BETA

197 Amendments of Sven GIEGOLD related to 2017/0230(COD)

Amendment 4 #
Proposal for a regulation
Recital 11a
(11a) It is becoming increasingly important to promote consistent, systematic and effective monitoring and assessment of risks in relation to money-laundering and terrorist financing in the Union's financial system. Given the consequences for financial stability which may stem from abuses of the financial sector for money- laundering or terrorist financing purposes, and building on, the experience already gained by EBA in protecting the banking sector from such abuses, EBAESAs should take a leading role at Union level to protect the financial system from money-laundering and terrorist financing risks. Therefore, it is necessary to entrust EBA, in addition to its present competences, with the authority to act within the remit of Regulation (EU) No 1094/2010 and Regulation (EU) No 1095/2010 insofar as such authority relates to the prevention and combating of money-laundering and terrorist financing, where it concerns financial sector operators and the competent authorities supervising them, which are covered by those Regulations. Moreover, concentrating this mandate for the entire financial sector within EBA would optimise the use of its expertise and resources, and is without prejudice to the material obligations laid down in Directive (EU) 2015/849.
2018/10/30
Committee: ECON
Amendment 6 #
Proposal for a regulation
Recital 11b
(11b) In order for EBAthe ESAs to exercise itstheir mandate effectively it should make full use of all its powers and tools under the Regulation. In line with its new role, it is important that EBA collects all relevant information in relation to money- laundering and terrorist financing activities identified by the relevant Union and national authorities, without prejudice to the tasks assigned to authorities under Directive (EU) 2015/849. EBAThe ESAs should store such information in a centralised database and foster cooperation among authorities by ensuring appropriate dissemination of relevant information. In addition EBAthe ESAs should carry out reviews of competent authorities, as well as risk assessment exercises relating to money- laundering and terrorist financing. Furthermore, EBAthe ESAs should also have a role cooperating and liaising with relevant third country authorities on these matters with a view to better coordinate action at Union level in material cases of anti- money laundering and terrorist financing having a cross-border and third country dimension.
2018/10/30
Committee: ECON
Amendment 10 #
Proposal for a regulation
Recital 11c
(11c) In order to enhance the effectiveness of supervisory control of compliance in the area of money laundering and terrorist financing and to ensure greater coordination of the enforcement by national competent authorities of breaches of directly applicable Union law or its national transposing measures, EBAthe ESAs should have the power, where there are indications of material breaches, to request competent authorities to investigate any possible breaches of the relevant rules, to consider taking decisions and imposing sanctions addressed to financial institutions requiring them to comply with their legal obligations. This power should only be used where EBAthe ESAs hasve indications of material breaches.
2018/10/30
Committee: ECON
Amendment 14 #
Proposal for a regulation
Recital 15a
(15a) In view of the importance of ensuring that the Union supervisory framework for combating of money- laundering and terrorist financing is applied effectively, independent reviews to provide objective and transparent perspectives on supervisory practices are of paramount importance. Where such reviews reveal serious concerns, which the competent authority does not remedy, EBAthe ESAs should notify the European Parliament, the Council and the Commission.
2018/10/30
Committee: ECON
Amendment 17 #
Proposal for a regulation
Recital 15b
(15b) For carrying out its tasks and exercising its powers, EBAthe ESAs should be able to take individual decisions addressed to financial sector operatorinstitutions or financial market participants in the context of the procedure for breach of Union law and of the procedure of binding mediation even when the material rules are not directly applicable to financial sector operators, after having taken a decision addressed to the competent authority. Where the material rules are laid down in Directives, EBAthe ESAs should apply the national legislation transposing those Directives. Where the relevant Union law is composed of Regulations and where, on the date of entry into force of this Regulation, those Regulations expressly grant options to Member States, EBAthe ESAs should apply the national legislation exercising those options.
2018/10/30
Committee: ECON
Amendment 22 #
Proposal for a regulation
Recital 24a
(24a) To ensure that the appropriate level of expertise underpins decisions relating to anti-money laundering and terrorist financing measures, it is necessary to set up a committee composed of the heads of authorities and bodies in charge of compliance with anti-money laundering and terrorist financing legislation , which will examine and prepare decisions to be taken by EBAeach Authority. In order to avoid duplication, this new committee will replace the existing anti-money laundering sub-committee which has been set up within the ESAs Joint Committee.
2018/10/30
Committee: ECON
Amendment 28 #
Proposal for a regulation
Recital 24a a (new)
(24a a) Any additional task conferred upon the ESAs shall be matched with sufficient human and financial resources.
2018/10/30
Committee: ECON
Amendment 29 #
Proposal for a regulation
Article 1 – paragraph 1 – point 1 – point b
Regulation (EU) No 1093/2010
Article 1 – paragraph 2 – subparagraph 1a
The Authority shall also act within the powers conferred by this Regulation and within the scope of Directive (EU) 2015/849(*) of the European Parliament and of the Council to the extent that that Directive applies to financial sector operators and the competent authorities that supervise them. For this purpose only, EBA shall carry out the tasks conferred by any legally binding Union act on the European Insurance and Occupational Pensions Authority established by Regulation (EU) No 1094/2010 or to the European Securities and Markets Authority established by Regulation (EU) No 1095/2010. When carrying out such tasks, the Authority shall keep those Authorities informed of its activities concerning any entity which is a "financial" institution" as defined in Article 4(1) of Regulation (EU) No 1094/2010 or a "financial market participant" as defined in Article 4(1) of Regulation (EU) No 1095/2010institutions and the competent authorities that supervise them. _______________________ (*) Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73)';
2018/10/30
Committee: ECON
Amendment 31 #
Proposal for a regulation
Article 1 – paragraph 1 – point 1 – point b a (new)
Regulation (EU) No 1093/2010
Article 1 – paragraph 5 – point f a (new)
(b a) in Article 1(5), the following point (fa) is inserted: ‘(fa) to contribute to the prevention of the use of the financial system for the purposes of money-laundering, terrorist financing and associated predicated offenses, as set out in Articles 2 and 3 of Directive 2018/XX on countering money laundering by criminal law.’
2018/10/30
Committee: ECON
Amendment 32 #
Proposal for a regulation
Article 1 – paragraph 1 – point 3 – point aa
Regulation (EU) No 1093/2010
Article 4 – paragraph 1 – point 1a
(la) 'financial sector operators' means any entity which is subject to Directive (EU) 2015/849 and which is either a 'financial institution' as defined in Article 4(1) of this Regulation and in Article 4(1) of Regulation (EU) No 1094/2010 or a ‘financial market participant’ as defined in Article 4(1) of Regulation (EU) No 1095/2010";deleted
2018/10/30
Committee: ECON
Amendment 35 #
Proposal for a regulation
Article 1 – paragraph 1 – point 5 – point a – point v
Regulation (EU) No 1093/2010
Article 8 – paragraph 1 – point l
(l) to contribute to the prevention of the use of the financial system for the purposes of money-laundering and terrorist financing and associated predicated offenses, as set out in Articles 2 and 3 of Directive XX/2018;
2018/10/30
Committee: ECON
Amendment 43 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6a
Regulation (EU) No 1093/2010
Article 9a –paragraph 1 – point a
(a) collecting information from competent authorities relating to weaknesses identified in the processes and procedures, governance arrangements, fit and proper assessments, business models and activities of financial sector operatorinstitutions to prevent money-laundering and terrorist financing as well as measures taken by competent authorities. Competent authorities shall provide all such information to the Authority in addition to any obligations under Article 35. The Authority shall coordinate closely with Financial Intelligence Units;
2018/10/30
Committee: ECON
Amendment 47 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6a
(b) developing common standards for combating money-laundering and terrorist financing in the financialbanking sector and promoting their consistent implementation;
2018/10/30
Committee: ECON
Amendment 48 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6a
Regulation (EU) No 1093/2010
Article 9a –paragraph 1 – point c
(c) monitoring market developments and assessing vulnerabilities to money- laundering and terrorist financing in the financialbanking sector.
2018/10/30
Committee: ECON
Amendment 63 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6a
Regulation (EU) No 1093/2010
Article 9b –paragraph 1
1. In matters concerning the prevention of the use of the financial system for the purpose of money laundering and terrorist financing in accordance with Directive (EU) 2015/849, the AuthorityChair of the Authority or the Executive Board may, where the Authority has indications of material breaches, request a competent authority as referred to in point (iia) of Article 4(2) to investigate possible breaches of Union law, and where such Union law is composed of Directives or explicitly grants options for Member States, breaches of national laws transposing Directives or exercising options granted to Member States by Union law, by a financial sector operatorinstitutions and to consider imposing sanctions on that operatorinstitution in respect of such breaches. Where necessary, it may also request a competent authority as referred to in point (iia) of Article 4(2) to consider adopting an individual decision addressed to that financial sector operatorinstitution requiring it to undertake all necessary action to comply with its obligations under directly applicable Union law, or under national laws transposing Directives or exercising options granted to Member States by Union law, including the cessation of any conduct.
2018/10/30
Committee: ECON
Amendment 66 #
Proposal for a regulation
Article 1 – paragraph 1 – point 8 – point b
Regulation (EU) No 1093/2010
Article 17 – paragraph 6 – subparagraph 1
6. Without prejudice to the powers of the Commission pursuant to Article 258 TFEU, where a competent authority does not comply with the formal opinion referred to in paragraph 4 within the period of time specified therein, and where it is necessary to remedy in a timely manner such non-compliance in order to maintain or restore neutral conditions of competition in the market or ensure the orderly functioning and integrity of the financial system, the Authority may, where the relevant requirements of the acts referred to in Article 1(2) are directly applicable to financial institutions or, in the context of matters relating to the prevention and combating of money laundering and terrorist financing, to financial sector operators, adopt an individual decision addressed to a financial institution or a financial sector operator requiring it to take all necessary action to comply with its obligations under Union law, including the cessation of any conduct.
2018/10/30
Committee: ECON
Amendment 70 #
Proposal for a regulation
Article 1 – paragraph 1 – point 8 – point b
Regulation (EU) No 1093/2010
Article 17 – paragraph 6 – subparagraph 2
In matters concerning the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, where the relevant requirements of the acts referred to in Article 1(2) are not directly applicable to financial sector operatorinstitutions, the Authority may adopt a decision requiring the competent authority to comply with the formal opinion referred to in paragraph 4 within the period of time specified therein. If the authority does not comply with that decision, the Authority may also adopt a decision in accordance with the first sub-paragraph. To that effect, the Authority shall apply all relevant Union law, and where that Union law is composed of Directives, the national legislation transposing those Directives. Where the relevant Union law is composed of Regulations and where currently those Regulations explicitly grant options for Member States, the Authority shall apply also the national legislation exercising those options.
2018/10/30
Committee: ECON
Amendment 72 #
Proposal for a regulation
Article 1 – paragraph 1 – point 9 – point e
Regulation (EU) No 1093/2010
Article 19 – paragraph 4 – subparagraph 1
4. Without prejudice to the powers of the Commission pursuant to Article 258 TFEU, where a competent authority does not comply with the decision of the Authority, and thereby fails to ensure that a financial institution or, in the context of matters relating to the prevention and combating of money laundering and terrorist financing, a financial sector operator complies with requirements directly applicable to it by virtue of the acts referred to in Article 1(2), the Authority may adopt an individual decision addressed to that financial institution or financial sector operator requiring it to take all necessary action to comply with its obligations under Union law, including the cessation of any practice.
2018/10/30
Committee: ECON
Amendment 75 #
Proposal for a regulation
Article 1 – paragraph 1 – point 9 – point e
Regulation (EU) No 1093/2010
Article 19 – paragraph 4 – subparagraph 2
In matters concerning the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, the Authority may also adopt a decision in accordance with the first subparagraph where the relevant requirements of the acts referred to in Article 1(2) are not directly applicable to financial sector operatorinstitutions. To that effect, the Authority shall apply all relevant Union law, and where this Union law is composed of Directives, the national legislation transposing those Directives. Where the relevant Union law is composed of Regulations and where currently those Regulations explicitly grant options for Member States, the Authority shall apply also the national legislation exercising those options.
2018/10/30
Committee: ECON
Amendment 77 #
Proposal for a regulation
Article 1 – paragraph 1 – point 38 – point c
Regulation (EU) No 1093/2010
Article 54 – paragraph 2a – subparagraph 1 a (new)
The Joint Committee shall assist to the effective interconnection of the national registers under Articles 30, 31, 32a and 32b of Directive (EU) 2018/843. The Joint Committee shall, on a regular basis and at least bi-annually, monitor the quality of the registers and the effective interconnection of the national registers, in particular the correct identification of the ultimate beneficial owner even for complex ownership structures. The Joint Committee shall make the results of its monitoring actions available to the public.
2018/10/30
Committee: ECON
Amendment 79 #
Proposal for a regulation
Article 2– paragraph 1 – point 1
Regulation (EU) No 1094/2010
Article 1 – paragraph 2
2. The Authority shall act within the powers conferred by this Regulation and within the scope of Directive 2009/138/EC with the exception of Title IV thereof, of Directives 2002/92/EC, 2003/41/EC, 2002/87/EC, Directive 2009/103/EC* and, to the extent that those acts apply to insurance undertakings, reinsurance undertakings, institutions for occupational retirement provision and insurance intermediaries, within the relevant parts of Directives (EU) 2015/849 and 2002/65/EC, including all directives, regulations, and decisions based on those acts, and of any further legally binding Union act which confers tasks on the Authority. _____________________ * Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability (OJ L 263, 7.10.2009, p. 11).
2018/10/30
Committee: ECON
Amendment 80 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1 a (new)
Regulation (EU) No 1094/2010
Article 1 – paragraph 6 – subparagraph 1 – point f a (new)
(1a) in Article 1, paragraph 6, subparagraph 1, new point (fa) is inserted: “(fa) to contribute to the prevention of the use of the financial system for the purposes of money-laundering, terrorist financing and associated predicated offenses, as set out in Articles 2 and 3 of Directive 2018/XX.”
2018/10/30
Committee: ECON
Amendment 81 #
Proposal for a regulation
Article 2 – paragraph 1 – point 3 a (new)
Regulation (EU) No 1094/2010
Article 4 – point 2 – point ii a (new)
(3a) in point 2 of Article 4, new point (iia) is inserted: ‘(iia) with regard to Directive (EU) 2015/849 the authorities and bodies that supervise financial institutions and are competent for ensuring their compliance with the requirements of that Directive.’
2018/10/30
Committee: ECON
Amendment 82 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5 – point a – point iv a (new)
Regulation (EU) No 1094/2010
Article 8 – paragraph 1 –point l a (new)
(iv a) the following point (la) is inserted: ‘(la) to contribute to the prevention of the use of the financial system for the purposes of money-laundering terrorist financing and associated predicated offenses, as set out in Articles 2 and 3 of Directive 2018/XX.’
2018/10/30
Committee: ECON
Amendment 83 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6 a (new)
Regulation (EU) No 1094/2010
Article 9 a (new)
(6a)_ New Article 9a is inserted: ‘Article 9a 1. The Authority shall take a leading role in promoting integrity, transparency and security in the financial system by means of adopting measures to prevent and combat money laundering and terrorist financing, including by: (a) collecting information from competent authorities relating to weaknesses identified in the processes and procedures, governance arrangements, fit and proper assessments, business models and activities of financial institutions to prevent money-laundering and terrorist financing as well as measures taken by competent authorities. Competent authorities shall provide all such information to the Authority in addition to any obligations under Article 35. The Authority shall coordinate closely with Financial Intelligence Units; (b) developing common standards for combating money-laundering and terrorist financing in the insurance, re- insurance and occupational pensions sector and promoting their consistent implementation; (c) monitoring market developments and assessing vulnerabilities to money- laundering and terrorist financing in the insurance, re-insurance and occupational pensions sector. 2. The Authority shall establish and keep up to date a central database of information collected pursuant to point (a) in paragraph 1. The Authority shall ensure that information is analysed and made available to competent authorities on a need-to-know and confidential basis. 3. The Authority shall promote convergence of supervisory processes referred to in Directive (EU) 2015/849, including by conducting periodic reviews, in accordance with Article 30. Where such a review reveals serious shortcomings in the identification, assessment or addressing of risks of money-laundering and terrorist financing and the competent authority does not take action to address the follow-up measures set out in the report referred to in Article 30(3), the Authority shall inform the European Parliament, the Council and the Commission. 4. The Authority shall regularly perform risk assessments on competent authorities with a main focus on competent authorities as referred to in point (iia) of Article 4(2) to test their strategies and resources to address and monitor the most important emerging risks related to money-laundering and terrorist financing. The Authority shall inform the Commission of the outcomes of these risk assessments, including by integrating the analysis of the outcomes in the opinion it is requested to deliver pursuant to paragraph 5 of Article 6 of Directive (EU) 2015/849. 5. In material cases of money- laundering or terrorist financing affecting cross border matters with third countries, the Authority shall have a leading role in facilitating cooperation between competent authorities in the Union and the relevant authorities in third countries. 6. The Authority shall establish a permanent internal committee on anti- money laundering and countering terrorist financing to coordinate measures in order to combat money-laundering and terrorist financing and to prepare draft decisions to be taken by the Authority in accordance with Article 44. 7. The committee shall be chaired by the Chairperson of the Board of Supervisors and shall be composed of the heads of the authorities and bodies competent for ensuring compliance with the requirements of Directive (EU) 2015/849 by financial institutions. In addition, the Commission, the ESRB, the Supervisory Board of the European Central Bank, the European Banking Authority, and the European Securities and Markets Authority may each nominate a representative to participate in the committee meetings as observers.
2018/10/30
Committee: ECON
Amendment 84 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6 b (new)
Regulation (EU) No 1094/2010
Article 9 b (new)
(6a) New Article 9b is inserted: ‘Article 9b 1. In matters concerning the prevention of the use of the financial system for the purpose of money laundering and terrorist financing in accordance with Directive (EU) 2015/849, the Chair of the Authority or the Executive Board may, where the Authority has indications of material breaches, request a competent authority as referred to in point (iia) of Article 4(2) to investigate possible breaches of Union law, and where such Union law is composed of Directives or explicitly grants options for Member States, breaches of national laws transposing Directives or exercising options granted to Member States by Union law, by financial institutions and to consider imposing sanctions on that institution in respect of such breaches. Where necessary, it may also request a competent authority as referred to in point (iia) of Article 4(2) to consider adopting an individual decision addressed to that financial institution requiring it to undertake all necessary action to comply with its obligations under directly applicable Union law, or under national laws transposing Directives or exercising options granted to Member States by Union law, including the cessation of any conduct. 2. The competent authority shall comply with any request addressed to it in accordance with paragraph 1 and shall inform the Authority within 10 days of the steps it has taken or intends to take to comply with that request. 3. Without prejudice to the powers of the Commission under Article 258 TFEU, where a competent authority does not comply with paragraph 2 of this Article, Article 17 shall apply.’
2018/10/30
Committee: ECON
Amendment 85 #
Proposal for a regulation
Article 2 – paragraph 1 - point 8 a (new)
Regulation (EU) No 1094/2010
Article 17 – paragraph 6
(8a) In Article 17, paragraph 6 is replaced by the following: 6. Without prejudice to the powers of the Commission underpursuant to Article 258 TFEU, where a competent authority does not comply with the formal opinion referred to in paragraph 4 within the period of time specified therein, and where it is necessary to remedy in a timely manner such non- compliance in order to maintain or restore neutral conditions of competition in the market or ensure the orderly functioning and integrity of the financial system, the Authority may, where the relevant requirements of the acts referred to in Article 1(2) are directly applicable to financial institutions, adopt an individual decision addressed to a financial institution requiring theit to take all necessary action to comply with its obligations under Union law, including the cessation of any practice. conduct. In matters concerning the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, where the relevant requirements of the acts referred to in Article 1(2) are not directly applicable to financial institutions, the Authority may adopt a decision requiring the competent authority to comply with the formal opinion referred to in paragraph 4 within the period of time specified therein. If the authority does not comply with that decision, the Authority may also adopt a decision in accordance with the first sub- paragraph. To that effect, the Authority shall apply all relevant Union law, and where that Union law is composed of Directives, the national legislation transposing those Directives. Where the relevant Union law is composed of Regulations and where currently those Regulations explicitly grant options for Member States, the Authority shall apply also the national legislation exercising those options. The decision of the Authority shall be in conformity with the formal opinion issued by the Commission pursuant to paragraph 4 of this Article.
2018/10/30
Committee: ECON
Amendment 86 #
Proposal for a regulation
Article 2 – paragraph 1 – point 9 – point f
Regulation (EU) No 1094/2010
Article 19 – paragraph 4 – subparagraph 1 a (new)
‘In matters concerning the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, the Authority may also adopt a decision in accordance with the first subparagraph where the relevant requirements of the acts referred to in Article 1(2) are not directly applicable to financial institutions. To that effect, the Authority shall apply all relevant Union law, and where this Union law is composed of Directives, the national legislation transposing those Directives. Where the relevant Union law is composed of Regulations and where currently those Regulations explicitly grant options for Member States, the Authority shall apply also the national legislation exercising those options.’
2018/10/30
Committee: ECON
Amendment 88 #
Proposal for a regulation
Article 2 – paragraph 1 – point 41 – point c
Regulation (EU) No 1094/2010
Article 54 – paragraph 2a – subparagraph 1 a (new)
The Joint Committee shall assist to the effective interconnection of the national registers under Articles 30, 31, 32a and 32b of Directive (EU) 2018/843. The Joint Committee shall, on a regular basis and at least bi-annually, monitor the quality of the registers and the effective interconnection of the national registers, in particular the correct identification of the ultimate beneficial owner even for complex ownership structures. The Joint Committee shall make the results of its monitoring actions available to the public.
2018/10/30
Committee: ECON
Amendment 89 #
Proposal for a regulation
Article 3 – paragraph 1 – point 1 – point a
Regulation (EU) No 1095/2010
Article 1 – paragraph 2
2. The Authority shall act within the powers conferred by this Regulation and within the scope of Directive 2009/138/EC with the exception of Title IV thereof, of Directives 2002/92/EC, 2003/41/EC, 2002/87/EC, Directive 2009/103/EC* and, to the extent that those acts apply to insurance undertakings, reinsurance undertakings, institutions for occupational retirement provision and insurance intermediaries, within the relevant parts of Directives (EU) 2015/849 and 2002/65/EC, including all directives, regulations, and decisions based on those acts, and of any further legally binding Union act which confers tasks on the Authority. ______________________ * Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability (OJ L 263, 7.10.2009, p. 11).
2018/10/30
Committee: ECON
Amendment 90 #
Proposal for a regulation
Article 3 – paragraph 1 – point 1 – point b a (new)
Regulation (EU) No 1095/2010
Article 1 – paragraph 5 –point f a (new)
(b a) in paragraph 5, subparagraph 1, the following point (fa) is inserted: ‘(fa) to contribute to the prevention of the use of the financial system for the purposes of money-laundering terrorist financing and associated predicated offenses, as set out in Articles 2 and 3 of Directive 2018/XX.’
2018/10/30
Committee: ECON
Amendment 91 #
Proposal for a regulation
Article 3 – paragraph 1 – point 3 a (new)
Regulation (EU) No 1095/2010
Article 4 – point 3 – point iia (new)
(3 a) in Article 4, the following point is inserted in point (3): ‘(iia) with regard to Directive (EU) 2015/849 the authorities and bodies that supervise financial institutions and are competent for ensuring their compliance with the requirements of that Directive.’
2018/10/30
Committee: ECON
Amendment 92 #
Proposal for a regulation
Article 3 – paragraph 1 – point 5 – point a – point iv a (new)
Regulation (EU) No 1095/2010
Article 8 – paragraph 1 – point l a (new)
(iv a) new point (la) is inserted: ‘(la) to contribute to the prevention of the use of the financial system for the purposes of money-laundering terrorist financing and associated predicated offenses, as set out in Articles 2 and 3 of Directive 2018/XX.’
2018/10/30
Committee: ECON
Amendment 93 #
Proposal for a regulation
Article 3 – paragraph 1 – point 6 a (new)
Regulation (EU) No 1095/2010
Article 9 a (new)
(6a) new Article 9a is inserted: ‘Article 9a Special tasks related to combating money- laundering and terrorist financing 1. The Authority shall take a leading role in promoting integrity, transparency and security in the financial system by means of adopting measures to prevent and combat money laundering and terrorist financing, including by: (a) collecting information from competent authorities relating to weaknesses identified in the processes and procedures, governance arrangements, fit and proper assessments, business models and activities of financial market participants to prevent money-laundering and terrorist financing as well as measures taken by competent authorities. Competent authorities shall provide all such information to the Authority in addition to any obligations under Article 35. The Authority shall coordinate closely with Financial Intelligence Units; (b) developing common standards for combating money-laundering and terrorist financing in the securities sector promoting their consistent implementation; 2. The Authority shall establish and keep up to date a central database of information collected pursuant to point (a) in paragraph 1. The Authority shall ensure that information is analysed and made available to competent authorities on a need-to-know and confidential basis. 3. The Authority shall promote convergence of supervisory processes referred to in Directive (EU) 2015/849, including by conducting periodic reviews, in accordance with Article 30. Where such a review reveals serious shortcomings in the identification, assessment or addressing of risks of money-laundering and terrorist financing and the competent authority does not take action to address the follow-up measures set out in the report referred to in Article 30(3), the Authority shall inform the European Parliament, the Council and the Commission. 4. The Authority shall regularly perform risk assessments on competent authorities with a main focus on competent authorities as referred to in point (iia) of Article 4(2)to test their strategies and resources to address and monitor the most important emerging risks related to money-laundering and terrorist financing. The Authority shall inform the Commission of the outcomes of these risk assessments, including by integrating the analysis of the outcomes in the opinion it is requested to deliver pursuant to paragraph 5 of Article 6 of Directive (EU) 2015/849. 5. In material cases of money- laundering or terrorist financing affecting cross border matters with third countries, the Authority shall have a leading role in facilitating cooperation between competent authorities in the Union and the relevant authorities in third countries. 6. The Authority shall establish a permanent internal committee on anti- money laundering and countering terrorist financing to coordinate measures in order to combat money-laundering and terrorist financing and to prepare draft decisions to be taken by the Authority in accordance with Article 44. 7. The committee shall be chaired by the Chairperson of the Board of Supervisors and shall be composed of the heads of the authorities and bodies competent for ensuring compliance with the requirements of Directive (EU) 2015/849 by financial institutions. In addition, the Commission, the ESRB, the Supervisory Board of the European Central Bank, the European Banking Authority, and the European Securities and Markets Authority may each nominate a representative to participate in the committee meetings as observers.’
2018/10/30
Committee: ECON
Amendment 94 #
Proposal for a regulation
Article 3 – paragraph 1 – point 6 b (new)
(6a) new Article 9b is inserted: ‘Article 9b Request for investigation related to the prevention of money laundering and terrorist financing 1. In matters concerning the prevention of the use of the financial system for the purpose of money laundering and terrorist financing in accordance with Directive (EU) 2015/849, the Chair of the Authority or the Executive Board may, where the Authority has indications of material breaches, request a competent authority as referred to in point (iia) of Article 4(2) to investigate possible breaches of Union law, and where such Union law is composed of Directives or explicitly grants options for Member States, breaches of national laws transposing Directives or exercising options granted to Member States by Union law, by financial market participants and to consider imposing sanctions on that participant in respect of such breaches. Where necessary, it may also request a competent authority as referred to in point (iia) of Article 4(2) to consider adopting an individual decision addressed to that financial market participant requiring it to undertake all necessary action to comply with its obligations under directly applicable Union law, or under national laws transposing Directives or exercising options granted to Member States by Union law, including the cessation of any conduct. 2. The competent authority shall comply with any request addressed to it in accordance with paragraph 1 and shall inform the Authority within 10 days of the steps it has taken or intends to take to comply with that request. 3. Without prejudice to the powers of the Commission under Article 258 TFEU, where a competent authority does not comply with paragraph 2 of this Article, Article 17 shall apply.’;
2018/10/30
Committee: ECON
Amendment 95 #
Proposal for a regulation
Article 3 – paragraph 1 – point 8 a (new)
Regulation (EU) No 1095/2010
Article 17 – paragraph 6
(8a) In Article 17, paragraph 6 is replaced by the following: 6. Without prejudice to the powers of the Commission underpursuant to Article 258 TFEU, where a competent authority does not comply with the formal opinion referred to in paragraph 4 within the period of time specified therein, and where it is necessary to remedy in a timely manner such non -compliance in order to maintain or restore neutral conditions of competition in the market or ensure the orderly functioning and integrity of the financial system, the Authority may, where the relevant requirements of the acts referred to in Article 1(2) are directly applicable to financial market participants, adopt an individual decision addressed to a financial market participant requiring theit to take all necessary action to comply with its obligations under Union law, including the cessation of any practice. conduct. In matters concerning the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, where the relevant requirements of the acts referred to in Article 1(2) are not directly applicable to financial market participants, the Authority may adopt a decision requiring the competent authority to comply with the formal opinion referred to in paragraph 4 within the period of time specified therein. If the authority does not comply with that decision, the Authority may also adopt a decision in accordance with the first sub-paragraph. To that effect, the Authority shall apply all relevant Union law, and where that Union law is composed of Directives, the national legislation transposing those Directives. Where the relevant Union law is composed of Regulations and where currently those Regulations explicitly grant options for Member States, the Authority shall apply also the national legislation exercising those options. The decision of the Authority shall be in conformity with the formal opinion issued by the Commission pursuant to paragraph 4 of this Article.
2018/10/30
Committee: ECON
Amendment 96 #
Proposal for a regulation
Article 3 – paragraph 1 – point 9 – point e
Regulation (EU) No 1095/2010
Article 19 – paragraph 4 – subparagraph 1 a (new)
‘In matters concerning the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, the Authority may also adopt a decision in accordance with the first subparagraph where the relevant requirements of the acts referred to in Article 1(2) are not directly applicable to financial market participants. To that effect, the Authority shall apply all relevant Union law, and where this Union law is composed of Directives, the national legislation transposing those Directives. Where the relevant Union law is composed of Regulations and where currently those Regulations explicitly grant options for Member States, the Authority shall apply also the national legislation exercising those options.’
2018/10/30
Committee: ECON
Amendment 98 #
Proposal for a regulation
Article 3 – paragraph 1 – point 41 – point c
Regulation (EU) No 1095/2010
Article 54 – paragraph 2a – subparagraph 1 a (new)
The Joint Committee shall assist to the effective interconnection of the national registers under Articles 30, 31, 32a and 32b of Directive (EU) 2018/843. The Joint Committee shall, on a regular basis and at least bi-annually, monitor the quality of the registers and the effective interconnection of the national registers, in particular the correct identification of the ultimate beneficial owner even for complex ownership structures. The Joint Committee shall make the results of its monitoring actions available to the public.
2018/10/30
Committee: ECON
Amendment 99 #
Proposal for a regulation
Article 9a – paragraph 1 – point -1 (new)
Directive (EU) 2015/849
Article 3 – paragraph 6 – point b – point iv
(iv) the beneficiaries, or where the individuals benefiting from the legal arrangement or entity have yet to be determined, the class of persons in whose main interest the legal arrangement or entity is set up or operata) In Article 3, paragraph 6, point (b), point (iv) is replaced by the following: “(iv) the beneficiaries;
2018/10/30
Committee: ECON
Amendment 100 #
Proposal for a regulation
Article 9a – paragraph 1 – point 1 – point a
Directive (EU) 2015/849
Article 6 – paragraph 3
3. The Commission shall make the report referred to in paragraph 1 available to Member States and obliged entities in order to assist them to identify, understand, manage and mitigate the risk of money-laundering and terrorist financing, and to allow other stakeholders, including national legislators, the European Parliament, the European Banking Authority ('EBA'), and representatives from Financial Intelligence Units, to better understand the risks. Reports shall be made public at the latest six months after having been made available to Member States, except for the elements of the reports which contain classified information.deleted
2018/10/30
Committee: ECON
Amendment 101 #
Proposal for a regulation
Article 9a – paragraph 1 – point 1 – point a a (new)
Directive (EU) 2015/849
Article 6 – paragraph 4
(aa) paragraph 4 is replaced by the following: “4. The Commission shall make recommendations to Member States on the measures suitable for addressing the identified risks. In the event that Member States decide not to apply any of the recommendations in their national AML/ CFT regimes, they shall notify the Commission thereof and provide a justification for such a decision. If either the justification provided by a Member State is not deemed satisfactory or a Member State fails to enforce measures to comply with those recommendations, the Commission may recommend to this Member State the application of specific measures to address these failures.”
