53 Amendments of Emilie TURUNEN related to 2013/0314(COD)
Amendment 135 #
Proposal for a regulation
Recital 6
Recital 6
(6) Therefore to ensure the proper functioning of the internal market and improve the conditions of its functioning, in particular with regard to financial markets, and to ensure a high level of consumer and investor protection, and ensure adequate supervision of wholesale markets and prevent market abuse, it is therefore appropriate to lay down a regulatory framework for benchmarks at Union level.
Amendment 150 #
Proposal for a regulation
Recital 9
Recital 9
(9) The critical determinant of the scope of this Regulation should be whether the output value of the benchmark determines the value of a financial instrument, financial contract or measures the performance of an investment fund. Therefore the scope should not be dependent on the nature of the input data. Benchmarks calculated from economic input data, such as share prices and non- economic number or values such as weather parameters should thus be included. The framework should cover those benchmarks subject to these risks, but should also provide for a proportionate response to the risks that different benchmarks pose. This Regulation should therefore cover all benchmarks which are used to price financial instruments listed or traded on regulated venues.
Amendment 157 #
Proposal for a regulation
Recital 16
Recital 16
(16) Benchmarks that are provided by central banks in the Union are subject to control by public authorities and meet principles, standards and procedures which ensure the accuracy, integrity and independence of their benchmarks as provided for by this Regulation. It is therefore not necessary that these benchmarks should be subject to this Regulation. However third country central banks may also provide benchmarks that are used in the Union. It is necessary to determine that only those central banks of equivalent third countries that produce benchmarks are exempted from the obligations under this Regulation that are subject to similar standards to those established by this Regulation.
Amendment 159 #
Proposal for a regulation
Recital 16 a (new)
Recital 16 a (new)
(16 a) Benchmarks that are provided by national statistical authorities in the Union are subject to control by public authorities and meet principles, standards and procedures which ensure the accuracy, integrity and independence of their benchmarks as provided for by this Regulation. It is therefore not necessary that these benchmarks should be subject to this Regulation.
Amendment 168 #
Proposal for a regulation
Recital 26
Recital 26
(26) The integrity and accuracy of benchmarks depends on the integrity and accuracy of the input data provided by contributors. It is essential that the obligations of the contributors in respect of this input data are clearly specified, can be relied on and are consistent with the benchmark administrator's controls and methodology. It is therefore necessary that the benchmark administrator produces a code of conduct to specify these requirements and that the contributors are bound by that code of conduct regardless of where they are incorporated.
Amendment 171 #
Proposal for a regulation
Recital 27
Recital 27
(27) Many benchmarks are determined from input data that is provided by regulated venues, energy exchanges and emission allowance auctions. These venues are subject to regulation and supervision that ensures the integrity of the input data, provides for governance requirements and procedures for the notification of breaches. Therefore, provided they are sourced from venues subject to post-trade transparency requirements, including a third country market considered as equivalent to a regulated market in the Union, these benchmarks are released from certain obligations in order to avoid dual regulation and because their supervision ensures the integrity of the input data used.
Amendment 178 #
Proposal for a regulation
Recital 30
Recital 30
(30) The failure of certain critical benchmarks may have a significant impact on financial stability, market orderliness or investors and iin Member States or jurisdictions different from the Member State where the benchmark administrator is located. It is therefore necessary that additional requirements apply to ensure the integrity and robustness of these critical benchmarks. Where a benchmark references a significant value of financial instruments and is widely used on the international markets it will have such an impact. It is therefore necessary that the CommissionESMA in consultation with EBA and EIOPA determines thosewhich benchmarks that reference financial instruments above a certain threshold and should be considered critical benchmarks.
Amendment 182 #
Proposal for a regulation
Recital 31
Recital 31
(31) Contributors ceasing to contribute may undermine the credibility of critical benchmarks. In order to address this vulnerability, it is therefore necessary to include a power for the relevant competent authorityESMA to require mandatory contributions to critical benchmarks.
Amendment 191 #
Proposal for a regulation
Recital 36
Recital 36
(36) In some circumstances a person may provide an index but be unaware that this index is being used as a reference for a financial instrument. This is particularly the case where the users and benchmark administrator are located in different Member States. It is therefore necessary that competent authorities, whenever they become aware of the use of a benchmark in a financial instrument, notify a central coordinating authority such as ESMA, who should nosupervised entities shall only use a benchmark if this is provided by an authorised or registered administrator. If the administrator is not authorised or registered, the supervised entifty the administratorshall have the consent of the administrator in order to make use of the benchmark.
