39 Amendments of Billy KELLEHER related to 2021/0378(COD)
Amendment 75 #
Proposal for a regulation
Recital 3
Recital 3
(3) ESAP should provide the public with an easy centralised access to information about entities and their products that is made public in relation to financial services, capital markets and sustainability. ESAP should also provide access to information relevant to financial services and capital markets that is made public on a voluntary basis by any entity governed by the law of a Member State, where such entity chooses to make that information accessible on ESAP. As presented in the Digital Finance Strategy, ESAP should be established as from 2024ESAP should be established as from 2025. It should also allow for more retail-oriented accessibility of relevant information in order to meet growing demand for quality information, in particular when it comes to sustainability. That should translate into an interface that is as user-friendly as possible, with a high degree of data comparability, and search criteria that are relevant to retail investors.
Amendment 81 #
Proposal for a regulation
Recital 4
Recital 4
(4) The information to be made publicly accessible on ESAP should be collected by collection bodies designated for the purpose of collecting the information that the entities are under an obligation to make public. In order to ensure the efficient functioning of ESAP, the collection bodies should make the information available to ESAP in automated ways through a single application programming interface. For the information to be digitally usable and searchable, entities should make such information available in a data extractable format or, where required by Union law, in a machine- readable format. Compared to data extractable formats, machine-readable formats are file formats structured so that software applications can easily identify, recognise and extract specific data, including individual statements of fact, and their internal structure. To ensure that entities submit the information in the correct format and to address possible technical issues encountered by the entities, the collection bodies should provide technical assistance to those entities.
Amendment 85 #
Proposal for a regulation
Recital 5
Recital 5
(5) Apart from the information in relation to financial services, capital markets and sustainability that has to be made public under Union law, investors, market participants, advisors, academia and the public at large may have an interest in obtaining other information that an entity wants to make accessible. Small and medium-sized enterprises, that are not subject to the mandatory disclosure requirements under Union law, may want to make more information publicly accessible in order to become more visible to potential investors and thereby increase funding and diversify funding opportunities. Also, market participants may want to provide more information than that required by law or to make public the information required by national law but not available at Union level in order to complement the information provided to the public at the Union level. Any entity should therefore be allowed to make financial, sustainability- related and other relevant information accessible on ESAP. Pursuant to the principle of data miniSuch voluntary submisatsion, entities should ensure that no personal data are included, except where those data constitute a necessary element of the information about their economic activities, including when the name of the entity coincides with the name of the owner. Where such information contains personal data, the entities should ensure that they can rely for such disclosure on one of the lawful grounds of processing laid down in Article 6 of Regulation (EU) 2016/679 of the European Parliament and of the Council26 . _________________ 26 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1) should, nonetheless, be subject to the same format and data quality requirements so as not to jeopardise the integrity of the ESAP. Moreover, entities that are not subject to mandatory reporting, in accordance with the Union law listed in the Annex to this Regulation, that choose to voluntarily submit information corresponding to that due under Union law, should ensure that they submit a complete data set to facilitate comparison and contextualise the data.
Amendment 88 #
Proposal for a regulation
Recital 5 a (new)
Recital 5 a (new)
(5 a) Pursuant to the principle of data minimisation, entities should ensure that no personal data are included, except where those data constitute a necessary element of the information about their economic activities, including when the name of the entity coincides with the name of the owner. Where such information contains personal data, the entities should ensure that they can rely for such disclosure on one of the lawful grounds of processing laid down in Article 6 of Regulation (EU) 2016/679 of the European Parliament and of the Council1a . _________________ 1a Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).
Amendment 89 #
Proposal for a regulation
Recital 7
Recital 7
(7) In order to enable entities and the public to identify the collection bodies providing information to ESAP, ESMA should publish on its website a list of the collection bodies and keep it up to date. The designation of collection bodies should be at the discretion of Member States but should respect the “file-once principle”.
Amendment 91 #
Proposal for a regulation
Recital 8
Recital 8
(8) ESAP risks being subject to confidentiality breaches, integrity risks or risks on availability of the system and on the information processed therein. Those threats include accidents, errors, deliberate attacks and natural events, and need to be recognised as operational risks. ESMA, and the collection bodies, should implement appropriate and proportionate policies to ensure that ESAPthe protectsion of the information processed and functions as needed.
Amendment 92 #
Proposal for a regulation
Recital 9
Recital 9
(9) To facilitate the searching, finding, retrieving and use of data, ESMA should ensure that ESAP offers a set of functionalities, including a search function, machine translation and possibilities to extract the information. The search functions should be offered in all the official languages of the Union and build at least on the metadata provided pursuant to the directives and regulations listed in the Annex. By 31 December 20245, ESMA should ensure that ESAP provides users with a minimum set of functionalities, to be completed by 31 December 20256.