2018/10/30
Committee: ECON
Amendment 102 #
Proposal for a regulation
Article 9a – paragraph 1 – point 1 – point b
Directive (EU) 2015/849
Article 6 – paragraph 5 – second sentence
(b) in paragraph 5 the second sentence is replaced by the following: "Thereafter, EBA shall issue an opinion every two years."deleted
2018/10/30
Committee: ECON
Amendment 103 #
Proposal for a regulation
Article 9a – paragraph 1 – point 2 – point a
Directive (EU) 2015/849
Article 7 – paragraph 2 – second sentence
(a) in paragraph 2 the second sentence is replaced by the following: “The identity of that authority or the description of the mechanism shall be notified to the Commission, EBA, and other Member States.”deleted
2018/10/30
Committee: ECON
Amendment 104 #
Proposal for a regulation
Article 9a – paragraph 1 – point 2 – point b
Directive (EU) 2015/849
Article 7 – paragraph 5 – first sentence
(b) in paragraph 5 the first sentence is replaced by the following: “5. Member States shall make the results of their risk assessments, including their updates, available to the Commission, EBA and the other Member States.”deleted
2018/10/30
Committee: ECON
Amendment 105 #
Proposal for a regulation
Article 9a – paragraph 1 – point 2 a (new)
Directive (EU) 2015/849
Article 13 – paragraph 1 – point b
(a) in in Article 13, paragraph 1, point (b) is replaced by the following: “(b) identifying the beneficial owner and taking reasonable measures to verify that person's identity so that the obliged entity is satisfied that it knows who the beneficial owner is, including, as regards legal persons, trusts, companies, foundations and similar legal arrangements, taking reasonableffective measures to understand the ownership and control structure of the customer; Where the beneficial owner identified is the senior managing official as referred to in Article 3(6)(a) (ii), obliged entities shall take the necessary reasonable measures to verify the identity of the natural person who holds the position of senior managing official and shall keep records of the actions taken as well as any difficulties encountered during the verification process;
2018/10/30
Committee: ECON
Amendment 106 #
Proposal for a regulation
Article 9a – paragraph 1 – point 2 b (new)
Directive (EU) 2015/849
Article 13 – paragraph 2 – subparagraphs 1 a (new) and1 b (new)
(b) in Article 13, paragraph 2, the following subparagraphs are inserted: “The ESAs shall develop draft regulatory technical standards specifying the effective identification of the beneficial owner referred to in paragraph 1 and the appropriate times referred to in paragraph 5 of Article 14 at which due diligence measures shall be applied to existing customers on a risk-sensitive basis. The ESAs shall submit the draft regulatory technical standards referred to in the second subparagraph to the Commission by 26 December 2019.”
2018/10/30
Committee: ECON
Amendment 107 #
Proposal for a regulation
Article 9a – paragraph 1 – point 2 c (new)
Directive (EU) 2015/849
Article 13 – paragraph 6
(c) paragraph 6 is replaced by the following: “6. In the case of beneficiaries of trusts or of similar legal arrangements that are designated by particular characteristics or class, an obliged entity shall obtain sufficient information concerning the beneficiary to satisfy the obliged entity that it will be able to establishknows the identity of the beneficiary at the time of the payout or at the time of the exercise by the beneficiary of its vested rights.any point in time.”
2018/10/30
Committee: ECON
Amendment 108 #
Proposal for a regulation
Article 9a – paragraph 1 – point 3
Directive (EU) 2015/849
Article 17 – first sentence
(3) in Article 17 the first sentence is replaced by the following: “By 26 June 2017, the ESAs, and thereafter EBA shall issue guidelines addressed to competent authorities and the credit institutions and financial institutions in accordance with Article 16 of Regulation (EU) No 1093/2010 on the risk factors to be taken into consideration and the measures to be taken in situations where simplified customer due diligence measures are appropriate.”deleted
2018/10/30
Committee: ECON
Amendment 109 #
Proposal for a regulation
Article 9a – paragraph 1 – point 4
Directive (EU) 2015/849
Article 18 – paragraph 4 – first sentence
(4) in paragraph 4 of Article 18, the first sentence is replaced by the following: “4. By 26 June 2017, the ESAs, and thereafter EBA shall issue guidelines addressed to competent authorities and the credit institutions and financial institutions, in accordance with Article 16 of Regulation (EU) No 1093/2010 on the risk factors to be taken into consideration and the measures to be taken in situations where enhanced customer due diligence measures are appropriate.”deleted
2018/10/30
Committee: ECON
Amendment 110 #
Proposal for a regulation
Article 9a – paragraph 1 – point 4 a (new)
Directive (EU) 2015/849
Article 21 – paragraph 1 – first sentence
(4a) in Article 21, the first sentence of the first paragraph is be replaced by the following: “Member States shall require obliged entities to take reasonableffective measures to determine whether the beneficiaries of a life or other investment-related insurance policy and/or, where required, the beneficial owner of the beneficiary are politically exposed persons.
2018/10/30
Committee: ECON
Amendment 111 #
Proposal for a regulation
Article 9a – paragraph 1 – point 4 b (new)
Directive (EU) 2015/849
Article 31 – paragraph 1 – subparagraph 2 – point d
(d) the beneficiaries or class of4b) in Article 31, paragraph 1, point (d) of subparagraph 2 is replaced by the following: “(d) the beneficiaries;”
2018/10/30
Committee: ECON
Amendment 112 #
Proposal for a regulation
Article 9a – paragraph 1 – point 4 c (new)
Directive (EU) 2015/849
Article 33 – paragraph 1 – subparagraph 1 – point b a (new)
(4c) in Article 33, paragraph 1, subparagraph 1, a new point (ba) is inserted: “(ba) transmitting, on their own initiative, a suspicious transaction report to the FIU and the competent authority supervising credit institutions and financial institutions of the Member State in whose territory the obliged entity transmitting the information is established, where the identification of the beneficial owner failed and the natural person(s) who hold the position of senior managing official(s) were recorded in accordance with Article 3, paragraph 6, point (a), point (ii).”
2018/10/30
Committee: ECON
Amendment 113 #
Proposal for a regulation
Article 9a – paragraph 1 – point 5
Directive (EU) 2015/849
Article 41 – paragraph 1
(5) in Article 41, paragraph 1 is replaced by the following: “1. The processing of personal data under this Directive is subject to Directive 95/46/EC, as transposed into national law. Personal data that is processed pursuant to this Directive by the Commission or by EBA is subject to Regulation (EC) No 45/2001.”deleted
2018/10/30
Committee: ECON
Amendment 115 #
Proposal for a regulation
Article 9a – paragraph 1 – point 6 – point a
Directive (EU) 2015/849
Article 45 – paragraph 4
(a) paragraph 4 is replaced by the following: “4. The Member States and EBA shall inform each other of instances in which the law of a third country does not permit the implementation of the policies and procedures required under paragraph 1. In such cases, coordinated actions may be taken to pursue a solution. In the assessing which third countries do not permit the implementation of the policies and procedures required under paragraph 1, Member States and EBA shall take into account any legal constraints that may hinder proper implementation of those policies and procedures, including secrecy, data protection and other constraints limiting the exchange of information that may be relevant for that purpose.”deleted
2018/10/30
Committee: ECON
Amendment 116 #
Proposal for a regulation
Article 9a – paragraph 1 – point 6 – point b
Directive (EU) 2015/849
Article 45 – paragraph 6
(b) paragraph 6 is replaced by the following: “6. EBA shall develop draft regulatory technical standards specifying the type of additional measures referred to in paragraph 5 and the minimum action to be taken by credit institutions and financial institutions where a third country's law does not permit the implementation of the measures required under paragraphs 1 and 3. EBA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 26 December 2016.”deleted
2018/10/30
Committee: ECON
Amendment 117 #
Proposal for a regulation
Article 9a – paragraph 1 – point 6 – point c
Directive (EU) 2015/849
Article 45 – paragraph 10
(c) paragraph 10 is replaced by the following: “10. EBA shall develop draft regulatory technical standards on the criteria for determining the circumstances in which the appointment of a central contact point pursuant to paragraph 9 is appropriate, and what the functions of the central contact points should be. EBA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 26 June 2017.”deleted
2018/10/30
Committee: ECON
Amendment 118 #
Proposal for a regulation
Article 9a – paragraph 1 – point 7 – point a
Directive (EU) 2015/849
Article 48 – paragraph 1a – subparagraph 2 – final sentence
(a) in the second subparagraph of paragraph 1a the final sentence is replaced by the following: “Financial supervisory authorities of the Member States shall also serve as a contact point for EBA.”deleted
2018/10/30
Committee: ECON
Amendment 120 #
Proposal for a regulation
Article 9a – paragraph 1 – point 7 – point b
Directive (EU) 2015/849
Article 48 – paragraph 10 – first sentence
(b) in paragraph 10 the first sentence is replaced by the following: “By 26 June 2017, the ESAs and thereafter EBA shall issue guidelines addressed to competent authorities in accordance with Article 16 of Regulation (EU) No 1093/2010, on the characteristics of a risk- based approach to supervision and the steps to be taken when conducting supervision on a risk-based basis.”deleted
2018/10/30
Committee: ECON
Amendment 121 #
Proposal for a regulation
Article 9a – paragraph 1 – point 8
Directive (EU) 2015/849
Section 3 – Subsection II – title
(8) in Section 3 the title of Subsection II is replaced by the following: “Cooperation with EBA”deleted
2018/10/30
Committee: ECON
Amendment 122 #
Proposal for a regulation
Article 9a – paragraph 1 – point 9
Directive (EU) 2015/849
Article 50
(9) Article 50 is replaced by the following: “The competent authorities shall provide EBA with all the information necessary to allow it to carry out its duties under this Directive.”deleted
2018/10/30
Committee: ECON
Amendment 123 #
Proposal for a regulation
Article 9a – paragraph 1 – point 9a (new)
Directive (EU) 2015/849
Article 57b – paragraph 1 – subparagraph 1
(9 a) in Article 57b, paragraph 1, subparagraph 1 is replaced by the following: “1. Notwithstanding Article 57a(1) and (3) and without prejudice to Article 34(2), Member States may authorisshall ensure the exchange of information between competent authorities in the same Member State or in different Member States, between the competent authorities and authorities entrusted with the supervision of financial sector entities and natural or legal persons acting in the exercise of their professional activities as referred to in point (3) of Article 2(1) and the authorities responsible by law for the supervision of financial markets in the discharge of their respective supervisory functions.”
2018/10/30
Committee: ECON
Amendment 124 #
Proposal for a regulation
Article 9a – paragraph 1 – point 9 b (new)
Directive (EU) 2015/849
Article 57b – paragraph 2 – subparagraph 1
(9 b) in Article 57b, paragraph 2, subparagraph 1 is replaced by the following: “2. Notwithstanding Article 57a(1) and (3), Member States mayshall, by virtue of provisions laid down in national law, authorisensure the disclosure of certain information to other national authorities responsible by law for the supervision of the financial markets, or with designated responsibilities in the field of combating or investigation of money laundering, the associated predicate offences or terrorist financing.
2018/10/30
Committee: ECON
Amendment 125 #
Proposal for a regulation
Article 9a – paragraph 1 – point 9 c (new)
Directive (EU) 2015/849
Article 57b – paragraph 3 – introductory part
(9 c) in Article 57b, paragraph 3, the introductory part is replaced by the following: “3. Member States may authorisshall ensure the disclosure of certain information relating to the supervision of credit institutions for compliance with this Directive to Parliamentary inquiry committees, courts of auditors and other entities in charge of enquiries, in their Member State, under the following conditions:
2018/10/30
Committee: ECON
Amendment 126 #
Proposal for a regulation
Article 9a – paragraph 1 – point 9 d (new)
Directive (EU) 2015/849
Article 60 – paragraph 1 – subparagraph 2 – introductory part
W(9d) in Article 60, paragraph 1, the introductory part of subparagraph 2 is replaced by the following: “In exceptional circumstances, where the publication of the identity of the natural persons responsible as referred to in the first subparagraph or the personal data of such natural persons is considered by the competent authority to be disproportionate following a case-by-case assessment conducted on the proportionality of the publication of such data, or where publication jeopardises the stability of financial markets or an on-going investigation, competent authorities shall:
2018/10/30
Committee: ECON
Amendment 127 #
Proposal for a regulation
Article 9a – paragraph 1 – point 9 e (new)
(i) that the stability of the financial markets would not be put in jeopardy; or”9e) in Article 60, in point (c) of subparagraph 2 of paragraph 1, point (i) is be deleted.; deleted
2018/10/30
Committee: ECON
Amendment 128 #
Proposal for a regulation
Article 9a – paragraph 1 – point 9 f
Directive (EU) 2015/849
Article 60 – paragraph 3
(9 f) in Article 60, paragraph 3 is replaced by the following: “Competent authorities shall ensure that any publication in accordance with this Article shall remain on their official website for a period of five20 years after its publication. However, personal data contained in the publication shall only be kept on the official website of the competent authority for the period which is necessary in accordance with the applicable data protection rules.
2018/10/30
Committee: ECON
Amendment 129 #
Proposal for a regulation
Article 9a – paragraph 1 – point 10 – point a
(a) paragraph 1 is replaced by the following: “1. Member States shall ensure that their competent authorities inform EBA of all administrative sanctions and measures imposed in accordance with Articles 58 and 59 on credit institutions and financial institutions, including of any appeal in relation thereto and the outcome thereof.”deleted
2018/10/30
Committee: ECON
Amendment 130 #
Proposal for a regulation
Article 9a – paragraph 1 – point 10 – point b
Directive (EU) 2015/849
Article 62 – paragraph 3
(b) paragraph 3 is replaced by the following: “3. EBA shall maintain a website with links to each competent authority's publication of administrative sanctions and measures imposed in accordance with Article 60 on credit institutions and financial institutions, and shall show the time period for which each Member State publishes administrative sanctions and measures.”deleted
2018/10/30
Committee: ECON
Amendment 131 #
Proposal for a regulation
Article 9a – paragraph 1 – point 10 a (new)
Directive (EU) 2015/849
Article 65 – paragraph 1 – subparagraph 1
(10 a) in Article 65, paragraph 1, subparagraph 1 is replaced by the following: “1. By 11 January 20220, and every three years thereafter, the Commission shall draw up a report on the implementation of this Directive and submit it to the European Parliament and to the Council.”
2018/10/30
Committee: ECON
Amendment 132 #
Proposal for a regulation
Article 9a – paragraph 1 – point 10 b (new)
Directive (EU) 2015/849
Article 65 – paragraph 1 – subparagraph 2 – point b a (new)
(10 b) in Article 65, paragraph 1, subparagraph 2, a new point (ba) is inserted: “(ba) an account of the effectiveness, adequateness and independence of the supervision of all obliged entities, in particular by self-regulatory bodies, including the need for supervision by public authorities via a separate and independent national regulator or supervisor;”
2018/10/30
Committee: ECON
Amendment 133 #
Proposal for a regulation
Article 9a – paragraph 1 – point 10 c (new)
Directive (EU) 2015/849
Article 65 – paragraph 1 – subparagraph 2 – point e
(10 c) In Article 65, paragraph 1, subparagraph 2, point (e) shall be replaced by the following: “(e) an account of necessary Commission actions to verifyand powers to verify and enforce that Member States take action in compliance with this Directive and to assess emerging problems and new developments in the Member States;
2018/10/30
Committee: ECON
Amendment 134 #
Proposal for a regulation
Article 9a – paragraph 1 – point 10 d (new)
Directive (EU) 2015/849
Article 65 – paragraph 2
(d) In Article 65, paragraph 2 is be replaced by the following: “2. By 1 June 2019, the Commission shall assess the framework for FIUs’ cooperation with third countries and obstacles and opportunities to enhance cooperation between FIUs in the Union including the possibility of establishing a coordination and support mechanismEuropean Financial Intelligence Unit.”
2018/10/30
Committee: ECON
Amendment 280 #
Proposal for a regulation
Recital 1 a (new)
(1a) Without prejudice to the objective of financial stability and orderly functioning of financial markets, the ESAs shall implement the regulatory and supervisory framework to support the general economic policies in the Union, contributing to the achievement of the objectives of the Union.
2018/09/11
Committee: ECON
Amendment 290 #
Proposal for a regulation
Recital 9 a (new)
(9a) The authority shall properly assess the impact of the non-mitigation of environmental, social and governance factors on the development of systemic risk.
2018/09/11
Committee: ECON
Amendment 345 #
Proposal for a regulation
Article 1 – paragraph 1 – point 1 – point a a (new)
Regulation (EU) No 1093/2010
Article 1 – paragraph 3
(aa) paragraph 3 is replaced by the following: "3. The Authority shall also act in the field of activities of credit institutions, financial conglomerates, investment firms, payment institutions and e-money institutions in relation to issues not directly covered in the acts referred to in paragraph 2, includingas well as taking account of matters of corporate governance, auditing and financial reportingand non-financial reporting, including the integration of environmental, social and governance related factors, provided that such actions by the Authority are necessary to ensure the effective and consistent application of those acts. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)" Or. en
2018/09/14
Committee: ECON
Amendment 350 #
Proposal for a regulation
Article 1 – paragraph 1 – point 1 – point a b (new)
Regulation (EU) No 1093/2010
Article 1 – paragraph 5 – subparagraph 1
(ab) Article 1, paragraph 5 is replaced by the following: "5. The objective of the Authority shall be to protect the public interest by contributing to the short, medium and long- term stability and, effectiveness and sustainability of the financial system, for the Union economy, its citizens and businesses. The Authority shall contribute to: (a) improving the functioning of the internal market, including, in particular, a sound, effective and consistent level of regulation and supervision; (b) ensuring the integrity, transparency, efficiency and orderly functioning of financial markets; (c) strengthening international supervisory coordination; (d) preventing regulatory arbitrage and promoting equal conditions of competition; (da) examining whether elements of the regulatory and supervisory framework, not critical for safeguarding financial stability, hinder long-term investment and lending; (e) ensuring the taking of credit and other risks are appropriately regulated and supervised; and (f) enhancing customerthe protection. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112) of consumers and other users of financial services; (fa) working towards supervisory convergence of conduct of business across the EU to ensure that all consumers and other users of financial services are treated fairly by financial institutions; (fb) contributing in all areas of its work to preventing the use of the financial system for money laundering or terrorist financing purposes." Or. en
2018/09/14
Committee: ECON
Amendment 356 #
Proposal for a regulation
Article 1 – paragraph 1 – point 1 a (new)
Regulation (EU) No 1093/2010
Article 1 – paragraph 5 – subparagraph 4
(1a) in paragraph 5 of Article 1, subparagraph 4 is replaced by the following: "When carrying out its tasks, the Authority shall act independently and objectively and in the interest of the Union alone. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112) and shall respect the general principle of proportionality. The Authority shall apply the principles of transparency, accountability and integrity and shall be independent from any government or private sector entity. The Authority shall be committed to transparency and openness and should ensure that all stakeholders are treated equally in this regard. It shall publish on its website a transparency policy. A register of documents and their status of accessibility shall be established." Or. en
2018/09/14
Committee: ECON
Amendment 359 #
Proposal for a regulation
Article 1 – paragraph 1 – point 1 a (new)
Regulation (EU) No 1093/2010
Article 2 – paragraph 1
(1a) in Article 2, paragraph 1 is replaced by the following: "1. The Authority shall form part of a European System of Financial Supervision (ESFS). The main objective of the ESFS shall be to ensure that the rules applicable to the financial sector are adequately implemented to preserve financial stability and sustainability and to ensure confidence in the financial system as a whole and sufficienteffective protection for the customof consumers and other users of financial services. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)" Or. en
2018/09/14
Committee: ECON
Amendment 376 #
Proposal for a regulation
Article 1 – paragraph 1 – point 5 – point a – point ii a (new)
Regulation (EU) No 1093/2010
Article 8 – paragraph 1 –point b
(iia) point (b) is replaced by the following: "(b) to contribute to the consistent application of legally binding Union acts, in particular by contributing to a common supervisory culture, ensuring consistent, efficient and effective application of the acts referred to in Article 1(2), preventing regulatory arbitrage, fostering and monitoring supervisory independence, mediating and settling disagreements between competent authorities, ensuring effective and consistent supervision of financial institutions, ensuring a coherent functioning of colleges of supervisors and taking actions, inter alia, in emergency situations; " Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)
2018/09/14
Committee: ECON
Amendment 379 #
Proposal for a regulation
Article 1 – paragraph 1 – point 5 – point a – point iii
Regulation (EU) No 1093/2010
Article 8 – paragraph 1 – point f
(f) to monitor and assess market developments in the area of its competence including where relevant, developments relating to trends in credit, in particular, to households and SMEs and in innovative financial services; and developments relating to trends in environmental, social and governance related factors;
2018/09/14
Committee: ECON
Amendment 383 #
Proposal for a regulation
Article 1 – paragraph 1 – point 5 – point a – point iv
Regulation (EU) No 1093/2010
Article 8 – paragraph 1 – point h
(h) to foster depositor, consumer and investor protection taking into account the full spectrum of risks that investors are exposed to;
2018/09/14
Committee: ECON
Amendment 385 #
Proposal for a regulation
Article 1 – paragraph 1 – point 5 – point a – point iv
Regulation (EU) No 1093/2010
Article 8 – paragraph 1 – point h a (new)
(iva) the following point (ha) is inserted: "(ha) collect information related to the complaints submitted to national competent authorities;"
2018/09/14
Committee: ECON
Amendment 399 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6 – point -a (new)
Regulation (EU) No 1093/2010
Article 9 – paragraph 1
(-a) paragraph 1 is replaced by the following: "1. The Authority shall take a leading role in promoting transparency, simplicity and fairness in the market for consumer financial products or services across the internal market, including by: (a) collecting, analysing and reporting on consumer trends; and comparing the development of costs and charges of retail financial services and products in the member states; (b) reviewing and coordinating financial literacy and education initiatives by the competent authorities; (c) developing training standards for the industry; and (d) contributing to the development of common disclosure rules. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112); (da) developing standards for the handling of complaints by national competent authorities; (db) contributing to a level playing field in the single market where consumers and other users of financial services in any member country have equal access to comparable financial services and products at similar costs and charges, as well as rights to compensation; (dc) developing standards for the integration of non-financial consumer preferences in the investment strategies of financial products or services." Or. en
2018/09/14
Committee: ECON
Amendment 404 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6 – point a
Regulation (EU) No 1093/2010
Article 9 – paragraphs 2, 2a (new) and 2b (new)
2. The Authority shall monitor new and existing financial activities and may adopt guidelines and recommendations with a view to promoting the safety and soundness of markets, and convergence of regulatory and supervisory practices. For this purpose, the Authority may conduct an inquiry into a particular type of financial institution or type of product or type of conduct, including approaching financial institutions in the role of a potential consumer, using recording devices, telephonic or other communications. The Authority may the use the information it obtains from such an inquiry in support of all its tasks related to consumer protection, financial activities and financial innovation. It shall publish this information on an annual basis and pass its findings on to relevant competent authorities on a named basis. 2a. The Authority may, where appropriate, request competent authorities to identify, assess and quantify, where possible, risks to consumer detriment on national markets and track the development of identified risks to consumer detriment, wherever they arise. It shall make recommendation on the reduction of identified risks and thereby prevent them from crystallising or increasing. 2b. In relation to the supervisory convergence of conduct of business, the Authority shall: (a) develop binding standards on conduct of business supervision addressed to national competent authorities. The standards shall detail at least the minimum mandate, powers, tasks and resources that each relevant national competent authority shall be equipped with; (b) coordinate enforcement activities, including those referred to in paragraph 2, based on those standards; (c) make public the outcomes of coordinated activities, including the application of the above standards.
2018/09/14
Committee: ECON
Amendment 410 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6 – point b a (new)
Regulation (EU) No 1093/2010
Article 9 – paragraph 5
(ba) paragraph 5 is replaced by the following: "5. The Authority may temporarily prohibit or restrict certain financial activities that threaten the orderly functioning and integrity of financial markets or the stability of the whole or part of the financial system in the Union in the cases specified and under the conditions laid down in Article 9a, the legislative acts referred to in Article 1(2) or, if so required, in the case of an emergency situation in accordance with and under the conditions laid down in Article 18. The Authority shall review the decision referred to in the first subparagraph at appropriate intervals and at least every 312 months. If the decision is not renewed after a 312-month period, it shall automatically expire. A Member State may request the Authority to reconsider its decision. In that case, the Authority shall decide, in accordance with the procedure set out in the second subparagraph of Article 44(1), whether it maintains its decision. The Authority may also assess the need to prohibit or restrict certain types of financial activity and, where there is such a need, inform the Commission and the competent authorities in order to facilitate the adoption of any such prohibition or restriction. " Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)
2018/09/14
Committee: ECON
Amendment 413 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6 – point b b (new)
Regulation (EU) No 1093/2010
Article 9 – paragraph 5 a (new)
(bb) the following paragraph 5a is inserted: “5a. The Authority may issue time-limited no-action-letters at the request of market participants. These time-limited no- action-letters are a temporary commitment on the part of the Authority and all competent authorities not to enforce market participant non- compliance with specific provisions of Union law where the market participant cannot comply with such provisions of Union law because of any of the following reasons: (a) compliance would place the market participant in breach of other legal and regulatory requirements of Union law; (b) compliance is reasonably impossible without further level 2 measures or level 3 guidance; (c) compliance would significantly distort conditions for neutral competition for the market participant in the Union in the context of the worldwide application of international standards. The Authority shall provide the time- limited no-action-letter to the requestor based on the specific facts and circumstances set forth in the request. The Authority may permit parties other than the requestor to rely on the time- limited no-action-letter to the extent that the third party’s facts and circumstances are substantially similar to those described in the underlying request. The Authority shall make all no-action- letters public. The Authority shall review the decisions referred to in the first and second subparagraph at appropriate intervals and at least every 3 months. If a decision is not renewed after a three-month period, it shall automatically expire. A Member State may request the Authority to reconsider its decision. In that case, the Authority shall decide in accordance with the procedure set out in the second subparagraph of Article 44(1), whether it maintains its decision.”
2018/09/14
Committee: ECON
Amendment 415 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6 a (new)
Regulation (EU) No 1093/2010
Article 9a (new)
(6a) The following Article 9a is inserted: "Article 9a Temporary prohibition or restriction of financial activities 1. The Authority may, where the conditions in paragraphs 2 are fulfilled, temporarily prohibit or restrict in the Union either of the following when carried on by a financial institution: (a) the marketing, distribution or sale of certain banking products or banking products with certain features; or (b) a type of financial activity or practice. A prohibition or restriction may apply in circumstances, or be subject to exceptions, specified by the Authority. 2. The Authority shall take a decision under paragraph 1 where it is satisfied that there are reasonable grounds that all of the following conditions are met: (a) the proposed action addresses a significant consumer protection concern or a threat to the orderly functioning and integrity of financial markets or to the stability of the whole or part of the financial system in the Union; (b) regulatory requirements under Union legislation that are applicable to the relevant banking product or activity do not address the threat or do not adequately address the threat; (c) a competent authority or competent authorities have not taken actions to address the threat or the actions that have been taken do not adequately address the threat. 3. When taking action under this Article, the Authority shall ensure that the action does not have a detrimental effect on the efficiency of financial markets or on investors that is disproportionate to the benefits of the action; 4. The Authority shall publish on its website notice of any decision to take any action under this Article. The notice shall specify details of the prohibition or restriction and specify a time after the publication of the notice from which the measures will take effect. A prohibition or restriction shall only apply to action taken after the measures take effect. 5. The Authority shall review a prohibition or restriction imposed under paragraph 1 at appropriate intervals and at least every twelve months. 6. Action adopted by the Authority under this Article shall prevail over any previous action taken by a competent authority. 7. The Commission shall adopt by means of delegated acts in accordance with Article 75a measures specifying criteria and factors to be taken into account by the Authority in determining when there is a significant consumer protection concern or a threat to the orderly functioning and integrity of financial markets and to the stability of the whole or part of the financial system of the Union referred to in paragraph 2(a). These criteria and factors shall include: (a) the degree of complexity of a banking product and the relation to the type of client to whom it is marketed and sold; (b) the size or the notional value of a banking product; (c) the degree of market penetration of a banking product; (d) the degree of innovation of a banking product, an activity or a practice; (e) the leverage a product or practice provides. 8. For the purpose of this Article, ‘banking products’ means the activities listed in points 1 to 6 and 13 to 15 of Annex I to Directive 2013/36/EU. The Commission may by means of delegated acts in accordance with Article 75a amend the first subparagraph to extend the meaning of ‘banking products’ in order to take account of market developments. "
2018/09/14
Committee: ECON
Amendment 423 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6 a (new)
Regulation (EU) No 1093/2010
Article 15 – paragraph 1 – subparagraph 4
(6a) in Article 15, subparagraph 4 of paragraph 1 is replaced by the following: “Within 3 months of receipt of a draft implementing technical standard, the Commission shall decide whether to endorse it. The Commission may extend that period by 1 month. The Commission may endorse the draft implementing technical standard in part only, or with amendments, where the Union’s interests so require. If the Commission does not oppose in whole or in part the proposed implementing technical standard within the assessment period, it shall be deemed endorsed.” Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)
2018/09/14
Committee: ECON
Amendment 434 #
Proposal for a regulation
Article 1 – paragraph 1 – point 7 – point d
Regulation (EU) No 1093/2010
Article 16 – paragraph 5
5. Where two thirds of the members of the Banking Stakeholder Group are of the opinion that the Authority has exceeded its competence by issuing certain guidelines or recommendations, they may send a reasoned opinion to the Commission. The Commission shall request an explanation justifying the issuance of the guidelines or recommendations concerned from the Authority. The Commission shall, on receipt of the explanation from the Authority, assess the scope of the guidelines or recommendations in view of the Authority's competence. Where the Commission considers that the Authority has exceeded its competence, and after having given the Authority the opportunity to state its views, the Commission may adopt an implementing decision requiring the Authority to withdraw the guidelines or recommendations concerned .The decision of the Commission shall be made public.;deleted
2018/09/14
Committee: ECON
Amendment 450 #
Proposal for a regulation
Article 1 – paragraph 1 – point 7 a (new)
Regulation (EU) No 1093/2010
Article 16a (new)
(7a) the following Article 16a is inserted: “Article 16a Questions and answers 1. For the interpretation, practical application or implementation of the provisions of the legislative acts referred to in Article 1(2), or associated delegated and implementing acts, guidelines and recommendations adopted under those legislative acts, any natural or legal person, including competent authorities sand Union institutions, may submit a question to the Authority in any official language of the Union. 2. The Authority shall publish on its website non-binding answers to all admissible questions pursuant to paragraph 1, for each legislative act, unless such publication is in conflict with the legitimate interest of the natural or legal person that submitted the question or would involve risks to the stability of the financial system.
