to take into account diversity as one of the criteria for selection of members of the management body. In particular, taking into account the size of their management body, market operatorinvestment firms shall put in place a policy promoting gender, age, educational, professional and geographical diversity on the management body; as well as take concrete steps towards a more balanced representation on boards. Such concrete measures may for example include training of nomination committees, the creation of rosters of competent candidates, and the introduction of a nomination process where at least one candidate of each sex is presented.
Amendment 985 #
Proposal for a directive
Article 50 – point d a (new)
Article 50 – point d a (new)
(da) to have transparent rules, based on objective criteria, governing the categories of order flow that users of the system may both be subject to and interact with;
Amendment 996 #
Proposal for a directive
Article 51 – paragraph 2
Article 51 – paragraph 2
2. Member States shall require a regulated market to have in place effective systems, procedures and arrangements to reject orders that exceed pre-determined volume and price thresholds or are clearly erroneous and to be able to temporarily halt trading if there is or is likely to be an execution that causes or would cause a significant price movement in a financial instrument on that market or a related market during a short period and, in exceptional cases, to be able to cancel, vary or correct any transaction. and, in exceptional cases, to be able to cancel any resulting transaction. Member States shall require a regulated market to ensure that the parameters for halting trading are calibrated in a way which takes into account the liquidity of different asset classes and sub-classes, the nature of the market model and types of users and is sufficient to avoid significant disruptions to the orderliness of trading. Member States shall ensure that a regulated market reports the parameters for halting trading and any material changes to those parameters to the competent authority which shall in turn report them to ESMA.
Amendment 1002 #
Proposal for a directive
Article 51 – paragraph 3
Article 51 – paragraph 3
3. Member States shall require a regulated market to have in place effective systems, procedures and arrangements to ensure that algorithmic trading systems cannot create or contribute to disorderly trading conditions onmanage disorderly trading conditions on the market. ESMA shall develop regulatory technical standards in which it specifies the criteria that such systems, procedures and arrangements shall take into account, theat markety includinge systems to limit the ratio of unexecuted orders to transactions that may be entered into the system by a member or participant, to be able to slow down the flow of orders if there is a risk of its system capacity being reached and to limit the minimum tick size that may be executed on the market.
Amendment 1014 #
Proposal for a directive
Article 51 – paragraph 4 – subparagraph 1
Article 51 – paragraph 4 – subparagraph 1
In order to properly establish the regulatory regime for direct electronic access and build on the existing guidance issued by ESMA, Member States shall require a regulated market that permits direct electronic access to have in place effective systems procedures and arrangements to ensure that members or participants are only permitted to provide such services if they are an authorised investment firm under this Directive, that appropriate criteria are set and applied regarding the suitability of persons to whom such access may be provided and, that the member or participant retains responsibility for orders and trades executed using that service and that there is no provision of 'naked' or 'unfiltered' access with no pre-trade controls.
Amendment 1024 #
Proposal for a directive
Article 51 – paragraph 5
Article 51 – paragraph 5
5. Member States shall require a regulated market to ensure that its rules on co- location services and fee structures are transparent, fair and non-discriminatory. and that they do create incentives to cancel an abnormally high level of orders which contributes to disorderly trading conditions or market abuse. In particular, a regulated market shall set a fee on participants placing a high ratio of cancelled orders to executed orders, taking into account specific market or product circumstances to the extent necessary to reflect the additional burden on system capacity. A regulated market may adjust its fees for cancelled orders exceeding the pre-defined ratio.