Amendment 94 #
Proposal for a regulation
Recital 9 a (new)
Recital 9 a (new)
(9 a) When designing the user inter- face for ESAP, it should be borne in mind that it will potentially have a broad range of users, including both professional and retail investors, as well as academic institutions and civil society organisations. Therefore, the user- interface and search function should be designed in a manner that caters for a broad range of potential users.
Amendment 97 #
Proposal for a regulation
Recital 10
Recital 10
(10) Re-using information that is available on ESAP can improve the functioning of the internal market and promote the development of new services that combine and make use of such information. It is therefore necessary, where justified on grounds of a public interest objective, to allow re-use of the information that is available on ESAP for purposes other than the purposes for which the information was drawn up. However,, unless it is justified on grounds of a public interest objective to place conditions on the use and re-use of that information. These conditions should be subject to objective, proportionate and non- discriminatory conditions. For that purpose, conditions corresponding to those laid down in open, standard licences within the meaning of Directive (EU) 2019/1024 of the European Parliament and of the Council27 should apply. The licensing terms of those standard licences should allow for data and content to be freely accessible, used, modified and shared by anyone for any purpose. ESMA should bear no liability for the use and re-use of information accessible on ESAP. The submission of information by the collection bodies should either not be subject to conditions or be subject to an open standard licence enabling the licensing terms applying for information accessible in the ESAP. _________________ 27 Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information (OJ L 172, 26.6.2019, p. 56).
Amendment 99 #
Proposal for a regulation
Recital 11 a (new)
Recital 11 a (new)
(11 a) The validation procedure should be limited to verifying compliance with this Regulation, including the formatting requirements. Collection bodies should not be responsible for verifying the accuracy of the content of the information, unless mandated to do so in accordance with the relevant Union law listed in the Annex to this Regulation. Entities subject to mandatory reporting should be responsible for ensuring the accuracy of the information submitted owing to their legal obligations under the relevant Union law listed in the Annex to this Regulation or national law.
Amendment 102 #
Proposal for a regulation
Recital 12
Recital 12
(12) ESAP should provide users with access to information for free and without discrimination and should make it possible for those users to search, access and download the information through ESAP. However, taking into account the need to protect ESMA from an excessive financial burden in relation to costs incurred for serving the needs of intensive users, if any, ESMA should have the ability to generate revenues. Therefore, by way of derogation from the principle that information should be accessible free of charge, ESMA should be allowed to impose fees for those specific services, including for services with high maintenance costs due to searches for and downloads of very large volumes of information or to frequent access to ESAP. Public bodies, academic institutions, and civil society organisations should not be subject to fees. The calculation of fees should be transparent and based on clear principles. Any fees imposed should, however, not exceed the cost of the service provided.
Amendment 109 #
Proposal for a regulation
Recital 15
Recital 15
(15) In order to build and maintain public trust in ESAP and to protect each entity from undue alteration of its information, ESAP should ensure data integrity and credibility of the source of the information submitted to the collection bodies. Therefore, information submitted by the entities should include a qualified electronic seal attached to the information submitted as defined in Article 3(20), of Regulation (EU) No 910/2014 of the European Parliament and of the Council29 . A specific legal entity identifier may be a mandatory attribute of that certificate. That seal or signature acquired by ESAP should be made available to users. Where available, the legal entity identifier should be based on a globally recognised standard in order to facilitate interoperability. _________________ 29 Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market and repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73).
Amendment 113 #
Proposal for a regulation
Recital 16
Recital 16
(16) In order for the information to be comparable over time, users should have access to past information. It is therefore necessary to require ESAP to provide access to information for a reasonable period of time, to the extent compatible with other applicable provisions of Union law. For that purpose, ESMA should ensure that no personal data are made accessible for longer than necessary as provided for under Union law. In order to enable ESMA and the collection bodies to prepare the operation of ESAP, ESAP should only provide access to the information submitted as from 1 January 20245.