2018/09/14
Committee: ECON
Amendment 455 #
Proposal for a regulation
Article 1 – paragraph 1 – point 7 b (new)
Regulation (EU) No 1093/2010
Article 17 – title
(https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093- 20160112https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32010R1093)(7b) the title of Article 17 is amended as follows: Breach of Union law "Breach and on-application of Union law" Or. en
2018/09/14
Committee: ECON
Amendment 457 #
Proposal for a regulation
Article 1 – paragraph 1 – point 7 b (new)
Regulation (EU) No 1093/2010
Article 17 – paragraph 2 – subparagraph 1
(7b) In Article 17, subparagraph 1 of paragraph 2 is replaced by the following: “Upon a request from one or more competent authorities, the European Parliament, the Council, the Commission or the Banking Stakeholder Group, on the basis of a report from a stakeholder or on its own initiative, and after having informed the competent authority concerned, the Authority may investigate the alleged breach or non-application of Union law. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32010R1093) and shall inform the institution or person who initiated the request thereof.” Or. en
2018/09/14
Committee: ECON
Amendment 461 #
Proposal for a regulation
Article 1 – paragraph 1 – point 8 a (new)
Regulation (EU) No 1093/2010
Article 17 – paragraph 3 – subparagraph 1
3(8a) in Article 17, the first subparagraph of paragraph 3 is replaced by the following: "3. The Authority may initiate a process of arbitration with the competent authority concerned in order to discuss the action necessary to comply with union law. The competent authority concerned shall sincerely cooperate in such an arbitration. The Authority may, not later than 26 months from initiating its investigation, address a recommendation to the competent authority concerned setting out the action necessary to comply with Union law. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)" Or. en
2018/09/14
Committee: ECON
Amendment 475 #
Proposal for a regulation
Article 1 – paragraph 1 – point 9 a (new)
Regulation (EU) No 1093/2010
Article 21 – paragraph 2 – point b
(9a) in Article 21, point (b) of paragraph 2 is replaced by the following: "(b) initiate and coordinate Union-wide stress tests in accordance with Article 32 to assess the resilience of financial institutions, in particular the systemic risk posed by financial institutions as referred to in Article 23, to adverse market developments, and evaluate the potential for systemic risk to increase in situations of stress, ensuring that a consistent methodology is applied at the national level to such tests including based on environmental, social and governance related forward looking scenarios and, where appropriate, address a recommendation to the competent authority to correct issues identified in the stress test; (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)Competent authorities shall provide the Authority with the results of the stress tests and the methodology employed for those stress tests." Or. en
2018/09/14
Committee: ECON
Amendment 479 #
Proposal for a regulation
Article 1 – paragraph 1 – point 10 a (new)
Regulation (EU) No 1093/2010
Article 23 – paragraph 1
(10a) in Article 23, paragraph 1 is replaced by the following: "1. The Authority shall, in consultation with the ESRB, develop criteria for the identification and measurement of systemic risk and an adequate stress-testing regime which includes an evaluation of the potential for systemic risk posed by financial institutions to increase in situations of stress. The financial institutions that may pose a, taking into account forward looking scenario analysis and risks related to environmental, social and governance related factors. The Authority shall monitor systemic risks and shall be subject to strengthened supervision, and where necessary, the recovery and resolution procedures referred to in Article 25. regularly, at least on a bi- annual basis, update the criteria for identification and measurement of systemic risk. " Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)
2018/09/14
Committee: ECON
Amendment 480 #
Proposal for a regulation
Article 1 – paragraph 1 – point 10 b (new)
Regulation (EU) No 1093/2010
Article 23 – paragraph 2a (new)
(10b) In Article 23, the following paragraph 2a is added: “2a. The Authority shall in collaboration with the ESRB establish a common methodology for ‘carbon stress tests’ measuring the intensity of climate risks to which banks are exposed, including risks related to the depreciation of assets due to changes to the regulatory treatment stemming from climate change mitigation and adaptation The Authority shall develop by 1 July 2021 draft regulatory technical standards to specify the common methodology referred to in the first subparagraph as well as relevant scenarios for such tests. The draft regulatory technical standards shall identify and assess risk stemming inter alia from: (i) the macroeconomic impact of sudden changes in energy use; (ii)the revaluation of carbon intensive assets including potential changes related to their regulatory treatment; and (iii) a rise in the incidence of natural catastrophes. Power is conferred on the Commission to adopt the regulatory technical standards referred to in the previous subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
2018/09/14
Committee: ECON
Amendment 483 #
Proposal for a regulation
Article 1 – paragraph 1 – point 11 – point a – point ii
Regulation (EU) No 1093/2010
Article 29 – paragraph 1 – point b
(b) promoting an effective bilateral and multilateral exchange of information between competent authorities, pertaining to all relevant issues, including cyber security and, cyber-attacks as appropriatewell as risks related to environmental, social and governance factors, with full respect for the applicable confidentiality and data protection provisions provided for in the relevant Union legislation;;
2018/09/14
Committee: ECON
Amendment 489 #
Proposal for a regulation
Article 1 – paragraph 1 – point 11 – point a – point iii a (new)
Regulation (EU) No 1093/2010
Article 29 – paragraph 1 – point e b (new)
(iiia) the following point (eb) is added: “(eb) putting in place a monitoring system to assess environmental, social and governance related risks built on standardised forward-looking climate scenarios.”
2018/09/14
Committee: ECON
Amendment 494 #
Proposal for a regulation
Article 1 – paragraph 1 – point 11 – point a – point iii a (new)
Regulation (EU) No 1093/2010
Article 29 – paragraph 1 – subparagraph 1a (new)
(iiia) The following subparagraph is added: “The Authority may report to the Commission where differences in the national transposition or application of Union acts referred to in Article 1(2) hamper the functioning of the single market or cause detriment for consumers and other users of financial services.” Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)
2018/09/14
Committee: ECON
Amendment 496 #
Proposal for a regulation
Article 1 – paragraph 1 – point 11 – point b
Regulation (EU) No 1093/2010
Article 29 – paragraph 2 – subparagraphs 3 and 3a (new)
(b) in paragraph 2, the following subparagraph iss are added: “For the purpose of establishing a common supervisory culture, the Authority shall develop and maintain an up-to-date Union supervisory handbook on the supervision of financial institutions in the Union, taking into account changing business practices and business models of financial institutions. The Authority shall also develop and maintain an up-to-date Union resolution handbook on the resolution of financial institutions in the Union. Both the Union supervisory handbook and the Union resolution handbook shall set out supervisory best practices and shall specify high quality methodologies and processes. The Authority shall make use of the supervisory handbook when carrying out its tasks, including assessment of potential breaches of Union law pursuant to article 17, settling disputes pursuant to article 19, assessing annual work programmes and implementation reports pursuant to article 29a and carrying out reviews to competent authorities pursuant to article 30.
2018/09/14
Committee: ECON
Amendment 506 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12
Upon the entry into application of Regulation [XXX insert reference to amending Regulation] and every three years thereafter by 31 March, the Authority shall issue a recommendation addressed to competent authorities, laying down supervisory strategic objectives and priorities ("Strategic Supervisory Plan") and, taking into account any contributions from competent authorities,. The Authority shall transmitmake the Strategic Supervisory Plan for information to the European Parliament, the Council and the Commission and shall make it public on its website.
2018/09/14
Committee: ECON
Amendment 511 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12
Regulation (EU) No 1093/2010
Article 29a – paragraph 1 –subparagraph 2
The Strategic Supervisory Plan shall identify specific priorities for supervisory activities in order to promote consistent, efficient and effective supervisory practices and the common, uniform and consistent application of Union law and to address relevant micro-prudential trends, potential risks and vulnerabilities identified in accordance with Article 32. This shall include priorities related to supervisory activities in the areas of consumer protection and environmental, social and governance related factors.
2018/09/14
Committee: ECON
Amendment 517 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12
Regulation (EU) No 1093/2010
Article 29a – paragraph 2 –subparagraph 1
By 30 September of each year, eEach competent authority shall submit a drafttipulate how their annual work programme for the following year to the Authority for consideration and specifically stipulate how that draft programme is aligned withis aligned with the priorities stemming from the Strategic Supervisory Plan.
2018/09/14
Committee: ECON
Amendment 520 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12
Regulation (EU) No 1093/2010
Article 29a – paragraph 2 – subparagraph 2
The draft annual work programme shall contain specific objectives and priorities for supervisory activities and quantitative and qualitative criteria for the selection of financial institutions, market practices and behaviours and financial markets to be examined by the competent authority submitting the draft annual work programme during the year covered by that programme.deleted
2018/09/14
Committee: ECON
Amendment 522 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12
Regulation (EU) No 1093/2010
Article 29a – paragraph 3 – subparagraph 1
The Authority shall assess the draft annual work programme and where there are material risks for not attaining the priorities set out in the Strategic Supervisory Plan, the Authority shall issue a recommendation to the relevant competent authority aiming at the alignment of the relevant competent authority's annual work programme with the Strategic Supervisory Plan.
2018/09/14
Committee: ECON
Amendment 524 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12
Regulation (EU) No 1093/2010
Article 29a – paragraph 4
4. By 31 March of each year, each competent authority shall transmit to the Authority a report on the implementation of the annual work programme. The report shall include at least the following information: (a) activities and examinations of financial institutions, market practices and behaviours and of financial markets, and on the administrative measures and sanctions imposed against financial institutions responsible for breaches of Union and national law; (b) carried out and which were not foreseen in the annual work programme; (c) provided for in the annual work programme that were not carried out and of the objectives of that programme that were not met, as well as the reasons for the failure to carry out those activities and to reach those objectives.deleted a description of the supervisory a description of activities that were an account of the activities
2018/09/14
Committee: ECON
Amendment 526 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12
Regulation (EU) No 1093/2010
Article 29a – paragraph 5 – subparagraph 1
The Authority shall assess the implementation reportpriorities of the competent authorities. Where there are material risks of not attaining the priorities set out in the Strategic Supervisory Plan the Authority shall issue a recommendation to eachthe competent authority concerned on how the relevant shortcomings in its activities can be remedied.
2018/09/14
Committee: ECON
Amendment 527 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12
Regulation (EU) No 1093/2010
Article 29a – paragraph 5 – subparagraph 2
Based on the reports and its own assessment of risks, the Authority shall identify the activities of the competent authority that are critical to fulfilling the Strategic Supervisory Plan and shall, as appropriate, conduct reviews under Article 30 of those activities.deleted
2018/09/14
Committee: ECON
Amendment 529 #
Proposal for a regulation
Article 1 – paragraph 1 – point 13 – point b
Regulation (EU) No 1093/2010
Article 30 – paragraph 1
1. 1. The Authority shall periodically, and upon request from the European Parliament, the Council, the Commission or the Banking Stakeholder Group or on own initiative, conduct reviews of some or all of the activities of a single competent authority or a group of competent authorities, to further strengthen consistency in supervisory outcomes. To that end, the Authority shall develop methods to allow for objective assessment and comparison between the competent authorities reviewed. When conducting reviews, existing information and evaluations already made with regard to the competent authority concerned, including all information provided to the Authority in accordance with Article 35, and any information from stakeholders shall be taken into account.;
2018/09/14
Committee: ECON
Amendment 532 #
Proposal for a regulation
Article 1 – paragraph 1 – point 13 – point d – point ii
Regulation (EU) No 1093/2010
Article 30 – paragraph 2 – point aa (new)
(aa) the effectiveness of the methods used to identify and counteract activities related to money laundering or terrorist financing;
2018/09/14
Committee: ECON
Amendment 534 #
Proposal for a regulation
Article 1 – paragraph 1 – point 13 – point e
Regulation (EU) No 1093/2010
Article 30 – paragraph 3 –subparagraph 2
In accordance with Article 16(3), the competent authorities shall make every effort to comply with any guidelines and recommendations issued. Where competent authorities do not take action or do not take sufficient action to address the follow-up measures indicated in the report, the Authority shall issue ain a timely manner a follow-up report and may refer the matter to the Commission and inform the European Parliament of the follow-up report.
2018/09/14
Committee: ECON
Amendment 537 #
Proposal for a regulation
Article 1 – paragraph 1 – point 13 a (new)
Regulation (EU) No 1093/2010
Article 31 – paragraphs 1 and 2
(14a) In Article 31, paragraphs 1 and 2 are replaced by the following: “1. The Authority shall fulfil a general coordination role between competent authorities, in particular in situations where adverse developments could potentially jeopardise the orderly functioning and integrity of financial markets or the stability of the financial system and the protection of consumers and other users of financial services in the Union. The Authority shall promote a coordinated Union response, inter alia, by: (a) facilitating the exchange of information between the competent authorities; (b) determining the scope and verifying where appropriate the reliability of information that should be made available to all the competent authorities concerned; (c) without prejudice to Article 19, carrying out non-binding mediation upon a request from the competent authorities or on its own initiative; (d) notifying the ESRB, the Council and the Commission of any potential emergency situations without delay; (e) taking all appropriate measures including setting up and leading coordination platforms in case of developments which may jeopardise the functioning of the financial markets with a view to theand protection of consumers and other users of financial services with a view to facilitating and co-ordination ofng actions undertaken by relevant competent authorities; (f) centralising information received from competent authorities in accordance with Articles 21 and 35 as the result of the regulatory reporting obligations of institutions. The Authority shall share that information with the other competent authorities concerned. ” Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)
2018/09/14
Committee: ECON
Amendment 544 #
Proposal for a regulation
Article 1 – paragraph 1 – point 14
Regulation (EU) No 1093/2010
Article 31 – paragraphs 3 and 3 a (new)
3. Regarding activity of competent authorities intended to facilitate entry into the market of operators or products relying on technological innovation, the Authority shall promote supervisory convergence, in particular through the exchange of information and best practices. Where appropriate, the Authority may adopt guidelines or recommendations in accordance with Article 16.; 3a. The Authority shall establish a database in which it makes available to the public information referred to in article 31 (f). The EBA shall identify the type of information that is appropriate to publish in respect to different types of financial institution having regard to the need to protect commercial secrets and shall carry out public consultation on its proposals. Such publication shall not be subject to the obligation of professional secrecy specified in article 70.
2018/09/14
Committee: ECON
Amendment 578 #
Proposal for a regulation
Article 1 – paragraph 1 – point 15 a (new)
Regulation (EU) No 1093/2010
Article 31b (new)
(15a) The following Article 31b is inserted: “Article 31b Coordination function in relation to orders, transactions and activities with significant cross-border effects 1. Where the Authority has reasonable grounds to suspect that orders, transactions or any other activity with significant cross-border effects threaten the orderly functioning and integrity of financial markets or the financial stability in the Union, it shall recommend that competent authorities of the Member States concerned initiate an investigation and shall provide those competent authorities with the relevant information. 2. Where a competent authority has reasonable grounds to suspect that orders, transactions or any other activity with significant cross-border effects threaten the orderly functioning and integrity of financial markets or the financial stability in the Union, it shall promptly notify the Authority and provide the relevant information. The Authority may recommend the competent authorities of the Member States where the suspected activity has occurred to take action after transmitting the relevant information to those competent authorities. 3. To facilitate the exchange of information between the Authority and the competent authorities, the Authority shall establish and maintain a data storage facility designed for that purpose.
2018/09/14
Committee: ECON
Amendment 579 #
Proposal for a regulation
Article 1 – paragraph 1 – point 15 b (new)
Regulation (EU) No 1093/2010
Article 31c (new)
(15b) The following Article 31c is inserted: “Article 31c Information exchange on fitness and propriety 1. The Authority shall, together with EIOPA and ESMA, establish a system for the exchange of information relevant to the assessment of the fitness and propriety of holders of qualifying holdings, directors and key function holders of financial institutions by competent authorities in accordance with the acts referred to in Article 1(2) ("a fitness and propriety assessment"). 2. The system referred to in paragraph 1 shall operate on the following basis: (a) competent authorities carrying out a fitness and propriety assessment shall use the system in carrying out that assessment to request information relevant to that assessment from competent authorities and other relevant authorities in the Union; (b) Member States shall identify one competent authority ("the coordinating authority") which shall be responsible for identifying whether it or another competent authority or other relevant authority in that Member State holds information which may be relevant to a fitness and propriety assessment; (c) the coordinating authority in each Member State shall use the system to indicate whether or not it or another competent authority or other relevant authority in that Member State holds information which may be relevant to a fitness and propriety assessment. The authorities having such information shall indicate that to the coordinating authority and shall provide that information within five working days; (d) where a coordinating authority indicates that it or another competent authority or other relevant authority in that Member State holds information which may be relevant to a fitness and propriety assessment, the competent authority carrying out that assessment shall contact the coordinating authority in order to arrange, where appropriate, for the exchange of that information; (e) the exchange of information shall take place in accordance with the applicable requirements on professional secrecy and exchange of information set out in the acts referred to in Article1(2) and in accordance with General Data Protection Regulation (GDPR) (EU)2016/679. The Authority, together with EIOPA and ESMA shall issue guidelines to further specify the operation of the system referred to in the first subparagraph ,including a list of relevant authorities. 3. For the purpose of paragraph 2 the European Central Bank shall act as a coordinating authority with respect to information it holds.
2018/09/14
Committee: ECON
Amendment 582 #
Proposal for a regulation
Article 1 – paragraph 1 – point 16 – point -a (new)
Regulation (EU) No 1093/2010
Article 32 – paragraph 2 – point ca (new)
(-a) in paragraph 2, the following point (ca) is inserted: “(ca) common methodologies for assessing long-term risks and avoid systemic mispricing by financial markets , extending beyond a two to five years timeframe.”
2018/09/14
Committee: ECON
Amendment 590 #
Proposal for a regulation
Article 1 – paragraph 1 – point 16 – point a
Regulation (EU) No 1093/2010
Article 32 – paragraph 2a – subparagraph 1
At least annually, the Authority shall consider whether it is appropriate to carry out Union-wide assessments referred to in paragraph 2 on any financial institution and shall inform the European Parliament, the Council and the Commission of its reasoning. Where such Union-wide assessments are carried out and the Authority considers it appropriate to do so, it shall disclose all the results for each participating financial institution.
2018/09/14
Committee: ECON
Amendment 591 #
Proposal for a regulation
Article 1 – paragraph 1 – point 16 – point a a (new)
Regulation (EU) No 1093/2010
Article 32 – paragraph 3 – subparagraph 1
(a a) In paragraph 3, subparagraph 1 is replaced by the following: "3. Without prejudice to the tasks of the ESRB set out in Regulation (EU) No 1092/2010, the Authority shall, at least once a year, and more frequently as necessary, provide assessments to the European Parliament, the Council, the Commission and the ESRB of trends, potential risks and vulnerabilities in its area of competence. , including risks related to environmental, social and governance factors." Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)
2018/09/14
Committee: ECON
Amendment 614 #
Proposal for a regulation
Article 1 – paragraph 1 – point 17 – point b
Regulation (EU) No 1093/2010
Article 33 – paragraph 2c – subparagraph 1
The competent authorities shall inform the Authority in advance of their intentions to conclude any administrative arrangements with third-country supervisory authorities in any of the areas governed by the acts referred to in Article 1(2), including in relation to branches of third country entities. They shall provide simultaneously to the Authority a draft of such planned arrangements.
2018/09/14
Committee: ECON
Amendment 616 #
Proposal for a regulation
Article 1 – paragraph 1 – point 17 – point b
Regulation (EU) No 1093/2010
Article 33 – paragraph 2c –subparagraph 2
The Authority mayshall develop model administrative arrangements, with a view to establishing consistent, efficient and effective supervisory practices within the Union and to strengthening international supervisory coordination. In accordance with Article 16(3), the competent authorities shall make every effort to follow such model arrangements.
2018/09/14
Committee: ECON
Amendment 618 #
Proposal for a regulation
Article 1 – paragraph 1 – point 17 – point b
Regulation (EU) No 1093/2010
Article 33 – paragraph 2c – subparagraph 3a (new)
Where the Authority develops such model administrative arrangements, the competent authorities shall defer the negotiation and conclusion of administrative arrangements with third country authorities until the completion of the model arrangement by the Authority.
2018/09/14
Committee: ECON
Amendment 619 #
Proposal for a regulation
Article 1 – paragraph 1 – point 17 – point b
Regulation (EU) No 1093/2010
Article 33 – paragraph 2c a (new)
2c a. The Authority shall coordinate the stances of competent authorities which participate in the activities of international standard setting bodies within the Authority’s scope of action with a view to establishing common positions which those authorities and the Authority will promote. This is without prejudice to the entitlement of competent authorities to be members of and to participate fully in such bodies.
2018/09/14
Committee: ECON
Amendment 646 #
Proposal for a regulation
Article 1 – paragraph 1 – point 20
2. The basic amount of the fine referred to in paragraph 1 shall amount to at least EUR 50 000 and shall not exceed EUR fines shall be dissuasive, effective and proportionate to the size and nature of business of the institution as well as the type of violation. The total fine shall not exceed 20% of the annual turnover of the entity concerned in the preceding business year unless the entity has directly or indirectly benefited financially from the infringement. The Authority, together with ESMA and EIOPA shall develop draft regulatory technical standards, specifying criteria for setting the basic amounts for fines as well as coefficients linked to aggravating and mitigating factors. The ESAs shall submit those draft regulatory technical standards to the Commission by June 2019.Power is conferred on the Commission to adopt regulatory technical standards referred to in the first and subparagraph in accordance with Article 15 of this Regulation , of Regulation (EU) No1094/2010 00and of Regulation (EU) No 1095/2010.
2018/09/14
Committee: ECON
Amendment 647 #
Proposal for a regulation
Article 1 – paragraph 1 – point 20
Regulation (EU) No 1093/2010
Article 35d – paragraph 3
3. When setting the basic amount of the fine referred to in paragraph 2, the Authority shall have regard to the annual turnover of the institution or entity concerned for the preceding business year and shall be: (a) entities with an annual turnover below EUR 10 million; (b) with an annual turnover between EUR 10 and 50 million; (c) entities with an annual turnover higher than EUR 50 million. The basic amounts defined within the limits set out in paragraph 2 shall be adjusted, where necessary, by taking into account aggravating or mitigating factors in accordance with the relevant coefficients set out in paragraph 5. The relevant aggravating coefficient shall be applied one by one to the basic amount. Where more than one aggravating coefficient is applicable, the difference between the basic amount and the amount resulting from the application of each individual aggravating coefficient shall be added to the basic amount. The relevant mitigating coefficient shall be applied one by one to the basic amount. Where more than one mitigating coefficient is applicable, the difference between the basic amount and the amount resulting from the application of each individual mitigating coefficient shall be subtracted from the basic amount.deleted at the lower end of the limit for the middle of the limit for entities the higher end of the limit for
2018/09/14
Committee: ECON
Amendment 648 #
Proposal for a regulation
Article 1 – paragraph 1 – point 20
Regulation (EU) No 1093/2010
Article 35d – paragraph 3 – subparagraph 1
When setting the basic amount of the fine referred to in paragraph 2, the Authority shall have regard to the annual turnover of the institution or entity concerned for the preceding business year and shall be: (a) entities with an annual turnover below EUR 10 million; (b) the middle of the limit for entities with an annual turnover between EUR 10 and 50 million; (c) entities with an annual turnover higher than EUR 50 million.deleted at the lower end of the limit for the higher end of the limit for
2018/09/14
Committee: ECON
Amendment 649 #
Proposal for a regulation
Article 1 – paragraph 1 – point 20
Regulation (EU) No 1093/2010
Article 35d – paragraph 4
4. The following adjustment coefficients shall be applied cumulatively to the basic amount referred to in paragraph 2, based on the following: (a) the adjustment coefficients linked to aggravating factors are as follows: (i) committed repeatedly, an additional coefficient of 1.1 shall apply each time the infringement has been repeated; (ii) where the infringement lasted for more than six months, a coefficient of 1.5 shall apply; (iii) where the infringement has been committed intentionally, a coefficient of 2 shall apply; (iv) taken sincdeleted where the infringement has been where no remedial action has been where the entity’s senior the adjustment coefficients linked where the infringement hlas been identified, a coefficient of 1.7 shall apply; (v) management has not cooperated with the Authority, a coefficient of 1.5 shall apply. (b) to mitigating factors are as follows: (i) fewer than 10 working days, a coefficient of 0.9 shall apply; (ii) senior management can demonstrate that they have taken all the necessary measures to prevent the failure to comply with a request pursuant to Article 35(6a), a coefficient of 0.7 shall apply; (iii) where the entity has brought the infringement to the Authority’s attention quickly, effectively and completely, a coefficient of 0.4 shall apply; (iv) taken measures to ensure that similar infringement cannot be committed in the future, a coefficient of 0.6 shall appted where the institution's or entity’s where the entity has voluntarily.
2018/09/14
Committee: ECON
Amendment 650 #
Proposal for a regulation
Article 1 – paragraph 1 – point 20
Regulation (EU) No 1093/2010
Article 35d – paragraph 5
5. Notwithstanding paragraphs 2 and 3, the total fine shall not exceed 20% of the annual turnover of the entity concerned in the preceding business year unless the entity has directly or indirectly benefitted financially from the infringement. In that case, the total fine shall be at least equal to that financial benefit.deleted
2018/09/14
Committee: ECON
Amendment 652 #
Proposal for a regulation
Article 1 – paragraph 1 – point 20
Regulation (EU) No 1093/2010
Article 35e – paragraph 2
2. A periodic penalty payment shall be effective and proportionate to the size, nature of business of the institution and the type of violation. The periodic penalty payment shall be imposed on a daily basis until the institution or entity concerned complies with the relevant decision referred to in paragraph 1.
2018/09/14
Committee: ECON
Amendment 657 #
Proposal for a regulation
Article 1 – paragraph 1 – point 22 – point -a (new)
Regulation (EU) No 1093/2010
Article 37 – paragraph 2
(-a) paragraph 2 is replaced by the following: "2. The Banking Stakeholder Group shall be composed of 30 members, representing in balanced proportions credit and investment institutions operating in the Union, their employees’ representatives and relevant NGO’s and other public interest organisations as well as consumers, users of banking services and representatives of SMEs. At least ten of its members shall be consumers and relevant NGO’s and other public interest organisations. At least five of its members shall be independent top-ranking academics. Ten of its members shall represent financial institutions, three of whom shall represent cooperative and savings banks. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)" Or. en
2018/09/14
Committee: ECON
Amendment 663 #
Proposal for a regulation
Article 1 – paragraph 1 – point 22 – point -a a (new)
Regulation (EU) No 1093/2010
Article 37 – paragraph 3
(-a a) paragraph 3 is replaced by the following: "3. The members of the Banking Stakeholder Group shall be appointed by the Board of Supervisors, following proposals from the relevant stakeholdersan open selection procedure . In making its decision, the Board of Supervisors shall, to the extent possible, ensure an appropriate geographical and gender balance and representation of stakeholders across the Union. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)" Or. en
2018/09/14
Committee: ECON
Amendment 668 #
Proposal for a regulation
Article 1 – paragraph 1 – point 22 – point a
Regulation (EU) No 1093/2010
Article 37 – paragraph 4 – subparagraph 1
(a) in paragraph 4, the last sentence of the first subparagraph is replaced by the following:subparagraph 1 is replaced by the following: "4. The Authority shall provide all necessary information subject to professional secrecy as set out in Article 70 and ensure adequate secretarial support for the Banking Stakeholder Group. Adequate compensation shall be provided to members of the Banking Stakeholder Group representing non-profit organisations, excluding industry representatives. Such compensation shall be at least equivalent to the reimbursement rates of officials pursuant to Title V, Chapter 1, Section 2 of the Staff Regulations of Officials of the European Union and the Conditions of Employment of Other Servants of the European Union laid down in Council Regulation (EEC, Euratom, ECSC) No 259/68 (13) (Staff Regulations). This compensation shall take into account preparatory work undertaken by non-industry members of the Stakeholder Group and shall be proportionately equivalent to the Authority’s external experts’ compensation The Banking Stakeholder Group may establish working groups on technical issues. Members of the Banking Stakeholder Group shall serve for a period of four years, following which a new selection procedure shall take place. Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)
2018/09/14
Committee: ECON
Amendment 673 #
Proposal for a regulation
Article 1 – paragraph 1 – point 22 – point b
Where members of the Banking Stakeholder Group cannot reach a common opinion or advice, the members representing one group of stakehold1/ 3 of its Members shall be permitted to issue a separate opinion or separate advice.
2018/09/14
Committee: ECON
Amendment 681 #
Proposal for a regulation
Article 1 – paragraph 1 – point 24 – point a – point i a (new)
Regulation (EU) No 1093/2010
Article 40 – paragraph 1 – point a b (new)
(i a) the following point (ab) is inserted: “(a b) one representative of the SRB, who shall be non-voting;”
2018/09/14
Committee: ECON
Amendment 689 #
Proposal for a regulation
Article 1 – paragraph 1 – point 24 – point a a (new)
Regulation (EU) No 1093/2010
Article 40 – paragraph 6 –subparagraph 3
For the purpose of acting within the scope of Directive 2014/59/EU, the Chair of the Single Resolution Board shall be an observer to the Board of Supervisors. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)(a a) in paragraph 6, subparagraph 3 is deleted. deleted (Article 40, paragraph 6, last subparagraph is deleted.) Or. en
2018/09/14
Committee: ECON
Amendment 692 #
Proposal for a regulation
Article 1 – paragraph 1 – point 24 – point c
Regulation (EU) No 1093/2010
Article 40 – paragraph 8
8. Where the national public authority referred to in paragraph 1(b) is not responsible for the enforcement of consumer protection rules, the member of the Board of Supervisors referred to in that point may decide toshall invite a representative from the Member State’s consumer protection authority, who shall be non- voting. In the case where the responsibility for consumer protection is shared by several authorities in a Member State, those authorities shall agree on a common representative. No member of the Board of Supervisors according to paragraph 1(b) of this Article shall vote on any matter for which his or her authority has no mandate.
2018/09/14
Committee: ECON
Amendment 695 #
Proposal for a regulation
Article 1 – paragraph 1 – point 25
Regulation (EU) No 1093/2010
Article 41 – paragraphs 1 and 1a ( new)
The Board of Supervisors or the Chairperson may establish internal committees for specific tasks attributed to it. The Board of Supervisors may provide for the delegation of certain clearly defined tasks and decisions to internal committees, to the Executive Board or to the Chairperson.; The Board of Supervisor shall establish a permanent committee composed of national competent authorities responsible for the enforcement of consumer protection rules
2018/09/14
Committee: ECON
Amendment 698 #
Proposal for a regulation
Article 1 – paragraph 1 – point 26
Regulation (EU) No 1093/2010
Article 42 – paragraphs 1 and 1 a (new)
When carrying out the tasks conferred upon them by this Regulation the voting members of the Board of Supervisors shall act independently and objectively in the sole interest of the Union as a whole and shall neither seek nor take instructions from Union institutions or bodies, from any government of a Member State or from any other public or private body.; When the degree of independence referred to in Article 30 paragraph 2(a) has been assessed to be insufficient in accordance with that Article, the Board of Supervisors may decide to either temporarily suspend the voting rights of the individual member or to temporarily suspend its membership in the work of the Authority until the deficiency has been remedied.
2018/09/14
Committee: ECON
Amendment 700 #
Proposal for a regulation
Article 1 – paragraph 1 – point 26 a (new)
Regulation (EU) No 1093/2010
Article 42 – paragraph 3
The first and second paragraphs are without prejudice to the tasks conferred on the European Central Bank by Regulation (EU) No 1024/2013. first and second paragraphs are without prejudice to the tasks conferred on the European Central Bank by Regulation (EU) No 1024/2013. (26 a) In Article 42, paragraph 3 is deleted. deleted Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)
2018/09/14
Committee: ECON
Amendment 713 #
Proposal for a regulation
Article 1 – paragraph 1 – point 28 – point a
Regulation (EU) No 1093/2010
Article 44 – paragraph 1 – subparagraph 2
With regard to the acts specified in Articles 10 to 16 and measures and decisions adopted under the third subparagraph of Article 9(5) and Chapter VI and by way of derogation from the first subparagraph of this paragraph, the Board of Supervisors shall take decisions on the basis of a qualified majority of its members, as defined in Article 16(4) of the Treaty on European Union, which shall include at least a simple majority of the members, present at the vote, from competent authorities of Member States that are participating Member States as defined in point 1 of Article 2 of Regulation (EU) No 1024/2013 (participating Member States) and a simple majority of the members, present at the vote, from competent authorities of Member States that are not participating Member States as defined in point 1 of Article 2 of Regulation (EU) No 1024/2013 (non-participating Member States).