Amendment 1032 #
Proposal for a directive
Article 51 – paragraph 7 – introductory part
Article 51 – paragraph 7 – introductory part
7. The Commission shall be empowered to adESMA shall developt delegated acts in accordance with Article 94 concerning the requirements laid down in this Article, and in particularraft regulatory technical standards to:
Amendment 1037 #
Proposal for a directive
Article 51 – paragraph 7 – point b
Article 51 – paragraph 7 – point b
(b) to set out the broad conditions or principles under which trading should be halted if there ison an applicable trading venue if there is or is likely to be an execution that causes or would cause a significant price movement in a financial instrument on that market or a related market during a short periodtrading venue;
Amendment 1040 #
Proposal for a directive
Article 51 – paragraph 7 – point c
Article 51 – paragraph 7 – point c
(c) to set out the maximum and minimum ratio of unexecuted orders to transactions that may be adopted by regulated markets and minimum tick sizes that should be adoptedto be based on the liquidity of the financial instrument and to ensure that minimum tick sizes as established by the Commission are in place in each trading venue trading that instrument;
Amendment 1043 #
Proposal for a directive
Article 51 – paragraph 7 – point c
Article 51 – paragraph 7 – point c
(c) to set out the maximum and minimum ratio of unexecuted orders to transactions that may be adopted by regulated markets and minimum tick sizes that should be adoptedto be based on the liquidity of the financial instrument and to ensure that minimum tick sizes as established by the venue at which the instrument was first admitted to trading are in place in each trading venue trading that instrument;
Amendment 1057 #
Proposal for a directive
Article 51 – paragraph 7 – subparagraphs 1 a and 1 b (new)
Article 51 – paragraph 7 – subparagraphs 1 a and 1 b (new)
ESMA shall submit those draft regulatory technical standards to the Commission by […]*. Power is delegated 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. __________________ * OJ please insert date: …
Amendment 1060 #
Proposal for a directive
Article 52 – paragraph 6 – introductory part
Article 52 – paragraph 6 – introductory part
6. The Commission shall adopt by means of delegated acts in accordance with Article 94 measures whichESMA shall develop draft regulatory technical standards to:
Amendment 1061 #
Proposal for a directive
Article 52 – paragraph 6 – subparagraphs 1 a and 1 b (new)
Article 52 – paragraph 6 – subparagraphs 1 a and 1 b (new)
ESMA shall submit those draft regulatory technical standards to the Commission by […]*. Power is delegated 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. __________________ * OJ please insert date: …
Amendment 1065 #
Proposal for a directive
Article 53 – paragraph 4
Article 53 – paragraph 4
4. The Commission shall be empowered to adESMA shall developt delegated acts in accordance with Article 94raft regulatory technical standards to specify the list of circumstances constituting significant damage to the investors' interests and the orderly functioning of the internal market referred to in paragraphs 1 and 2 and to determine issues relating to the non- disclosure of information about the issuer or financial instrument as referred to in paragraph 1. ESMA shall submit those draft regulatory technical standards to the Commission by […]*. Power is delegated 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. __________________ * OJ please insert date: …
Amendment 1066 #
Proposal for a directive
Article 54 – paragraph 1 – introductory part
Article 54 – paragraph 1 – introductory part
1. Member States shall require that, in relation to a financial instrument, an operator of a regulated market immediately informs operators of other regulated markets, MTFs and OTFs and the competent authority of:
Amendment 1068 #
Proposal for a directive
Article 54 – paragraph 1 a (new)
Article 54 – paragraph 1 a (new)
1a. Member States shall require that, in relation to a security, an operator of a regulated market cooperates with operators of other regulated markets, MTFs and OTFs, in order for it to carry out its obligations in accordance with Article 11 [MAR].
Amendment 1071 #
Proposal for a directive
Article 54 – paragraph 2 – subparagraph 1
Article 54 – paragraph 2 – subparagraph 1
ESMA shall develop draft regulatory technical standards to determine the specific circumstances that trigger an information requirement as referred to in paragraph 1 and the specific requirements and conditions for the cooperation between primary and secondary listing venues referred to in paragraph 1a.
Amendment 1090 #
Proposal for a directive
Title 4
Title 4
POSITION LIMITSMANAGEMENT AND REPORTING
Amendment 1093 #
Proposal for a directive
Article 59 – title
Article 59 – title
Position limitsmanagement
Amendment 1095 #
Proposal for a directive
Article 59 – paragraph 1 – subparagraph 1 – introductory part
Article 59 – paragraph 1 – subparagraph 1 – introductory part
Member States shall ensure that regulated markets, operators of MTFs and OTFs which admit to trading or trade commodity derivatives apply limits on the number of contractsopen positions in a commodity derivative which any given market members or participants can enter into over a specified period of time, or alternative arrangements with equivalent effect such as position management with automatic review thresholds hold, or alternative position management arrangements with equivalent effect such as ordering liquidation or transfer of open positions, suspension of trading, altering delivery terms or conditions, cancelling trades and requiring delivery intentions, to be imposed in order to:
Amendment 1113 #
Proposal for a directive
Article 59 – paragraph 1 – subparagraph 1 a (new)
Article 59 – paragraph 1 – subparagraph 1 a (new)
In calculating the open positions referred to in the first subparagraph, a commercial undertaking shall not include contracts entered into by the undertaking which are objectively measurable as reducing risks directly related to the commercial activity of the undertaking.
