38 Amendments of Sylvie GOULARD related to 2011/0295(COD)
Amendment 73 #
Proposal for a regulation
Recital 14 a (new)
Recital 14 a (new)
(14 a) The prohibition to use inside information by issuing an order to acquire or dispose of the financial instruments to which the information relates applies irrespective of whether the order is acted upon or not. An order that is not accepted by the intermediary, trading venue or facility or that does not reach them, for example as a result of failed technology or controls, is still subject to the prohibition. The prohibition to engage in market manipulation applies irrespective of whether the transaction concerned is completed or not or the order concerned is acted upon or not. An order or transaction that is not accepted by the intermediary, trading venue or facility or that does not reach them, for example as a result of failed technology or controls, is still subject to the prohibition.
Amendment 80 #
Proposal for a regulation
Recital 14 b (new)
Recital 14 b (new)
Amendment 92 #
Proposal for a regulation
Recital 19
Recital 19
(19) In order to complement the prohibition of market manipulation, this Regulation should include a prohibition against attempting to engage in market manipulation, given that failed attempts to manipulate the market should also be sanctioned. The attempt to engage in market manipulation should be distinguished from situations where behaviourSuch behaviour that does not have the desired effect on the price of a financial instrument. Such behaviour is considered to be market manipulation because it wais likely to give false or misleading signals.
Amendment 93 #
Proposal for a regulation
Recital 20
Recital 20
(20) This Regulation should also clarify that engaging in market manipulation or attempting to engage in market manipulation in a financial instrument may take the form of using related financial instruments such as derivative instruments that are traded on another trading venue or over the counter.
Amendment 99 #
Proposal for a regulation
Recital 22
Recital 22
(22) Manipulation or attempted manipulation of financial instruments may also consist in placing orders which may not be executed. Further, a financial instrument may be manipulated through behaviour which occurs outside a trading venue. Therefore, persons who professionally arrange or execute transactions and are required to have systems in place to detect and report suspicious transactions should also report suspicious orders and suspicious transactions that take place outside a trading venue.
Amendment 100 #
Proposal for a regulation
Recital 23
Recital 23
(23) Manipulation or attempted manipulation of financial instruments may also consist in disseminating false or misleading information. The spreading of false or misleading information can have a significant impact on the prices of financial instruments in a relatively short period of time. It may consist in the invention of manifestly false information, but also the wilful omission of material facts, as well as the knowingly inaccurate reporting of information. This form of market manipulation is particularly harmful to investors, because it causes them to base their investment decisions on incorrect or distorted information. It is also harmful to issuers, because it reduces the trust in the available information related to them. A lack of market trust can in turn jeopardise an issuer's ability to issue new financial instruments or to secure credit from other market participants in order to finance its operations. Information spreads through the market place very quickly. As a result, the harm to investors and issuers may persist for a relatively long-time until the information is found to be false or misleading, and can be corrected by the issuer or those responsible for its dissemination. It is therefore necessary to qualify the spreading of false or misleading information, including rumours and false or misleading news, as being a breach of this Regulation. It is therefore appropriate not to allow those active in the financial markets to freely express information contrary to their own opinion or better judgement, which they know or should know to be false or misleading, to the detriment of investors and issuers.
Amendment 102 #
Proposal for a regulation
Recital 25
Recital 25
(25) At times, where a financial institution is receiving emergency lending assistance, it may be in the best interest of financial stability for the disclosure of inside information to be delayed when the information is of systemic importance. It should therefore be possible for the competent authority to authorisdecide a delay in the disclosure of inside information.
Amendment 103 #
Proposal for a regulation
Recital 25 a (new)
Recital 25 a (new)
(25 a) In respect to financial institutions, notably where they are receiving central bank lending including emergency liquidity assistance, the assessment of whether the information is of systemic importance and whether a delay of disclosure is in the public interest should be made in close cooperation with the relevant central bank, the competent authority supervising the issuer and, as appropriate, the national macro- prudential authority.
Amendment 124 #
Proposal for a regulation
Recital 39
Recital 39
(39) This Regulation respects the fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union as enshrined in the Treaty, notably the right to respect for private and family life, the right to the protection of personal data, the freedom of expression and information, the freedom to conduct a business, the right to an effective remedy and to a fair trial, the presumption of innocence and right of defence, the principles of legality and proportionality of criminal offences and penalties, and the right not to be tried or punished twice for the same offence. Limitations placed on these rights are in accordance with article 52(1) of the Charter as they are necessary to ensure the general interest objectives of the protection of investors and the integrity of financial markets, and appropriate safeguards are provided to ensure that rights are limited only to the extent necessary to meet these objectives and by measures that are proportionate to the objective to be met. In particular, reporting of suspicious transactions is necessary to ensure that competent authorities may detect and sanction market abuse. Prohibiting attempts to engage in market manipulation is necessary to enable competent authorities to sanction such attempts where they have evidence of intent to commit market manipulation, even in the absence ofMarket manipulations that have failed to produce an identifiable effect on market prices must be sanctioned. Access to data and telephone records is necessary to provide evidence and investigative leads on possible insider dealing or market manipulation, and therefore for the detection and sanctioning of market abuse. The conditions imposed by this Regulation ensure compliance with fundamental rights. Measures on whistleblowing are necessary to facilitate the detection of market abuse and to ensure the protection of the whistleblower and of the reported person, including the protection of their private life, personal data, and the right to be heard and to an effective remedy before a court. Introducing common minimum rules for administrative measures, sanctions and fines is necessary to ensure that comparable market abuse breaches are sanctioned in a comparable way and to ensure that sanctions imposed are proportionate to the breach. This Regulation does not in any way prevent Member States from applying their constitutional rules relating to freedom of the press and freedom of expression in the media and self-regulatory instruments which apply to journalistic professions.