2018/09/14
Committee: ECON
Amendment 720 #
Proposal for a regulation
Article 1 – paragraph 1 – point 28 – point b a (new)
Regulation (EU) No 1093/2010
Article 44 – paragraph 1 –subparagraph 7
With regard to decisions adopted under Article 18(3) and (4), and by way of derogation from the first subparagraph of this paragraph, the Board of Supervisors shall take decisions on the basis of a simple majority of its voting members, which shall include a simple majority of its members from competent authorities of participating Member States and a simple majority of its members from competent authorities of non-participating Member States. (b a) in paragraph 1, subparagraph 7 is replaced by the following: "With regard to decisions adopted under Article 18(3) and (4), or decisions on proposals issued by the Executive Board on the basis of the tasks conferred to it under Article 37 save for measures and decisions under Chapter VI, and by way of derogation from the first subparagraph of this paragraph, the Board of Supervisors shall take decisions on the basis of a simple majority of its voting members." Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)
2018/09/14
Committee: ECON
Amendment 735 #
Proposal for a regulation
Article 1 – paragraph 1 – point 30
Regulation (EU) No 1093/2010
Article 45 – paragraph 2 – subparagraph 2
The Commission shall submit the shortlist to the European Parliament for approval. Followfull time members shall be selected on the basis of merit, skills, knowledge of financial institutions and markets, and experience relevant to financial supervision and regulation. The full time members shall have extensive management experience. The selection shall be based on an open call for candidates, to be published ing the approval of that shortlist, the Council shall adopt a decision to appoint the full timOfficial Journal of the European Union, following which the Commission shall draw up a shortlist of qualified candidates that shall be balanced in terms of gender and nationality. The Board of Supervisors shall appoint the mMembers of the Executive Board including the Member in charge. The Exfrom the list of shortlisted candidates. Before taking up their duties, and up to 1 month after the selecutive Board shall be balanced and proportionaton by the Board of Supervisors, the European Parliament may, after having heard the cand shall reflect the Union as a wholeidates selected by the Board of Supervisors, object to the designation of any of the selected persons.
2018/09/14
Committee: ECON
Amendment 741 #
Proposal for a regulation
Article 1 – paragraph 1 – point 30
Regulation (EU) No 1093/2010
Article 45 – paragraph 3
3. Where a full time member of the Executive Board no longer fulfils the conditions set out in Article 46 or has been found guilty of serious misconduct, the European Parliament or Council may, on a proposal from the Commission which has been approved by the European Parliamentor on their own initiative, adopt a decision to remove him or her from office.
2018/09/14
Committee: ECON
Amendment 776 #
Proposal for a regulation
Article 1 – paragraph 1 – point 34
Regulation (EU) No 1093/2010
Article 47 – paragraph 3 – subparagraph 2
For the purposes of Articles 17, 19, 22, 29a, 30,31, 31a, 32, 35 and 35b to 35h, the Executive Board shall be competent to act and to take decisions. The Executive Board shall keep the Board of Supervisors informed of the decisions it takes.
2018/09/14
Committee: ECON
Amendment 793 #
Proposal for a regulation
Article 1 – paragraph 1 – point 35 – point a
Regulation (EU) No 1093/2010
Article 48 – paragraph 1 – subparagraph 2 a (new)
The Chairperson shall designate a member of the Executive Board who shall be admitted to participate in the meetings of executive and plenary sessions of the Single Resolution Board as a permanent observer. The Chairperson shall designate a member of the Executive Board who shallparticipate in the Supervisory Board of the European Central Bank as apermanent observer.
2018/09/14
Committee: ECON
Amendment 794 #
Proposal for a regulation
Article 1 – paragraph 1 – point 35 – point b
Regulation (EU) No 1093/2010
Article 48 – paragraph 2 – subparagraphs 1 and 1 a (new)
The Chairperson shall be selected on the basis of merit, skills, knowledge of financial institutions and markets, and of experience relevant to financial supervision and regulation, following an open call for candidates to be published in the Official Journal of the European Union. The Commission shall submit a shortlist of candidates for the position of the Chairperson to the European Parliament for approval. Following the approval of that shortlist, the Council shall adopt a decision to appoint the ChairThe shortlist shall be balanced in terms of gender and nationality. After the Parliament’s approval, the Board of Supervisors shall appoint the Chairperson from the list of shortlisted candidates . Before taking up his duties, and up to 1 month after the selection by the Board of Supervisors, the European Parliament may, after having heard the candidate selected by the Board of Supervisors, object to the designation of the selected person.
2018/09/14
Committee: ECON
Amendment 797 #
Proposal for a regulation
Article 1 – paragraph 1 – point 35 – point b
Regulation (EU) No 1093/2010
Article 48 – paragraph 2 – subparagraph 2
Where the Chairperson no longer fulfil the conditions required for the performance of his duties including those referred to in Article 49 or has been found guilty of serious misconduct, the European Parliament or the Council may, on a proposal from the Commission which has been approved by the European Parliamentor on their own initiative, adopt a decision to remove him or her from office.;
2018/09/14
Committee: ECON
Amendment 804 #
Proposal for a regulation
Article 1 – paragraph 1 – point 35 a (new)
Regulation (EU) No 1093/2010
Article 49 – paragraph 1
(35 a) in Article 49, paragraph 1 is amended as follows: "Without prejudice to the role of the Board of Supervisors in relation to the tasks of the Chairperson, the Chairperson shall neither seek nor take instructions from the Union institutions or bodies, from any government of a Member State or from any other public or private body. " Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)
2018/09/14
Committee: ECON
Amendment 807 #
Proposal for a regulation
Article 1 – paragraph 1 – point 37 a (new)
Regulation (EU) No 1093/2010/EU
Article 54 – paragraph 2 – indent 1
– financial conglomerates, (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)(37 a) In Article 54, the first indent of paragraph 2 is replaced by the following: – financial conglomerates and cross- border activities, Or. en
2018/09/14
Committee: ECON
Amendment 809 #
Proposal for a regulation
Article 1 – paragraph 1 – point 37 a (new)
Regulation (EU) No 1093/2010/EU
Article 54 – paragraph 2 – indent 3
(37 a) In Article 54, the third indent of paragraph 2 is replaced by the following: "– micro-prudential analyses of cross- sectoral developments, risks and vulnerabilities for financial stability, and sustainability," Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)
2018/09/14
Committee: ECON
Amendment 817 #
Proposal for a regulation
Article 1 – paragraph 1 – point 39 a (new)
Regulation (EU) No 1093/2010
Article 55 – paragraph 4 – subparagraph 2
The Joint Committee shall meet at least once every 2 months. (39 a) in Article 55, subparagraph 2 of paragraph 4 is deleted. deleted Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)
2018/09/14
Committee: ECON
Amendment 818 #
Proposal for a regulation
Article 1 – paragraph 1 – point 39 b (new)
Regulation (EU) No 1093/2010
Article 57
1. For the purposes of Article 56, a(39 b) Article 57 is replaced by the following: Article 57 "Article 57 Sub- Committee on Financial Conglomerates to the Joint Committee shall be established. 2. Thes Sub-Committees The Joint Committee may decide on the establishment of relevant Sub- Committee shall be composed of the individuals referred to in Article 55(1), and one high-level representative from the current staff of the relevant competent authority from each Member State. 3. The Sub-Committee shall elect a Chairperson from among its members, who shall also be a member of the Joint Committee. 4. The Joint Committee may establish further Ss. The Joint Committee shall make public on its website all established Sub-Committees and similar sub-groups, including their mandates and a list of their members with their respective functions in the sub-C committees. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)." Or. en
2018/09/14
Committee: ECON
Amendment 820 #
Proposal for a regulation
Article 1 – paragraph 1 – point 40 – point a
Regulation (EU) No 1093/2010
Article 58 – paragraph 3
3. Two members of the Board of Appeal and two alternates shall be appointed by the Executive Board of the Authority from a gender-balanced short- list proposed by the Commission, following a public call for expressions of interest published in the Official Journal of the European Union, and after consultation of the Board of Supervisors.;
2018/09/14
Committee: ECON
Amendment 828 #
Proposal for a regulation
Article 1 – paragraph 1 – point 42 a (new)
Regulation1093/2010/EU
Article 60 – paragraph 2 – subparagraph 2
(42 a) in Article 60, subparagraph 2 of paragraph 2 is replaced by the following: “The Board of Appeal shall decide upon the appeal within 24 months after the appeal has been lodged. (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)” Or. en
2018/09/14
Committee: ECON
Amendment 851 #
Proposal for a regulation
Article 1 – paragraph 1 – point 50 – point d
Regulation (EU) No 1093/2010
Article 70 – paragraph 3 – subparagraph 1 a (new)
Paragraphs 1 and 2 shall not apply to any person who reports or discloses information on a threat or harm to the public interest in the context of their work-based relationship.
2018/09/14
Committee: ECON
Amendment 853 #
Proposal for a regulation
Article 1 – paragraph 1 – point 52 a (new)
Regulation (EU) No 1093/2010
Article 72a (new)
(52 a) the following Article 72a is inserted: “Article 72a Reporting on actual or potential unlawful activities or abuse of law The Authority shall establish or maintain independent and autonomous external reporting channels for receiving and handling information provided by a reporting person on actual or potential breaches of Union acts or abuse of law or cases of maladministration. The channels for reporting and following- up of reports shall include all of the following: (a) clear and easily accessible information regarding the procedures and information on how and under what conditions reports can be made to the Authority; (b) an operational framework that ensures the confidentiality of the identity of the reporting person, allows for anonymous reporting and prevents access to non- authorised staff members; (c) a clear separation from general communication channels of the Authority, including those through which the Authority communicates internally and with third parties in its ordinary course of business; (d) the designation of a person or department competent for following up on the reports; (e) diligent follow up to the report by the designated person or department in accordance with paragraph 3; (f) a reasonable timeframe, not exceeding two months following the report, to provide feedback to the reporting person about the follow-up to the report; 2. The channels provided for in paragraph 1 shall allow for reporting in all of the following ways: (a) written reports in electronic or paper format; (b) physical meetings with the person or department designated to receive reports and/or oral report through telephone lines. The Authority shall keep records of every report received. In case the reporting took place in accordance with point b, the designated person or department shall either record the conversation in a durable and retrievable form or document the oral reporting in the form of accurate minutes The reporting person shall be offered the possibility to check, rectify and agree with the or the minutes of the meeting by signing them. 3. The designated person or department shall acknowledge receipt of a report to the reporting person within five working days. Within 60 days from receipt of the report the designated person or authority shall inform the reporting person about the assessment of the information provided and whether any further action is envisaged, as well as any investigation findings. If the designated person or department does not provide this information within the above time-frame, the reporting person shall be informed in writing about the reasons for its failure to do so and about any further or corrective action taken or contemplated. The reporting person may request a review of the initial findings based on the original disclosure as well as submit additional information. 4. The information received under the first paragraph may refer professional secrecy and other information subject to confidentiality including information defined by Directive (EU) 2016/943 as trade secrets.”
2018/09/14
Committee: ECON
Amendment 863 #
Proposal for a regulation
Article 1 – paragraph 1 – point 57 a (new)
(https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:02010R1093-20160112)(57 a) in Article 81, in paragraph 1 a new point (fa) is added: ‘(fa) how the decision making of the Joint Committee can be streamlined.’ Or. en
2018/09/14
Committee: ECON
Amendment 865 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1
Regulation (EU) No 1094/2010
Article 1 – paragraph 2
The Authority shall act within the powers conferred by this Regulation and within the scope of Directive 2009/138/EC with the exception of Title IV thereof, of Directives 2002/92/EC, 2003/41/EC, 2002/87/EC, Directive 2009/103/EC* and, to the extent that those acts apply to insurance undertakings, reinsurance undertakings, institutions for occupational retirement provision and insurance intermediaries, within the relevant parts of Regulation (EU) No 1286/2014**, Regulation (EU) No xxx of the European Parliament and of the Council on a pan-European Personal Pension Product (PEPP)*** and Directives (EU) 2015/849 and 2002/65/EC, including all directives, regulations, and decisions based on those acts, and of any further legally binding Union act which confers tasks on the Authority. (**Regulation (EU) No 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (PRIIPs) *** Regulation (EU) No xxx of the European Parliament and of the Council on a pan-European Personal Pension Product (PEPP), when adopted (COM(2017)0343)
2018/09/19
Committee: ECON
Amendment 871 #
Proposal for a regulation
Article 2 – paragraph 1 – point 3
Regulation (EU) No 1094/2010
Article 4 – paragraph 2 – point ii
(ii) with regard to Directives 2002/65/EC and (EU) 2015/849 and Regulation (EU) 1286/2014, the authorities competent for ensuring compliance with the requirements of those Directives by financial institutions as defined in point 1;;
2018/09/19
Committee: ECON
Amendment 879 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5 – point a – point v a (new)
Regulation (EU) No 1094/2010/EU
Article 8 – paragraph 1 – point m a (new)
(va) the following point (ma) is inserted: ‘(ma) upon introduction of the pan- European Personal Pension Product (PEPP) into Union law, to authorise it.’
2018/09/19
Committee: ECON
Amendment 889 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6 – point d b (new)
Regulation (EU) No 1094/2010
Article 9 – paragraph 5 a (new)
(db) the following paragraph 5a is inserted: “5a. The Authority may issue time- limited no-action-letters at the request of market participants. These time-limited no-action-letters are a temporary commitment on the part of the Authority and all competent authorities not to enforce market participant non- compliance with specific provisions of Union law where the market participant cannot comply with such provisions of Union law because of any of the following reasons: (a) compliance would place the market participant in breach of other legal and regulatory requirements of Union law; (b) compliance is reasonably impossible without further level 2 measures or level 3 guidance; (c) compliance would significantly distort conditions for neutral competition for the market participant in the Union in the context of the worldwide application of international standards. The Authority shall provide the time- limited no-action-letter to the requestor based on the specific facts and circumstances set forth in the request. The Authority may permit parties other than the requestor to rely on the time- limited no-action-letter to the extent that the third party’s facts and circumstances are substantially similar to those described in the underlying request. The Authority shall make all no-action- letters public. The Authority shall review the decisions referred to in the first and second subparagraph at appropriate intervals and at least every 3 months. If a decision is not renewed after a three-month period, it shall automatically expire. A Member State may request the Authority to reconsider its decision. In that case, the Authority shall decide in accordance with the procedure set out in the second subparagraph of Article 44(1), whether it maintains its decision.”
2018/09/19
Committee: ECON
Amendment 890 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6 a (new)
Regulation (EU) No 1094/2010
Article 9 a (new)
(6a) the following Article 9a is inserted: “Article 9a Temporary prohibition or restriction of financial activities 1. The Authority may, where the conditions in paragraphs 2 are fulfilled, temporarily prohibit or restrict in the Union either of the following when carried on by a financial institution: (a) the marketing, distribution or sale of certain insurance or pension products with certain features; or (b) a type of financial activity or practice. A prohibition or restriction may apply in circumstances, or be subject to exceptions, specified by the Authority. 2. The Authority shall take a decision under paragraph 1 where it is satisfied that there are reasonable grounds that all of the following conditions are met: (a) the proposed action addresses a significant consumer protection concern or a threat to the orderly functioning and integrity of financial markets or to the stability of the whole or part of the financial system in the Union; (b) regulatory requirements under Union legislation that are applicable to the relevant insurance or pension product or activity do not address the threat or do not adequately address the threat; (c) a competent authority or competent authorities have not taken actions to address the threat or the actions that have been taken do not adequately address the threat. 3. When taking action under this Article, the Authority shall ensure that the action does not have a detrimental effect on the efficiency of financial markets or on investors that is disproportionate to the benefits of the action; 4. The Authority shall publish on its website notice of any decision to take any action under this Article. The notice shall specify details of the prohibition or restriction and specify a time after the publication of the notice from which the measures will take effect. A prohibition or restriction shall only apply to action taken after the measures take effect. 5. The Authority shall review a prohibition or restriction imposed under paragraph 1 at appropriate intervals and at least every twelve months. 6. Action adopted by the Authority under this Article shall prevail over any previous action taken by a competent authority. 7. The Commission shall adopt by means of delegated acts in accordance with Article 75a measures specifying criteria and factors to be taken into account by the Authority in determining when there is a significant consumer protection concern or a threat to the orderly functioning and integrity of financial markets and to the stability of the whole or part of the financial system of the Union referred to in paragraph 2(a). These criteria and factors shall include: (a) the degree of complexity of the pension or insurance product and the relation to the type of client to whom it is marketed and sold; (b) the size or the notional value of an insurance or pension product; (c) the degree of market penetration of an insurance or pension product; (d) the degree of innovation of an insurance or pension product, an activity or a practice; (e) the leverage a product or practice provides.
2018/09/19
Committee: ECON
Amendment 906 #
Proposal for a regulation
Article 2 – paragraph 1 – point 11
(a) Issue opinions to the supervisory authorities concerned on the application to use or change an internal model. To this end, EIOPA may request all the information necessary from the supervisory authorities concerned and in view of ensuring the relevant skills and experience to its assessment it shall consider the involvement of the staff of the supervisory authorities; and
2018/09/19
Committee: ECON
Amendment 928 #
Proposal for a regulation
Article 2 – paragraph 1 – point 16
Regulation (EU) No 1094/2010
Article 31 – paragraph 2 a (new)
2a. The competent authorities shall notify the Authority where they intend to carry out an authorisation related to a financial institution which is under supervision of the competent authority concerned in accordance with the acts referred to in Article 1(2) where the business plan of the financial institution entails that material part of its activities will be done on the basis of freedom to provide services or freedom of establishment. The competent authorities shall notify the Authority without delay where they identify any deteriorating financial condition or other emerging risks posed by the financial institution that may have a cross-border effect, including in view of consumer protection. These notifications to the Authority shall be sufficiently detailed to allow for a proper assessment by the Authority
2018/09/19
Committee: ECON
Amendment 971 #
Proposal for a regulation
Article 2 – paragraph 1 – point 37
Regulation (EU) No 1094/2010/EU
Article 47 – paragraph 3 – subparagraph 2
For the purposes of Articles 17, 19, 21a, 22, 29a, 30, 31, 31a, 32, 35 and 35b to 35h, the Executive Board shall be competent to act and to take decisions. The Executive Board shall keep the Board of Supervisors informed of the decisions taken.
2018/09/19
Committee: ECON
Amendment 977 #
Proposal for a regulation
Article 3 – paragraph 1 – point 1 – point a
Regulation (EU) No 1095/2010
Article 1 – paragraph 2
2. The Authority shall act within the powers conferred by this Regulation and within the scope of Directive 97/9/EC, Directive 98/26/EC, Directive 2001/34/EC, Directive 2002/47/EC, Directive 2003/71/EC, Directive 2004/39/EC, Directive 2004/109/EC, Directive 2009/65/EC, Directive 2011/61/EU of the European Parliament and of the Council * Regulation 1606/2002 of the European Parliament and of the Council**, Directive 2013/34/EU of the European Parliament and of the Council***, and Regulation (EC) No 1060/2009, and, to the extent that these acts apply to firms providing investment services or to collective investment undertakings marketing their units or shares and the competent authorities that supervise them, within the relevant parts of, Directive 2002/87/EC, Directive (EU) 2015/849, Directive 2002/65/EC, Directive (EU) 2014/95****, including all directives, regulations, and decisions based on those acts, and of any further legally binding Union act which confers tasks on the Authority. _____________________ ****Directive 2014/95/EU of the European Parliament and of the Council of 22 October 2014 amending Directive 2013/34/EU as regards disclosure of non- financial and diversity information by certain large undertakings and groups (OJ L 330, 15.11.2014, p.1–9)
2018/09/19
Committee: ECON
Amendment 993 #
Proposal for a regulation
Article 3 – paragraph 1 – point 6 – point c b (new)
Regulation (EU) No 1095/2010
Article 9 – paragraph 5 a (new)
(cb) the following paragraph 5a is inserted: ‘5a. The Authority may issue time- limited no-action-letters at the request of market participants. These time-limited no-action-letters are a temporary commitment on the part of the Authority and all competent authorities not to enforce market participant non- compliance with specific provisions of Union law where the market participant cannot comply with such provisions of Union law because of any of the following reasons: (a) compliance would place the market participant in breach of other legal and regulatory requirements of Union law; (b) compliance is reasonably impossible without further level 2 measures or level 3 guidance; (c) compliance would significantly distort conditions for neutral competition for the market participant in the Union in the context of the worldwide application of international standards. The Authority shall provide the time- limited no-action-letter to the requestor based on the specific facts and circumstances set forth in the request. The Authority may permit parties other than the requestor to rely on the time- limited no-action-letter to the extent that the third party’s facts and circumstances are substantially similar to those described in the underlying request. The Authority shall make all no-action- letters public. The Authority shall review the decisions referred to in the first and second subparagraph at appropriate intervals and at least every 3 months. If a decision is not renewed after a three-month period, it shall automatically expire. A Member State may request the Authority to reconsider its decision. In that case, the Authority shall decide in accordance with the procedure set out in the second subparagraph of Article 44(1), whether it maintains its decision.
2018/09/19
Committee: ECON
Amendment 1082 #
Proposal for a regulation
Article 3 – paragraph 1 – point 32
Regulation (EU) No 1095/2010
Article 45 – paragraph 2 – subparagraph 1
The full time members shall be selected on the basis of merit, skills, knowledge of financial market participants and markets, and experience relevant to financial supervision and regulation. Members of the CCP Supervisory Committee can be selected as Members of the ESMA Executive Board. The full time members shall have extensive management experience. The selection shall be based on an open call for candidates, to be published in the Official Journal of the European Union, following which the Commission shall draw up a shortlist of qualified candidates.
2018/09/19
Committee: ECON
Amendment 1094 #
Proposal for a regulation
Article 3 – paragraph 1 – point 36
Regulation (EU) No 1095/2010
Article 47 – paragraph 9 – subparagraph 1 a (new)
By way of derogation from Article 22a of Regulation (EU) 648/2012, the CCP Supervisory Committee may delegate some of the tasks and powers conferred to it under Article 22a paragraph 3 of Regulation (EU) 648/2012 to the Executive Board.
2018/09/19
Committee: ECON
Amendment 1111 #
Proposal for a regulation
Article 6 – paragraph 1 – point 1 – point -a (new)
Regulation (EU) No 600/2014
Article 1 – paragraph 1 – point (f)
(-a) in paragraph 1, point (f) is replaced by the following: ‘(f) provision of investment services orand activities by third-country firms following an applicable equivalence decision by the Commission with or without a branch.and provision of services to persons established in the Union by third-country trading venues;’
2018/09/19
Committee: ECON
Amendment 1113 #
Proposal for a regulation
Article 6 – paragraph 1 – point 1 – point b – introductory part
(b) in Article 1, the following paragraphs 5a isand 5aa are inserted:
2018/09/19
Committee: ECON
Amendment 1115 #
Proposal for a regulation
Article 6 – paragraph 1 – point 1 – point b
Regulation (EU) No 600/2014
Article 1 – paragraph 5a a (new)
5a a. Title VIIIa of this Regulation applies to third-country trading venues applying for recognition in the Union.
2018/09/19
Committee: ECON
Amendment 1117 #
Proposal for a regulation
Article 6 – paragraph 2 – point b a (new)
Regulation (EU) No 600/2014
Article 2 – paragraph 1 – point 50 a (new)
(b a) the following point (50a) is added: “(50 a) ‘third-country trading venue’ means a legal entity established in a third country that is or operates a multilateral system that would be a regulated market, MTF or OTF if its head office or registered office were located within the Union;”
2018/09/19
Committee: ECON
Amendment 1118 #
Proposal for a regulation
Article 6 – paragraph 1 – point 2 a (new)
Regulation (EU) No 600/2014
Article 20 – paragraph 3a (new)
(2 a) In Article 20, the following paragraph is added: “3a. Investment firms which, either on own account or on behalf of clients, conclude transactions on a third-country trading venue recognised in accordance with Article 49a or benefitting from grandfathering in accordance with Article 49s in shares, depositary receipts, ETFs, certificates, and other similar instruments traded on a trading venue are exempted from the requirements set out in paragraph 1. ”
2018/09/19
Committee: ECON
Amendment 1119 #
Proposal for a regulation
Article 6 – paragraph 1 – point 2 b (new)
Regulation (EU) No 600/2014
Article 21 – paragraph 5a (new)
(2 b) In Article 21, the following paragraph 5a is added: “5a. Investment firms which, either on own account or on behalf of clients, conclude transactions on a third-country trading venue recognised in accordance with Article 49a or benefitting from grandfathering in accordance with Article 49s in bonds, structured finance products, emission allowances and derivatives traded on a trading venue are exempted from the requirements set out in paragraphs 1 and 2.”
2018/09/19
Committee: ECON
Amendment 1120 #
Proposal for a regulation
Article 6 – paragraph 1 – point 3 a (new)
Regulation (EU) No 600/2014
Article 23 – paragraph 1 – introductory part
(3 a) In Article 23, paragraph 1, the introductory part is replaced by the following: “1. An investment firm shall ensure the trades it undertakes in shares admitted to trading on a regulated market or traded on a trading venue shall take place on a regulated market, MTF or systematic internaliser, or a third-country trading venue assessed as equivalentrecognised in accordance with Article 25(4)(a) of Directive 2014/65/EU, as appropriate49a or benefitting from grandfathering in accordance with Article 49s, unless their characteristics include that they:
2018/09/19
Committee: ECON
Amendment 1124 #
Proposal for a regulation
Article 6 – paragraph 1 – point 6 a (new)
Regulation (EU) No 600/2014
Article 28 – paragraph 1 – point d
(d) third-country trading venues, provided that the Commission has adopted a decision in accordance with paragraph 4 and provided that the6 a) In Article 28, point (d) in paragraph 1 is replaced by the following: “(d) third -country provides for an effective equivalent system for the recognition of trading venues authorised under Directive 2014/65/EU to admit to trading or trade derivatives declared subject to a trading obligation in that third country on a non-exclusive basitrading venues recognised in accordance with Article 49a or benefitting from grandfathering in accordance with Article 49s.
2018/09/19
Committee: ECON
Amendment 1125 #
Proposal for a regulation
Article 6 – paragraph 1 – point 6 b (new)
Regulation (EU) No 600/2014
Article 32a (new)
(6 b) The following new Article 32a is inserted: ‘Article 32a Suspension of trading obligation 1. ESMA may request that the Commission suspend the trading obligation referred to in Article 28 for a specific class of OTC derivative or for a specific type of counterparty where one of the following conditions is met: (a) the class of OTC derivative is no longer suitable for the trading obligation on the basis of the criteria referred to in paragraphs 2 and 3 of Article 32; (b) a trading venue is likely to cease trading that specific class of OTC derivative and no other trading venue is able to trade that specific class of OTC derivative without interruption; (c) the suspension of the trading obligation for a specific class of OTC derivative or for a specific type of counterparty is necessary to avoid or address a serious threat to the orderly functioning of the financial markets in the Union and that suspension is proportionate to that aim. Where ESMA requests that the Commission temporarily suspend the clearing obligation referred to in Article 4(1), it shall provide reasons and submit evidence that at least one of the conditions laid down in the first subparagraph is fulfilled. 2. The request referred to in paragraph 1 shall not be made public. 3. The Commission shall, within 48 hours of the request referred to in paragraph 1 and based on the reasons and evidence provided by ESMA, either suspend the trading obligation for the specific class of OTC derivative or for the specific type of counterparty referred to in paragraph 1, or reject the requested suspension. The Commission shall inform ESMA of its decision and shall provide a detailed reasoning explaining it. 4. The Commission’s decision to suspend the trading obligation shall be communicated to ESMA and shall be published in the Official Journal of the European Union, on the Commission’s website and in the public register referred to in Article34. 5. A suspension of the trading obligation pursuant to this Article shall be valid for a period of three months from the date of the publication of that suspension in the Official Journal of the European Union. 6. The Commission, after consulting ESMA, may extend the suspension referred to in paragraph 5 for additional periods of three months, with the total period of the suspension not exceeding twelve months. An extension of the suspension shall be published in accordance with paragraph 4. For the purposes of the first subparagraph, the Commission shall notify ESMA of its intention to extend a suspension of the trading obligation. ESMA shall issue an opinion on the extension of the suspension within 48 hours of that notification.’
2018/09/19
Committee: ECON
Amendment 1127 #
Proposal for a regulation
Article 6 – paragraph 1 – point 7 a (new)
Regulation (EU) No 600/2014
Article 39 – paragraph 2a (new)
(7 a) In Article 39, a new paragraph 2a is be inserted: “2a. EBA and ESMA may conduct an inquiry into a particular type of financial institution or type of product or type of conduct, including approaching financial institutions in the role of a potential consumer, using recording devices, telephonic and other communications. The Authorities may use the information they obtain from such an inquiry in support of all of their tasks related to consumer protection, financial activities and financial innovation, including review and evaluation. They shall publish this information on an annual basis and pass their findings on to relevant competent authorities on a named basis.” Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32014R0600)
2018/09/19
Committee: ECON
Amendment 1128 #
Proposal for a regulation
Article 6 – paragraph 1 – point 7 b (new)
Regulation (EU) No 600/2014
Article 40
2. ESMA shall take a decision under paragraph 1 only if(7 b) Article 40 is amended as follows: (a) in paragraph 2, subparagraph 1 is replaced by the following: “2. ESMA shall take a decision under paragraph 1 where it is satisfied that there are reasonable grounds that all of the following conditions are fulfilled: (a) the proposed action addresses a significant investor protection concern or a threat to the orderly functioning and integrity of financial markets or commodity markets or to the stability of the whole or part of the financial system in the Union; (b) regulatory requirements under Union law that are applicable to the relevant financial instrument or activity do not address the threat; (b) does not create a risk of regulatory arbitrage, and or address the threat in an inadequate manner;” (b) in paragraph 3, point (b) is deleted. deleted (c) paragraph 6 is replaced by the following: “6. ESMA shall review a prohibition or restriction imposed under paragraph 1 at appropriate intervals and at least every three12 months. If the prohibition or restriction is not renewed after that three- month period it shall expire. ” Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32014R0600)
2018/09/19
Committee: ECON
Amendment 1129 #
Proposal for a regulation
Article 6 – paragraph 1 – point 7 c (new)
Regulation (EU) No 600/2014
Article 41
2. EBA shall take a decision under paragraph 1 only if all of the following conditions are fulfilled(7 c) Article 41 amended as follows: (a) in paragraph 2, subparagraph 1, the introductory part is replaced by the following: ‘2. EBA shall take a decision under paragraph 1 where it is satisfied that there are reasonable grounds that all of the following conditions are fulfilled: (b) in paragraph 2, point (b) of subparagraph 1 is replaced by the following: (b) regulatory requirements under Union law that are applicable to the relevant structured deposit or activity do not address the threat; or inadequately address the threat;’ (c) paragraph 3is replaced by the following: ‘3. When taking action under this Article, EBA shall ensure that the action: (a) does not have a detrimental effect on the efficiency of financial markets or on investors that is disproportionate to the benefits of the action; and (b) does not create a risk of regulatory arbitrage.have a detrimental effect Where a competent authority or competent authorities have taken a measure under Article 42, EBA may take any of the measures referred to in paragraph 1 without issuing the opinion provided for in Article 43. ’ (d) paragraph 6 is replaced by the following: ‘6. EBA shall review a prohibition or restriction imposed under paragraph 1 at appropriate intervals and at least every three12 months. If the prohibition or restriction is not renewed after that three- month period it shall expire. ’ Or. en (https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32014R0600)
2018/09/19
Committee: ECON
Amendment 1130 #
Proposal for a regulation
Article 6 – paragraph 1 – point 7 d (new)
Regulation (EU) No 600/2014
Article 43a (new)
(7 d) the following Article 43a is inserted: “Article 43a Identification and notification of deteriorating financial conditions Investment firms and credit institutions as specified under Article 1(2) of this Regulation shall have procedures in place to identify deteriorating financial conditions and shall immediately notify the relevant supervisory authority when such deterioration occurs. Supervisory authorities shall immediately notify EBA or ESMA following a notification under paragraph 1 where the deteriorating financial conditions have a cross-border effect, including where there is any likelihood of consumer detriment.”
2018/09/19
Committee: ECON
Amendment 1131 #
Proposal for a regulation
Article 6 – paragraph 1 – point 7 e (new)
Regulation (EU) No 600/2014
Article 43b (new)
(7 e) the following Article 43b is inserted: “Article 43b Coordination of cross-border cooperation Without prejudice to other forms of collaboration, EBA and ESMA may set up coordination platforms with the participation of the competent authorities of the home and host Member States concerned in view of discussing and coordinating common matters relating to the activity of the insurance and reinsurance distributor, which pursues business under the right of establishment or the freedom to provide services.”
2018/09/19
Committee: ECON
Amendment 1132 #
Proposal for a regulation
Article 6 – paragraph 1 – point 7 a (new)
Regulation (EU) No 600/2014
Article 46 – paragraph 7a (new)
(7 a) In Article 46, the following paragraph 7a is added: “7a. Third-country firms shall not be subject to this Article with respect to the operation of a third-country trading venue that would qualify as an MTF or OTF if established in the Union.”