Amendment 1114 #
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 and the characteristics of the underlying commodity market, including patterns of production, consumption and transportation to market.
Amendment 1125 #
Proposal for a directive
Article 59 – paragraph 1 a (new)
Article 59 – paragraph 1 a (new)
1a. ESMA shall develop draft regulatory technical standards to specify the extent that any limits should be applied to positions in commodity derivatives according to paragraph 1. ESMA shall submit those draft regulatory technical standards to the Commission by […]*. Power is conferred on 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. __________________ *OJ please insert date: …
Amendment 1133 #
Proposal for a directive
Article 59 – paragraph 3
Article 59 – paragraph 3
3. The Commission shall be empowered to adESMA shall developt delegated acts in accordance with Article 94 to determine the limits or alternative arrangemenraft regulatory technical standards to determine the effects onf the number of contracts which any person can enter into over a specified period of time and the necessary equivalent effects of the alternativeposition management arrangements established in accordance with paragraph 1, as well as the conditions for exemptions. The limits or alternative arrangements shall take account of the conditions referred to in paragraph 1 and the limits that have been set by regulated markets, MTFs and OTFfact that commodities may be traded on multiple markets. The limits or alternative arrangements determined in the delegated actraft regulatory technical standards shall also take precedence over any measures imposed by competent authorities pursuant to Article 72(1) paragraph (g) of this Directive. ESMA shall submit those draft regulatory technical standards to the Commission by […]*. Power is delegated 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. __________________ * OJ please insert date: …
Amendment 1180 #
Proposal for a directive
Article 60 – paragraph 5 – subparagraph 1
Article 60 – paragraph 5 – subparagraph 1
Amendment 1184 #
Proposal for a directive
Article 60 – paragraph 5 – subparagraph 2
Article 60 – paragraph 5 – subparagraph 2
Amendment 1192 #
Proposal for a directive
Article 66 – paragraph 5 – subparagraph 1 a (new)
Article 66 – paragraph 5 – subparagraph 1 a (new)
The information made public by the APA shall include, at least, the following details: (a) the identifier of the financial instrument; (b) the price at which the transaction was concluded; (c) the volume of the transaction; (d) the time of the transaction; (e) the time the transaction was reported; (f) the price notation of the transaction; (g) the trading venue the transaction was executed on or otherwise the code "OTC"; (h) if applicable, an indicator that the transaction was subject to specific conditions.
Amendment 1193 #
Proposal for a directive
Article 67 – paragraph 1 – subparagraph 1 – introductory part
Article 67 – paragraph 1 – subparagraph 1 – introductory part
The home Member State shall require a CTP to have adequate policies and arrangements in place to collect the information made public in accordance with Articles 5 and 19 of Regulation (EU) No …/… [MiFIR], consolidate it into a continuous electronic data stream and make the information available to the public as close to real time as is technically possiblin real time, on a reasonable commercial basis including, at least, the following details:
Amendment 1197 #
Proposal for a directive
Article 67 – paragraph 1 – subparagraph 2
Article 67 – paragraph 1 – subparagraph 2
The consolidated post-trade information shall be made available free of charge 15 minutes after the publication of a transactionfrom data license fees for the purpose of public information 15 minutes after the publication. Access to real time data by market professionals should be at reasonable commercial terms levied by the CTP. The home Member State shall require the CTP to be able to efficiently and consistently disseminate such information in a way that ensures fast access to the information, on a non- discriminatory basis and in formats that are easily accessible and utilisable for market participants.
Amendment 1200 #
Proposal for a directive
Article 67 – paragraph 2 – subparagraph 2
Article 67 – paragraph 2 – subparagraph 2
The consolidated post-trade information shall be made available free of charge 15 minutes after the publication of a transactionfrom data license fees for the purpose of public information 15 minutes after the publication of a transaction. Access by market professionals to real-time information should be at reasonable commercial terms levied by the CTP. The home Member State shall require the CTP to be able to efficiently and consistently disseminate such information in a way that ensures fast access to the information, on a non-discriminatory basis and in generally accepted formats that are interoperable and easily accessible and utilisable for market participants.
