BETA

Activities of Sylvie GOULARD related to 2013/0314(COD)

Plenary speeches (1)

2016/11/22
Dossiers: 2013/0314(COD)

Amendments (34)

Proposal for a regulation
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 should be made subject to adequate governance and control requirements. Since benchmarks may be used in retail markets, restricting the scope by reference to currently important or vulnerable indices would not address the risks that any benchmark may pose to investor protection. Moreover, 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 used in retail markets or 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.

2013/12/19
Committee: ECON

Proposal for a regulation
Recital 9

(9) The critical determinant of the scope of this Regulation should be whether the output value of the benchmark determines the value of a financial instrument, financial contract or measures the performance of an investment fund. Therefore the scope should not be dependent on the nature of the input data. Benchmarks calculated from economic input data, such as share prices and non- economic number or values such as weather parameters should thus be included. The framework should cover those benchmarks subject to these risks, but should also provide for a proportionate response to the risks that different benchmarks pose. This Regulation should therefore cover all benchmarks which are used to price financial instruments and which are publisthed or ~~traded on regulated venues~~made available to the public, including those accessible through the internet whether free of charge or not.

2013/12/19
Committee: ECON

Proposal for a regulation
Recital 16 a (new)

(16 a) Benchmarks that are provided by national statistical authorities in the Union are subject to control by public authorities and meet principles, standards and procedures which ensure the accuracy, integrity and independence of their benchmarks as provided for by this Regulation. It is therefore not necessary that these benchmarks should be subject to this Regulation.

2013/12/19
Committee: ECON

Proposal for a regulation
Recital 23

(23) Any discretion that can be exercised in providing input data creates an opportunity to manipulate a benchmark. Where the input data is transaction based data, there is less discretion and therefore the opportunity to manipulate the data is reduced. As a general rule benchmark administrators should therefore use actual transaction input data where possible but other data may be used in those cases where the transaction data is insufficient to ensure the integrity and accuracy of the benchmark or where a benchmark is not designed to represent transactions and the nature of the benchmark is such that data other than transaction data is used to reflect what the benchmark is designed to measure, provided that in all cases such data is verifiable.

2013/12/19
Committee: ECON

Proposal for a regulation
Recital 27

(27) Many benchmarks are determined from input data that is provided by regulated venues, energy exchanges and emission allowance auctions. These venues are subject to regulation and supervision that ensures the integrity of the input data, provides for governance requirements and procedures for the notification of breaches. Therefore, provided they are sourced from venues subject to post trade transparency requirements, including a third country market considered as equivalent to a regulated market in the Union, these benchmarks are released from certain obligations in order to avoid dual regulation and because their supervision ensures the integrity of the input data used.

2013/12/19
Committee: ECON

Proposal for a regulation
Recital 36

(36) In some circumstances a person may provide an index but be unaware that this index is being used as a reference for a financial instrument. This is particularly the case where the users and benchmark administrator are located in different Member States. It is therefore necessary that ~~competent author~~entities, whenever they ~~become aware of the use of a benchmark in a financial instrument, notify~~intend to use an index as a benchmark, verify with ESMA, acting as central coordinating authority ~~such as ESMA, who should notify the administrator~~, whether the provider of the index is an authorised or registered administrator and, if not, notify the provider of the index.

2013/12/19
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 2 – point b a (new)

(b a) National statistical authorities in the Union.

2013/12/19
Committee: ECON

Proposal for a regulation
Article 3 – paragraph 1 – point 1 – introductory part

(1) ‘'index’' means any rate or figure:

2013/12/19
Committee: ECON

Proposal for a regulation
Article 3 – paragraph 1 – point 1 – point a

(a) that is published or made available to the public; and

2013/12/19
Committee: ECON

Proposal for a regulation
Article 3 – paragraph 1 – point 1 – point b

(b) that is periodically or regularly determined, entirely or partially, by the application of a formula or any other method of calculation, or by an assessment; and

2013/12/19
Committee: ECON

Proposal for a regulation
Article 3 – paragraph 1 – point 1 – point c

(c) where this determination is made on the basis of the value of one or more underlying assets, or prices, including estimated prices, actual or estimated interest rates or other values or surveys.