2018/09/19
Committee: ECON
Amendment 1133 #
Proposal for a regulation
Article 6 – paragraph 1 – point 7 b (new)
Regulation (EU) No 600/2014
Title VIII a (new)
(7 b) The following new title is inserted: “Title VIII a Recognised third country trading venues Article 49a Recognition of third-country trading venues 1. A third-country trading venue has to be recognised by ESMA in order to: (a) provide access to persons established in the Union; (b) be considered as an eligible trading venue for the purposes of the trading obligation for shares under Article 23(1) or for the trading obligation for derivatives under Article28(1)(d); (c) be considered as an eligible trading venue for the purposes of Article 20, 21 and of 57(4)of Directive 2014/65/EU. Recognition under paragraph 1(a) includes recognition under paragraph 1(b) and (c). 2. For the purpose of this Article, providing access to persons established in the Union means any of the following: (a) a third-country trading venue providing arrangements to facilitate access to trading on its system by remote members, participants or clients established in the Union; (b) a third-country trading venue whose members, participants or clients provide direct electronic access to persons established in the Union. 3. In order to be recognised, a third- country trading venue shall submit an application to ESMA in accordance with the procedure set out in paragraph 7. 4. Where a third-country trading venue applies for recognition under paragraph 1(a), following the receipt of an application in accordance with paragraph 7,ESMA shall determine whether a third-country trading venue is substantially important or likely to become substantially important for the integrity, transparency, efficiency and orderly functioning of financial markets in the Union or in one or more of its Member States (Tier 2third-country trading venue) by taking into account the following criteria: (a) the nature and size of the activities of persons established in the Union on that third-country trading venue; (b) the nature and size of the third- country trading venue's activities in instruments which are admitted to trading or traded on a trading venue in the EU or for which a request for admission to trading has been made; (c) the risk profile of the third-country trading venue, in terms of, among others, legal, operational and business risk, and paying particular attention to cyber-risk; (d) the third-country trading venue’s relationship, interdependencies, or other interactions with other financial market infrastructures, other financial institutions and the broader financial system to the extent that those interactions are likely to affect the financial system of the Union or of one or more of its Member States. 5. ESMA may recognise a third- country trading venue that has applied for recognition under paragraph 1(a) and that has not been determined as substantially important or likely to become substantially important in accordance with paragraph4, or that has applied for recognition under paragraph 1(b) or (c) (“Tier 1third-country trading venue”) where: (a) the Commission has adopted an implementing act in accordance with paragraph 9; (b) the third-country trading venue is authorised in the relevant third country, and is subject to effective supervision and enforcement ensuring full compliance with the prudential and organisational requirements applicable in that third country on an ongoing basis; (c) the third-country trading venue has a post-trade transparency regime in place which ensures that transactions executed on that trading venue are made available to users and the public on a transaction-by-transaction basis as soon as possible after the transaction was executed or, in clearly defined situations, after a deferral period; (d) the third-country trading venue has clear and transparent rules regarding the admission of financial instruments to trading so that such financial instruments are traded in a fair and efficient manner, and are freely negotiable; (e) the third-country trading venue requires issuers of financial instruments traded on its system to publish periodic and ongoing information ensuring a high level of investor protection; (f) the third-country trading venue has effective arrangements and procedures for monitoring on-going compliance by its members, participants or clients with its rules and sanctioning violations of such rules; (g) the third-country trading venue is established or authorised in a third country that is not considered by the Commission in accordance with Directive (EU) 2015/847 of the European Parliament and of the Council, as having strategic deficiencies in its national anti- money laundering and counter financing of terrorism regime that poses significant threats to the financial system of the Union. (h) where the third-country trading venue trades commodity derivatives, it has a position limit regime in place; (i) cooperation arrangements have been established pursuant to paragraph 11. 6. Where ESMA determines a third- country trading venue to be a Tier 2 third- country trading venue in accordance with paragraph4, it shall only recognise that trading venue where, in addition to the conditions referred to in paragraph 5, the following conditions are fulfilled: (a) the third-country trading venue complies, at the moment of recognition and thereafter on an ongoing basis, with the requirements set out in Articles 3 to 13, Article 25(2), Article 29 and Article (49b). ESMA shall take into account, in accordance with paragraph 13, the extent to which compliance with those requirements is satisfied by the third- country trading venue’s compliance with the comparable requirements applicable in the third country; (b) the third-country trading venue has provided ESMA with a written statement, signed by its legal representative, expressing the unconditional consent of the third- country trading venue to the provision, within 10 working days after service of a request by ESMA, of any documents, records, information and data held by that third-country trading venue at the time the request is served and allowing ESMA to access any of the third-country trading venue’s business premises, together with a reasoned legal opinion by an independent legal expert confirming that the consent expressed is valid and enforceable under the relevant applicable laws; (c) the third-country trading venue has taken and implemented all necessary measures and established all necessary procedures to ensure the effective compliance with the requirements laid down in point (a) and (b). 7. A third-country trading venue may submit an application to ESMA after the adoption by the Commission of an implementing act in accordance with paragraph 9 determining that the legal and supervisory framework of the third country in which the third-country trading venue is established is equivalent. The applicant third-country trading venue shall provide ESMA with all information necessary for its recognition and clarifying for which specific purposes the recognition is sought for. Within 30working days of receipt, ESMA shall assess whether the application is complete. If the application is not complete, ESMA shall set a deadline by which the applicant third-country trading venue has to provide additional information. The recognition decision shall be based on the conditions set out in paragraphs 4 to 6. Within 180 working days of the submission of a complete application, ESMA shall inform the applicant third- country trading venue in writing, with a fully reasoned explanation, whether the recognition has been granted or refused. ESMA shall publish on its website a list of the third-country trading venues recognised in accordance with this Regulation, together with a mention of their categorisation as Tier 1 or Tier 2 third-country trading venues. 8. Where a third-country trading venue is recognised under paragraph 1(a), ESMA shall review the categorisation of a third-country trading venue where the third-country trading venue concerned has extended the range of its activities and services in the Union, and at least every five years. That review shall be conducted in accordance with paragraph 4. Further to this review, ESMA may either: (a) determine that a Tier 1 third- country trading venue has become significant or is likely to become significant and shall therefore be reclassified as a Tier 2 third-country venue; (b) determine that a Tier 2 third- country trading venue is no longer significant and shall therefore be reclassified as a Tier 1 third-country trading venue; or (c) determine that the significance of the third-country trading venue concerned has remained unchanged and leave the classification of this third- country trading venue unchanged. Where, further to the review referred to in the first subparagraph, ESMA determines that a third-country trading venue previously classified as a Tier 1 third- country trading venue shall be reclassified as a Tier 2 third-country trading venue, ESMA shall set an appropriate adaptation period, which shall not exceed 12 months, by the end of which the third-country trading venue shall comply with the requirements referred to in paragraph 6. 9. The Commission shall adopt an implementing act in accordance with Article 5 of Regulation (EU) No 182/2011, in relation to a third country stating that the legal and supervisory arrangements of that third country comply on an ongoing basis with legally binding organisational and business conduct requirements which have equivalent effect to the requirements set out in this Regulation, Directive 2014/65/EU and Regulation (EU) No 596/2014. The legal framework of the third country may be considered to have equivalent effect where it fulfils all of the following conditions: (a) third-country trading venues are subject to authorisation, effective supervision and enforcement in that third country on an ongoing basis; (b) third-country trading venues are subject to appropriate requirements applicable to the qualification of members of their management body and to natural and legal persons holding major shares in the third-country trading venue; (c) third-country trading venues are subject to adequate organisational requirements governing the operation of their systems; (d) third-country trading venues are required to ensure market transparency and integrity by having systems and controls in place for the prevention of market abuse in the form of insider dealing and market manipulation; (e) for the purpose of recognition under paragraph 1(a), the legal framework of the third country provides for an effective equivalent system for the recognition of trading venues authorised under Directive 2014/65/EU seeking to provide access to members, participants or clients located in that third-country; (f) for the purpose of recognition under paragraph 1(b), the legal framework of the third country provides for an effective equivalent system for the recognition of trading venues authorised under Directive 2014/65/EU to trade derivatives declared subject to the trading obligation for derivatives in that third country where applicable. The implementing act shall specify whether the legal framework of the third- country may be considered to have an equivalent effect for all or only for any individual points set out in paragraph 1. The Commission may subject the application of the implementing act referred to in the first subparagraph to the effective fulfilment of any requirement set out therein by a third country on an ongoing basis and to the ability by ESMA to effectively exercise its responsibilities in relation to third-country trading venues recognised under paragraphs 5 and 6 or in relation to monitoring referred to in paragraph 10, including by way of agreeing and applying the cooperation arrangements referred to in paragraph 11. The Commission may only introduce conditions on the equivalence decisions to be fulfilled by a Tier 2third-country trading venue and to be supervised by ESMA. 10. ESMA shall monitor the regulatory and supervisory developments in third countries for which implementing acts have been adopted pursuant to paragraph 9. ESMA shall submit a report to the Commission, the European Parliament and the Council on the regulatory and supervisory developments in the third countries referred to in the first subparagraph at least every two years. Where the report reveals a significant change on the regulatory and supervisory framework in a third country referred in the first subparagraph, the Commission may introduce conditions to the equivalence decision taken pursuant to paragraph 9 or withdraw it. 11. ESMA shall establish effective cooperation arrangements with the relevant competent authorities of third- country trading venues applying for recognition in accordance with paragraphs 5 and 6. Such arrangements shall specify at least: (a) the mechanism for the exchange of information between ESMA and the competent authorities of the third countries concerned, including access to all information requested by ESMA regarding third-country trading venues authorised in those third countries; (b) the mechanism for prompt notification to ESMA where a third- country competent authority deems a third-country trading venue it is supervising to be in breach of the conditions of its authorisation or of other laws to which it is subject; (c) the mechanism for prompt notification to ESMA by a third-country competent authority where a third- country trading venue it is supervising has been granted the right to extend its activities and services to members or participants established in the Union; (d) the procedures necessary for the effective monitoring of regulatory and supervisory developments in the third country concerned; (e) where a third-country trading venue has been determined to be a Tier 2 third-country trading venue in accordance with paragraph 4, the arrangements shall also specify the following: (i) the procedures concerning the coordination of supervisory activities, including the agreement of third-country authorities to allow investigations and on- site inspections in accordance with Articles 49f and 49g respectively; (ii) the procedures concerning the effective enforcement of the supervisory powers granted to ESMA under this Regulation. 12. Where ESMA considers that a third-country competent authority fails to apply any of the provisions laid down in a cooperation arrangement established in accordance with paragraph11, it may decide to review the recognition decision adopted in accordance with paragraph 5 or 6. 13. A Tier 2third-country trading venue may submit a reasoned request that ESMA assesses whether in its compliance with the applicable third country framework, it maybe deemed to satisfy compliance with the requirements referred to in paragraph6(a). Based on the request received, ESMA shall undertake the assessment referred to in the first subparagraph. In carrying out that assessment, ESMA shall take into account the provisions of the implementing act adopted in accordance with paragraph 9. The request referred to in the first sub- paragraph shall provide the factual basis for a finding of comparability and the reasons why compliance with the requirements applicable in the third country satisfies the requirements set out in paragraph 6(a). The assessment referred to in the two first sub paragraphs shall effectively reflect the regulatory objectives of the requirements set out in paragraph 6(a) and the Union’s interests as a whole. 14. In order to ensure consistent application of this Article, ESMA shall develop draft regulatory technical standards specifying (a) the criteria set out in paragraph 4; (b) the information that the applicant third-country trading venue shall provide to ESMA in accordance with paragraph 7 in its application for recognition; (c) the minimum elements to be assessed for the purposes of the three first sub paragraphs of paragraph13 and the modalities and conditions to carry out the assessment. ESMA shall submit those draft regulatory technical standards to the Commission by [12months after the entry into force of this amending Regulation]. 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. Article 49b Organisational requirements applicable to Tier 2 third-country trading venues 1. A Tier 2third-country trading venue has to comply with the following requirements at the moment of recognition and thereafter on an ongoing basis: (a) where the Tier 2 third-country trading venue operates a multilateral system that would bean MTF if established within the Union, the organisational requirements for MTFs set out in paragraph 2; (b) where the Tier 2 third-country trading venue operates a multilateral system that would bean OTF if established within the Union, the organisational requirements for OTFs set out in paragraph 3; (c) where the Tier 2 third-country trading venue operates a multilateral system that would be a regulated market if established within the Union, the organisational requirements for regulated markets set out in paragraph 4. 2. For the purpose of this Title, organisational requirements for MTFs shall consist of the requirements set out in Article 9, Article 14, paragraphs 2, 4, 5 and 6 of Article 16, paragraphs 1 to 9 of Article 18, paragraphs 1, 2, 3 and 5 of Article 19, Article 31, paragraph 1 and the first subparagraph of paragraph 2of Article 32 of Directive 2014/65/EU, Article 48, Article 49, paragraph 8 of Article 57 and paragraphs 1 and 4 of Article 58 of Directive 2014/65/EU as supplemented by the relevant Commission Delegated Regulations. 3. For the purpose of this Title, organisational requirements for OTFs shall consist of the requirements set out in Article 9,Article 14 paragraphs 2, 4, 5 and 6 of Article 16, paragraphs 1 to 9 of Article18, paragraphs 1 to 6 and paragraph 8 of Article 20, Article 31, paragraph 1and the first subparagraph of paragraph 2 of Article 32 of Directive 2014/65/EU Article 48, Article 49, paragraph 8 of Article 57 and paragraphs 1 and 4 of Article 58 of Directive 2014/65/EU as supplemented by the relevant Commission Delegated Regulations. 4. For the purpose of this Title, organisational requirements for regulated markets shall consist of the requirements set out in Article 45, paragraph 2 of Article 46,Articles 47 to 51, paragraph 1 and the first subparagraph of paragraph 2 of Article 52, paragraphs 1 to 3 and paragraph 5 and 7 of Article 53, paragraph 1,the first subparagraph of paragraph 2 of Article 54, paragraph 8 of Article 57 and paragraphs 1 and 4 of Article58 of Directive 2014/65/EU as supplemented by the relevant Commission Delegated Regulations. Article 49c Ongoing compliance with the conditions for recognition 1. ESMA shall require confirmation from each Tier 1 third-country trading- venue at least on a yearly basis that the requirements referred to in Article 49a(5) continue to be fulfilled 2. ESMA shall be responsible for carrying out the duties resulting from this Regulation for the supervision on an ongoing basis of the compliance of recognised Tier 2third country-trading venues with the requirements referred to in Article49a(6). 3. For the purposes of the requirements referred to in Article 49a(6) references to competent authorities in the context of supervision of trading venues established in the Union shall be construed as references to ESMA in the context of supervision of Tier 2 third- country trading venues. Article 49d Exercise of the powers referred to in Articles 49e to 49g The powers conferred on ESMA or any official of or any other person authorised by them by Articles 49e to 49g shall not be used to require the disclosure of information or documents which are subject to legal privilege. Article 49e Request for information 1. ESMA may by simple request or by decision require third-country trading venues and related third parties to whom those trading venues have outsourced operational functions or activities to provide all necessary information to enable ESMA to carry out its duties under this Regulation. 2. When sending a simple request for information under paragraph 1, ESMA shall indicate all of the following: (a) the reference to this Article as the legal basis of the request; (b) the purpose of the request; (c) the information required; (d) the time limit to provide the information; (e) inform the person from whom the information is requested that there is no obligation to provide the information but that in case of voluntary reply to the request the information provided must not be incorrect or misleading; (f) the fine provided for in Article 49i in conjunction with point(a) of Section V of Annex I, where the answers to questions asked are incorrect or misleading. 3. When requiring that information is provided under paragraph 1 by decision, ESMA shall indicate all of the following: (a) the reference to this Article as the legal basis of the request; (b) the purpose of the request; (c) the information required; (d) the time limit to provide the information; (e) the periodic penalty payments provided for in Article 49jwhere the production of the required information is incomplete; (f) the fine provided for in Article 49i in conjunction with point (a) of Section V of Annex I, where the answers to questions asked are incorrect or misleading; and (g) the right to appeal the decision before ESMA’s Board of Appeal and to have the decision reviewed by the Court of Justice of the European Union(‘Court of Justice’) in accordance with Articles 60 and 61 of Regulation (EU)No 1095/2010. 4. The persons referred to in paragraph 1 or their representatives and, in case of persons or associations having no legal personality, the persons authorised to represent them by law or by their constitution shall supply the information requested. Lawyers duly authorised to act may supply the information on behalf of their clients. The latter shall remain fully responsible if the information supplied is incomplete, incorrect or misleading. 5. ESMA shall, without undue delay, send a copy of the simple request or of its decision to the relevant third-country competent authority where the persons referred to in paragraph 1 concerned by the request for information are domiciled or established. Article 49f General Investigation 1. In order to carry out its duties under this Regulation, ESMA may conduct necessary investigations of Tier 2 third-country trading venues. To that end, the officials and other persons authorised by ESMA shall be empowered to: (a) examine any records, data, procedures and any other material relevant to the execution of its tasks irrespective of the medium on which they are stored; (b) take or obtain certified copies of or extracts from such records, data, procedures and other material; (c) summon and ask Tier 2 third- country trading venues or their representatives or staff for oral or written explanations on facts or documents relating to the subject matter and purpose of the investigation and to record the answers; (d) interview any other natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject matter of an investigation; (e) request records of telephone and data traffic. 2. The officials and other persons authorised by ESMA for the purposes of the investigations referred to in paragraph 1 shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the investigation. That authorisation shall also indicate the periodic penalty payments provided for in Article 49j where the production of the required records, data, procedures or any other material, or the answers from questions asked to Tier 2 third-country trading venues are not provided or are incomplete, and the fines provided for in Article 49i in conjunction with point(b) of Section V of Annex I, where the answers to questions asked to Tier 2third-country trading venues are incorrect or misleading. 3. Tier 2third-country trading venues are required to submit to investigations launched on the basis of a decision of ESMA. The decision shall specify the subject matter and purpose of the investigation, the periodic penalty payments provided for in Article 49j, the legal remedies available under Regulation (EU) No1095/2010 and the right to have the decision reviewed by the Court of Justice. 4. Prior to notifying a Tier 2 third- country trading venues of an investigation, ESMA shall inform the relevant third-country competent authority where the investigation is to be carried out of the investigation and of the identity of the authorised persons. Officials of the third-country competent authority concerned may, upon the request of ESMA, assist those authorised persons in carrying out their duties. Officials of the third-country competent authority concerned may also attend the investigations upon request. Investigations in accordance with this Article shall be conducted provided that the relevant third-country authority does not object to them. Article 49g On-site inspections 1. In order to carry out its duties under this Regulation, ESMA may conduct all necessary on-site inspections at any business premises or property of Tier 2third-country trading venues. 2. The officials and other persons authorised by ESMA to conduct an on- site inspection may enter any business premises or land of the legal persons subject to an investigation decision adopted by ESMA and shall have all the powers stipulated in Article 49f(1). They shall also have the power to seal any business premises and books or records for the period of, and to the extent necessary for, the inspection. 3. Insufficient time before the inspection, ESMA shall give notice of the inspection to the relevant third-country competent authority where the inspection is to be conducted. Where the proper conduct and efficiency of the inspection so require, ESMA, after informing the relevant third-country competent authority, may carry out the on-site inspection without prior notice to the trading venue. Inspections in accordance with this Article shall be conducted provided that the relevant third-country authority has confirmed that it does not object to those inspections. The officials and other persons authorised by ESMA to conduct an on-site inspection shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the inspection. 4. Tier 2third-country trading venues shall submit to on-site inspections ordered by decision of ESMA. The decision shall specify the subject matter and purpose of the inspection, appoint the date on which it is to begin and indicate the periodic penalty payments provided for in Article 49j, the legal remedies available under Regulation (EU) No 1095/2010 as well as the right to have the decision reviewed by the Court of Justice. 5. Officials of, as well as those authorised or appointed by, the competent authority of the third country where the inspection is to be conducted may actively assist the officials and other persons authorised by ESMA. Officials of the relevant third-country competent authority shall be invited the on-site inspections. 6. ESMA may also request third- country competent authorities to carry out specific investigatory tasks and on-site inspections as provided for in this Article an din Article 49f(1) on its behalf. 7. Where the officials and other accompanying persons authorised by ESMA find that a person opposes an inspection ordered pursuant to this Article, the third-country competent authority concerned may afford them the necessary assistance, requesting, where appropriate, the assistance of the police or of an equivalent enforcement authority, to enable them to conduct their on-site inspection. Article49h Procedural rules for taking supervisory measures and imposing fines 1. Where, in carrying out its duties under this Regulation, ESMA finds that there are serious indications of the possible existence of facts liable to constitute one or more of the infringements listed in Annex I, ESMA shall appoint an independent investigation officer within ESMA to investigate the matter. The appointed officer shall not be involved or have been directly or indirectly involved in the recognition or supervision process of the third-country trading venue concerned and shall perform his functions independently from ESMA. 2. The investigation officer shall investigate the alleged infringements, taking into account any comments submitted by the persons who are subject to the investigations, and shall submit a complete file with his findings to ESMA. In order to carry out his tasks, the investigation officer may exercise the power to request information in accordance with Article 49e and to conduct investigations and on-site inspections in accordance with Articles 49f and 49g.Where carrying out his tasks, the investigation officer shall have access to all documents and information gathered by ESMA in its activities. 3. Upon completion of his investigation and before submitting the file with his findings to ESMA, the investigation officer shall give the persons subject to the investigations the opportunity to be heard on the matters being investigated. The investigation officer shall base his findings only on facts on which the persons concerned have had the opportunity to comment. The rights of the defence of the persons concerned shall be fully respected during investigations under this Article. 4. When submitting the file with his findings to ESMA, the investigation officer shall notify that fact to the persons who are subject to the investigations. The persons subject to the investigations shall be entitled to have access to the file, subject to the legitimate interest of other persons in the protection of their business secrets. The right of access to the file shall not extend to confidential information or ESMA’s internal preparatory documents. 5. On the basis of the file containing the investigation officer’s findings and, when requested by the persons concerned, after having heard the persons subject to the investigations in accordance with Article 49k, ESMA shall decide if one or more of the infringements listed in Annex I has been committed by the persons who have been subject to the investigations and, in such a case, shall take a supervisory measure in accordance with Article 49p and impose a fine in accordance with Article 49i. 6. The investigation officer shall not participate in ESMA's deliberations or in any other way intervene in ESMA's decision-making process. 7. The Commission shall adopt delegated acts in accordance with Article 50 to specify further the rules of procedure for the exercise of the power to impose fines or periodic penalty payments, including provisions on the rights of the defence, temporal provisions, and the collection of fines or periodic penalty payments, and the limitation periods for the imposition and enforcement of penalties. 8. ESMA shall refer matters for criminal prosecution to the appropriate authorities for investigation and possible criminal prosecution where, in carrying out its duties under this Regulation, it finds that there are serious indications of the possible existence of facts that it knows to be liable to constitute criminal offences under the applicable law. ESMA shall refrain from imposing fines or periodic penalty payments where it is aware that a prior acquittal or conviction arising from identical fact or facts which are substantially the same has already acquired the force of res judicata as the result of criminal proceedings under national law. Article 49i Fines 1. Where, in accordance with Article 49h(5), ESMA finds that a third-country trading venue has, intentionally or negligently, committed one of the infringements listed in Annex I, it shall adopt a decision imposing a fine in accordance with paragraph2 of this Article. An infringement by a third- country trading venue shall be considered to have been committed intentionally if ESMA finds objective factors which demonstrate that the third-country trading venue or its senior management acted deliberately to commit the infringement. 2. The basic amounts of the fines referred to in paragraph 1 shall be up to twice the amount of the profits gained or losses avoided because of the breach where those can be determined, or up to 10 % of the total annual turnover, as defined in relevant Union law, of a legal person in the preceding business year. 3. The basic amounts set out in paragraph 2 shall be adjusted, if need be, by taking into account aggravating or mitigating factors in accordance with the relevant coefficients set out in Annex II. The relevant aggravating coefficients shall be applied one by one to the basic amount. If more than one aggravating coefficient is applicable, the difference between the basic amount and the amount resulting from the application of each individual aggravating coefficient shall be added to the basic amount. The relevant mitigating coefficients shall be applied one by one to the basic amount. If more than one mitigating coefficient is applicable, the difference between the basic amount and the amount resulting from the application of each individual mitigating coefficient shall be subtracted from the basic amount. 4. Notwithstanding paragraphs 2 and 3, the amount of the fine shall not exceed 20 % of the annual turnover of the Tier 2 third country trading venue concerned in the preceding business year but, where the Tier 2 third country trading venue has directly or indirectly benefited financially from the infringement, the amount of the fine shall be at least equal to that benefit. Where an act or omission of a Tier 2 third-country trading venue constitutes more than one infringement listed in Annex I, only the higher fine calculated in accordance with paragraphs 2 and 3 and relating to one of those infringements shall apply. Article 49j Periodic penalty payments 1. ESMA shall, by decision, impose periodic penalty payments in order to compel: (a) a Tier 2third-country trading venue to put an end to an infringement in accordance with a decision taken pursuant to Article 49p(1); (b) a person referred to in Article 49e(1) to supply complete information which has been requested by a decision pursuant to Article 49e; (c) a Tier 2third-country trading venue: (i) to submit to an investigation and in particular to produce complete records, data, procedures or any other material required and to complete and correct other information provided in an investigation launched by a decision pursuant to Article 49f; or (ii) to submit to an on-site inspection ordered by a decision taken pursuant to Article 49g. 2. A periodic penalty payment shall be effective and proportionate. The periodic penalty payment shall be imposed for each day of delay. 3. Notwithstanding paragraph 2, the amount of the periodic penalty payments shall be 3 % of the average daily turnover in the preceding business year, or, in the case of natural persons, 2 % of the average daily income in the preceding calendar year. It shall be calculated from the date stipulated in the decision imposing the periodic penalty payment. 4. A periodic penalty payment shall be imposed for a maximum period of six months following the notification of ESMA's decision. Following the end of the period, ESMA shall review the measure. Article 49k Hearing of the persons concerned 1. Before taking any decision on a fine or periodic penalty payment under Articles 49iand 49j, ESMA shall give the persons subject to the proceedings the opportunity to be heard on its findings. ESMA shall base its decisions only on findings on which the persons subject to the proceedings have had an opportunity to comment. 2. The rights of the defence of the persons subject to the proceedings shall be fully respected in the proceedings. They shall be entitled to have access to ESMA’s file, subject to the legitimate interest of other persons in the protection of their business secrets. The right of access to the file shall not extend to confidential information or ESMA’s internal preparatory documents. Article 49l Disclosure, nature, enforcement and allocation of fines and periodic penalty payments 1. ESMA shall disclose to the public every fine and periodic penalty payment that has been imposed pursuant to Articles 49i and 49j unless such disclosure to the public would seriously jeopardise the financial markets or cause disproportionate damage to the parties involved. Such disclosure shall not contain personal data within the meaning of Regulation (EC) No 45/2001. 2. Fines and periodic penalty payments imposed pursuant to Articles 49i and 49j shall be of an administrative nature. 3. Where ESMA decides to impose no fines or penalty payments, it shall inform the European Parliament, the Council, the Commission, and the relevant third- country competent authorities accordingly and shall set out the reasons for its decision. 4. Fines and periodic penalty payments imposed pursuant to Articles 49i and 49j shall be enforceable. Enforcement shall be governed by the rules of civil procedure in force in the Member State or third-country in which it is carried out. 5. The amounts of the fines and periodic penalty payments shall be allocated to the general budget of the European Union. Article 49m Review by the Court of Justice The Court of Justice shall have unlimited jurisdiction to review decisions whereby ESMA has imposed fine or a periodic penalty payment. It may annul, reduce or increase the fine or periodic penalty payment imposed. Article 49n Amendments to Annex II In order to take account of developments on financial markets the Commission shall be empowered to adopt delegated acts in accordance with Article 50 concerning measures to amend Annex II. Article 49o Withdrawal of recognition 1. Without prejudice to Article 49p, and subject to the following paragraphs, ESMA shall withdraw a recognition decision adopted in accordance with Article 49a where: (a) the third-country trading venue concerned does not make use of the recognition within 6 months, expressly renounces the authorisation or has ceased to engage in business for more than six months; (b) the third-country trading venue concerned has obtained the recognition through false statements or by any other irregular means; (c) the third-country trading venue concerned no longer meets any of the conditions for recognition pursuant to Article 49a(5) or (6); (d) ESMA is unable to exercise effectively its responsibilities under this Regulation over the third-country trading venue concerned, due to the failure of the third- country trading venue or of its competent authority to provide ESMA with all relevant information in accordance with Article 49a(11); (e) the implementing act referred to in Article 49a(9) has been withdrawn, or any of the conditions attached to it is no longer satisfied. ESMA may limit the withdrawal of the recognition to a particular service, activity or class of financial instruments. When determining the date of entry into effect of the decision to withdraw the recognition ESMA shall endeavour to minimise market disruption. 2. Where ESMA considers that the criterion referred to in point (c) of the first paragraph is fulfilled in relation to a third-country trading venue or a particular service, activity or class of financial instruments thereof, ESMA shall inform that third-country trading venue and the relevant third-country authorities prior to withdrawing a recognition decision, and request that appropriate action is taken within a set time frame of up to a maximum of 3 months to remedy the situation. Where ESMA determines that remedial action has not been taken within the set time frame or that the action taken is not appropriate, it shall withdraw the recognition decision. 3. ESMA shall, without undue delay, notify the relevant third-country competent authority of a decision to withdraw the recognition of a recognised third-country trading venue. Article 49p Supervisory measures 1. Where, in accordance with Article 49f(5),ESMA finds that a Tier 2 trading venue has committed one of the infringements listed in Annex I, it shall take one or more of the following decisions: (a) require the trading venue to bring the infringement to an end; (b) impose fines under Article 49i; (c) issue public notices; (d) withdraw the recognition of a trading venue under Article 49o or of a particular service, activity or class of financial instruments thereof. 2. When taking the decisions referred to in paragraph 1, ESMA shall take into account the nature and seriousness of the infringement, having regard to the following criteria: (a) the duration and frequency of the infringement; (b) whether the infringement has revealed serious or systemic weaknesses in the trading venue's procedures or in its trading systems or internal controls; (c) whether financial crime has been occasioned, facilitated or otherwise attributable to the infringement; (d) whether the infringement has been committed intentionally or negligently. 3. Without undue delay, ESMA shall notify any decision adopted pursuant to paragraph 1 to the trading venue concerned, and shall communicate it to the relevant third country competent authorities and the Commission. It shall publicly disclose any such decision on its website within 10 working days from the date when it was adopted. Article 49q Fees 1.Third-country trading venues recognised under this Regulation shall pay the following fees: (a) fees associated with applications for recognition pursuant to Article 49a(7); (b) annual fees associated with ESMA's tasks in accordance with Article 49c. 2. The Commission shall adopt a delegated act in accordance with Article 50 to further specify the types of fees, the matters for which fees are due, the amount of the fees and the manner in which they are to be paid by the following entities: (a) trading venues established in a third country which are recognised in accordance with Article 49a(5) (b) trading venues established in a third country which are recognised in accordance with Article 49a(6). Article 49r Staff and resources of ESMA By[two years after the date of entry into force of this Amending Regulation],ESMA shall assess the staffing and resources needs arising from the assumption of its powers and duties in accordance with this Regulation and submit a report to the European Parliament, the Council and the Commission. Article 49s Grandfathering of third-country trading venues 1.A third country trading venue shall notify ESMA at the latest [six months]prior to [the date of application of this Regulation] when: (a) it is authorised to provide access to persons established in a Member State as defined in Article 49a(2) under that Member State’s national regime; (b) it has been assessed as equivalent to a regulated market in accordance with the second subparagraph of Article 25(4) of Directive 2014/65/EU for the purpose of Article 23(1); (c) it is established in a third country that has been assessed as equivalent under Article 28(4). 2.The notification referred to in paragraph 1 shall include the name and address of the third-country trading venue and the contact details of a contact person as well as the following information, where applicable: (a) the Member State(s) where the third- country trading venue has been authorised to provide access; (b) the equivalence decision referred to in paragraph 1(b); (c) the equivalence decision referred to in paragraph 1(c). 3. Within six months following the adoption of an implementing act in accordance with Article 49a(9) with respect to the third country where the third-country trading venue is established, a third-country trading venue referred to in paragraph 1 shall apply for recognition by ESMA. 4. Where a third country trading venue has notified ESMA in accordance with paragraph 1,and until the earliest of a decision under Article 49a(5) or (6) or [5 years after the entry into force of this Regulation], where relevant: (a) the third country trading venue may continue to provide access to persons established in a Member State under that Member State’s national regime; (b) the equivalence decision adopted in accordance with Article 25(4) of Directive2014/65/EU for the purpose of Article 23(1) with respect to that third- country trading venue continues to apply; (c) the equivalence decision adopted under Article 28(4) with respect to the third country where the third-country trading venue is established continues to apply. Notwithstanding the first subparagraph, where by [5 years after the entry into force of this Regulation] ESMA has received an application for recognition from a third-country trading venue, the rights granted under points (a),(b) and (c)continue to apply until a decision is made under Article 49a(5) or (6).”