Amendment 1204 #
Proposal for a directive
Article 67 – paragraph 7
Article 67 – paragraph 7
7. The Commission shall be empowered toy […]* adopt delegated acts in accordance with Article 94 concerning measures clarifying what constitutes a reasonable commercial basis to provide access to data streams as referred to in paragraphs 1 and 2. _________________ *OJ please insert date: 6 months after entry into force of this Directive
Amendment 1205 #
Proposal for a directive
Article 67 – paragraph 8 – introductory part
Article 67 – paragraph 8 – introductory part
8. The Commission shall be empowered toy […] adopt delegated acts in accordance with Article 94 concerning measures specifying: _________________ *OJ please insert date: 6 months after entry into force of this Directive
Amendment 1208 #
Proposal for a directive
Article 67 – paragraph 8 – point d
Article 67 – paragraph 8 – point d
(d) other means to ensure that the data published by different CTPs is consistent and allows for comprehensive mapping and cross-referencing against similar data from other sourcesthe same.
Amendment 1212 #
Proposal for a directive
Article 68 – paragraph 5
Article 68 – paragraph 5
5. The Commission mayshall adopt, by means of delegated acts in accordance with Article 394, measures clarifying what constitutes a reasonable commercial basis to report information as referred to in paragraph 1.
Amendment 1217 #
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 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 1221 #
Proposal for a directive
Article 71 – paragraph 2 – point d a (new)
Article 71 – paragraph 2 – point d a (new)
(da) request the freezing and/or the sequestration of assets;
Amendment 1222 #
Proposal for a directive
Article 71 – paragraph 2 – point i
Article 71 – paragraph 2 – point i
(i) demand information including all relevant documentation from any person regarding the size and purpose of a position or exposure entered into via a commodity derivative, and any assets or liabilities in the underlying market.
Amendment 1224 #
Proposal for a directive
Article 72 – paragraph 1 – introductory part
Article 72 – paragraph 1 – introductory part
Amendment 1225 #
Proposal for a directive
Article 72 – paragraph 1 – point b
Article 72 – paragraph 1 – point b
Amendment 1228 #
Proposal for a directive
Article 72 – paragraph 1 – point g
Article 72 – paragraph 1 – point g
(g) limit the ability of any person or class of persons from entering into a commodity derivative , including by introducing non- discriminatory limits on positions or the number of such derivative contracts per underlying which any given class of persons can enter into over a specified period of time, when necessary to ensure the integrity and orderly functioning of the affected markets;
Amendment 1229 #
Proposal for a directive
Article 73 – paragraph 2
Article 73 – paragraph 2
2. Member States shall ensure that where obligations apply to investment firms and market operators, in case of a breach, administrative sanctions and measures can be applied, subject to the conditions laid down in national law, to the members of the investment firms' and market operators' management body, and any other natural or legal persons who, under national law, are responsible for a violation.
Amendment 1231 #
Proposal for a directive
Article 74
Article 74
Member States shall provide that the competent authority may publishes any sanction or measure that has been imposed for breaches of the provisions of Regulation (EU) No …/… (MiFIR) or of the national provisions adopted in the implementation of this Directive without undue delay including information on the type and nature of the breach and the identity of persons responsible for it, unless such disclosure would seriously jeopardise the financial markets. Where the publication would cause a disproportionate damage to the parties involved, competent authorities shall publish the sanctions on an anonymous basis.
Amendment 1233 #
Proposal for a directive
Article 75 – paragraph 1 – introductory part
Article 75 – paragraph 1 – introductory part
1. This Article shall apply to the followingMember States shall ensure that their laws, regulations or administrative provisions provide for sanctions in respect of:
Amendment 1239 #
Proposal for a directive
Article 75 – paragraph 2 – subparagraph 1 – introductory part
Article 75 – paragraph 2 – subparagraph 1 – introductory part
Member States shall ensure that in the cases referred to in paragraph 1, their laws, regulations or administrative provisions provide for administrative sanctions and measures that can be applied includeing at least the following:
Amendment 1240 #
Proposal for a directive
Article 75 – paragraph 2 – subparagraph 1 – point a
Article 75 – paragraph 2 – subparagraph 1 – point a
(a) a public statement or warning, which indicates the natural or legal person and the nature of the breach;
Amendment 1241 #
Proposal for a directive
Article 75 – paragraph 2 – subparagraph 1 – point d
Article 75 – paragraph 2 – subparagraph 1 – point d
(d) a temporary ban against any member of the investment firm's management body or any other natural person, who is held responsible, to exercise management functions in investment firms;
Amendment 1246 #
Proposal for a directive
Article 75 – paragraph 2 – subparagraph 1 – point f
Article 75 – paragraph 2 – subparagraph 1 – point f
(f) in case of a natural person, administrative pecuniary sanctions of up to 51 000 000 EUR, or in the Member States where the Euro is not the official currency, the corresponding value in the national currency on the date of entry into force of this Directive;
Amendment 1249 #
Proposal for a directive
Article 75 – paragraph 2 – subparagraph 2 a (new)
Article 75 – paragraph 2 – subparagraph 2 a (new)
For the purpose of this Article, the types of administrative measures and sanctions and the level of administrative pecuniary sanctions shall be subject to conditions laid down in national law.