Amendment 150 #
Proposal for a regulation
Article 5 – paragraph 1 – point 1 a (new)
Article 5 – paragraph 1 – point 1 a (new)
Amendment 156 #
Proposal for a regulation
Article 5 – paragraph 1 – point 19 a (new)
Article 5 – paragraph 1 – point 19 a (new)
19a. "significant distribution" means an initial or a secondary offer of securities that is distinct from ordinary trading both in terms of the amount in value of the securities to be offered and the selling method to be employed.
Amendment 161 #
Proposal for a regulation
Article 5 – paragraph 1 – subparagraph 1a (new)
Article 5 – paragraph 1 – subparagraph 1a (new)
For the purposes of applying points 10 and 11 of the first subparagraph, ESMA shall develop draft regulatory standards to determine for each type of commodity contract what the terms "promptly delivered" refer to.
Amendment 162 #
Proposal for a regulation
Article 5 – paragraph 1 – subparagraph 1b (new)
Article 5 – paragraph 1 – subparagraph 1b (new)
This regulation does not apply to information which is disseminated for the purposes of journalism.
Amendment 170 #
Proposal for a regulation
Article 6 – paragraph 1 – point e
Article 6 – paragraph 1 – point e
Amendment 178 #
Proposal for a regulation
Article 6 – paragraph 3 a (new)
Article 6 – paragraph 3 a (new)
3 a. For the purposes of applying point (b) of paragraph 1, ESMA shall develop draft regulatory standards to determine for each type of spot commodity market and commodity derivative the information required to be disclosed in accordance with legal or regulatory provisions at the Union or national level, market rules or customs.
Amendment 182 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. For the purposes of this Regulation, insider dealings arises where a person possesses inside information and uses that information by issuing an order to acquire or dispose of, or by acquiring or disposing of, for his own account or for the account of a third party, either directly or indirectly, financial instruments to which that information relates. The use of inside information to cancel or amend an order concerning a financial instrument to which the information relates where the order was placed before the person concerned possessed the inside information, shall also be considered as insider dealing.
Amendment 183 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
Amendment 192 #
Proposal for a regulation
Article 7 – paragraph 6
Article 7 – paragraph 6
6. Where the person referred to in paragraph 1 and 2 is a legal person, the provisions of those paragraphs shall also apply to the natural persons who possess inside information and who take part in or influence the decision to carry out, or attempt to carry out, the acquisition or disposal for the account of the legal person concerned.
Amendment 204 #
Proposal for a regulation
Article 7 – paragraph 9
Article 7 – paragraph 9
9. In relation to auctions of emission allowances or other auctioned products based thereon that are held pursuant to Regulation (No) 1031/2010, the prohibition under paragraph 1 shall also apply to the use of insideinsider dealing arises where a person possesses inside information and uses that information by submitting, modifying or withdrawing a bid for its own account of the person that possesses inside information or for the account of a third party.
Amendment 218 #
Proposal for a regulation
Article 8 – paragraph 1 – point b
Article 8 – paragraph 1 – point b
(b) entering into a transaction, placing an order to trade or any other behaviour affecting, or likely to affect, the price of one or several financial instruments or a related spot commodity contract, which employs a fictitious device or any other form of deception or contrivance; or
Amendment 221 #
Proposal for a regulation
Article 8 – paragraph 1 – point c – introductory part
Article 8 – paragraph 1 – point c – introductory part
(c) disseminating information through the media, including the Internet, or by any other means, which has, or is likely to have, the consequences referred to in subparagraph (a), where the person who made the dissemination knew, or ought to have known, that the information was false or misleading. When information is disseminated for the purposes of journalism, such dissemination of information shall be assessed taking into account the rules governing the freedom of the press and freedom of expression in other media, unless:
Amendment 227 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
Amendment 242 #
Proposal for a regulation
Article 8 – paragraph 3 – point c – introductory part
Article 8 – paragraph 3 – point c – introductory part
(c) the sending of orders to a trading venue by means of algorithmic trading, including high frequency trading, without an intention to trade but for the purpose of:
Amendment 259 #
Proposal for a regulation
Article 9 – paragraph 1 – point a
Article 9 – paragraph 1 – point a
(a) engage or attempt to engage in insider dealing;
Amendment 261 #
Proposal for a regulation
Article 10
Article 10
A person shall not engage in market manipulation or attempt to engage in market manipulation.