2018/09/19
Committee: ECON
Amendment 1134 #
Proposal for a regulation
Article 6 – paragraph 1 – point 8 – point a
Regulation (EU) No 600/2014
Article 50 – paragraph 2
2. The power to adopt delegated acts referred to in Article 1(9), Article 2(2), Article 13(2), Article 15(5), Article 17(3), Article 19(2) and (3), Article 27c, Article 31(4), Article 40(8), Article 41(8), Article 42(7), Article 45(10) and Article 52(10) and (12) shall be conferred for an indeterminate period of time from 2 July 2014. The power to adopt delegated acts referred to in Article 49h(7), Article 49n and Article 49q(2) shall be conferred for an indeterminate period of time from [date of entry into force of this Regulation].;
2018/09/19
Committee: ECON
Amendment 1135 #
Proposal for a regulation
Article 6 – paragraph 1 – point 8 – point b
Regulation (EU) No 600/2014
Article 50 – paragraph 3 – first sentence
The delegation of powers referred to in Article 1(9), Article 2(2), Article 13(2), Article 15(5), Article 17(3), Article 19(2) and (3), Article 27c31(4), Article 40(8), Article 341(48), Article 40(82(7), Article 41(85(10), Article 429h(7), Article 45(109n, Article 49q(2) and Article 52(10) and (12) may be revoked at any time by the European Parliament or by the Council.;
2018/09/19
Committee: ECON
Amendment 1136 #
Proposal for a regulation
Article 6 – paragraph 1 – point 8 – point c
Regulation (EU) No 600/2014
Article 50 – paragraph 5 – first sentence
A delegated act adopted pursuant to Article 1(9), Article 2(2), Article 13(2), Article 15(5), Article 17(3), Article 19(2) and (3), Article 27c31(4), Article 40(8), Article 341(48), Article 40(82(7), Article 41(85(10), Article 4249h(7), Article 45(109n, Article 49q(2) and Article 52(10) or (12) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object.';
2018/09/19
Committee: ECON
Amendment 1137 #
Proposal for a regulation
Article 6 – paragraph 1 – point 10 a (new)
Regulation (EU) No 600/2014
Annexes I (new) and II (new)
(10 a) The following are added as Annexes I and II: “ANNEX I List of infringements referred to in Article 49i(1) A- Infringements applicable to all Tier 2 third-country trading venues I. Infringements relating to Transparency a. A Tier 2 third-country trading venue infringes Article 3(1) by not making public current bid and offer prices and the depth of trading interests at those prices, including actionable indications of interest, that are advertised through its systems for shares, depositary receipts, ETFs certificates and other similar instruments on a continuous basis during normal trading hours; b. A Tier 2 third-country trading venue infringes Article 4 by not complying on anon-going basis with the conditions attached to the pre-trade waivers granted by ESMA and set out in Article 4(1), (2) and (3); c. A Tier 2 third-country trading venue infringes Article 4(3) by not establishing, maintaining and implementing systems to detect any attempt to use the waiver to circumvent other requirements in Title II and in Articles 25(2) and 29 or in Titles III and IV of Directive 2014/65/EU and by not report attempts to ESMA; d. A Tier 2 third-country trading venue infringes Article 5 by continuing to operate under a waiver that is similar to the one set out in Article 4(1)(a), (b)(i) or(d) when the percentage of trading in a financial instrument on that trading venue under those waivers exceeds 4% of the total trading in that financial instrument on all trading venues established in the third country over the last twelve months or where the overall trading in that financial instrument under those waivers exceeds 8% of the total volume of trading in that financial instrument on all trading venues established in that third country over the last twelve months; e. A Tier 2 third-country trading venue infringes Article 6 by not making public the price, volume and time of the transactions executed on its systems in respect of shares, depositary receipts, ETFs, certificates and other similar financial instruments as close to real-time as is technically possible unless differed publication is limited to transactions that are large in scale compared to normal market size as defined in accordance with Commission Delegated Regulation (EU) 2017/583; f. A Tier 2 third-country trading venue infringes Article 8 by not making public current bid and offer prices and the depth of trading interests at those prices, including actionable indications of interest, which are advertised through its systems for bonds, and structured finance products, emission allowances and derivatives on a continuous basis during normal trading hours unless the transaction is a derivative transaction of a non-financial counterparty which is objectively measurable as reducing risks directly relating to the commercial activity or treasury financing activity of the non- financial counterparty or of that group; g. A Tier 2 third-country trading venue infringes Article 9 by not complying on anon-going basis with the conditions attached to the pre-trade waivers granted by ESMA and set out in Article 9(1), (2), (3) and (4); h. A Tier 2 third-country trading venue infringes Article 10 by not making public the price, volume and time of the transactions executed on its systems in respect of bonds, structured finance products, emission allowances and derivatives as close to real-time as is technically possible; i. A Tier 2 third-country trading venue infringes Article 11 by not deferring the publication of publication of the details of transactions based on the size and type of transactions in accordance with to the arrangements approved by ESMA under Article 11(3); j. A Tier 2 third-country trading venue infringes Article 12 by not making the pre-trade and post-trade information published available to the public separately; k. A Tier 2 third-country trading venue infringes Article 13 by not making the pre-trade and post-trade information published available to the public on reasonable commercial basis, by not ensuring non-discriminatory access to the information or by not making such information available free of charge 15 minutes after publication. II. Infringements relating to Record Keeping A Tier 2 third-country trading venue infringes Article 25(2) by not keeping at the disposal of ESMA for at least five years the relevant data relating to the characteristics of all orders in financial instruments that are advertised through their systems, including those that link an order with the executed transaction(s) that stems from that order. III. Infringements relating to derivatives a. A Tier 2 third-country trading venue that be a regulated market if established in the Union infringes Article 29 by not ensuring that all transactions in derivatives that are concluded on its systems are cleared by a CCP; b. A Tier 2 third-country trading venue that acts as a clearing member infringes Article 29 by not having in place effective systems, procedures and systems, procedures and arrangements in relation to cleared derivatives to ensure that transactions in cleared derivatives are submitted and accepted for clearing as quickly as technologically practicable using automated systems. IV. Infringements relating to organisational requirements a. A Tier 2 third-country trading venue infringes Article 49b in conjunction with Article 48(1) of Directive 2014/65/EU by not having in place effective systems, procedures and arrangements to ensure its trading systems are resilient, have sufficient capacity to deal with peak order and message volumes, are able to ensure orderly trading under conditions of severe market stress, are fully tested to ensure such conditions are met and are subject to effective business continuity arrangements to ensure continuity of its services if there is any failure of its trading systems; b. A Tier 2 third-country trading venue infringes Article 49b in conjunction with Article 48(2) of Directive 2014/65/EU by not having in place written agreements with all investment firms pursuing a market making strategy on the trading venue and schemes to ensure that a sufficient number of firms participate in such agreements as further specified in Article 48(3)(a) and (b) of Directive2014/65/EU and Commission Delegated Regulation (EU) 2017/588; c. A Tier 2 third-country trading venue infringes Article 49b in conjunction with the last subparagraph of Article48(3) of Directive 2014/65 by not monitoring and enforcing compliance with the requirements of binding written agreements with firms pursuing a market making strategy or by not informing ESMA of the content of such binding written agreement; d. A Tier 2 third-country trading venue infringes Article 49b in conjunction with Article 48(4) of Directive 2014/65/EU by not having in place effective systems, procedures and arrangements to reject orders that exceed pre-determined volume and price thresholds or are clearly erroneous; e. A Tier 2 third-country trading venue infringes Article 49b in conjunction with the first sub paragraph of Article48(5) of Directive 2014/65/EU by not being able to temporarily halt or constrain trading if there is 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; f. A Tier 2 third-country trading venue also infringes Article 49b in conjunction with the first sub paragraph of Article48(5) of Directive 2014/65/EU by not ensuring that the parameters for halting trading are appropriately 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 which is sufficient to avoid significant disruptions to the orderliness of trading; g. A Tier 2 third-country trading venue infringes Article 49b in conjunction with Article 48(6) of Directive 2014/65/EU by not having in place effective systems, procedures and arrangements to ensure that algorithmic trading systems cannot create or contribute to disorderly trading conditions on the market and to manage any disorderly trading conditions, including systems to limit the ratio of unexecuted orders to transactions that may be entered into the system by a member or participant, or by not being able to slow down the flow of orders if there is a risk of its system capacity being reached, as further specified in Commission Delegated Regulation (EU) 2017/584and Commission Delegated Regulation (EU) 2017/566; h. A Tier 2 third-country trading venue that permits direct electronic access infringes Article 49b in conjunction with the first subparagraph of Article48(7) of Directive 2014/65/EU by not having in place effective systems procedures and arrangements to ensure 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 in relation to the requirements of this Regulation; i. A Tier 2 third-country trading venue that permits direct electronic access infringes Article 49b in conjunction with the second subparagraph of Article 48(7) of Directive 2014/65/EU by not setting appropriate standards regarding risk controls and thresholds on trading through direct electronic access and by not being able to distinguish, and if necessary, to stop orders or trading by a person using direct electronic access separately from other orders or trading by the member or participant; j. A Tier 2 third-country trading venue that permits direct electronic access infringes Article 49b in conjunction with the third subparagraph of Article 48(7) of Directive 2014/65/EU by not having in place arrangements to suspend or terminate the provision of direct electronic access by a member or participant to a client in the case of non- compliance with Article 48(7) of Directive 2014/65/EU; k. A Tier 2 third-country trading venue infringes Article 49b in conjunction with Article 48(8) of Directive 2014/65/EU by having rules on co-location services that are not transparent, fair and non- discriminatory as further specified in Commission Delegated Regulation (EU) 2014/573; l. A Tier 2 third-country trading venue infringes Article 49b in conjunction with the first subparagraph of Article48(9) of Directive 2014/65/EU by having fee structures including execution fees, ancillary fees and any rebates that are not transparent, fair and non-discriminatory or that create incentives to place, modify or cancel orders or to execute transactions in a way which contributes to disorderly trading conditions or market abuse; as further specified in Commission Delegated Regulation (EU) 2014/573; m. A Tier 2 third-country trading venue infringesArticle49b in conjunction with Article 48(10) of Directive 2014/65/EU by not being able to identify, by means of flagging from members or participants, orders generated by algorithmic trading, the different algorithms used for the creation of orders and the relevant persons initiating those orders or by not making this information available to ESMA upon request; n. A Tier 2 third-country trading venue infringes Article 49b in conjunction with Article 48(11) of Directive 2014/65/EU by not making available to ESMA data relating to the order book or give ESMA access to the order book so that it is able to monitor trading; o. A Tier 2 third-country trading venue infringes Article 49b in conjunction with Article 49(1) of Directive 2014/65/EU by not adopting tick size regimes in shares, depositary receipts, exchange-traded funds and certificates that are calibrated to reflect the liquidity profile of the financial instrument indifferent markets and the average bid-ask spread and that adapt the tick size for each financial instrument appropriately; p. A Tier 2 third-country trading venue which trades commodity derivatives infringes Article 57(8) of Directive 2014/65/EU by not applying position management controls that includes at least the powers specified in (a),(b),(c) and (d) of Article 57(8) of Directive2014/65/EU; q. A Tier 2 third-country trading venue which trades commodity derivatives infringes Article 58(1) of Directive 2014/65/EU; r. A Tier 2 third-country trading venue which trades commodity derivatives infringes Article 58(1) of Directive 2014/65/EU by not making public, as further specified in Article 83 of Commission Delegated Regulation 2017/565, a weekly report with the aggregate positions held by different categories of persons for the different commodity derivatives or emission allowances or derivatives thereof traded on its trading venue, specifying the number of long and short positions by such categories, changes thereto since the previous report, the percentage of the total open interest represented by each category and the number of persons holding a position in each category. V. Infringements relating to obstacles to the supervisory activities: a. A third-country trading venue infringes Article 49e by providing incorrect or misleading information in response to a simple request for information by ESMA in accordance with Article 49e or in response to a decision by ESMA requiring information in accordance with Article49p; b. A third-country trading venue provides incorrect or misleading answers to questions asked pursuant to Article 49f(1)(d); c. A Tier 2 third-country trading venue does not comply in due time with a supervisory measure required by a decision adopted by ESMA pursuant to Article 49p; d. A Tier 2 third-country trading venue does submit to an on-site inspection required by an investigation decision adopted by ESMA pursuant to Article 49g. B- Where a Tier 2third-country trading venue operates a multilateral system that would be a regulated market if established within the Union: a. It infringes Article 49b in conjunction with Article 45(1) of Directive 2014/65/EU by not ensuring that its management body is at all times of sufficiently good repute, possesses sufficient knowledge, skills and experience to perform their its duties, and reflects an adequately broad range of experience; b. It infringes Article49b in conjunction with Article 46 (2) and (3) of Article 45(1) of Directive 2014/65/EU by not providing to ESMA, and by not making public, information regarding the ownership of the trading venue and, in particular, the identity and scale of interests of any parties in a position to exercise significant influence over the management, and any change thereof; c. It infringes Article 49b in conjunction with Article 47(1)(a) of Directive 2014/65/EU by not having arrangements to identify clearly and manage the potential adverse consequences, for the operation of the trading venue or for its members or participants, of any conflict of interest between the interest of the trading venue, its owners and the sound functioning of the trading venue; d. It infringes Article 49b in conjunction with Article 47(1)(b) of Directive2014/65/EU by not being adequately equipped to manage the risks to which it is exposed, by not implementing appropriate arrangements and systems to identify all significant risks to its operation, and by not putting in place effective measures to mitigate those risks; e. It infringes Article 49b in conjunction with Article 47(1)(c) of Directive 2014/65/EU by not having arrangements for the sound management of the technical operations of the system, including the establishment of effective contingency arrangements to cope with risks of systems disruptions; f. It infringes Article 49b in conjunction with Article 47(1)(d) of Directive 2014/65/EU by not having transparent and non-discretionary rules and procedures that provide for fair and orderly trading and establish objective criteria for the efficient execution of orders; g. It infringes Article 49b in conjunction with Article 47(1)(e) of Directive2014/65/EU by not have effective arrangements to facilitate the efficient and timely finalisation of the transactions executed under its systems; h. It infringes Article 49b in conjunction with Article 47(1)(f) of Directive2014/65/EU by not having available sufficient financial resources to facilitate its orderly functioning, having regard to the nature and extent of the transactions concluded on the market and the range and degree of the risks to which it is exposed; i. It infringes Article 49b in conjunction with Article 47(2) of Directive 2014/65/EU by executing client orders against proprietary capital or by engaging in matched principal trading as defined in Article 1(4)(38) of Directive 2014/65/EU; j. It infringes Article 49b in conjunction with Article 50(1) of Directive 2014/65/EU by not synchronising the business clock it uses to record the date and time of any reportable event as specified in Commission Delegated Regulation (EU) 2017/574; k. It infringes Article 49b in conjunction with Article 51(1) of Directive 2014/65/EU by not having clear and transparent rules regarding the admission of financial instruments to trading ensuring that those financial instruments are capable of being traded in a fair, orderly and efficient manner and, in the case of transferable securities, that they are freely negotiable as further specified in Commission Delegated Regulation 2017/568; l. It infringes Article 49b in conjunction with Article 51(2) of Directive 2014/65/EU by not ensuring that the design of the derivative contracts admitted to trading allows for their orderly pricing as well as for the existence of effective settlement conditions; m. It infringes Article 49b in conjunction with Article 51(3) of Directive 2014/65/EU by not establishing and maintaining effective arrangements to verify that issuers of transferable securities that are admitted to trading on the Tier 2third- country trading venue comply with their obligations under the applicable third- country law in respect of initial, ongoing or ad hoc disclosure obligations or by not establishing arrangements which facilitate its members or participants in obtaining access to information which has been made public under the applicable third-country law; n. It infringes Article 49b in conjunction with Article 51(4) of Directive 2014/65/EU by not establishing the necessary arrangements to review regularly the compliance with the admission requirements of the financial instruments which they admit to trading; o. It infringes Article 49b in conjunction with Article 52(1) of Directive 2014/65/EU by not making public the decision to suspend or remove a financial instrument from trading or by not communicating such decision to ESMA; p. It infringes Article 49b in conjunction with Article 53(1) of Directive 2014/65/EU by not establishing, implementing and maintaining transparent and non- discriminatory rules governing access to or membership of the trading venue and specifying the obligations for the members or participants arising from Article53(2)(a),(b),(c),(d) and (e) of Directive 2014/65/EU; q. It infringes Article 49b in conjunction with Article 53(3) of Directive 2014/65/EU by admitting as members or participants persons that do not satisfy the conditions set out in Article 53(3)(a),(b),(c) and (d) of Directive 2014/65/EU; r. It infringes Article 49b in conjunction with Article 53(7) of Directive 2014/65/EU by not communicating, on a regular basis, the list of its members or participants to ESMA; s. It infringes Article 49b in conjunction with Article 54(1) of Directive 2014/65/EU by not establishing and maintaining effective arrangements and procedures including the necessary resource for the regular monitoring of the compliance by their members or participants with their rules or by not monitoring orders sent, including cancellations, and the transactions undertaken by their members or participants under their systems in order to identify infringements of those rules, disorderly trading conditions or conduct that may indicate behaviour that would be prohibited under Regulation(EU) No 596/2014 or system disruptions in relation to a financial instrument; t. It infringes Article 49b in conjunction with Article 54(2) of Directive 2014/65/EU by not immediately informing ESMA of significant infringements of their rules or disorderly trading conditions or conduct that may indicate behaviour that would be prohibited under Regulation(EU) No 596/2014 or system disruptions in relation to a financial instrument. C - Where a Tier 2third-country trading venue operates a multilateral system that would be an MTF or an OTF if established within the Union: a. It infringes Article 49b in conjunction with the first subparagraph of Article 9(3) of Directive 2014/65/EU by not having a management body that defines, oversees and is accountable for the implementation of the governance arrangements that ensure effective and prudent management of the Tier 2 third-county trading venue, including the segregation of duties in the investment firm and the prevention of conflicts of interest; b. It infringes Article 49b in conjunction with Article 9(5) of Directive 2014/65/EU by not notifying ESMA of all members of its management body and of any changes to its membership, along with all information needed to assess whether the trading venue complies with Article 9(3); c. It infringes Article 49b in conjunction with Article 14 of Directive 2014/65/EU by not being a member of an authorised investor compensation scheme; d. It infringes Article49b in conjunction with Article 16(2) of Directive 2014/65/EU by not establishing adequate policies and procedures sufficient to ensure compliance of the Tier 2 third-country trading venue, including its managers and employees, with its obligations under this Regulation as well as appropriate rules governing personal transactions by such persons; e. It infringes Article 49b in conjunction with Article 16(4) of Directive 2014/65/EU by not taking reasonable steps to ensure continuity and regularity in the performance of its activities and not employing appropriate and proportionate systems, resources and procedures to that end; f. It infringes Article 49b in conjunction with the first subparagraph of Article 16(5) of Directive 2014/65/EU by not ensuring, when relying on a third party for the performance of operational functions which are critical for the operation of the Tier 2 third-country trading venue, by not taking reasonable steps to avoid undue additional operational risk or by undertaking the outsourcing of important operational functions in such a way as to impair materially the quality of its internal control and the ability of the ESMA to monitor the firm’s compliance with all obligations; g. It infringes Article 49b in conjunction with the second subparagraph of Article16(5) by not having sound administrative and accounting procedures, internal control mechanisms, effective procedures for risk assessment, and effective control and safeguard arrangements for information processing systems; h. It infringes Article 49b in conjunction with the third subparagraph of Article16(5) by not having sound security mechanisms in place to guarantee the security and authentication of the means of transfer of information, minimise the risk of data corruption and unauthorised access and to prevent information leakage maintaining the confidentiality of the data at all times; i. It infringes Article 49b in conjunction with Article 16(6) of Directive 2014/65/EU by not arranging for records to be kept of all services, activities and transactions undertaken by it that are sufficient to enable ESMA to fulfil its supervisory tasks under this Regulation and in particular to ascertain that the Tier 2 third-country trading venue has complied with all obligations including those with respect to the integrity of the market; j. It infringes Article 49b in conjunction with Article 18(1) of Directive 2014/65/EU by not establishing transparent rules and procedures for fair and orderly trading, by not establishing objective criteria for the efficient execution of orders or by not having arrangements for the sound management of the technical operations of the facility, including the establishment of effective contingency arrangements to cope with risks of systems disruption; k. It infringes Article 49b in conjunction with the first subparagraph of Article18(2) of Directive 2014/65/EU by not establishing transparent rules regarding the criteria for determining the financial instruments that can be traded under its systems; l. It infringes Article 49b in conjunction with Article 18(3) of Directive 2014/65/EU by not establishing, publishing,maintaining or implementing transparent and non-discriminatory rules, based on objective criteria, governing access to its facility; m. It infringes Article 49b in conjunction with Article 18(4) of Directive 2014/65/EU by not having arrangements to identify clearly and manage the potential adverse consequences for the operation of the Tier 2 third-country trading venue, or for the members or participants and users, of any conflict of interest between the interest of Tier 2 third-country trading venue or its owners and the sound functioning of the Tier 2 third-country trading venue; n. It infringes Article 49b in conjunction with Article 18(6) of Directive 2014/65/EU by not clearly informing its members or participants of their respective responsibilities for the settlement of the transactions executed in that Tier 2third- country trading venue or by not having put in place the necessary arrangements to facilitate the efficient settlement of the transactions concluded under the systems of Tier 2 third-country trading venue; o. It infringes Article49b in conjunction with Article 18(7) of Directive 2014/65/EU by not having at least three materially active members or users, each having the opportunity to interact with all the others in respect to price formation; p. It infringes Article 49b in conjunction with Article 18(9) of Directive 2014/65/EU by not complying immediately with any instruction from ESMA to suspend or remove a financial instrument from trading. D- Where a Tier 2third-country trading venue operates a multilateral system that would be an MTF if established within the Union: a. It infringes Article 49b in conjunction with Article 19(1) of Directive 2014/65/EU by not establishing or implementing non- discretionary rules for the execution of orders in the system; b. It infringes Article 49b in conjunction with Article 19(2) of Directive 2014/65/EU by not having rules governing access to its facilities that comply with the conditions set out in Article 53(3) of Directive 2014/65/EU; c. It infringes Article 49b in conjunction with Article 19(3) of Directive 2014/65/EU by not having in place the arrangements specified in Article 19(3)(a),(b) and (c); d. It infringes Article 49b in conjunction with Article 19(5) of Directive 2014/65/EU by executing client orders against its proprietary capital or by engaging in matched principal trading as defined in Article 4(1)(38) of Directive2014/65/EU. E- Where a Tier 2 third-country trading venue operates a multilateral system that would be an OTF if established within the Union: a. It infringes Article 49b in conjunction with Article 20(1) of Directive 2014/65/EU by executing client orders against its proprietary capital or the proprietary capital of any entity that is part of the same group or legal person; b. It infringes Article 49b in conjunction with subparagraph 1 of Article 20(2) of Directive 2014/65/EU by engaging in matched principal trading, as defined in Article 4(1)(38) of Directive 2014/65/EU, in bonds, structured finance products, emission allowances and certain derivatives where the client has not consented to the process; c. It infringes Article 49b in conjunction with subparagraph 2 of Article 20(2) of Directive 2014/65/EU by using matched principal trading as defined in Article 4(1)(38) of Directive 2014/65/EU to execute client orders in an OTF in derivatives pertaining to a class of derivatives that are subject to a clearing obligation; d. It infringes Article 49b in conjunction with Article 20(3) of Directive 2014/65/EU by engaging in dealing on own account other than matched principal trading as defined in Article 4(1)(38) of Directive 2014/65/EU with regard to instruments other than sovereign debt instruments for which there is not a liquid market; e. It infringes Article 49b in conjunction with Article 20(4) of Directive 2014/65/EU by connecting with a systematic internaliser in a way which enables orders in the Tier 2 third-country trading venue and orders or quotes in a systematic internaliser to interact or by connecting with another trading venue that qualifies or would qualify as an OTF if established in the Union in a way which enables orders in those different trading venues to interact; f. It infringes Article 49b in conjunction with the first subparagraph of Article 20(6) of Directive 2014/65/EU by not executing orders on a discretionary basis as further specified in the second and third subparagraph of Article 20(6) of Directive 2014/65/EU. ANNEX II - List of the coefficients linked to aggravating and mitigating factors for the application of Article49i(3) The following coefficients shall be applicable, cumulatively, to the basic amounts referred to in Article 49i(2): I. Adjustment coefficients linked to aggravating factors: (a) if the infringement has been committed repeatedly, for every time it has been repeated, an additional coefficient of 1.1 shall apply; (b) if the infringement has been committed for more than six months, a coefficient of 1.5 shall apply; (c) if the infringement has revealed systemic weaknesses in the organisation of the trading venue, in particular in its procedures, management systems or internal controls, a coefficient of 2.2 shall apply; (d) if the infringement has a negative impact on the quality of the activities and services of the trading venue, a coefficient of 1.5 shall apply; (e) if the infringement has been committed intentionally, a coefficient of 2 shall apply; (f) if no remedial action has been taken since the breach has been identified, a coefficient of 1.7 shall apply; (g) if the trading venue’s senior management has not cooperated with ESMA in carrying out its investigations, a coefficient of 1.5 shall apply. II. Adjustment coefficients linked to mitigating factors: (a) if the infringement has been committed for less than 10 working days, a coefficient of 0.9 shall apply; (b) if the trading venue's senior management can demonstrate to have taken all the necessary measures to prevent the infringement, a coefficient of 0.7 shall apply; (c) if the trading venue has brought quickly, effectively and completely the infringement to ESMA’s attention, a coefficient of 0.4 shall apply; (d) if the trading venue has voluntarily taken measures to ensure that a similar infringement cannot be committed in the future, a coefficient of 0.6 shall apply.”
2018/09/19
Committee: ECON
Amendment 1155 #
Proposal for a regulation
Article 8 – paragraph 1 – point 10
Regulation (EU) No 2016/1011
Article 33 – paragraph 7 – subparagraph 1 a (new)
ESMA shall develop draft regulatory technical standards to determine the minimum content of the cooperation arrangements to ensure that the competent authority of the endorsing entity and ESMA are able to exercise all their respective supervisory powers under this Regulation. ESMA shall submit the draft regulatory technical standards referred in the first subparagraph to the Commission by ....
2018/09/19
Committee: ECON
Amendment 1161 #
Proposal for a regulation
Article 8 – paragraph 1 – point 19
Regulation (EU) No 2016/1011
Article 48l – paragraph 2
2. The amount of an individual fee charged to an administrator shall cover all administrative costs incurred by ESMA for its activities in relation to the supervision. It and shall be proportionate to the turnover of the administrator.
2018/09/19
Committee: ECON
Amendment 1162 #
Proposal for a regulation
Article 8 – paragraph 1 – point 19
Regulation (EU) No 2016/1011
Article 48l – paragraph 3 – subparagraph 1 a (new)
ESMA shall develop draft regulatory technical standards to define the type of fees, the matters for which fees are due, the amount of the fees and the manner in which they are to be paid. ESMA shall submit the draft regulatory technical standards referred in the first subparagraph to the Commission by ….
2018/09/19
Committee: ECON
Amendment 1171 #
Proposal for a regulation
Article 9 – paragraph 1 – point 4 – point a
Regulation (EU) 2017/1129
Article 22 – paragraph 6a – subparagraph 4 a (new)
For the purpose of the exercise of control over compliance of advertising activity with the requirements set out in paragraphs 2 to 4, at the request of ESMA, the advertisement shall be drawn up in a language customary in the sphere of international finance.
2018/09/19
Committee: ECON
Amendment 1172 #
Proposal for a regulation
Article 9 – paragraph 1 – point 6
Regulation (EU) 2017/1129
Article 27 – paragraph 3a – subparagraph 1
1. By way of derogation from paragraphs 1, 2 and 3, where ESMA is the competent authority in accordance with Article 31a, the prospectus shall be drawn up either in a language accepted by the competent authorities of each host Member State or in a language customary in the sphere of international finance, at the choice of the issuer, the offeror, or the person asking for admission to trading on a regulated marketin a language customary in the sphere of international finance.
2018/09/19
Committee: ECON
Amendment 1175 #
Proposal for a regulation
Article 9 – paragraph 1 – point 10
Regulation (EU) 2017/1129
Article 31a – point a
(a) prospectuses drawn up by any legal entity or person established in the Union and relating to the admission to trading on a regulated market of non-equity securities which are to be traded only on a regulated market, or a specific segment thereof, to which only qualified investors can have access for the purposes of trading such securities;ose denomination per unit amounts to at least EUR 100 000;
2018/09/19
Committee: ECON
Amendment 1180 #
Proposal for a regulation
Article 9 – paragraph 1 – point 10
Regulation (EU) 2017/1129
Article 31a – paragraph 1– point c
(c) prospectuses drawn up by the following types of companies established in the Union: (i) (ii) (iii) scientific research baseddeleted property companies; mineral companies; shipping companies; (iv).
