BETA

34 Amendments of Gay MITCHELL related to 2013/0314(COD)

Proposal for a regulation
Recital 22

(22) Employees of the administrator may identify possible breaches of this Regulation or potential vulnerabilities that could lead to manipulation or attempted manipulation. This Regulation sh~~ould~~all therefore ensure that adequate arrangements are in place, and, in particular, a whistleblowing procedure, to enable employees to alert administrators confidentially of possible breaches of this Regulation.

2013/12/19
Committee: ECON

Proposal for a regulation
Recital 35

(35) The administrator should be authorised and supervised by the competent authority of the Member State where that administrator is located. ESMA shall be empowered to supervise critical interbank benchmarks. However, when a critical benchmark administrator is located in a Member State where sufficient national regulation and supervision on benchmarks is applicable, ESMA may delegate its supervisory powers to the national competent authority of the Member State where the administrator is located.

2013/12/19
Committee: ECON

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

2 a. National Statistic Authorities of European Union Member States

2013/12/19
Committee: ECON

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

2 b. National Statistic Authorities of third countries

2013/12/19
Committee: ECON

Proposal for a regulation
Article 3 – paragraph 1 – point 2 a (new)

(2 a) ESMA shall develop draft regulatory technical standards to determine: (a) the definition of the Union trading venue to include any other relevant quoting or trading platforms, and instances where regulated data may include Net Asset Value or data from public filings under the accounting directives and any appropriate corresponding derogation under Article 7(1) of Directive 2013/34/EU of the European Parliament and the Council 18a; (b) an updated list of criteria for major benchmarks as appropriate, taking into account the impact on consumers and the potential threat to market integrity based on: (i) the number and variety of users of the benchmark and sub-benchmarks; (ii) the volume and variety of financial contracts that reference the benchmark and sub-benchmarks; (iii) the volume of financial contracts referenced or admitted to trading or traded on a Union trading venue, in absolute terms and relative to the volume of transactions in the underlying interest measured by the benchmark; (iv) whether to include other financial assets as defined in international accounting standard 32 or to adjust the thresholds in points (21) and (22). ESMA shall submit those draft regulatory technical standards to the Commission by [...]. 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. __________________ 18a Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19)

2013/12/19
Committee: ECON

Proposal for a regulation
Article 3 – paragraph 1 – point 21 a (new)

(21 a) 'major benchmark' means a benchmark that references financial instruments admitted to trading or traded on a Union trading venue, or other financial assets as defined in international accounting standards IAS 32, excluding physical and physically delivered commodities, having a large impact on retail markets, consumers and the potential to threaten market integrity, as provided in ESMA's draft regulatory standards under Article 3 paragraph 2 a

2013/12/19
Committee: ECON

Proposal for a regulation
Article 5 – paragraph 1 a (new)

1 a. Administrators of the following qualifying benchmark categories shall be subject to the requirements of this Regulation: (a) critical benchmarks; (b) major benchmarks as per ESMA's draft regulatory standards under Article 3 paragraph 2 (a); (c) benchmarks which the competent authority has investigated and concluded by way of a reasoned decision requires supervision due to its vulnerability; (d) substantial numbers of benchmarks which the competent authority or ESMA considers collectively have significant single market impact; ESMA shall provide guidelines for competent authorities concerning the application of the criteria in points (b) (c) and (d). Those guidelines shall include lists of exempted types of institutions which shall include identification of the corresponding governance controls.

2013/12/19
Committee: ECON

Proposal for a regulation
Article 8 – paragraph 3 a (new)

3 a. A comprehensive external process for reporting potential breaches shall be put in place, including breaches of the [Market Abuse Regulation or Directive] and a whistleblowing procedure for benchmarking, whereby whistleblowers may report directly to ESMA or the relevant Member State competent authority without fear of retaliation. This Regulation shall therefore ensure that adequate arrangements are in place to enable whistleblowers to alert ESMA or the relevant Member State competent authority to possible breaches of this Regulation and to protect them from retaliation.

2013/12/19
Committee: ECON

Proposal for a regulation
Article 9 – paragraph 2

2. The code of conduct shall be signed by the administrator and the contributors and shall be legally binding on all parties to it insofar as it is practicable. The administrator shall demonstrate to the competent authority that a code of conduct is in place for its contributors and shall explain to the satisfaction of the competent authority circumstances where the contributors claim it is not practicable.