Amendment 267 #
Proposal for a regulation
Article 11 – paragraph 2
Article 11 – paragraph 2
2. Any person professionally arranging or executing transactions in financial instruments shall have systems in place to detect and reporadopt and maintain effective arrangements and procedures to detect orders and transactions that might constitute insider dealing, market manipulation or an attempt to engage in market manipulation or insider dealing. If that person reasonably suspects that an order or transaction in any financial instrument, whether placed or executed on or outside a trading venue, might constitute insider dealing, market manipulation or an attempt to engage in market manipulation or insider dealing, the person shall notify the competent authority without delay.
Amendment 270 #
Proposal for a regulation
Article 11 – paragraph 2 a (new)
Article 11 – paragraph 2 a (new)
2 a. Member States shall ensure that competent authorities do not disclose to any person the identity of the person having notified these transactions, if disclosure would, or would be likely to harm the person having notified the transactions. This provision is without prejudice to the requirements of the enforcement and the sanctioning regimes under Directive 2003/6/EC and to the rules on transfer of personal data laid down in Directive 95/46/EC.
Amendment 272 #
Proposal for a regulation
Article 11 – paragraph 2 b (new)
Article 11 – paragraph 2 b (new)
2 b. The notification in good faith to the competent authority as referred to in Articles 7 to 10 shall not constitute a breach of any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision, and shall not involve the person notifying in liability of any kind related to such notification.
Amendment 273 #
Proposal for a regulation
Article 11 – paragraph 2 c (new)
Article 11 – paragraph 2 c (new)
2 c. A person in a professional capacity who intends to query one or more investors with a view to setting the terms of a possible future significant distribution or buy-back of securities in which it is acting at the request of an issuer or seller, shall maintain appropriate records of its queries. Prior to the query, should the information to be communicated be inside information, it shall obtain the investor's agreement to receive such information.
Amendment 275 #
Proposal for a regulation
Article 11 – paragraph 3 – subparagraph 1 a (new)
Article 11 – paragraph 3 – subparagraph 1 a (new)
The type of queries that are deemed to be carried out in the context of a possible future significant distribution or buy-back of securities on behalf of an issuer or seller and the recording arrangements that are appropriate to comply with the requirements established in paragraph 3.
Amendment 280 #
Proposal for a regulation
Article 12 – paragraph 2 – subparagraph 1 a (new)
Article 12 – paragraph 2 – subparagraph 1 a (new)
The first subparagraph shall not apply to an emission allowance market participant who has already made such disclosures in compliance with Regulation (EU) No 1227/2011 of the European Parliament and the Council on Wholesale Energy Market Integrity and Transparency.
Amendment 283 #
Proposal for a regulation
Article 12 – paragraph 5 – subparagraph 1 – introductory part
Article 12 – paragraph 5 – subparagraph 1 – introductory part
A competent authority may permit the delay bydecide that an issuer of a financial instrument of theshould delay public disclosure of inside information provided thatwhen the following conditions are satisfied:
Amendment 286 #
Proposal for a regulation
Article 12 – paragraph 5 – subparagraph 2
Article 12 – paragraph 5 – subparagraph 2
That permisdecision shall be in writing. The competent authority shall ensure that the delay is only for such period as is necessary in the public interest.
Amendment 287 #
Proposal for a regulation
Article 12 – paragraph 5 – subparagraph 2 a (new)
Article 12 – paragraph 5 – subparagraph 2 a (new)
The competent authority shall adopt the decision on its own initiative or on request from an issuer of financial instruments, and, with respect to financial institutions issuing financial instruments also on request of the relevant ESCB central bank, the authority supervising the issuer of financial instruments, or of the national macro-prudential authority.
Amendment 288 #
Proposal for a regulation
Article 12 – paragraph 5 – subparagraph 3
Article 12 – paragraph 5 – subparagraph 3
The competent authority shall at least once every week review whether the delay continues to be appropriate and shall revoke the authorisatits decision immediately if any of the conditions in points (a), (b) or (c) are no longer satisfied. With respect to financial institutions issuing financial instruments, the competent authority shall assess the fulfilment of the conditions in points (a), (b) or (c) in close cooperation with the relevant ESCB central bank, the authority supervising the issuer of financial instruments and, as appropriate, the national macro-prudential authority.
Amendment 301 #
Proposal for a regulation
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
1 a. Issuers referred to in paragraph 1 and persons acting on their behalf or for their account shall ensure when drawing such a list that any person on it acknowledges the legal and regulatory duties entailed and is aware of the sanctions attaching to the misuse or improper circulation of such information.
Amendment 308 #
Proposal for a regulation
Article 13 – paragraph 3 a (new)
Article 13 – paragraph 3 a (new)
3 a. Lists of insiders shall be kept for five years after being drawn up or updated.
Amendment 331 #
Proposal for a regulation
Article 15 a (new)
Article 15 a (new)
Article 15 a Article 15 shall not apply to information which is disseminated for the purposes of journalism.