2018/09/19
Committee: ECON
Amendment 1182 #
Proposal for a regulation
Article 9 a (new)
Regulation (EU) No 909/2014
Articles 25, 25a to 25p, 69, annex II (new) and annex III (new)
1. services referred to in the Annex within the territory of the Union, including through setting up a branch. 2. Notwithstanding paragraph 1, a third-country CSD that intends to provide the core services referred to in points (1) and (2) of Section A of the Annex in relation to financial instruments constituted under the law of a Member State referred to in the second subparagraph of Article 49(1) or to set up a branch in a Member State shall be subject to the procedure referred to in paragraphs 4 to 11 of this Article. 3. in the Union may maintain or establish a link with a third-country CSD in accordance with Article 48. 4. After consulting the authorities referred to in paragraph 5, ESMA may recognise a third-country CSD that has applied for recognition to provide the services referred to in paragraph 2, where the following conditions are met: (a) the Commission has adopted a decision in accordance with paragraph 9; (b) the third-country CSD is subject to effective authorisation, supervision and oversight or, if the securities settlement system is operated by a central bank, oversight, ensuring full compliance with the prudential requirements applicable in that third country; (c) cooperation arrangements between ESMA and the responsible authorities in that third country (‘responsible third- country authorities’) have been established pursuant to paragraph 10; (d) where relevant, the third-country CSD takes the necessary measures to allow its users to comply with the relevant national law of the Member State in which the third-country CSD intends to provide CSD services, including the law referred to in the second subparagraph of Article 49(1), and the adequacy of those measures has been confirmed by the competent authorities of the Member State in which the third-country CSD intends to provide CSD services. 5. When assessing whether the conditions referred to in paragraph 4 are met, ESMA shall consult: (a) the competent authorities of the Member States in which the third- country CSD intends to provide CSD services, in particular, on how the third-country CSD intends to comply with the requirement referred to in point (d) of paragraph 4; (b) the relevant authorities; (c) the responsible third-country authorities entrusted with the authorisation, supervision and oversight of CSDs. 6. The third-country CSD referred to in paragraph 2 shall submit its application for recognition to ESMA. The applicant CSD shall provide ESMA with all information deemed to be necessary for its recognition. Within 30 working days from the receipt of the application, ESMA shall assess whether the application is complete. If the application is not complete, ESMA shall set a time limit by which the applicant CSD has to provide additional information. The competent authorities of the Member States in which the third- country CSD intends to provide CSD services shall assess the compliance of the third-country CSD with the law referred to in point (d) of paragraph 4 and inform ESMA with a fully reasoned decision whether the compliance is met or not within three months from the receipt of all the necessary information from ESMA. The recognition decision shall be based on the criteria laid down in paragraph 4. Within six months from the submission of a complete application, ESMA shall inform the applicant CSD in writing with a fully reasoned decision whether the recognition has been granted or refused. 7. The competent authorities of the Member States in which the third-country CSD, duly recognised under paragraph 4, provides CSD services, in close cooperation with ESMA, may request the responsible third-country authorities to: (a) report periodically on the third- country CSD’s activities in those host Member States, including for the purpose of collecting statistics; (b) communicate, within an appropriate time-frame, the identity of the issuers and participants in the securities settlement systems operated by the third-country CSD which provides services in that host Member State and any other relevant information concerning the activities of that third-country CSD in the host Member State. 8. ESMA shall, after consulting the authorities referred to in paragraph 5, review the recognition of the third-country CSD in the event of extensions by that CSD in the Union of its services under the procedure laid down in paragraphs 4, 5 and 6. ESMA shall withdraw the recognition of that CSD where the conditions laid down in paragraph 4 are no longer met, or in the circumstances referred to in Article 20. 9. The Commission may adopt 9. implementing acts to determine that the legal and supervisory arrangements of a third country ensure that CSDs authorised in that third country comply with legally binding requirements which are in effect equivalent to the requirements laid down in this Regulation, that those CSDs are subject to effective supervision, oversight and enforcement in that third country on an ongoing basis and that the legal framework of that third country provides for an effective equivalent system for the recognition of CSDs authorised under third-country legal regimes. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 68(2). In making the determination referred to in the first subparagraph, the Commission may also consider whether the legal and supervisory arrangements of a third country reflect the internationally agreed CPSS-IOSCO standards, in so far as the latter do not conflict with the requirements laid down in this Regulation. 10. In accordance with Article 33(1) of Regulation (EU) No 1095/2010, ESMA shall establish cooperation arrangements with the responsible third-country authorities whose legal and supervisory frameworks have been recognised as equivalent to this Regulation in accordance with paragraph 9. Such arrangements shall specify at least: (a) the mechanism for the exchange of information between ESMA, the competent authorities of the host Member State and the third- country responsible authorities, including access to all information regarding the CSDs authorised in third countries that is requested by ESMA and in particular access to information in the cases referred to in paragraph 7; (b) the mechanism for prompt notification of ESMA where a third- country responsible authority deems a CSD that it is supervising to infringe the conditions of its authorisation or of other applicable law; (c) the procedures concerning the coordination of supervisory activities including, where appropriate, on-site inspections. Where a cooperation agreement provides for transfers of personal data by a Member State, such transfers shall comply with the provisions of Directive 95/46/EC and where a cooperation agreement provides for transfers of personal data by ESMA, such transfers shall comply with the provisions of Regulation (EU) No 45/2001. 11. Where a third-country CSD has been recognised, in accordance with paragraphs 4 to 8, it may provide services referred to in the Annex within the territory of the Union, including by setting up a branch. 12. ESMA shall, in close cooperation with the members of the ESCB, develop draft regulatory technical standards to specify the information that the applicant CSD is to provide to ESMA in its application for recognition under paragraph 6. ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015. 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. 3. Within six months from the later of the date of entry into force of the regulatory technical standards adopted under Articles 12, 17, 25, 26, 45, 47, 48, and, where relevant, Articles 55 and 59 or the implementing decision referred to in Article 25(9), a third-country CSD shall apply for recognition from ESMA where it intends to provide its services on the basis of Article 25. 4. Until the decision is made under this Regulation on the authorisation or recognition of CSDs and of their activities, including CSD links, the respective national rules on authorisation and recognition of CSDs shall continue to apply. Article 9 a Amendments to Regulation (EU) No 909/2014 Regulation (EU) No 909/2014 is amended as follows: (1) Article 25 is amended as follows: Article 25 “Article 25 Third countries Third countries Third-country CSDs may provide 1. A third-country CSD may provide the core services referred to in Section A of the Annex in relation to financial instruments constituted under the law of a Member State referred to in the second subparagraph of Article 49(1) or issued by an issuer established in a Member State, including through the establishment of a link in accordance with Article 48, or may set up a branch in a Member State, only where that third-country CSD is recognised by ESMA in accordance with the procedure referred to in paragraphs 2 to 11 of this Article. A CSD established and authorised 2. After consulting the authorities referred to in paragraph 5, ESMA may recognise a third-country CSD that has applied for recognition, where the following conditions are met: (a) the Commission has adopted an implementing act in accordance with paragraph 9; (b) the third-country CSD is subject to effective authorisation, supervision and oversight or, if the securities settlement system is operated by a central bank, oversight, ensuring full compliance with the prudential requirements applicable in that third country; (c) cooperation arrangements between ESMA and the responsible authorities in that third country (‘responsible third- country authorities’) have been established pursuant to paragraph 10; (d) where relevant, the third-country CSD takes the necessary measures to allow its users to comply with the relevant national law of the Member State in which the third-country CSD intends to provide CSD services, including the law referred to in the second subparagraph of Article 49(1), and the adequacy of those measures has been confirmed by the competent authorities of the Member State in which the third-country CSD intends to provide CSD services; (da) the CSD is established or authorised in a third country that is not considered, by the Commission in accordance with Directive(EU) 2015/849 of the European Parliament and of the Council, as having strategic deficiencies in its anti-money laundering and counter financing of terrorism regime that poses significant threats to the financial system of the Union; (db) the third-country CSD has been determined as not substantially important or not likely to become substantially important (Tier 1CSD) in accordance with paragraph 3. 3. ESMA shall determine whether a CSD is substantially important or likely to become substantially important for the financial stability of the Union or of one or more of its Member States (Tier 2 CSD) by taking into account all of the following criteria: (a) the nature, size and complexity of the third-country CSD’s business; (b) the effect that the failure of, or a disruption to, the third-country CSD would have on critical markets, financial institutions, or the broader financial system and on the financial stability of the Union; (c) whether the third-country CSD operates a securities settlement system governed by the law of a Member State; (d) whether the third-country CSD provides notary or central maintenance services in relation to financial instruments constituted under the law of a Member State or issued by an issuer established in a Member State, and the extent of those services; (e) whether the third-country CSD provides settlement services in relation to financial instruments constituted under the law of a Member State, and the extent of those services; (f) the currencies in which settlement takes place; (g) where relevant, if the cash leg of a securities settlement system operated by the third-country CSD is settled in the books of a central bank in the Union; (h) the third-country CSD’s links, interdependencies, or other interactions with financial market infrastructures in the Union; (i) the third-country CSD’s participants structure. 4. Where ESMA determines a third- country CSD to be a Tier 2 CSD in accordance with paragraph 3, it may only recognise that third-country CSD where, in addition to the conditions referred to in points a) to c) of paragraph 2, the following conditions are fulfilled as applicable: (a) the third-country CSD complies, at the moment of recognition and thereafter on an ongoing basis, with the requirements set out in Articles 6(3), 6(4), 7, 26 to47, 48(1) and 48(3) to (7), it ensures that securities can be represented in book- entry form as immobilisation or subsequent to a direct issuance in dematerialised form for the purposes of Article 3, and it enables the settlement of transactions in accordance with Article 5(3). ESMA shall take into account, in accordance with Article 25a(2), the extent to which the third-country CSD's compliance with those requirements is satisfied by the third-country CSD's compliance with the comparable requirements applicable in the third country; (b) if the third-country CSD provides itself banking-type ancillary services, the CSD complies with the requirements specified in point(a), as well as with the requirements set out in Articles 54(3)(c)- (f), 59(1) and 59(3)-(4), and the CSD is authorised to provide banking-type ancillary services under the applicable laws of the third country. Where a third- country CSD has designated a credit institution to provide banking-type ancillary services, the CSD complies with the requirements specified in point (a), and the credit institution complies with the requirements set out in Articles 54(4),54(6) and 59. ESMA shall take into account, in accordance with Article 25a(2), the extent to which the third- country CSD's compliance with those requirements is satisfied by the third- country CSD's compliance with the comparable requirements applicable in the third country; (c) the third-country CSD has provided ESMA with its unconditional written consent, signed by the legal representative of the CSD, to provide within 72 hours after receiving a request by ESMA any documents, records, information and data held by such CSD at any time, and that the CSD ensures that ESMA may access any of the CSD’s business premises including premises of service providers to which the CSD outsources its services or activities, as well as a reasoned legal opinion by an independent legal expert confirming that the consent provided is valid and enforceable under the relevant applicable laws; (d) the third-country CSD has put in place all necessary measures and procedures that ensure the effective compliance with the requirements laid down in points (a) to (c), as applicable. 5. When assessing whether the conditions referred to in paragraphs 2 to 4 are met, ESMA shall consult: (a) the competent authorities of the Member States in which the third-country CSD intends to provide CSD services, in particular, on how the third-country CSD intends to comply with the requirement referred to in point (d) of paragraph 2; (b) the relevant authorities; (c) the responsible third-country authorities entrusted with the authorisation, supervision and oversight of CSDs. 6. The third-country CSD referred to in paragraph 1 shall submit its application for recognition to ESMA, after the entry into force of the regulatory technical standards referred to in paragraph 13, and after the adoption by the Commission of an implementing act in accordance with paragraph 9 in respect of the third country where the applicant CSD is established. The applicant CSD shall provide ESMA with all information deemed to be necessary for its recognition. Within 30working days from the receipt of the application, ESMA shall assess whether the application is complete. If the application is not complete, ESMA shall set a time limit by which the applicant CSD has to provide additional information. The competent authorities of the Member States in which the third-country CSD intends to provide CSD services shall assess the compliance of the third-country CSD with the law referred to in point (d) of paragraph 2 and inform ESMA with a fully reasoned decision whether the compliance is met or not within three months from the receipt of all the necessary information from ESMA. The recognition decision shall be based on the criteria laid down in paragraph 2 and paragraph 4, where applicable. Within six months from the submission of a complete application, ESMA shall inform the applicant CSD in writing with a fully reasoned decision whether the recognition has been granted or refused. 6a. Notwithstanding paragraph 6, in the absence of an implementing act in accordance with paragraph 9 in respect of the jurisdiction where the third-country CSD is established, a third-country CSD shall notify ESMA if it provides or it intends to provide the services referred to in paragraph 1 or if it has a branch or it intends to set up a branch in a Member State. The notification shall contain the following information: (a) the corporate name of the third- country CSD; (b) the registered address of the third- country CSD; (c) the contact details (including email address and phone number) of the person assuming responsibility for the notification; (d) the list of the Member States in which the third-country CSD provides or intends to provide services; (e) the core services listed in Section A of the Annex that the third-country CSD provides or intends to provide in the Union per Member State; (f) if the third-country CSD has a branch or intends to set up a branch in a Member State, and the services that the CSD provides or intends to provide through the respective branch; (g) whether the third-country CSD operates a securities settlement system governed by the law of a Member State; (h) whether the third-country CSD provides notary or central maintenance services in relation to financial instruments constituted under the law of a Member State or issued by an issuer established in a Member State, specifying the type of financial instruments and the Member States concerned; (i) whether the third-country CSD provides settlement services in relation to financial instruments constituted under the law of a Member State, specifying the type of financial instruments and the Member States concerned; (j) the currencies in which settlement takes place; (k) where relevant, if the cash leg of a securities settlement system operated by the third-country CSD is settled in the books o fa central bank in the Union; (l) the third-country CSD’s links, interdependencies, or other interactions with financial market infrastructures in the Union; (m) the third-country CSD’s participants structure. ESMA shall convey this information to the Commission. 7. The competent authorities of the Member States in which the third-country CSD, duly recognised under paragraph 2 or paragraph 4, provides CSD services, in close cooperation with ESMA, may request the responsible third-country authorities to: (a) report periodically on the third- country CSD’s activities in those host Member States, including for the purpose of collecting statistics; (b) communicate, within an appropriate time-frame, the identity of the issuers and participants in the securities settlement systems operated by the third-country CSD which provides services in that host Member State and any other relevant information concerning the activities of that third-country CSD in the host Member State. 8. ESMA shall, after consulting the authorities referred to in paragraph 5, review the recognition of the third-country CSD in the event of extensions by that CSD in the Union of its services and in any case at least every five years. That review shall be conducted in accordance with the procedure laid down in paragraphs 2 to 6. ESMA shall review the categorisation of a third-country CSD where the third-country CSD concerned has extended the range of its activities and services in the Union, and at least every five years. Further to this review, ESMA may either: (a) determine that a Tier 1 CSD has become substantially important or is likely to become substantially important in accordance with the criteria set out under paragraph 3 and shall therefore be reclassified as a Tier 2 CSD; (b) determine that a Tier 2 CSD is no longer substantially important in accordance with the criteria set out under paragraph 3, and shall therefore be reclassified as a Tier 1 CSD; or (c) determine that the significance of the third-country CSD concerned has remained unchanged and leave the classification of this third-country CSD unchanged. Where, further to the review referred to in the second subparagraph, ESMA determines that a third-country CSD previously classified as a Tier 1 CSD shall be reclassified as a Tier 2 CSD, ESMA shall set an appropriate adaptation period, which shall not exceed 12 months, by the end of which the third-country CSD shall comply with the requirements referred to in paragraph 4. ESMA shall withdraw the recognition of that CSD where the conditions laid down in paragraphs 2 and 4, as applicable, are no longer met, or in the circumstances referred to in Article 20. The Commission may adopt implementing acts to determine that the legal and supervisory arrangements of a third country ensure that CSDs authorised in that third country comply with legally binding requirements which are in effect equivalent to the requirements laid down in this Regulation, that those CSDs are subject to effective supervision, oversight and enforcement in that third country on an ongoing basis and that the legal framework of that third country provides for an effective equivalent system for the recognition of CSDs authorised under third-country legal regimes. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 68(2). In making the determination referred to in the first subparagraph, the Commission may also consider whether the legal and supervisory arrangements of a third country reflect the internationally agreed CPSS-IOSCO standards, in so far as the latter do not conflict with the requirements laid down in this Regulation. The Commission may subject the application of the implementing act referred to in the first subparagraph to the effective fulfilment of any requirement set out therein by a third country on an ongoing basis and to the ability by ESMA to effectively exercise its responsibilities in relation to third-country CSDs recognised under paragraphs 2 and 4 or in relation to monitoring referred to in paragraph 9b. 9a. The Commission may adopt a delegated act in accordance with Article 67 to further specify the criteria referred to in points (a), (b) and (c) of paragraph 9. 9b. ESMA shall monitor the regulatory and supervisory developments in third countries for which implementing acts have been adopted pursuant to paragraph 9. Where ESMA identifies any regulatory or supervisory development in those third countries that may impact the financial stability of the Union or for one or more of its Member States, it shall inform the Commission without delay. ESMA shall submit a report to the Commission on the regulatory and supervisory developments in the third countries referred to in the first subparagraph at least every two years. Where the report reveals a significant change on the regulatory and supervisory framework in the third country referred in the first subparagraph, the Commission may introduce conditions to the equivalence decision taken pursuant to paragraph 9 or withdraw it. 10. In accordance with Article 33(1) of Regulation (EU) No 1095/2010, ESMA shall establish cooperation arrangements with the responsible third-country authorities whose legal and supervisory frameworks have been recognised as equivalent to this Regulation in accordance with paragraph 9. Such arrangements shall specify at least: (a) the mechanism for the exchange of information between ESMA, the competent authorities of the host Member State and the third-country responsible authorities, including access to all information regarding the CSDs authorised in third countries that is requested by ESMA and in particular access to information in the cases referred to in paragraph 7; (b) the mechanism for prompt notification of ESMA where a third- country responsible authority deems a CSD that it is supervising to infringe the conditions of its authorisation or of other applicable law; (c) the procedures concerning the coordination of supervisory activities including where appropriate, on-site inspections; (ca) the procedures necessary for the effective monitoring of regulatory and supervisory developments in a third country; (cb) where a third-country CSD has been determined to be a Tier 2 CSD in accordance to paragraph 3, the arrangements shall also specify the following: (i) the procedures concerning the coordination of supervisory activities, including the agreement of third-country authorities to allow investigations and on- site inspections in accordance with Articles 25dand 25e, respectively; (ii) procedures concerning the effective enforcement of the supervisory powers granted to ESMA under this Regulation. Where cooperation agreement provides for transfers of personal data by the competent authorities of a Member State, such transfers shall comply with the provisions of Regulation (EU) 2016/679 and where a cooperation agreement provides for transfers of personal data by ESMA, such transfers shall comply with the provisions of Regulation (EU) No 45/2001. 10a. Where ESMA considers that a third-country responsible authority fails to apply any of the provisions laid down in a cooperation arrangement established in accordance with paragraph 10, ESMA may consider withdrawing the recognition of the third-country CSD falling within the jurisdiction of that authority. 11. Where a third-country CSD has been recognised, in accordance with this Article, it may provide services referred to in the Annex within the territory of the Union, including by setting up a branch. 12. ESMA shall, in close cooperation with the members of the ESCB, develop draft regulatory technical standards: (a) to further specify the criteria set out in paragraph 3; (b) to specify the information that the applicant CSD is to provide to ESMA in its application for recognition under paragraph 6. ESMA shall submit those draft regulatory technical standards to the Commission by [12 months after the entry into force of this amending Regulation]. 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.” (2) The following Articles 25a-25p are inserted: “Article 25a Comparable compliance 1. A Tier 2 CSD may submit a reasoned request that ESMA assesses its comparable compliance with the requirements referred to in Article 25(4)(a) and in Article 25(4)(b), as applicable. Based on the request received, ESMA shall undertake the assessment referred to in the first subparagraph. In carrying out that assessment, ESMA shall take into account the provisions of the implementing act adopted in accordance with paragraph 9. Where, as a result of that assessment, ESMA concludes that the compliance of the third-country CSD with the requirements referred to in Article25(4)(a) and in Article 25(4)(b), as applicable, is satisfied byte compliance of the third-country CSD with the comparable requirements applicable in the third country, ESMA shall take that conclusion into account for the purposes of Article 25(4)(a)and in Article 25(4)(b). 2. The request referred to in paragraph 1 shall provide the factual basis for a finding of comparability and the reasons why compliance with the requirements applicable in the third country satisfies the requirements referred to in Article 25(4)(a) and, where applicable, in Article25(4)(b). 3. The Commission, in order to ensure that the assessment referred to in paragraph 1effectively reflects the regulatory objectives of the requirements set out in Articles 16 and 54 and the Union's interests as a whole, shall adopt delegated act to specify the following: (a) the minimum elements to be assessed for the purposes of paragraph 1; (b) the modalities and conditions to carry out the assessment. The Commission shall adopt the delegated act referred to in the first subparagraph in accordance with Article 67. Article 25b Ongoing compliance with the conditions for recognition 1. ESMA shall be responsible for carrying out the duties resulting from this Regulation for the supervision on an ongoing basis of the compliance of recognised Tier 2 CSDs with the requirements referred to in Article 25(4), as applicable. 2. ESMA shall require confirmation from each recognised third-country CSD at least on yearly basis that the requirements referred to in points (b) and (d) of Article25(2) continue to be fulfilled. 3. For the purposes of the requirements referred to in Article 25(4), references to competent authorities in the context of supervision of CSDs established in the Union shall be construed as references to ESMA in the context of supervision of Tier 2 CSDs. Article 25c Request for information 1. ESMA may by simple request or by decision require recognised CSDs and service providers to whom those CSDs have outsourced services or activities to provide all necessary information to enable ESMA to carry out its duties under this Regulation. 2. When sending simple request for information under paragraph 1, ESMA shall indicate all of the following: (a) the reference to this Article as the legal basis of the request; (b) the purpose of the request; (c) the information required; (d) the time limit to provide the information; (e) inform the person from whom the information is requested that there is no obligation to provide the information but that in case of a voluntary reply to the request the information provided must not be incorrect or misleading; (f) the fine provided for in Article 25g in conjunction with point (a) of Section VIII of Annex II, where the answers to questions asked are incorrect or misleading. 3. When requiring that information is provided under paragraph 1 by decision, ESMA shall indicate all of the following: (a) the reference to this Article as the legal basis of the request; (b) the purpose of the request; (c) the information required; (d) the time limit to provide the information; (e) the periodic penalty payments provided for in Article 25h where the production of the required information is incomplete; (f) the fine provided for in Article 25g in conjunction with point (a) of Section VIII of Annex II, where the answers to questions asked are incorrect or misleading; and (g) the right to appeal the decision before ESMA’s Board of Appeal and to have the decision reviewed by the Court of Justice of the European Union (‘Court of Justice’) in accordance with Articles 60 and 61 of Regulation (EU) No 1095/2010. 4. The persons referred to in paragraph 1 or their representatives and, in case of persons or associations having no legal personality, the persons authorised to represent them by law or by their constitution shall supply the information requested. Lawyers duly authorised to act may supply the information on behalf of their clients. The latter shall remain fully responsible if the information supplied is incomplete, incorrect or misleading. 5. ESMA shall, without delay, send a copy of the simple request or of its decision to the relevant third-country competent authority where the persons referred to in paragraph 1 concerned by the request for information are domiciled or established. Article 25d General investigations 1. In order to carry out its duties under this Regulation, ESMA may conduct necessary investigations of Tier 2 CSDs. To that end, the officials and other persons authorised by ESMA shall be empowered to: (a) examine any records, data, procedures and any other material relevant to the execution of its tasks irrespective of the medium on which they are stored; (b) take or obtain certified copies of or extracts from such records, data, procedures and other material; (c) summon and ask Tier 2 CSDs or their representatives or staff for oral or written explanations on facts or documents relating to the subject matter and purpose of the inspection and to record the answers; (d) interview any other natural or legal person who consents to be interviewed for the purpose of collecting information relating to the subject matter of an investigation; (e) request records of telephone and data traffic. 2. The officials and other persons authorised by ESMA for the purposes of the investigations referred to in paragraph 1 shall exercise their powers upon production of written authorisation specifying the subject matter and purpose of the investigation. That authorisation shall also indicate the periodic penalty payments provided for in Article 25h where the production of the required records, data, procedures or any other material, or the answers to questions asked to Tier 2 CSDs are not provided or are incomplete, and the fines provided for in Article 25g in conjunction with point (b) of Section VIII of Annex II, where the answers to questions asked to Tier 2 CSDs are incorrect or misleading. 3. Tier 2 CSDs are required to submit to investigations launched on the basis of a decision of ESMA. The decision shall specify the subject matter and purpose of the investigation, the periodic penalty payments provided for in Article 25h, the legal remedies available under Regulation (EU) No 1095/2010 and the right to have the decision reviewed by the Court of Justice. 4. Prior to notifying a Tier 2 CSD of an investigation, ESMA shall inform the relevant third-country competent authority where the investigation is to be carried out of the investigation and of the identity of the authorised persons. Officials of the third-country competent authority concerned may, upon the request of ESMA, assist those authorised persons in carrying out their duties. Officials of the third-country competent authority concerned may also attend the investigations. Investigations in accordance with this Article shall be conducted provided that the relevant third-country authority does not object to them. 5. If any of the requests referred to in paragraph 1 require authorisation from a judicial authority according to the applicable national law, such authorisation shall be applied for. Such authorisation may also be applied for as a precautionary measure. Article 25e On-site inspections 1. In order to carry out its duties under this Regulation, ESMA may conduct all necessary on-site inspections at any business premises of Tier 2 CSDs. 2. The officials and other persons authorised by ESMA to conduct an on- site inspection may enter any business premises or land of the legal persons subject to an investigation decision adopted by ESMA and shall have all the powers stipulated in Article 25d(1). They shall also have the power to seal any business premises and books or records for the period of, and to the extent necessary for, the inspection. 3. In sufficient time before the inspection, ESMA shall give notice of the inspection to the relevant third-country competent authority where the inspection is to be conducted. Where the proper conduct and efficiency of the inspection so require, ESMA, after informing the relevant third-country competent authority, may carry out the on-site inspection without prior notice to the CSD. Inspections in accordance with this Article shall be conducted provided that the relevant third-country authority has confirmed that it does not object to those inspections. The officials and other persons authorised by ESMA to conduct an on-site inspection shall exercise their powers upon production of a written authorisation specifying the subject matter and purpose of the inspection and the periodic penalty payments provided for in Article 25h where the persons concerned do not submit to the inspection. 4. Tier 2 CSDs shall submit to on-site inspections ordered by decision of ESMA. The decision shall specify the subject matter and purpose of the inspection, appoint the date on which it is to begin and indicate the periodic penalty payments provided for in Article 25h, the legal remedies available under Regulation (EU)No 1095/2010 as well as the right to have the decision reviewed by the Court of Justice. 5. Officials of, as well as those authorised or appointed by, the competent authority of the third country where the inspection is to be conducted may, at the request of ESMA, actively assist the officials and other persons authorised by ESMA. Officials of the third-country competent authority may also attend the on-site inspections. 6. ESMA may also request third- country competent authorities to carry out specific investigatory tasks and on-site inspections as provided for in this Article and in Article 25d(1) on its behalf. 7. Where the officials and other accompanying persons authorised by ESMA find that a person opposes an inspection ordered pursuant to this Article, the third-country competent authority concerned may afford them the necessary assistance, requesting, where appropriate, the assistance of the police or of an equivalent enforcement authority, to enable them to conduct their on-site inspection. 8. If the on-site inspection provided for in paragraph 1 or the assistance provided for in paragraph 7 requires authorisation by a judicial authority according to the applicable national law, such authorisation shall be applied for. Such authorisation may also be applied for as a precautionary measure. Article 25g Fines 1. Where, in accordance with Article 25f(5), ESMA finds that a CSD has, intentionally or negligently, committed one of the infringements listed in Annex II, it shall adopt a decision imposing a fine in accordance with paragraph 2 of this Article. An infringement by a CSD shall be considered to have been committed intentionally if ESMA finds objective factors which demonstrate that the CSD or its senior management acted deliberately to commit the infringement. 2. The basic amounts of the fines referred to in paragraph 1 shall be up to twice the amount of the profits gained or losses avoided because of the breach where those can be determined, or up to 10 % of the total annual turnover, as defined in relevant Union law, of a legal person in the preceding business year. 3. The basic amounts set out in paragraph 2 shall be adjusted, if need be, by taking into account aggravating or mitigating factors in accordance with the relevant coefficients set out in Annex III. The relevant aggravating coefficients shall be applied one by one to the basic amount. If more than one aggravating coefficient is applicable, the difference between the basic amount and the amount resulting from the application of each individual aggravating coefficient shall be added to the basic amount. The relevant mitigating coefficients shall be applied one by one to the basic amount. If more than one mitigating coefficient is applicable, the difference between the basic amount and the amount resulting from the application of each individual mitigating coefficient shall be subtracted from the basic amount. 4. Notwithstanding paragraphs 2 and 3, the amount of the fine shall not exceed 20% of the annual turnover of the CSD concerned in the preceding business year but, where the CSD has directly or indirectly benefited financially from the infringement, the amount of the fine shall be at least equal to that benefit. Where an act or omission of a CSD constitutes more than one infringement listed in Annex II, only the higher fine calculated in accordance with paragraphs 2 and 3 and relating to one of those infringements shall apply. Article 25h Periodic penalty payments 1. ESMA shall, by decision, impose periodic penalty payments in order to compel: (a) a Tier 2 CSD to put an end to an infringement in accordance with a decision taken pursuant to Article 25n(1)(a); (b) a person referred to in Article 25c(1) to supply complete information which has been requested by a decision pursuant to Article 25c; (c) a Tier 2 CSD: (i) to submit to an investigation and in particular to produce complete records, data, procedures or any other material required and to complete and correct other information provided in an investigation launched by a decision pursuant to Article 25d; or (ii) to submit to an on-site inspection ordered by a decision taken pursuant to Article 25e. 2. A periodic penalty payment shall be effective and proportionate. The periodic penalty payment shall be imposed for each day of delay. 3. Notwithstanding paragraph 2, the amount of the periodic penalty payments shall be 3 % of the average daily turnover in the preceding business year, or, in the case of natural persons, 2 % of the average daily income in the preceding calendar year. It shall be calculated from the date stipulated in the decision imposing the periodic penalty payment. 4. A periodic penalty payment shall be imposed for a maximum period of six months following the notification of ESMA's decision. Following the end of the period, ESMA shall review the measure. Article 25i Hearing of the persons concerned 1. Before taking any decision on a fine or periodic penalty payment under Articles 25g and 25h, ESMA shall give the persons subject to the proceedings the opportunity to be heard on its findings. ESMA shall base its decisions only on findings on which the persons subject to the proceedings have had an opportunity to comment. 2. The rights of the defence of the persons subject to the proceedings shall be fully respected in the proceedings. They shall be entitled to have access to ESMA’s file, subject to the legitimate interest of other persons in the protection of their business secrets. The right of access to the file shall not extend to confidential information or ESMA’s internal preparatory documents. Article 25j Disclosure, nature, enforcement and allocation of fines and periodic penalty payments 1. ESMA shall disclose to the public every fine and periodic penalty payment that has been imposed pursuant to Articles 25g and 25h unless such disclosure to the public would seriously jeopardise the financial markets or cause disproportionate damage to the parties involved. Such disclosure shall not contain personal data within the meaning of Regulation (EC) No 45/2001. 2. Fines and periodic penalty payments imposed pursuant to Articles 25g and 25h shall be of an administrative nature. 3. Where ESMA decides to impose no fines or penalty payments, it shall inform the European Parliament, the Council, the Commission, and the relevant third- country competent authorities accordingly and shall set out the reasons for its decision. 