2013/12/19
Committee: ECON

Proposal for a regulation
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 and which is mentioned in the marketing or legal documentation or in the investment objective or used as a trigger for a manager to calculate fees linked to the performance of an investment fund;

2013/12/19
Committee: ECON

Proposal for a regulation
Article 3 – paragraph 1 – point 11

(11) ‘'regulated data’' means input data that is sourced from venues subject to mandatory post trade transparency requirements and that is contributed directly from a trading venue as defined in point (25) of paragraph 1 of Article 2 of [MIFIR] or approved publication arrangement as defined in point (18) of paragraph 1 of Article 2 of [MIFIR ] or an approved reporting arrangement as defined in point (20) of paragraph 1 of Article 2 of [MIFIR] ~~in accordance with mandatory post trade data requirements~~ or an electricity exchange as referred to in point (j) of paragraph 1 of Article 37 of Directive 2009/72/EC19 or a natural gas exchange as referred to in point (j) of paragraph 1 of Article 41 of Directive 2009/73/EC20 or an auction platform referred to in Article 26 or in Article 30 of Regulation (EU) No 1031/2010 of the European Parliament and of the Council, or from a third country market considered as equivalent to a regulated market in accordance with Article 19(6) of Directive 2004/39/EC; __________________ 19 OJ L 211, 14.8.2009, p. 55. 20 OJ L 9, 14.8.2009, p. 112.

2013/12/19
Committee: ECON

Proposal for a regulation
Article 3 – paragraph 1 – point 13

(13) ‘'financial instrument’' means any of the instruments listed in Section C of Annex I to Directive 2004/39/EC ~~for which a request for admission to trading on a trading venue has been made or which are traded on a trading venue~~;

2013/12/19
Committee: ECON

Proposal for a regulation
Recital 34 a (new)

(34a) Given the strategic importance of critical benchmarks for the whole Union, it may be of interest to grant the ESMA with direct supervisory powers. It is in particular the case with the Euro Interbank Offered Rate (EURIBOR) or the London Interbank Offered Rate (LIBOR). However the ESMA may choose to delegate part or all of the responsibility for supervision. It may also decide to revoke this delegation.

2015/01/23
Committee: ECON

Proposal for a regulation
Article 4 – paragraph 2

~~2. This Regulation shall not apply to the administrator of a benchmark referred to in Article 25(3) in respect of that benchmark.~~deleted

2013/12/19
Committee: ECON

Proposal for a regulation
Article 5 – paragraph 3 – point b

(b) specific features of different types of benchmarks and administrators; taking into account in particular any authorisations the administrators may have;

2013/12/19
Committee: ECON

Proposal for a regulation
Article 6 – paragraph 2

2. Where outsourcing takes place,: - an administrator shall ensure that the outsourcing requirements set out in Section B of Annex 1 are satisfied; - a contributor shall define an internal control process to guarantee the effective availability of data which have to be stored.

2013/12/19
Committee: ECON

Proposal for a regulation
Article 7 – paragraph 1 – subparagraph 1 – point a – paragraph 1

The input data shall be transaction data. If available transaction data is not sufficient to represent accurately and reliably the market or economic reality that the benchmark is intended to measure, input data which is not transaction data may be used provided that such data is verifiable. An administrator is not prohibited from using data other than transaction data for a benchmark that is not designed to represent transactions and where the nature of the benchmark is such that data other than transaction data is used to reflect what the benchmark is designed to measure, provided that such data is verifiable.

2013/12/19
Committee: ECON

Proposal for a regulation
Article 7 – paragraph 1 – subparagraph 1 – point c

(c) Where the input data of a benchmark is not transaction data and a contributor is a party to more than 50% of value of transactions in the market which that the benchmark intends to measure, the administrator shall verify that the input data represents a market subject to competitive supply and demand forces. Where the administrator finds that the input dataThe administrator shall not use input data from contributors which does not ~~represent a market subject to competitive supply and demand forces, it shall ei~~comply with ther change the input data, the contributors or the methodology to ensure that the input data represents a market subject to competitive supply and demand forces, or cease to provide that benchmark (‘Market impact’)ode of conduct referred to in Article 9.