Amendment 1250 #
Proposal for a directive
Article 76 – paragraph 1 – introductory part
Article 76 – paragraph 1 – introductory part
1. Member States shall ensure that when determining the type of administrative sanctions or measures and the level of administrative pecuniary sanctions, the competent authorities shall take into account all relevant circumstances, including where appropriate:
Amendment 1257 #
Proposal for a directive
Article 78 – paragraph 3
Article 78 – paragraph 3
Amendment 1260 #
Proposal for a directive
Article 80 – paragraph 1
Article 80 – paragraph 1
1. Member States shall ensure the setting- up of efficient and effective complaints and redress procedures for the out-of-court settlement of consumer disputes concerning the provision of investment and ancillary services provided by investment firms, using existing bodies where appropriate. Member States shall further ensure that all investment firms adhere to one or more such bodies implementing such complaint and redress procedures.
Amendment 1262 #
Proposal for a directive
Article 83 – paragraph 5 – subparagraph 1 – point a
Article 83 – paragraph 5 – subparagraph 1 – point a
(a) any requests to reduce the size of a position or exposure pursuant to Article 72(1) (f);
Amendment 1263 #
Proposal for a directive
Article 83 – paragraph 5 – subparagraph 1 – point b
Article 83 – paragraph 5 – subparagraph 1 – point b
(b) any limits on the ability of persons to enter into an instrument pursuant to Article 72(1) (g).
Amendment 1264 #
Proposal for a directive
Article 83 – paragraph 5 – subparagraph 2
Article 83 – paragraph 5 – subparagraph 2
The notification shall include, where relevant, the details of the request pursuant to Article 72(1) (f) including the identity of the person or persons to whom it was addressed and the reasons thereof, as well as the scope of the limits introduced pursuant to Article 72(1) (g) including the person or class of persons concerned, the applicable financial instruments, any quantitative measures or thresholds such as the maximum number of contracts persons can enter into before a limit is reached, any exemptions thereto, and the reasons thereof.
Amendment 1266 #
Proposal for a directive
Article 83 – paragraph 5 – subparagraph 4
Article 83 – paragraph 5 – subparagraph 4
A competent authority of a Member State that receives notification under this paragraph may take measures in accordance with Article 72(1) (f) or (g) where it is satisfied that the measure is necessary to achieve the objective of the other competent authority. The competent authority shall also give notice in accordance with this paragraph where it proposes to take measures.
Amendment 1267 #
Proposal for a directive
Article 83 – paragraph 7
Article 83 – paragraph 7
7. The Commission shall in consultation with ESMA, be empowered to adopt delegated acts in accordance with Article 94 concerning measures to establish the criteria under which the operations of a regulated market in a host Member State could be considered as of substantial importance for the functioning of the securities markets and the protection of the investors in that host Member State. 2
Amendment 1279 #
Proposal for a directive
Article 93 – paragraph 1
Article 93 – paragraph 1
The Commission shall be empowered to adopt delegated acts in accordance with Article 94 concerning Articles 2(3), 4(1), 4(2), 13(1), 16(12), 17(6), 23(3), 24(8), 25(6), 27(7), 28(3), 30(5), 32(3), 35(8), 44(4), 51(7), 52(6), 53(4), 59(3), 60(5) , 66(613(1), 35(8), 44(4), 66(7), 67(3), 67(7), 67(8), 68(5), 83(7) and 99(2).
Amendment 1307 #
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 canare not intended to be physically settled provided that they are traded on a regulated market , OTF, or an MTF;
Amendment 1310 #
Proposal for a directive
Annex 1 – Section C – point 7
Annex 1 – Section C – point 7
(7) Options, futures, swaps, forwards and any other derivative contracts relating to commodities, that canare not intended to be physically settled not otherwise mentioned in C.6 and not being for commercial purposes, which have the characteristics of other derivative financial instruments, having regards to whether, inter alia, they are cleared and settled through recognised clearing houses or are subject to regular margin calls;