Amendment 197 #
Proposal for a regulation
Recital 45
Recital 45
(45) Therefore, a set of administrative measures, sanctions and fines should be provided for to ensure a common approach in Member States and to enhance their deterrent effect. Sanctions applied in specific cases should be determined taking into account where appropriate factors such as the repayment of any identified financial benefit, the gravity and duration of the breach, any aggravating or mitigating factors, the need for fines to have a deterrent effect and, where appropriate, include a reduction in return for cooperation with the competent authority. In particular, the actual amount of administrative fines to be imposed in a specific case may reach the maximum level provided for in this Regulation, or the higher level provided for in national law, for very serious breaches, while fines significantly lower than the maximum level may be applied to minor breaches or in case of settlement. The possibility to impose a temporary or permanent ban to exercise management functions within benchmark administrators or contributors should be available to the competent authority. This Regulation should not limit Member States in their ability to provide for higher levels of administrative sanctions.
Amendment 199 #
Proposal for a regulation
Recital 47
Recital 47
(47) Critical benchmarks may involves contributors, administrators andor users in more than one Member State. Thus, the cessation of the provision of such a benchmark or any events that may significantly undermine its integrity may have an impact in more than one Member State meaning that the supervision of such a benchmark by the competent authority of the Member State in which it is located alone will not be efficient and effective in terms ofshall be guaranteed by ESMA in consultation with EIOPA, EBA and the relevant competent authorities in order to addressing the risks that the critical benchmark poses. To ensure the effective exchange of supervisory information among competent authorities, coordination of their activities and supervisory measures, colleges of competent authorities should be formed. The activities of the colleges should contribute to the harmonised application of rules under this Regulation and to the convergence of supervisory practices. ESMA's legally binding mediation is a key element of the achievement of coordination, supervisory consistency and convergence of supervisory practices. Benchmarks may reference financial instruments and financial contracts that have a long duration. In certain cases such benchmarks may no longer be permitted to be provided once this Regulation comes into effect because they have characteristics that cannot be adjusted to conform to the requirements of this Regulation. However, prohibiting the continued provision of such a benchmark may result in the termination or frustration of the financial instruments or financial contracts and so harm investors. It is therefore necessary to make provision to allow for the continued provision of such benchmarks for a transitional period.
Amendment 203 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
This Regulation introduces a common framework to ensurhance the accuracy and integrity of indices used as benchmarks in financial instruments and financial contracts in the Union. The Regulation thereby contributes to the proper functioning of the internal market while achieving a high level of consumer and investor protection.
Amendment 205 #
Proposal for a regulation
Article 2 – paragraph 1
Article 2 – paragraph 1
1. This Regulation shall apply to the provision of all benchmarks, the contribution of input data to a benchmark and the use of a benchmark within the Union.
Amendment 208 #
Proposal for a regulation
Article 2 – paragraph 2 – point b a (new)
Article 2 – paragraph 2 – point b a (new)
(b a) National statistical authorities in the Union.
Amendment 243 #
Proposal for a regulation
Article 3 – paragraph 1 – point 11
Article 3 – paragraph 1 – point 11
(11) ‘'regulated data’' means input data that is sourced from venues subject to mandatory post-trade transparency requirements and that is contributed directly from a trading venue as defined in point (25) of paragraph 1 of Article 2 of [MIFIR] or approved publication arrangement as defined in point (18) of paragraph 1 of Article 2 of [MIFIR ] or an approved reporting arrangement as defined in point (20) of paragraph 1 of Article 2 of [MIFIR] in accordance with mandatory post trade data requirements or an electricity exchange as referred to in point (j) of paragraph 1 of Article 37 of Directive 2009/72/EC19 or a natural gas exchange as referred to in point (j) of paragraph 1 of Article 41 of Directive 2009/73/EC20 or an auction platform referred to in Article 26 or in Article 30 of Regulation (EU) No 1031/2010 of the European Parliament and of the Council; __________________ 19 20, or from a third country market considered as equivalent to a regulated market in accordance with Article 19(6) of Directive 2004/39/EC; __________________ 19 OJ L 211, 14.8.2009, p. 55. OJ L 211, 14.8.2009, p. 55. 20 OJ L 9, 14.8.2009, p. 112. OJ L 9, 14.8.2009, p. 112.
