26 Amendments of Burkhard BALZ related to 2013/0314(COD)
Amendment 139 #
Proposal for a regulation
Recital 8
Recital 8
(8) The scope of this Regulation should be as broad as necessary to create a preventive regulatory framework. The production of benchmarks involves discretion in their determination and is inherently subject to certain types of conflicts of interest, which implies the existence of opportunities and incentives to manipulate those benchmarks. These risk factors are common to all benchmarks, and all of them shouldlthough the precise form they take depends to a significant degree on the input data used. It should be possible for benchmarks to be made subject to adequate governance and control requirements, with the proviso that these must be proportional. Since the vulnerability and importance of a benchmark varies over time, restricting the scope by reference to currently important or vulnerable indices would not address the risks that any benchmark may pose in the future. In particular, benchmarks that are currently not widely used may be so used in the future, so that, in their regard, even a minor manipulation may have significant impact.
Amendment 213 #
Proposal for a regulation
Article 2 – paragraph 2 – point b a (new)
Article 2 – paragraph 2 – point b a (new)
(ba) reference prices or settlement prices produced by Central Counterparties (CCPs)
Amendment 229 #
Proposal for a regulation
Article 3 – paragraph 1 – point 2
Article 3 – paragraph 1 – point 2
2. ‘benchmark’ means any index by reference to which the amount payable under a financial instrument or a financial contract, or the value of a financial instrument is determined or an index that is used to measure the performance of an investment fund; this shall not apply to reference prices or settlement prices produced by Central Counterparties (CCPs) within the meaning of Article 2(1) of Regulation (EU) No 648/2012 or to financial instruments within the meaning of Article 3(1)(13).
Amendment 233 #
Proposal for a regulation
Article 3 – paragraph 1 – point 5
Article 3 – paragraph 1 – point 5
5. ‘user of a benchmark’ means any person who issues or owns a financial instrument or is party toholds an active position in a financial instrument which references a benchmark or who issues a financial contracinstrument which references a benchmark;
Amendment 237 #
Proposal for a regulation
Article 3 – paragraph 1 – point 7
Article 3 – paragraph 1 – point 7
7. ‘contributor’ means a natural or legal person contributing input data which are not regarded as regulated data within the meaning of Article 3(1)(11);
Amendment 244 #
Proposal for a regulation
Article 3 – paragraph 1 – point 11
Article 3 – paragraph 1 – point 11
11. ‘regulated data’ means input data that is contributed directly from a trading venue as defined in point (25) of paragraph 1 of Article 2 of [MIFIR] or approved publication arrangement as defined in point (18) of paragraph 1 of Article 2 of [MIFIR ] or another regulated trading venue outside the European Union or an approved reporting arrangement as defined in point (20) of paragraph 1 of Article 2 of [MIFIR] in accordance with mandatory post trade data requirements or an electricity exchange as referred to in point (j) of paragraph 1 of Article 37 of Directive 2009/72/EC19 or a natural gas exchange as referred to in point (j) of paragraph 1 of Article 41 of Directive 2009/73/EC20 or an auction platform referred to in Article 26 or in Article 30 of Regulation (EU) No 1031/2010 of the European Parliament and of the Council; the data may take the form of transaction data and, in exceptional cases, bids and offers. __________________ 20 OJ L 9, 14.8.2009, p. 112.
Amendment 269 #
Proposal for a regulation
Article 3 – paragraph 1 – point 21
Article 3 – paragraph 1 – point 21
21. ‘critical benchmark’ means a benchmark, the majority of contributors to whi which does not meet the criteria for an objective bench mare supervised entitiesk within the meaning of point 21a (new) and that reference financial instruments having a notional value of at least 500 billion euro;
Amendment 272 #
Proposal for a regulation
Article 3 – paragraph 1 – point 21 a (new)
Article 3 – paragraph 1 – point 21 a (new)
21a. 'objective benchmark' means a benchmark which uses only regulated input data and a strictly rule-based methodology;
Amendment 304 #
Proposal for a regulation
Article 7 – paragraph 1 – subparagraph 1 – point b
Article 7 – paragraph 1 – subparagraph 1 – point b
(b) The administrator shall obtain the input data from a reliable and representative panel or sample of contributors so as to ensure that the resultant benchmark is reliable and representative of the market or economic reality that the benchmark is intended to measure (‘Representative contributors’). In the case of benchmarks which are based on transactions, the administrator shall receive the input data in aggregated and anonymised form from transaction registers and regulatory authorities, in accordance with the provisions of Directive 2004/39/EC, Regulation (EU) No 1227/2011 and Regulation (EU) No 648/2012.