2015/01/23
Committee: ECON

Proposal for a regulation
Article 7 a (new)

Article 7a Transparency of Methodology 1. The administrator shall transparently develop, operate and administer the benchmark data and methodology. The administrator shall publish or make available, by means that ensure a fair and easy access: (i) the methodology used for each of the benchmark or family of benchmarks; (ii) the procedure for consulting on, and the rationale for, any proposed material change in its methodology and the rationale for such a change, including a definition of what constitutes a material change and when it will notify users of any changes. 2. Where such a publication would not be compatible with applicable intellectual property law, the methodology shall be made available to the relevant competent authority. 3. For non-critical benchmarks, the publication of the methodology and the procedure referred in points (i) and (ii) of paragraph 1 can be limited to persons who own financial instruments or are party to financial contracts referencing the benchmark or family of benchmarks, and the relevant competent authority.

2015/01/23
Committee: ECON

Proposal for a regulation
Article 16 – paragraph 1

1. An administrator shall publish the input data used to determine the benchmark immediately after publication of the benchmark ~~except where publication would have serious adverse consequences for the contributors or adversely affect the reliability~~without the name of the contributors. Complete contribution orf in~~tegrity of the benchmark. In such cases publication may be delayed for a period that significantly diminishes these consequences. Any personal data included in input data shall not be published.~~ put data, including the name of the contributors, shall be published within a 3-months delay, delay that can be extended by the administrator where publication would have serious adverse consequences for the contributors or adversely affect the reliability or integrity of the benchmark.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 12 a (new)

Article 12a Supervision of critical benchmarks by ESMA 1. ESMA shall be empowered to supervise critical benchmarks. It may delegate some or all of the responsibility for supervision to Member State competent authorities when appropriate, but shall be empowered to revoke the delegation, in order to assume direct supervision, where it is deemed appropriate such as for reasons of resource, supervisory consistency, at the reasoned request of the Commission or a Member State or in situation in which a competent authority does not or is not able to comply with this regulation. 2. When deciding to delegate some or all of the responsibility for supervision concerning critical benchmarks to a Member State competent authority, the ESMA may take into account, amongst other things: (i) whether there is a high concentration of contributors that are located or supervised within the Member State concerned; (ii) whether the supervision in the Member State is IOSCO compliant; (iii) and, in respect of benchmarks compiled from regulated data, whether there is a need for provisions on mandatory contributions pursuant to Article 14. 3. When deciding to delegate the exercise of the delegation or to revoke the delegation, the ESMA may take into account the opinion of the relevant competent authorities. When deciding to delegate the supervision of a critical benchmark, the ESMA may provide guidance for the exercise of the delegation. 4. When the ESMA exercises direct supervision of a critical benchmark, it shall charge fees to the administrators. Those fees shall fully cover ESMA's necessary expenditure relating to the registration and supervision.

2015/01/23
Committee: ECON

Proposal for a regulation
Article 17 – paragraph 1

1. An administrator shall publish a procedure concerning the actions to be taken by the administrator in the event of changes to or the cessation of a benchmark. This procedure shall be included in the code of conduct issued by the administrator

2013/12/20
Committee: ECON

Proposal for a regulation
Article 18 – paragraph 1

1. Where a supervised entity intends to enter into a financial contract with a consumer, that supervised entity shall first obtain the necessary information regarding the consumer’s, or the retail client’s or the potential retail client’s knowledge and experience with respect to the benchmark, his financial situation and his objectives in respect of that financial contract, and the benchmark statement published in accordance with Article 15 and shall assess whether referencing the financial contract to that benchmark is suitable for him.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 18 – paragraph 2

2. Where the supervised entity considers, on the basis of the assessment under paragraph 1, that the benchmark is not suitable for the consumer~~, the supervised entity shall warn the consumer~~ or the retail client or the potential retail client, the entity shall warn the consumer or the retail client or the potential retail client in writing with reasons.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 24 a (new)

Article 24 a Direct supervision by ESMA 1. By derogation to article 23, the authorisation for the Euro Interbank Offered Rate (EURIBOR) shall be submitted by the administrator to the ESMA. 2. On its own initiative or following a reasoned request by a competent authority or the Commission, the ESMA may also withdraw or suspend the authorisation of an administrator of a critical benchmark, referred to in article 13. That power should be limited to exceptional circumstances in which a competent authority does not or is not able to comply with this regulation. 3. When the ESMA exercises direct supervision of a critical benchmark, it shall charge fees to the administrators. Those fees shall fully cover ESMA’s necessary expenditure relating to the registration and supervision.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 25