Amendment 252 #
Proposal for a regulation
Article 3 – paragraph 1 – point 13
Article 3 – paragraph 1 – point 13
(13) ‘'financial instrument’' means any of the instruments listed in Section C of Annex I to Directive 2004/39/EC for which a request for admission to trading on a trading venue has been made or which are traded on a trading venue;
Amendment 268 #
Proposal for a regulation
Article 3 – paragraph 1 – point 21
Article 3 – paragraph 1 – point 21
(21) ‘'critical benchmark’' means a benchmark,: 1) the majority of contributors to which are supervised entities and that reference financial instruments having a notional value of at least 500 billion euro; and 2) that is widely used on the international markets; ESMA shall asses which benchmarks are widely used on the international markets taking into account whether: a) the benchmark is significantly used to reference financial instruments in Member States or jurisdictions different from the Member State where the benchmark administrator is located; b) in the event that the benchmark were to cease to be provided, it would have significant adverse impact on the financial stability, or the orderly functioning of markets, or consumers, or the real economy in Member States or jurisdictions different from the Member State where the benchmark administrator is located;
Amendment 283 #
Proposal for a regulation
Article 5 – paragraph 1 – subparagraph 1 – introductory part
Article 5 – paragraph 1 – subparagraph 1 – introductory part
The following governance requirements shall apply to the all administrators of benchmarks in the Union:
Amendment 297 #
Proposal for a regulation
Article 7 – paragraph 1 – subparagraph 1 – introductory part
Article 7 – paragraph 1 – subparagraph 1 – introductory part
The provision of a benchmark shall be governed by the following requirements in respect of its input data and, methodology and privacy:
Amendment 316 #
Proposal for a regulation
Article 8 – paragraph 2 – introductory part
Article 8 – paragraph 2 – introductory part
2. The administrator shall monitor the input data and contributorensure that the contributors have adequate systems and effective controls in order to identify breaches of the [Market Abuse Regulation] and any conduct that may involve manipulation or attempted manipulation of the benchmark and notify the relevant competent authority in accordance with Article 11(2) of the [Market Abuse Regulation] and provide all relevant information where it suspects that, in relation to the benchmark, there has been:
Amendment 324 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
1. The administrator shall adopt a legally binding code of conduct for each benchmark clearly specifying the administrator's and contributors' responsibilities and obligations with respect to the provision of the benchmark which shall include a clear description of the input data to be provided, and at least the elements set out in Section D of Annex I.
Amendment 330 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. The code of conduct shall be signed by the administrator and the contributors and shall, regardless of where they are incorporated, be legally binding on all parties to it.
Amendment 350 #
Proposal for a regulation
Article 11 – paragraph 4 – subparagraph 2
Article 11 – paragraph 4 – subparagraph 2
The Commission shall take into account the different characteristics of benchmarks and supervised contributors, notably in terms of differences in input data provided and methodologies used, the risks of manipulation of the input data and the nature of the activities carried out by the supervised contributors, and the developments in benchmarks and financial markets in light of international convergence of supervisory practices in relation to benchmarks as well as technological developments.
Amendment 383 #
Proposal for a regulation
Article 13 – paragraph 1 – subparagraph 1
Article 13 – paragraph 1 – subparagraph 1
Amendment 385 #
Proposal for a regulation
Article 13 – paragraph 1 – subparagraph 2
Article 13 – paragraph 1 – subparagraph 2
Amendment 390 #
Proposal for a regulation
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Within 5 working days from the date of application of the decision including a critical benchmark in the list referred to in paragraph 1of this Article, the administrator of that critical benchmark shall notify the code of conduct to the relevant competent authority. The relevant competent authorityESMA. ESMA shall verify within 30 days whether the content of the code of conduct complies with the requirements of this Regulation. In case the relevant competent authorityESMA finds elements which do not comply with the requirements of this Regulation, it shall inform the administrator. The administrator shall adjust the code of conduct to ensure that it complies with the requirements of this Regulation within 30 days of such a request.