4. Fines and periodic penalty payments imposed pursuant to Articles 25g and 25h shall be enforceable. Enforcement shall be governed by the rules of civil procedure in force in the Member State or third-country in which it is carried out. 5. The amounts of the fines and periodic penalty payments shall be allocated to the general budget of the European Union. Article 25k Review by the Court of Justice The Court of Justice shall have unlimited jurisdiction to review decisions whereby ESMA has imposed a fine or a periodic penalty payment. It may annul, reduce or increase the fine or periodic penalty payment imposed. Article 25l Amendments to Annex III In order to take account of developments on financial markets the Commission shall be empowered to adopt delegated acts in accordance with Article 67 concerning measures to amend Annex III. Article 25m Withdrawal of recognition 1. Without prejudice to Article 25n, and subject to the following paragraphs, ESMA shall withdraw a recognition decision adopted in accordance with Article 25 where the CSD concerned: (a) does not make use of the recognition within 6 months, expressly renounces the authorisation or has ceased to engage in business for more than six month; (b) has obtained the recognition through false statements or by any other irregular means; (c) no longer meets the conditions for recognition pursuant to Article 25(2) and Article25(4); (d) ESMA is unable to exercise effectively its responsibilities under this Regulation over the third-country CSD concerned, due to the failure of the third- country CSD or of its competent authority to provide ESMA with all relevant information in accordance with Article 25(10). (e) the implementing act referred to in Article 25(9) has been withdrawn, or any of the conditions attached to it is no longer satisfied. ESMA may limit the withdrawal of the recognition to a particular service, activity or class of financial instruments. When determining the date of entry into effect of the decision to withdraw the recognition, ESMA shall endeavour to minimise market disruption. 2. Where ESMA considers that the criterion referred to in point (c) of the first paragraph is fulfilled in relation to a CSD, ESMA shall inform that CSD and the relevant third-country authorities prior to withdrawing a recognition decision, and request that appropriate action is taken within a set time frame of up to a maximum of 3 months to remedy the situation. Where ESMA determines that remedial action within the set time frame or that the action taken is not appropriate, it shall withdraw the recognition decision. 3. ESMA shall, without undue delay, notify the relevant third-country competent authority of a decision to withdraw the recognition decision. 4. Any of the authorities referred to in Article 25(5) which consider that one of the conditions referred to in paragraph 1 has been met may request ESMA to examine whether the conditions for the withdrawal of recognition of a CSD concerned are met. Where ESMA decides not to withdraw the recognition of the CSD concerned, it shall provide full reasons to the requesting authority. Article 25n Supervisory measures 1. Where, in accordance with Article 25f(5), ESMA finds that a Tier 2 CSD has committed one of the infringements listed in Annex II, it shall take one or more of the following decisions: (a) require the CSD to bring the infringement to an end; (b) impose fines under Article 25g; (c) issue public notices; (d) withdraw the recognition of a CSD under Article 25m. 2. When taking the decisions referred to in paragraph 1, ESMA shall take into account the nature and seriousness of the infringement, having regard to the following criteria: (a) the duration and frequency of the infringement; (b) whether the infringement has revealed serious or systemic weaknesses in the CSD's procedures or in its management systems or internal controls; (c) whether financial crime has been occasioned, facilitated or otherwise attributable to the infringement; (d) whether the infringement has been committed intentionally or negligently. 3. Without undue delay, ESMA shall notify any decision adopted pursuant to paragraph 1 to the CSD concerned, and shall communicate it to the relevant third- country competent authorities and the Commission. It shall publicly disclose any such decision on its website within 10 working days from the date when it was adopted. When making public its decision as referred to in the first subparagraph, ESMA shall also make public the right of the CSD concerned to appeal the decision, the fact, where relevant, that such an appeal has been lodged, specifying that such an appeal does not have suspensive effect, and the fact that it is possible for ESMA’s Board of Appeal to suspend the application of the contested decision in accordance with Article 60(3) of Regulation (EU) No 1095/2010. Article 21o Fees 1. CSDs shall pay the following fees: (a) fees associated with applications for recognition pursuant to Article25; (b) annual fees associated with ESMA's tasks in accordance with this Regulation. 2. The Commission shall adopt a delegated act in accordance with Article 67 to further specify the types of fees, the matters for which fees are due, the amount of the fees and the manner in which they are to be paid by CSD established in a third country which are recognised in accordance with Article 25. Article 25p Staff and resources of ESMA By [two years after the date of entry into force of this Amending Regulation], ESMA shall assess the staffing and resources needs arising from the assumption of its powers and duties in accordance with this Regulation and submit a report to the European Parliament, the Council and the Commission.” (3) in Article 69, paragraphs 3 and 4 are replaced by the following: ‘3. A third-country CSD may continue to provide the services referred to in Article25(1) in a Member State in accordance with the respective Member State’s national regime, until ESMA has made a decision on the recognition of the third-country CSD where the following conditions are met: (a) The third-country CSD has notified ESMA in accordance with Article 25(6a) at the latest [12 months after the entry into force of this Amending Regulation]; (b) The Commission has adopted an implementing act referred to in Article 25(9) in respect of the third country where the third-country CSD is established within [5 years after the entry into force of this Amending Regulation]; (c) The third-country CSD has applied for recognition from ESMA in accordance with Article 25 within six months from the later of the date of entry into force of the regulatory technical standards referred to Article 25(13) or the implementing act referred to in Article 25(9).’ 4. Until the decision is made under this Regulation on the authorisation of CSDs and of their activities, including CSD links, the respective national rules on authorisation of CSDs shall continue to apply. (4) The Annex becomes Annex I, and all the references to the Annex in Regulation (EU)No 909/2014 should be read as references to Annex I. (5) The following Annexes II and III are inserted: “ANNEX II List of infringements referred to in Article 25g(1) I. Infringements relating to capital requirements: A Tier 2 CSD infringes Article 47(1) by not having capital, including retained earnings and reserves, which is proportionate to the risk stemming from its activities and at all times sufficient to: (a) ensure that the CSD is adequately protected against operational, legal, custody, investment and business risks so that the CSD can continue to provide services as a going concern; (b) ensure an orderly winding-down or restructuring of the CSD’s activities over an appropriate time span of at least six months under a range of stress scenarios. II. Infringements relating to organisational requirements: (1) a Tier 2 CSD infringes Article 26(1) by not having robust governance arrangements robust governance arrangements, which include a clear organisational structure with well- defined, transparent and consistent lines of responsibility, effective processes to identify, manage, monitor and report the risks to which it is or might be exposed, and adequate remuneration policies and internal control mechanisms, including sound administrative and accounting procedures. (2) a Tier 2 CSD infringes Article 26(2) by not adopting adequate policies and procedures which are sufficiently effective to ensure compliance, including that of its managers and employees, with all the provisions of this Regulation; (3) a Tier 2 CSD infringes Article 26(3) by not maintaining and operating effective written organisational and administrative arrangements to identify and manage any potential conflicts of interest between itself, including its managers, employees, members of the management body or any person directly or indirectly linked to them, and its participants or their clients, and by not maintaining and implementing adequate resolution procedures where possible conflicts of interest occur. (4) a Tier 2 CSD infringes Article 26(4) by not making its governance arrangements and the rules governing its activity available to the public. (5) a Tier 2 CSD infringes Article 26(5) by not having appropriate procedures for its employees to report internally potential infringements of this Regulation through a specific channel. (6) a Tier 2 CSD infringes Article 26 (6) by not being subject to regular and independent audits, or by not communicating the results of those audits to the management board or by not making the results of those audits available to ESMA, and, where appropriate taking into account potential conflicts of interest between the members of the user committee and the CSD, to the user committee. (7) a Tier 2 CSD infringes Article 26(7) if, where the CSD is part of a group of undertakings including other CSDs or credit institutions referred to in Title IV, it does not adopt detailed policies and procedures specifying how the requirements laid down in Article 26 apply to the group and to the different entities in the group. (8) a Tier 2 CSD infringes Article 27(1) or Article 27(4) by not ensuring that its senior management and the members of the management body are of sufficiently good repute and with an appropriate mix of skills, experience and knowledge of the entity and of the market, to ensure the sound and prudent management of the CSD. (9) a Tier 2 CSD infringes Article 27(4) by not ensuring that the non- executive members of the management body decide on a target for the representation of the under-represented gender in the management body and prepare a policy on how to increase the number of the under-represented gender in order to meet that target, which shall be made public. (10) a Tier2 CSD infringes Article 27(2) by not ensuring that at least one third, but no less than two, of the members of its management body are independent. (11) a Tier 2 CSD infringes Article 27(3) by not ensuring that the remuneration of the independent and other non-executive members of the management body are not be linked to the business performance of the CSD. (12) a Tier 2 CSD infringes Article 27(5) by not clearly determining the roles and responsibilities of the management body or by not making the minutes of the meetings of the management body available to ESMA or the auditors upon request. (13) a Tier 2 CSD infringes Article 27(6) by not ensuring that the CSD’s shareholders and persons who are in a position to exercise, directly or indirectly, control over the management of the CSD are suitable to ensure the sound and prudent management of the CSD. (14) a Tier 2 CSD infringes Article 27(7) by: (a) not providing ESMA with, and by not making public, information regarding the ownership of the CSD, and in particular, the identity and scale of interests of any parties in a position to exercise control over the operation of the CSD, or (b) not informing and seeking approval from ESMA of any decision to transfer ownership rights which give rise to a change in the identity of the persons exercising control over the operation of the CSD, or, after receiving approval from ESMA, by not making make public the transfer of ownership rights. (15) a Tier 2 CSD infringes Article 28(1) by not establishing a user committee for each securities settlement system it operates or by not composing that risk committee of representatives of issuers and of participants in such securities settlement systems, or by not duly informing ESMA of the activities and decisions of the user committee where ESMA has requested to be duly informed; (16) a Tier 2 CSD infringes Article 28(2) by not defining in anon- discriminatory way the mandate for each established user committee, the governance arrangements necessary to ensure its independence and its operational procedures, as well as the admission criteria and the election mechanism for user committee members, or by not making those governance arrangements publicly available or by not ensuring that the user committee reports directly to the management body and holds regular meetings. (17) a Tier 2 CSD infringes Article 28(3) by not allowing the user committees to advise the management body on key arrangements that impact on their members, including the criteria for accepting issuers or participants in their respective securities settlement systems and on service level. (18) a Tier2 CSD infringes Article 28(5) by not promptly informing ESMA and the user committee of any decision in which the management body decides not to follow the advice of the user committee. (19) a Tier 2 CSD infringes Article 29(1) by not maintaining, for a period of at least10 years, all its records on the services and activities, including on the ancillary services referred to in Sections B and C of the Annex, enabling ESMA to monitor its compliance with the requirements under this Regulation. (20) a Tier 2 CSD infringes Article 29(2) by not making its records available upon request to ESMA, the relevant authorities, and any other public authority which under Union law or national law of the home Member States where it provides services in accordance with Article 25 has a power to require access to such records for the purpose of fulfilling their mandate. (21) a Tier 2 CSD infringes Article 30 where it outsources services or activities to a third party, without complying with the conditions referred to in Article 30. III. Infringements relating to conduct of business rules (1) a Tier 2 CSD infringes Article 32(1) by not having clearly defined goals and objectives that are achievable, such as in the areas of minimum service levels, risk-management expectations and business priorities. (2) a Tier 2 CSD infringes Article 32(2) by not having transparent rules for the handling of complaints. (3) a Tier 2 CSD infringes Article 33(1) by not having, for each securities settlement system it operates, publicly disclosed criteria for participation which allow fair and open access for all legal persons that intend to become participants, or if such criteria are not transparent, objective, and non- discriminatory so as to ensure fair and open access to the CSD with due regard to risks to financial stability and the orderliness of markets, or if criteria that restrict access are not permitted unless their objective is to justifiably control a specified risk for the CSD. (4) a Tier 2 CSD infringes Article 34(1) by not publicly disclosing, for each securities settlement system it operates, as well as for each of the other core services it performs, the prices and fees associated with the core services listed in Section A of the Annex that they provide in accordance with Article 25, or by not disclosing the prices and fees of each service and function provided separately, including discounts and rebates and the conditions to benefit from those reductions, or by not allowing its clients separate access to the specific services provided. (5) a Tier 2 CSD infringes Article 34(2) by not publishing its price list so as to facilitate the comparison of offers and to allow clients to anticipate the price they shall have to pay for the use of services. (6) a Tier 2 CSD infringes Article 34(4) by not providing its clients with information that allows reconciling invoices with the published price lists. (7) a Tier 2 CSD infringes Article 34(5) by not disclosing to all clients information that allows them to assess the risks associated with the services provided. (8) a Tier 2 CSD infringes Article 34(6) by not accounting separately for costs and revenues of the core services provided in accordance with Article 25, and by disclosing that information to ESMA. (9) a Tier 2 CSD infringes Article 34(7) by not accounting for the cost and revenue of the ancillary services provided as a whole and by not disclosing that information to ESMA. (10) a Tier 2 CSD infringes Article 34(8) by not maintaining analytical accounting for its activities, separating at least the costs and revenues associated with each of its core services from those associated with ancillary services. (11) a Tier 2 CSD infringes Article 35 by not using in their communication procedures with participants of the securities settlement systems they operate, and with the market infrastructures they interface with international open communication procedures and standards for messaging and reference data in order to facilitate efficient recording, payment and settlement. IV. Infringements relating to requirements for CSD services (1) a Tier 2 CSD infringes Article 25(2)(d) by not taking all the necessary measures to allow its users to comply with the relevant national law of the Member State in which the third-country CSD provides CSD services, including the law referred to in the second subparagraph of Article 49(1), as confirmed by the competent authorities of the Member State in which the Tier 2 CSD provides CSD services. (2) a Tier 2 CSD infringes Article 33(1) if, for each securities settlement system it operates, it does not have publicly disclosed criteria for participation which allow fair and open access for all legal persons that intend to become participants, or if such criteria are not transparent, objective, and non- discriminatory so as to ensure fair and open access to the CSD with due regard to risks to financial stability and the orderliness of markets, or if criteria that restrict access are permitted only to the extent that their objective is to justifiably control a specified risk for the CSD. (3) a Tier 2 CSD infringes Article 33(2) by not treating requests for access promptly by providing a response to such requests within one month at the latest, or by not making the procedures for treating access requests publicly available. (4) a Tier 2 CSD infringes Article 33(2)(1) by denying access to a participant meeting the criteria referred to in Article 33(1) where not duly justified in writing and not based on a comprehensive risk assessment. (5) a Tier 2 CSD infringes Article 33(4) by failing to have objective and transparent procedures for the suspension and the orderly exit of participants that no longer meet the criteria referred to in Article 37(1). (6) a Tier 2 CSD infringes Article 33(5) by denying access to a participant meeting the criteria referred to in Article37(1) where such denial of access is not duly justified in writing and based on a comprehensive risk analysis. (7) a Tier 2 CSD infringes Article 36 by not having, for each securities settlement system it operates, appropriate rules and procedures, including robust accounting practices and controls, to help ensure the integrity of securities issues, and reduce and manage the risks associated with the safekeeping and settlement of transactions in securities. (8) a Tier 2 CSD infringes Article 37(1) by not taking appropriate reconciliation measures to verify that the number of securities making up a securities issue or part of a securities issue submitted to the CSD is equal to the sum of securities recorded on the securities accounts of the participants of the securities settlement system operated by the CSD and, where relevant, on owner accounts maintained by the CSD, or by not conducting such reconciliation measures at least daily. (9) a Tier 2 CSD infringes Article 37(2) if, where appropriate and if other entities are involved in the reconciliation process for a certain securities issue, such as the issuer, registrars, issuance agents, transfer agents, common depositories, other CSDs or other entities, the CSD and any such entities does not organise adequate cooperation and information exchange measures with each other so that the integrity of the issue is maintained. (10) a Tier 2 CSD infringes Article 37(3) by allowing securities overdrafts, debit balances or securities creation in a securities settlement system operated by the CSD. (11) a Tier 2 CSD infringes Article 38(1) if, for each securities settlement system it operates, it does not keep records and accounts that shall enable it, at any time and without delay, to segregate in the accounts with the CSD, the securities of a participant from those of any other participant and, if applicable, from the CSD’s own assets. (12) a Tier 2 CSD infringes Article 38(2) if it does not keep records and accounts that enable any participant to segregate the securities of the participant from those of the participant’s clients. (13) a Tier 2 CSD infringes Article 38(3) if it does not keep records and accounts that enable any participant to hold in one securities account the securities that belong to different clients of that participant (‘omnibus client segregation’). (14) a Tier 2 CSD infringes Article 38(4) if it does not keep records and accounts that enable a participant to segregate the securities of any of the participant’s clients, if and as required by the participant (‘individual client segregation’). (15) a Tier 2 CSD infringes Article 38(4)(1) if it does not ensure that its participants offer their clients at least the choice between omnibus client segregation and individual client segregation and inform them of the costs and risks associated with each option. (16) a Tier 2 CSD infringes Article 38(4)(2) if the CSD and its participants do not provide individual clients segregation for citizens and residents of, and legal persons established in, a Member State where required under the national law of the Member State under which the securities are constituted as it stands at 17September 2014, as long as the national law is not amended or repealed and its objectives are still valid. (17) a Tier 2 CSD infringes Article 38(6) if the CSD and its participants do not publicly disclose the levels of protection and the costs associated with the different levels of segregation that they provide and shall offer those services on reasonable commercial terms, or if the details of the different levels of segregation do not include a description of the main legal implications of the respective levels of segregation offered, including information on the insolvency law applicable in the relevant jurisdictions. (18) a Tier 2 CSD infringes Article 38(7) if it uses for any purpose securities that do not belong to it, unless it has obtained a participant’s prior express consent allowing the CSD to use the participant’s securities, and the participant has obtained any necessary prior consent from its clients. (19) a Tier 2 CSD infringes Article 39(1) if it does not ensure that the securities settlement system it operates offers adequate protection to participants. (20) a Tier 2 CSD infringes Article 39(2) if it does not ensure that each securities settlement system that it operates defines the moments of entry and of irrevocability of transfer orders in that securities settlement system. (21) a Tier 2 CSD infringes Article 39(3) if the CSD does not disclose the rules governing the finality of transfers of securities and cash in a securities settlement system it operates. (22) a Tier 2 CSD infringes Article 39(5) if it does not take all reasonable steps to ensure that the finality of transfers of securities and cash in a securities settlement system it operates is achieved either in real time or intra-day and in any case no later than by the end of the business day of the actual settlement date. (23) a Tier 2 CSD infringes Article 39(6) if, where the CSD offers the services referred to in Article 40(2), it does not ensure that the cash proceeds of securities settlements are available for recipients to use no later than by the end of the business day of the intended settlement date. (24) a Tier 2 CSD infringes Article 39(7) if it does not ensure that, for all securities transactions against cash between direct participants in a securities settlement system operated by the CSD which are settled in that securities settlement system, are settled on a DVP basis. (25) a Tier 2 CSD infringes Article 40(1) if, for transactions denominated in the currency of the country where the settlement takes place, the CSD does not settle the cash payments of its securities settlement system through accounts opened with a central bank of issue of the relevant currency where practical and available. (26) a Tier 2 CSD infringes Article 40(2) if, where it is not practical and available to settle in central bank accounts as provided in Article 40(1), and the CSD offers to settle the cash payments for all or part of its securities settlement systems through accounts opened with a credit institution or through its own accounts, the CSD does not comply with the provisions of Title IV. (27) a Tier 2 CSD infringes Article 40(3) if it does not ensure that any information provided to market participants about the risks and costs associated with settlement in the accounts of credit institutions or through its own accounts is clear, fair and not misleading, or if it does not make available sufficient information to clients or potential clients to allow them to identify and evaluate the risks and costs associated with settlement in the accounts of credit institutions or through its own accounts and if it does not provide such information on request. (28) a Tier 2 CSD infringes Article 41(1) if, for each securities settlement system it operates, it does not have effective and clearly defined rules and procedures to manage the default of one or more of its participants ensuring that the CSD can take timely action to contain losses and liquidity pressures and continue to meet its obligations. (29) a Tier 2 CSD infringes Article 41(2), a it does not make its default rules and relevant procedures available to the public.30) a Tier 2 CSD infringes Article 41(3) if it does not undertake with its participants and other relevant stakeholders periodic testing and review of its default procedures to ensure that they are practical and effective. V. Infringements relating to prudential requirements: (1) a Tier 2 CSD infringes Article 42 if it does not adopt a sound risk- management framework for comprehensively managing legal, business, operational and other direct or indirect risks, including measures to mitigate fraud and negligence. (2) a Tier 2 CSD infringes Article 43(1) if it does not have rules, procedures, and contracts that are clear and understandable for all the securities settlement systems that it operates and all other services that it provides. (3) a Tier 2 CSD infringes Article 43(2) if it does not design its rules, procedures and contracts so that they are enforceable in all relevant jurisdictions, including in the case of the default of a participant. (4) a Tier 2 CSD infringes Article 43(3) if, where conducting business in different jurisdictions, it does not take all reasonable steps to identify and mitigate the risks arising from potential conflicts of law across jurisdictions. (5) a Tier 2 CSD infringes Article 44 if it does not have robust management and control systems as well as IT tools in order to identify, monitor and manage general business risks, including losses from poor execution of business strategy, cash flows and operating expenses. (6) a Tier 2 CSD infringes Article 45(1) if it does not identify sources of operational risk, both internal and external, and minimise their impact through the deployment of appropriate IT tools, controls and procedures, including for all the securities settlement systems it operates. (7) a Tier 2 CSD infringes Article 45(2) if it does not maintain appropriate IT tools that ensure a high degree of security and operational reliability, and have adequate capacity, or if it does not ensure that the IT tools adequately deal with the complexity, variety and type of services and activities performed so as to ensure high standards of security, and the integrity and confidentiality of the information maintained. (8) a Tier 2 CSD infringes Article 45(3) if, for services that it provides as well as for each securities settlement system that it operates, it does not establish, implement and maintain an adequate business continuity policy and disaster recovery plan to ensure the preservation of its services, the timely recovery of operations and the fulfilment of the CSD’s obligations in the case of events that pose a significant risk of disrupting operations. (9) a Tier 2 CSD infringes Article 45(4) if the plan referred to in Article 45(3) does not provide for the recovery of all transactions and participants’ positions at the time of disruption to allow the participants of a CSD to continue to operate with certainty and to complete settlement on the scheduled date, including by ensuring that critical IT systems can promptly resume operations from the time of disruption. It shall include the setting-up of a second processing site with sufficient resources, capabilities and functionalities and appropriate staffing arrangements. (10) a Tier 2 CSD infringes Article 45(5) if it does not plan and carry out a programme of tests of the arrangements referred to in paragraphs 1 to 4 of Article 45. (11) a Tier 2 CSD infringes Article 45(6) if it does not identify, monitor and manage the risks that key participants in the securities settlement systems it operates, as well as service and utility providers, and other CSDs or other market infrastructures might pose to its operations, or if it does not, upon request, provide ESMA with information on any such risk identified, or if it does not inform ESMA without delay of any operational incidents resulting from such risks. (12) a Tier 2 CSD infringes Article 46(1) if it does not hold its financial assets at central banks, authorised credit institutions or authorised CSDs. (13) a Tier 2 CSD infringes Article 46(2) if it does not ensure it has prompt access to its assets, where required. (14) a Tier 2 CSD infringes Article 46(3) if it does not invest its financial resources only in cash or in highly liquid financial instruments with minimal market and credit risk, or if it does not ensure that those investments are capable of being liquidated rapidly with minimal adverse price effect. (15) a Tier 2 CSD infringes Article 46(4) if it does not ensure that the amount of capital, including retained earnings and reserves of a CSD which are not invested in accordance with Article 46(3) are not taken into account for the purposes of Article 47(1). (16) a Tier 2 CSD infringes Article 46(5) if it does not ensure that its overall risk exposure to any individual authorised credit institution or authorised CSD with which it holds its financial assets remains within acceptable concentration limits. (17) a Tier 2 CSD infringes Article 47(1) if it does not ensure that its capital, together with its retained earnings and reserves are proportional to the risks stemming from its activities of the CSD, or if it does not ensure that it is all times sufficient to: (a) ensure that the CSD is adequately protected against operational, legal, custody, investment and business risks so that the CSD can continue to provide services as a going concern; (b) ensure an orderly winding-down or restructuring of the CSD’s activities over an appropriate time span of at least six months under a range of stress scenarios. (18) a Tier 2 CSD infringes Article 47(2)(1) if it does not maintain a plan for the following: (a) the raising of additional capital should its equity capital approach or fall below the requirements laid down in Article 47(1); (b) ensuring the orderly winding-down or restructuring of its operations and services where the CSD is unable to raise new capital. (19) a Tier 2 CSD infringes Article 47(2)(2) by not ensuring that the plan referred to in Article47(2)(1) is not approved by the management body or an appropriate committee of the management body and updated regularly, or by not providing each update of the plan to ESMA, or by not taking additional measures or making any alternative provision where ESMA considers that the CSD’s plan is insufficient. (20) a Tier 2 CSD providing banking- type ancillary services from within the same legal entity as the legal entity operating the securities settlement system infringes Article54(3)(c)-(f) if: (a) if it provides other banking-type ancillary services than those referred to in Section C of the Annex, or (b) if the CSD is not subject to an additional capital surcharge that reflects the risks, including credit and liquidity risks, resulting from the provision of intra-day credit, inter alia, to the participants in a securities settlement system or other users of CSD services, or (c) if the CSD does not report at least monthly to ESMA on the extent and management of intra-day liquidity risk in accordance with point (j) of Article 59(4) of this Regulation, or (d) the CSD has not submitted to ESMA an adequate recovery plan to ensure continuity of its critical operations, including in situations where liquidity or credit risk crystallises as a result of the provision of banking-type ancillary services. (21) a Tier 2 CSD infringes Article 59(1) by providing other banking-type ancillary services than those set out in Section C of the Annex which are covered by the authorisation based on the applicable laws in the respective third country, or by not ensuring that a credit institution designated under point (b) of Article 54(2)provides only the services set out in Section C of the Annex that are covered by the authorisation. (22) a Tier 2 CSD providing banking- type ancillary services infringes Article 59(3) by not complying with the specific prudential requirements for the credit risks related to those services in respect of each securities settlement system as referred to in Article 59(3). (23) a Tier 2 CSD providing banking- type ancillary services infringes Article 59(3) by not complying with the specific prudential requirements related to liquidity risks as referred to in Article 59(4). (24) if a Tier 2 CSD has designated a credit institution under point (b)of Article 54(2) which does not comply with the requirements in Articles 54(4), 54(6) and 59. VI. Infringements relating to CSD links: (1) a Tier 2 CSD infringes Article 48(1) if, before establishing a CSD link and on an ongoing basis once the CSD link is established, it does not identify, assess, monitor and manage all potential sources of risk for themselves and for its participants arising from the CSD link and it does not take appropriate measures to mitigate them. (2) a Tier 2 CSD infringes Article 48(3)(1) by not ensuring that a link provides adequate protection to the linked CSDs and their participants, in particular as regards possible credits taken by CSDs and the concentration and liquidity risks as a result of the link arrangement. (3) a Tier 2 CSD infringes Article 48(3)(2) by not ensuring that a link is supported by an appropriate contractual arrangement that sets out the respective rights and obligations of the linked CSDs and, where necessary, of the CSDs’ participants, or by not ensuring that a contractual arrangement with cross- jurisdictional implications provides for an unambiguous choice of law that govern each aspect of the link’s operations. (4) a Tier 2 CSD infringes Article 48(4) by not ensuring that, in the event of a provisional transfer of securities between linked CSDs, the retransfer of securities prior to the first transfer becoming final is prohibited. (5) a Tier 2 CSD infringes Article 48(5) if, where it uses an indirect link or an intermediary to operate a CSD link with another CSD, it does not measure, monitor, and manage the additional risks arising from the use of that indirect link or intermediary or if it does not take appropriate measures to mitigate them. (6) a Tier 2 CSD infringes Article 48(6) by not having robust reconciliation procedures with the linked CSDs in order to ensure that their respective records are accurate. (7) a Tier 2 CSD infringes Article 48(7) by not ensuring that the links it has with other CSDs permit DVP settlement of transactions between participants in linked CSDs, where practical and feasible, or by not notifying the detailed reasons for any CSD link not allowing for DVP settlement to ESMA. (8) a Tier 2 CSD infringes Article 48(8) if, when using an interoperable link, including when using a common settlement infrastructure, it does not ensure establish together with the other involved CSDs identical moments of: (a) entry of transfer orders into the system; (b) irrevocability of transfer orders, or if they do not use equivalent rules concerning the moment of finality of transfers of securities and cash. (9) a Tier 2 CSD infringes Article 48(9) by using interoperable links which are not DVP-settlement supporting links, where applicable. VII. Infringements relating to securities settlement and settlement discipline: (1) a Tier 2 CSD infringes Article 3 by not ensuring that securities can be represented in book-entry form as immobilisation or subsequent to a direct issuance in dematerialised form for the purposes of Article 3. (2) a Tier 2 CSD infringes Article 5(2) if it does not enable the settlement of transactions in transferable securities referred to in Article 5(1), which are executed on trading venues, no later than on the second business day after the trading takes place. (3) a Tier 2 CSD infringes Article 6(3) if, for each securities settlement system it operates, it does not establish procedures that facilitate the settlement of transactions in financial instruments referred to in Article5(1) on the intended settlement date with a minimum exposure of its participants to counterparty and liquidity risks and a low rate of settlement fails, or if it does not promote early settlement on the intended settlement date through appropriate mechanisms. (4) a Tier 2 CSD infringes Article 6(4)if, for each securities settlement system it operates, it does not put in place measures to encourage and incentivise the timely settlement of transactions by its participants, or if it does not require participants to settle their transactions on the intended settlement date. (5) a Tier 2 CSD infringes Article 7(1) if, for each securities settlement system it operates, it does not establish a system that monitors settlement fails of transactions in financial instruments referred to in Article 5(1), or if it does not provide regular reports to ESMA, as to the number and details of settlement fails and any other relevant information, including the measures envisaged by CSD and its participants to improve settlement efficiency, or if it does not make public those reports in an aggregated and anonymised form on an annual basis. (6) a Tier 2 CSD infringes Article 7(2) if, for each securities settlement system it operates, it does not establish procedures that facilitate settlement of transactions in financial instruments referred to in Article 5(1)that are not settled on the intended settlement date, or if these procedures do not provide for a penalty mechanism which will serve as an effective deterrent for participants that cause settlement fails, or if cash penalties are not calculated on a daily basis for each business day that a transaction fails to be settled after its intended settlement date until the end of a buy-in process referred to in Article 7(3), but no longer than the actual settlement day, orif cash penalties are configured as a revenue source for the CSD. (7) a Tier 2 CSD infringes Article 7(3)-(8) and Article7(10)-(13) if it does establish procedures regarding a mandatory buy-in process in accordance with Article 7(3)-(8) and Article 7(10)- (13). (8) a Tier 2 CSD infringes Article 7(8)(9) if it does not establish procedures that enables it to suspend in consultation with ESMA, any participant that fails consistently and systematically to deliver the financial instruments referred to in Article 5(1) on the intended settlement date and to disclose to the public its identity only after giving that participant the opportunity to submit its observations and provided that the competent authorities of the CSDs, CCPs and trading venues, and of that participant have been duly informed, or if it does not notify, without delay, ESMA and the respective competent authorities of the suspension of a participant. VIII. Infringements relating to obstacles to the supervisory activities: (1) provision of services set out in Section A of the Annex in infringement of Article 25; (2) obtaining the recognition required under Article 25 by making false statements or by any other unlawful means; (3) a third-country CSD infringes Article 25c by providing incorrect or misleading information in response to a simple request for information by ESMA in accordance with Article 25c or in response to a decision by ESMA requiring information in accordance with Article 25n; (4) a third-country CSD provides incorrect or misleading answers to questions asked pursuant to Article 25d(1)(d); (5) a Tier 2 CSD does not comply in due time with a supervisory measure required by a decision adopted by ESMA pursuant to Article 25n; (6) a Tier 2 CSD does not submit to an on-site inspection required by an investigation decision adopted by ESMA taken pursuant to Article 25e. ANNEX III List of the coefficients linked to aggravating and mitigating factors for the application of Article 25g(3) The following coefficients shall be applicable, cumulatively, to the basic amounts referred to in Article 25g(2): I. Adjustment coefficients linked to aggravating factors: (a) if the infringement has been committed repeatedly, for every time it has been repeated, an additional coefficient of 1.1 shall apply; (b) if the infringement has been committed for more than six months, a coefficient of 1.5 shall apply; (c) if the infringement has revealed systemic weaknesses in the organisation of the CSD, in particular in its procedures, management systems or internal controls, a coefficient of 2.2 shall apply; (d) if the infringement has a negative impact on the quality of the activities and services of the CSD, a coefficient of 1.5 shall apply; (e) if the infringement has been committed intentionally, a coefficient of 2 shall apply; (f) if no remedial action has been taken since the breach has been identified, a coefficient of 1.7 shall apply; (g) if the CSD's senior management has not cooperated with ESMA in carrying out its investigations, a coefficient of 1.5 shall apply. II. Adjustment coefficients linked to mitigating factors: (a) if the infringement has been committed for less than 10 working days, a coefficient of 0.9 shall apply; (b) if the CSD's senior management can demonstrate to have taken all the necessary measures to prevent the infringement, a coefficient of 0.7 shall apply; (c) if the CSD has brought quickly, effectively and completely the infringement to ESMA’s attention, a coefficient of 0.4 shall apply; (d) if the CSD has voluntarily taken measures to ensure that a similar infringement cannot be committed in the future, a coefficient of 0.6 shall apply.”
2018/09/19
Committee: ECON
Amendment 1183 #
Proposal for a regulation
Article 11 – paragraph 3 a (new)
Paragraphs related to the supervision of trading venues in Article 6 shall apply from 18 months after entry into force of this Regulation. Notwithstanding the last paragraph, paragraph (7a) of Article 6 as regards Article 32a of Regulation (EU) No 600/2014 and paragraph (7b) of Article 6 as regards Article 49a(9) and 49 a(14) and Article 49s(1) and (2) of Regulation (EU) No 600/2014 shall apply immediately following the entry into force of this Regulation.
2018/09/19
Committee: ECON