Article 25 Notification to ESMA of use of an index in a financial instrument 1. Whenever a competent authority becomes aware that an index is being used as a reference to a financial instrument, or that a request for admission to trading has been made to a trading venue supervised by that competent authority in respect of a financial instrument that references an index, that competent authority shall notify ESMA within 10 working days. 2. Within 10 working days of any notification ESMA shall notify the relevant administrator of the benchmark providing full details of its use and requesting the administrator to confirm that it consents to this use of the benchmark within 10 working days. 3. Without prejudice to Article 30 [MIFIR], where the administrator does not confirm to ESMA its consent within the time limit set out in paragraph 2, ESMA shall notify the relevant competent authority which shall request that the trading venue withdraw the listing of that financial instrument or refuse its admission to trading within 10 working days. 4. ESMA shall publish on its website a list of all notifications under paragraphs 1, 2 and 3. ESMA shall develop draft implementing technical standards to determine the procedures and forms for exchange of information referred to in paragraph 1 and 2. ESMA shall submit the draft implementing technical standards referred to in the first subparagraphs to the Commission by [XXXX]. Power is conferred to the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation 1095/2010.deleted

2013/12/20
Committee: ECON

Proposal for a regulation
Article 25 a (new)

Article 25 a Initial use of an index as a benchmark Before an index is used by a supervised entity as a benchmark in the Union, the entity shall verify that the provider of the relevant index is referenced on the website of ESMA as an authorised or registered administrator in accordance with this Regulation. If this is not the case, the entity shall notify the provider of the relevant index providing full details of its intended use and requesting the provider of the index to confirm that it consents to the intended use of the index within 10 working days. In such circumstances, the index cannot be used by the entity as a benchmark in the Union without the prior consent of the provider of the index. In case of conflict, the national competent authority and ESMA shall be notified.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 27 a (new)

Article 27 a Cooperation between authorities 1. Competent authorities shall cooperate with each other and with ESMA, as well as EBA and EIOPA, where it is necessary for the purposes of this Regulation, unless one of the exceptions in paragraph 2 apply. In particular, they shall exchange information, without undue delay, and cooperate in investigation, supervision and enforcement activities. 2. A competent authority may refuse to act on a request for information or request to cooperate with an investigation in the following exceptional circumstances: (a) communication might adversely affect the security of the Member State addressed, in particular the fight against terrorism and other serious crimes; (b) complying would be likely to adversely affect its own investigation or enforcement activities or where applicable, a criminal investigation; (c) judicial proceedings have already been initiated in respect of the same actions and against the same persons before the authorities of the Member State addressed; or (d) a final judgment has already been delivered in relation to such persons for the same actions in the Member State addressed. 3. Competent authorities shall, on request, immediately supply any information required for the purpose referred to in paragraph 1. 4. Where a competent authority is convinced that acts contrary to the provisions of this Regulation are being, or have been, carried out on the territory of another Member State, it shall give notice of that fact in as specific a manner as possible to the competent authority of the other Member State and to ESMA.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 28 – paragraph 2

2. The competent authority making the request referred to in paragraph 1 ~~shall~~ may inform ESMA thereof. In the event of an investigation or inspection with cross- border effect, the competent authorities may request ESMA to coordinate the on- site inspection or investigation.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 20 – paragraph 2 a (new)

2a. Decisions by the Commission determining third-country legal regimes as equivalent to the requirements resulting from this Regulation should be adopted only if the legal regime of the third country provides for an effective equivalent system for the recognition of administrators authorised under foreign legal regimes implemented.

2015/01/23
Committee: ECON

Proposal for a regulation
Annex 1 – section 4 – point 1 – point c – indent 6 a (new)

- outsourcing

2013/12/20
Committee: ECON

Proposal for a regulation
Annex 2 – point 4 – point a – indent 3

– other related markets overnight index swaps, repurchase agreements, foreign exchange forwards, interest rate futures and options and central bank operations. However, central bank operations are included in transactions data only insofar as they are conducted in the framework of monetary policy.

2013/12/20
Committee: ECON