Amendment 396 #
Proposal for a regulation
Article 14 – paragraph 1 – introductory part
Article 14 – paragraph 1 – introductory part
1. Where contributors, comprising at least 20% of the contributors to a critical benchmark have ceased contributing, or there are sufficient indications that at least 20% of the contributors are likely to cease contributing, in any year, the competent authority of the administrator of a critical benchmarkESMA shall have the power to:
Amendment 400 #
Proposal for a regulation
Article 14 – paragraph 2 – introductory part
Article 14 – paragraph 2 – introductory part
2. For a critical benchmark, the supervised entities that are required to contribute in accordance with paragraph 1 shall be determined by the competent authority of the administratorESMA on the basis of the following criteria:
Amendment 402 #
Proposal for a regulation
Article 14 – paragraph 3
Article 14 – paragraph 3
Amendment 405 #
Proposal for a regulation
Article 14 – paragraph 4 – introductory part
Article 14 – paragraph 4 – introductory part
4. The competent authority of the administratorESMA shall review each measure adopted under paragraph 1 one year following its adoption. It shall revoke it if:
Amendment 408 #
Proposal for a regulation
Article 14 – paragraph 4 – point a – point 1
Article 14 – paragraph 4 – point a – point 1
(1) a written commitment by the contributors to the administrator and the competent authorityESMA to continue contributing input data to the critical benchmark for at least one year if the mandatory contribution power were revoked;
Amendment 411 #
Proposal for a regulation
Article 14 – paragraph 4 – point a – point 2
Article 14 – paragraph 4 – point a – point 2
(2) a written report by the administrator to the competent authorityESMA providing evidence for its assessment that the critical benchmark’s continued viability can be assured once mandatory participation has been revoked.
Amendment 413 #
Proposal for a regulation
Article 14 – paragraph 5
Article 14 – paragraph 5
5. The administrator shall notify the relevant competent authorityESMA in the event that any contributors breach the requirements of paragraph 1 of this Article as soon as is technically possible.
Amendment 424 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
1. An administrator shall publish the input data used to determine the benchmark immediately after publication of the benchmark except where publication would have serious adverse consequences for the contributors or adversely affect the reliability or integrity of the benchmark. In such cases publication may be delayed for a period that significantly diminishes these consequences. Any personal data included in input data shall not be publishedwithout the name of the contributors. Complete contribution of input data, including the name of the contributors, shall be published within a 3-months delay, delay that can be extended by the administrator where publication would have serious adverse consequences for the contributors or adversely affect the reliability or integrity of the benchmark. Administrators shall publish their pricing and royalty policy in sufficient detail to show no undue cross-subsidy on revenue generation.
Amendment 447 #
Proposal for a regulation
Article 18 – paragraph 2
Article 18 – paragraph 2
2. Where the supervised entity considers, on the basis of the assessment under paragraph 1, that the benchmark is not suitable for the consumer, the supervised entity shall warn the consumer in writing with reasonsnot enter into such a financial contract with the consumer.
Amendment 507 #
Proposal for a regulation
Article 25
Article 25
Amendment 521 #
Proposal for a regulation
Article 25 a (new)
Article 25 a (new)
Article 25 a Initial use of an index as a benchmark Before an index is used by a supervised entity as a benchmark in the Union, the entity shall verify that the provider of the relevant index is referenced on the website of ESMA as an authorised or registered administrator in accordance with this Regulation. If this is not the case, the entity shall notify the provider of the relevant index providing full details of its intended use and requesting the provider of the index to confirm that it consents to the intended use of the index within 10 working days. In such circumstances, the index cannot be used by the entity as a benchmark in the Union without the prior consent of the provider of the index. In case of conflict, the national competent authority and ESMA shall be notified.
Amendment 535 #
Proposal for a regulation
Article 31 – paragraph 2 – introductory part
Article 31 – paragraph 2 – introductory part
2. In case of a breach referred to in paragraph 1, Member States shall, in conformity with national law, confer on competent authorities the power apply at least the following administrative measures and sanctions, without prejudice to civil suits brought by third parties in case of losses related to breaches:
Amendment 536 #
Proposal for a regulation
Article 31 – paragraph 2 – point e
Article 31 – paragraph 2 – point e
(e) a temporary or permanent ban prohibiting any natural person, who is held responsible for such breach, from exercising management functions in administrators or contributors;
Amendment 540 #
Proposal for a regulation
Article 32 – paragraph 1 – point g a (new)
Article 32 – paragraph 1 – point g a (new)
(ga) actual or potential losses incurred on users due to the breach
Amendment 545 #
Proposal for a regulation
Article 34 – paragraph 1
Article 34 – paragraph 1
1. Within 30 working days from the entry into force of the decision referred to in Article 13(1) determining a benchmark as critical benchmark, the competent authorityESMA shall establish a college of competent authorities.