Amendment 114 #
Proposal for a regulation
Recital 17
Recital 17
(17) To ensure a smooth processing of the information received or drawn-up by the collection bodies and made available to ESAP, it is necessary to lay down certain clear and detailed requirements specifying the format and the metadata of that information and which collection bodies should collect such information. In order to ensure the quality of the information submitted to ESAP by the collection bodies, it is also necessary to define the characteristics of the automated validations to be carried out on each information reaching the collection bodies, and the characteristics of the qualified electronic seal to be attached to that information by the entities. To ensure the use and re-use of data on ESAP, a list of the designated open standard licences would need to be defined. To facilitate the searching, finding, retrieving of the data in a timely manner, the characteristics of the application programming interface and the metadata to be implemented will also need to be designed. Additional requirements as regards efficient search functions will need to be implemented such as the specific legal entity identifier, the classification of the type of information, and the categories of the size of the entities. To that purpose, the Joint Committee of the European Supervisory Authorities should develop draft implementing technical standards. Additionally, ESMA might develop draft implementing technical standards to determine the nature and extent of the specific services for which fees may be charged and the associated fee structureIn respect of standards concerning sustainability information, the Joint Committee of the European Supervisory Authorities should consult the European Financial Reporting Advisory Group (EFRAG) on the development of these draft implementing standards, in particular on standards defining requirements for the accessibility formats of sustainability information. All standards should seek to make ESAP future-proof and consider potential interoperability at a global level in the future, thus should draw upon global standards and best practices where relevant. Additionally, ESMA might develop draft implementing technical standards to determine the nature and extent of the specific services for which fees may be charged and the associated fee structure. To ensure full transparency of the cases when fees may be charged, ESMA should make public and easily available on ESAP the thresholds of volumes of information and the frequencies above which those fees apply. The Commission should be empowered to adopt those implementing technical standards by means of implementing acts pursuant to Article 291 TFEU and in accordance with Article 15 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council30 , No 1094/2010 of the European Parliament and of the Council31 and No 1095/2010 of the European Parliament and of the Council32 . _________________ 30 Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ L 331, 15.12.2010, p. 12). 31 Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC (OJ L 331, 15.12.2010, p. 48). 32 Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).
Amendment 123 #
Proposal for a regulation
Article 1 – paragraph 1 – introductory part
Article 1 – paragraph 1 – introductory part
1. By 31 December 20245, the European Securities and Markets Authority (ESMA) shall establish and operate a European single access point (“ESAP”) providing centralised electronic access to the following information:
Amendment 128 #
Proposal for a regulation
Article 1 – paragraph 2
Article 1 – paragraph 2
2. ESAP shall not provide access to information submitted before 1 January 20245.
Amendment 129 #
Proposal for a regulation
Article 2 – paragraph 1 – point 7
Article 2 – paragraph 1 – point 7
(7) ‘metadata’ means structured information that makes it easier to retrieve, use, contextualise or manage an information resource, including by describing, explaining, or locating that information resource.
Amendment 134 #
Proposal for a regulation
Article 3 – paragraph 1 – introductory part
Article 3 – paragraph 1 – introductory part
1. Any natural or legal person may submit to a collection body the information referred to in Article 1(1), point (b) to make that information accessible on ESAP. When submitting that information, the natural or legal person shall:
Amendment 136 #
Proposal for a regulation
Article 3 – paragraph 1 – point a a (new)
Article 3 – paragraph 1 – point a a (new)
(a a) Specify that the information submitted is done so on a voluntary basis;
Amendment 137 #
Proposal for a regulation
Article 3 – paragraph 1 – point c
Article 3 – paragraph 1 – point c
(c) use, at least, a data extractable format for drawing up that information;
Amendment 138 #
Proposal for a regulation
Article 3 – paragraph 1 – point d
Article 3 – paragraph 1 – point d
(d) ensure that no personal data are included, except where the personal data constitute a necessary element of the information about its economic activities, including when the name of the entity coincides with the name of the owner. If personal data is justifiably included, this shall be specified.
Amendment 140 #
Proposal for a regulation
Article 3 – paragraph 1 – subparagraph 1 (new)
Article 3 – paragraph 1 – subparagraph 1 (new)
Information submitted on a voluntary basis that corresponds to the information referred to in Article(1), point (a), must be done so in a manner that ensures the information is comprehensive, contextualised, and comparable with information submitted on a mandatory basis.
Amendment 147 #
Proposal for a regulation
Article 3 – paragraph 2 – point c a (new)
Article 3 – paragraph 2 – point c a (new)
(c a) the minimum data fields that must be completed if information corresponding to that referred to in Article 1(1), point (a) is submitted on a voluntary basis.
Amendment 154 #
Proposal for a regulation
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2 a. If necessary, the Joint Committee of the European Supervisory Authorities shall adopt guidance for entities to ensure the metadata submitted is relevant.
Amendment 165 #
Proposal for a regulation
Article 5 – paragraph 1 – point f – paragraph 1 – subparagraph 1 (new)
Article 5 – paragraph 1 – point f – paragraph 1 – subparagraph 1 (new)
For the purpose of point (fa), the collection body shall notify ESMA if information is removed or replaced. This notification shall remain available for 6 months.
Amendment 166 #
Proposal for a regulation
Article 5 – paragraph 1 – point f a (new)
Article 5 – paragraph 1 – point f a (new)
(f a) remove any information that is notified to the collecting body as being false or containing errors.