Amendment 330 #
Proposal for a regulation
Article 3 – paragraph 1 – point 5
Article 3 – paragraph 1 – point 5
(5) ‘user of a benchmark’ means any person who issues or owns a financial instrument or is party to: (a) issuing on its own account a financial instrument, which references a benchmark; or (b) holding an active position in a financial contracinstrument which references a benchmark;.
Amendment 353 #
Proposal for a regulation
Article 3 – paragraph 1 – point 21
Article 3 – paragraph 1 – point 21
(21) ‘critical benchmark’ means a benchmark, the majority of contributors to which are supervised entities and that reference financial instruments having a notional value of at least 500 billion euro that is not based on regulated data and whose cessation or provision on the basis of input data or a panel of contributors no longer representative of the market or economic reality the benchmark seeks to measure, would have an adverse impact on the integrity of markets, financial stability, the real economy, or the financing of households and corporations in one or more Member States, as covered by the criticality criteria set out in Article 13;
Amendment 426 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
(1) An administrator shall publish details of the methodology used to draw up the index and, in respect of non-objective benchmarks, the input data used to determine the benchmark immediately after publication of the benchmark except where (i) publication would have serious adverse consequences for the contributors or (ii) would adversely affect the reliability or integrity of the benchmark. In such cases publication may be de or (iii) the input data are regulayted for a period that significantly diminishes these consequences. Any personal data included in input data shall not be publishdata within the meaning of Article 3(1)(11). The administrator must not publish any data whose integrity and confidentiality cannot be guaranteed.
Amendment 436 #
Proposal for a regulation
Article 13 – paragraph 1 – subparagraph 1
Article 13 – paragraph 1 – subparagraph 1
Amendment 442 #
Proposal for a regulation
Article 13 – paragraph 1 – subparagraph 2
Article 13 – paragraph 1 – subparagraph 2
Amendment 446 #
Proposal for a regulation
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Within 5 working days from the date of application of the decision including a critical benchmark in the list referred to in paragraph 1of this Article, the administrator of that critical benchmark shall notify the code of conduct to the relevant competent authority. The relevant competent authority shall verify within 30 days whether the content of the code of conduct complies with the requirements of this Regulation. In case the relevant competent authority finds elements which do not comply with the requirements of this Regulation, it shall inform the administrator. The administrator shall adjust the code of conduct to ensure that it complies with the requirements of this Regulation within 30 days of such a requestESMA shall establish a list of critical benchmarks that are provided and used in the European Union. The list shall be updated on a regular basis.
Amendment 449 #
Proposal for a regulation
Article 19 – paragraph 1
Article 19 – paragraph 1
A supervised entity may use a benchmark in the Union as a reference in a financial instrument or financial contract or to measure the performance of an investment fund, if it is provided by an administrator authorised in accordance with Article 23 or an administrator located in a third country that is registered in accordance with Article 21n which connection non-objective benchmarks must be provided by an administrator covered by the authorisation requirement in accordance with Article 22. A supervised entity may also use objective benchmarks produced by a registered administrator located in a third country if the administrator in question declares to the competent authority that the benchmarks are consistent with the IOSCO Principles for Financial Benchmarks of 17 July 2013.