2013/12/19
Committee: ECON

Proposal for a regulation
Article 9 – paragraph 2 a (new)

2 a. The code of conduct shall be legally binding for submitters of critical benchmarks.

2013/12/19
Committee: ECON

Proposal for a regulation
Title 3 – chapter 2 – title

Critical and major benchmarks

2013/12/20
Committee: ECON

Proposal for a regulation
Article 13 – title

Critical and major benchmarks

2013/12/20
Committee: ECON

Proposal for a regulation
Article 13 – paragraph 1 a (new)

1a. The Commission shall adopt a list of benchmarks located within the Union which are major benchmarks, in accordance with the definition of major benchmarks as per Article 3, paragraph 1, point 21 a (new). Those implementing acts shall be adopted in accordance with the examination procedure as provided for in Articles 37 and 38.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 13 – paragraph 2

2. Within 5 working days from the date of application of the decision including a ~~critical~~major benchmark in the list referred to in paragraph 1a of this Article, the administrator of that ~~critical~~major 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 a~~djust~~mend the code of conduct to ensure that it complies with the requirements of this Regulation within 30 days of such a request.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 13 – paragraph 2 a (new)

2a. Within 5 working days from the date of application of the decision including a critical benchmark in the list referred to in paragraph 1 of this Article, the administrator of that critical benchmark shall notify the code of conduct to ESMA, or the relevant competent authority, in the case where ESMA has delegated power, as provided for in Recital 35. ESMA or 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 cases where ESMA or the relevant competent authority find elements which do not comply with the requirements of this Regulation, it shall inform the administrator. The administrator shall amend the code of conduct to ensure that it complies with the requirements of this Regulation within 30 days of such a request.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 14 – title

Mandatory contribution for critical benchmarks

2013/12/20
Committee: ECON

Proposal for a regulation
Article 14 – paragraph 1 – introductory part

1. Where contributors, comprising at least 20% of the contributors to a critical benchmark have ceased contributing, or there are sufficient indications that at least 20% of the contributors are likely to cease contributing, in any year, as provided for in recital 35, ESMA or the competent authority, of the administrator of a critical benchmark shall have the power to:

2013/12/20
Committee: ECON

Proposal for a regulation
Article 14 – paragraph 2 – introductory part

2. For a critical benchmark, the supervised entities that are required to contribute in accordance with paragraph 1 shall be determined by ESMA or the competent authority of the administrator on the basis of the following criteria:

2013/12/20
Committee: ECON

Proposal for a regulation
Article 14 – paragraph 4 – introductory part

4. TESMA or the competent authority of the administrator shall review each measure adopted under paragraph 1 one year following its adoption. It shall revoke it if:

2013/12/20
Committee: ECON

Proposal for a regulation
Article 14 – paragraph 5

5. The administrator shall notify ESMA or the relevant competent authority in the event that any contributors breach the requirements of paragraph 1 of this Article as soon as is technically possible.

2013/12/20
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 or integrity 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.of a critical benchmark shall publish, in the public interest, the input data and methodology used to determine the benchmark immediately after publication of the benchmark

2013/12/20
Committee: ECON

Proposal for a regulation
Article 16 – paragraph 1 a (new)

1a. Where the input data used in the calculation and determination methodology of a benchmark is regulated data as defined in Article 3.1 (11), the administrator shall not be required to publish said input data as required by ESMA’s draft regulatory technical standards

2013/12/20
Committee: ECON

Proposal for a regulation
Article 16 – paragraph 1 b (new)

1b. Where a benchmark is neither a critical benchmark or a benchmark compiled from regulated data, ESMA’s draft regulatory standards shall determine whether the benchmark administrator must publish information relating to the input data and methodology, as provided in Article 16.2

2013/12/20
Committee: ECON

Proposal for a regulation
Article 16 – paragraph 1 c (new)

1c. Where publication would have serious adverse consequences for the contributors or adversely affect the reliability and integrity of the benchmark, ESMA or the competent authority shall make a determination on whether the administrators of these benchmarks shall be exempt from publishing the information.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 16 – paragraph 2

2. ~~The Commission shall be empowered to ad~~ESMA shall developt d~~elegated acts in accordance with Article 37~~raft regulatory technical standards concerning measures to further specify the information to be disclosed in accordance with paragraph 1, (b), which shall be proportionate considering the source of the data and the methodology used to compile the benchmarks. The measures shall take into account the means of publication as well as the circumstances when publication may be delayed and the means by which it shall be transmitted.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 20 – paragraph 1 – introductory part