Amendment 547 #
Proposal for a regulation
Article 34 – paragraph 3 – subparagraph 1
Article 34 – paragraph 3 – subparagraph 1
Competent authorities of other Member States shall have the right to be member of the college where the critical benchmark is significantly used to reference financial instruments and, if that critical benchmark were to cease to be provided, it would have a significant adverse impact on the financial stability, or the orderly functioning of markets, or consumers, or the real economy of those Member States
Amendment 549 #
Proposal for a regulation
Article 34 – paragraph 3 – subparagraph 2
Article 34 – paragraph 3 – subparagraph 2
Where a competent authority intends to become a member of a college pursuant to the first subparagraph, it shall submit a request to the competent authority of the administratorESMA containing evidence that the requirements of that provision are fulfilled. The relevant competent authority of the administratorESMA shall consider the request and notify the requesting authority within 20 working days of receipt of the request whether or not it considers those requirements to be fulfilled. Where it considers those requirements not to be fulfilled, the requesting authority may refer the matter to ESMA in accordance with paragraph 10.
Amendment 552 #
Proposal for a regulation
Article 34 – paragraph 5
Article 34 – paragraph 5
5. The competent authority of the administratorESMA shall chair the meetings of the college, coordinate the actions of the college and ensure efficient exchange of information among members of the college.
Amendment 554 #
Proposal for a regulation
Article 34 – paragraph 6 – subparagraph 1 – introductory part
Article 34 – paragraph 6 – subparagraph 1 – introductory part
Amendment 556 #
Proposal for a regulation
Article 34 – paragraph 6 – subparagraph 2
Article 34 – paragraph 6 – subparagraph 2
Where the administrator provides more than one benchmark, the competent authority of the administrator may apply to ESMA to establish a single college in respect of all the benchmarks provided by that administrator.
Amendment 557 #
Proposal for a regulation
Article 34 – paragraph 7
Article 34 – paragraph 7
7. In the absence of agreement concerning the arrangements under paragraph 6, any members of the college, other than ESMA, may refer the matter to ESMA. The competent authority of the administrator shall give due consideration to any advice provided by ESMA concerning the written coordination arrangements before agreeing their final text. The written coordination arrangements shall be set out in a single document containing full reasons for any significant deviation from the advice of ESMA. The competent authority of the administratorESMA shall transmit the written coordination arrangements to the members of the college and to ESMA.
Amendment 559 #
Proposal for a regulation
Article 34 – paragraph 8 – subparagraph 1
Article 34 – paragraph 8 – subparagraph 1
Before taking any measures referred to in Article 14, 23, 24 and 31 the competent authority of the administrator shall consult the members of the college. The members of the college shall do everything reasonable within their power to reach an agreement.
Amendment 561 #
Proposal for a regulation
Article 34 – paragraph 8 – subparagraph 2
Article 34 – paragraph 8 – subparagraph 2
Any decision of the competent authority of the administrator to take such measures shall take account of the impact on the other competent authorities and their respective Member States, in particular the potential impact on the stability of the financial system in any other Member States concerned. Before taking any measures referred to in Article 14 ESMA shall consult the members of the college. The members of the college shall do everything reasonable within their power to reach an agreement.
Amendment 563 #
Proposal for a regulation
Article 34 – paragraph 9
Article 34 – paragraph 9
9. In the absence of agreement between the members of the college on whether to take any measures referred to in paragraph 8, within 15 working days after the matter was notified to the college, the competent authority of the administratorESMA may adopt a decision. Any deviation of that decision from the opinions expressed by the other members of the college and, where appropriate, ESMA shall be fully reasoned. The competent authority of the administratorshall be fully reasoned. ESMA shall notify its decision, without undue delay, to the college and ESMA.
Amendment 564 #
Proposal for a regulation
Article 34 – paragraph 10
Article 34 – paragraph 10
Amendment 577 #
Proposal for a regulation
Article 39 a (new)
Article 39 a (new)
Article 39 a By 31 December 2014, ESMA shall access the staffing and resources needed arising from the assumptions of its powers and duties in accordance with this regulation and make a report the EP, the council and the EC.
Amendment 614 #
Proposal for a regulation
Annex 1 – section 1 – part IV – point 19
Annex 1 – section 1 – part IV – point 19
19. The administrator shall keep the records set out in point 18(a-e) for at least five years in such a form that it is possible to replicate and fully understand the benchmark calculations and enable an audit or evaluation of the input data, calculations, judgements and discretion. Records shall be kept for at least 10 years where financial instruments of long duration rely on the benchmark Records of telephone conversation or electronic communications recorded in accordance with point 18(f) shall be provided to the persons involved in the conversation or communication upon request and shall be kept for a period of threfive years.