Amendment 492 #
Proposal for a regulation
Article 22 – paragraph 1
Article 22 – paragraph 1
(1) An administrator shall apply for authorisation to provide benchmarks if it provides indices which are used or intended to bnon-objective benchmarks or objective benchmarks which are not consistent with the IOSCO Principles of 17 July 2013 which are used to reference financial instruments or financial contracts or to measure the performance of an investment fund.
Amendment 496 #
Proposal for a regulation
Article 23 – paragraph 1
Article 23 – paragraph 1
(1) The administrator covered by the authorisation requirement pursuant to Article 22(1) shall submit an application for authorisation to the competent authority of the Member State in which the administrator is located.
Amendment 571 #
Proposal for a regulation
Article 39 – paragraph 1 b (new)
Article 39 – paragraph 1 b (new)
(1b) The requirements laid down in Article 20(1)(a) to (e) shall apply to benchmarks which are provided by an administrator established in a third country only after a transitional period of 36 months following the entry into force of this Regulation has elapsed and provided that the benchmarks in question are consistent with the IOSCO Principles for Financial Benchmarks of 17 July 2013 on the date when this Regulation enters into force.
Amendment 585 #
Proposal for a regulation
Annex 1 – section 1 – part I – point 1
Annex 1 – section 1 – part I – point 1
1. The provision of a benchmark shall be operationally and functionally separated from any part of the administrator’s business that may create an actual or potential conflict of interest. If these conflicts cannot be managed, the benchmark operator shall cease any activities or relationships that create these conflicts or cease producingA legal or natural person who exercises control over the provision of a benchmark may not at the same time be an organisational or functional user of theat benchmark.
Amendment 592 #
Proposal for a regulation
Annex 1 – section 1 – part I – point 8 – point b
Annex 1 – section 1 – part I – point 8 – point b
Amendment 598 #
Proposal for a regulation
Annex 1 – section 1 – part II – point 10 – point a
Annex 1 – section 1 – part II – point 10 – point a
(a) where the administrator is owned or controlled by contributors or usersf input data which are not transaction data, a separate board or committee, whose composition ensures its independence and the absence of conflicts of interest. Where the administrator is owned or controlled by contributors, a majority of the committee should not be contributors. Where the administrator is owned or controlled by users, a majority of the committee should not be users;
Amendment 599 #
Proposal for a regulation
Annex 1 – section 1 – part II – point 10 – point b
Annex 1 – section 1 – part II – point 10 – point b
(b) where the administrator is not owned or controlled by its contributors or usersf input data which are not transaction data, an internal board or committee. TA majority of the members of the internal board or committee shallmay not be involved in the provision of any benchmark they oversee;
Amendment 601 #
Proposal for a regulation
Annex 1 – section 1 – part II – point 10 – point c
Annex 1 – section 1 – part II – point 10 – point c
(c) where the administrator is able to demonstrate that in view of the nature, scale and complexity of its provision of the benchmark, and the risk and impact of the benchmark, the requirements under points a and b are not proportionate, a natural person may provide the function of oversight officer. This shall apply in particular to objective benchmarks, in respect of which the administrator shall declare to the competent authority that they are consistent with the IOSCO Principles for Financial Benchmarks of 17 July 2013. The oversight officer must not be involved in the provision of any benchmark they oversee.
Amendment 607 #
Proposal for a regulation
Annex 1 – section 1 – part IV – point 16
Annex 1 – section 1 – part IV – point 16
16. For critical benchmarks as defined in Article 3(1)(21) and for non-objective benchmarks, the administrator shall appoint an independent external auditor to review and report on the administrator’s adherence to the benchmark methodology and this Regulation if the size and complexity of the administrator’s benchmark operations poses a significant risk to financial stability.
Amendment 675 #
Proposal for a regulation
Article 34 – paragraph 1
Article 34 – paragraph 1
1. Within 30 working days from the entry into force of the decision referred to in Article 13(1) determining a benchmark as critical benchmarkinclusion of a benchmark in the list of critical benchmarks pursuant to Article 13 (2), the competent authority shall establish a college of competent authorities with respect to the critical benchmark.