1. Benchmarks provided by an administrator established in a third country may be used by supervised entities in the Union ~~provided that the following conditions are complied with:~~ . Where such benchmarks would have, by analogy, fallen within the qualifying benchmark categories referred to in Article 5 (1) (a) they may be used provided that the legal framework, supervisory practice, or rules of the producer or administrator of the benchmark in that third country comply with IOSCO principles for financial benchmarks or other international standards for benchmarks. The supervised entity shall notify its competent authority and ESMA of the actual or prospective benchmarks and of the basis on which it relies to demonstrate compliance with IOSCO or international standards for benchmarks. ESMA shall maintain a register of third countries and benchmark providers that it considers can be relied upon as a basis for compliance with international standards without further evidence. ESMA shall update that list using its own information and taking into account evidence submitted by supervised entities. In the event of a dispute between competent authorities of Member States concerning the use of a third-country benchmark by a supervised entity that has extensive cross- border use, ESMA may conduct binding mediation. Where the benchmarks of a third country administrator are used within the European Union, such third country administrator may be permitted by ESMA to make a public statement declaring compliance with IOSCO or international standards for benchmarks. This statement shall be capable of being subjected to legal remedy for those who rely on it, should it be false. By ...* [OJ please insert date: Six months before the date of application of this Regulation] ESMA shall produce a report on the implementation of IOSCO principles.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 20 a (new)

Article 20 a By way of derogation from paragraph 2, and even if the criteria specified in accordance with paragraph 1 have not been fulfilled, the Commission may, for the period set out in paragraph 20 (b), decide that the legal framework and supervisory practice of a third country in which the administrator is established, is provisionally equivalent to that laid down in this regulation if the following criteria are met: (a) the legal framework or supervisory practice in the third country, in principle, allows for the cooperation and exchange of confidential supervisory information with ESMA and supervisory authorities as defined in this Regulation; (b) the third country has an independent system of financial market supervision; ESMA shall publish and keep up to date on its website a list of all third countries referred to in the first subparagraph.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 20 b (new)

Article 20 b The initial period of the provisional equivalence referred to in paragraph 5 shall be 5 years from the date of publication in the Official Journal, unless before the expiry of that period: (a) that decision has been revoked; or (b) a decision in accordance with paragraph 2, that the legal framework and supervisory practice of that third country has been deemed to be equivalent to that laid down this regulation, has been taken.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 22 – paragraph 2

2. An authorised administrator shall comply at all times with the conditions for authorisation and shall notify the competent authority or in the case of critical benchmarks, ESMA, as provided for by Recital 35, of any material changes to the conditions for initial authorisation.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 23 – paragraph 1

1. The administrator shall submit an application for authorisation to the competent authority of the Member State in which the administrator is located. In the case of critical benchmarks, ESMA shall be the competent authority unless a Member State has sufficient national regulation and supervision of benchmarks and ESMA has delegated power to the competent authority of that Member State, as provided for by Recital 35.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 29 – paragraph 1

1. For critical benchmarks, the relevant competent authority shall be ESMA, unless power has been delegated to the national competent authority as provided for by Recital 35. For administrators and supervised contributors, each Member State shall designate the relevant competent authority responsible for carrying out the duties resulting from this Regulation and shall inform the Commission and ESMA thereof.

2013/12/20
Committee: ECON

Proposal for a regulation
Article 34 – paragraph 1

1. As provided for by Recital 35, ESMA shall supervise critical benchmarks, unless it has delegated power to a competent authority. In such circumstances where ESMA has delegated the power to the competent authority, the following provisions shall apply: Within 30 working days from the entry into force of the decision referred to in Article 13(1) determining a benchmark as critical benchmark, the competent authority shall establish a college of competent authorities.

2013/12/20
Committee: ECON

Proposal for a regulation
Annex 1 – section 1 – part IV – point 20 a (new)

20a. An administrator shall establish effective internal control mechanisms, in particular an effective whistleblowing mechanism as well as complaints procedure in order to facilitate early reporting of misconduct or manipulation;

2013/12/20
Committee: ECON

Proposal for a regulation
Annex 1 – section 5 – point 2 a (new)

2a. A supervised contributor shall establish internal procedures to address the issue of non-compliance, including an effective whistleblowing policy.

2013/12/20
Committee: ECON