Amendment 170 #
Proposal for a regulation
Article 5 – paragraph 2 – subparagraph 1 (new)
Article 5 – paragraph 2 – subparagraph 1 (new)
Collection bodies shall notify the entities of the rejection and the reasons thereof within a reasonable timeframe.
Amendment 171 #
Proposal for a regulation
Article 5 – paragraph 4
Article 5 – paragraph 4
4. Entities shallubject to mandatory reporting shall be responsible for ensuring the accuracy of the information submitted owing to their legal obligations under the relevant Union law listed in the Annex to this Regulation or national law. Entities shall also ensure the accuracy of the information they submit to the collection bodies on a voluntary basis.
Amendment 175 #
Proposal for a regulation
Article 5 – paragraph 5
Article 5 – paragraph 5
5. As regards the information falling under this Regulation, the collection bodies shall not exercise the right of the maker of a database, referred to in Article 7(1) of Directive 96/9/EC of the European Parliament and of the Council33 , tor any other intellectual property rights, in a way that prevents or restricts the use and re- use of the contents of the database or to restrict re- use of those contentspursuant to Article 9. _________________ 33 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ L 77, 27.3.1996, p. 20).
Amendment 181 #
Proposal for a regulation
Article 7 – paragraph 3 – point b
Article 7 – paragraph 3 – point b
(b) the legal entity identifier of the entity that submitted the information and, where applicable, the legal entity identifier of its subsidiaries;
Amendment 184 #
Proposal for a regulation
Article 7 – paragraph 3 – point c
Article 7 – paragraph 3 – point c
(c) the type of information submitted by the entity that submitted the information;
Amendment 186 #
Proposal for a regulation
Article 7 – paragraph 3 – point e a (new)
Article 7 – paragraph 3 – point e a (new)
(e a) the country of establishment of the entity;
Amendment 187 #
Proposal for a regulation
Article 7 – paragraph 3 – point e b (new)
Article 7 – paragraph 3 – point e b (new)
(e b) the industry sector(s) of the entity’s economic activities;
Amendment 189 #
Proposal for a regulation
Article 7 – paragraph 4 – point d a (new)
Article 7 – paragraph 4 – point d a (new)
(d a) the categories of industry sectors referred to in paragraph 3, point (eb).
Amendment 190 #
Proposal for a regulation
Article 7 – paragraph 4 a (new)
Article 7 – paragraph 4 a (new)
4 a. To ensure consistency with the digital mark-up of sustainability information, for the purpose of paragraphs 1, 2 and 3, the Joint Committee of the European Supervisory Authorities shall consult the European Financial Reporting Advisory Group on the development of draft implementing standards pertaining to the disclosure of sustainability information.
Amendment 195 #
Proposal for a regulation
Article 8 – paragraph 2 – subparagraph 1
Article 8 – paragraph 2 – subparagraph 1
ESMA may, however, charge fees for specific services that involve searches and downloads for a very large volume of information or for frequently updated information, except when those services are used by civil society organisations, public bodies and academic institutions. Those fees shall not exceed the cost incurred by ESMA for the provision of the service.
Amendment 205 #
Proposal for a regulation
Article 8 – paragraph 4 a (new)
Article 8 – paragraph 4 a (new)
4 a. If ESMA decides to charge fees to certain users of ESAP or for certain services of ESAP, it shall publish and make easily accessible on the ESAP website the fee structure, the volume thresholds, if relevant, and rate, and review the rate and thresholds on an annual basis.
Amendment 209 #
Proposal for a regulation
Article 10 – paragraph 2
Article 10 – paragraph 2
2. ESMA shall implement appropriate technical processes to automatically notify a collection body that the information submitted does not comply with the requirements laid down in Article 5(1), point (b). The collection body shall notify the submitting entity of the rejection and the reasons for in accordance with Article 2(2), subparagraph 2.
Amendment 220 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
By [PO, please insert a date 5 years after the entry into force of this Regulation], the Commission shall review the functioning of ESAP and assess its effectiveness, taking into account the annual reports referred to in Article 12, review the functioning of ESAP and assess its effectiveness, including: - the contribution of ESAP to making entities, including SMEs, more visible to cross-border investors; - the interoperability of the ESAP with similar global or national initiatives; - the cost incurred by entities and collection bodies for reporting to ESAP; - the costs incurred by ESMA for operating ESAP; - the fee structure, if applicable; - the benefits, if any, of extending the scope of ESAP to allow third-country entities to voluntarily submit information in accordance with all legislation listed in the annex to this Regulation. The Commission shall report to the European Parliament and to the Council on the results of this review.