23 Amendments of Wolf KLINZ related to 2011/0298(COD)
Amendment 237 #
Proposal for a directive
Recital 13
Recital 13
(13) An investment firm executing client orders against own proprietary capital should be deemed a systematic internaliser, unless the transactions are carried out outside regulated markets, MTFs and OTFs on an occasional, ad hoc and irregular basis, or with client consent. Systematic internalisers should be defined as investment firms which, on an organised, frequent and systematic basis, deal on own account by executing client orders outside a regulated market, an MTF or an OTF. In order to ensure the objective and effective application of this definition to investment firms, any bilateral trading carried out with clients should be relevant and quantitative criteria should complement the qualitative criteria for the identification of investment firms required to register as systematic internalisers, laid down in Article 21 of Commission Regulation No 1287/2006 implementing Directive 2004/39/EC. While an OTF is any system or facility in which multiple third party buying and selling interests interact in the system, a systematic internaliser should not be allowed to bring together third party buying and selling interests.
Amendment 293 #
Proposal for a directive
Recital 52
Recital 52
(52) In order to give all relevant information to investors, it is appropriate to require investment firms providing investment advice to clarify the basis of the advice they provide, notably the range of products they consider in providing personal recommendations to clients, whether they provide investment advice on an independent basis and whether they provide the clients with the on-goingregular assessment of the suitability of the financial instruments recommended to them. It is also appropriate to require investment firms to explain their clients the reasons of the advice provided to them. In order to further define the regulatory framework for the provision of investment advice, while at the same time leaving choice to investment firms and clients, it is appropriate to establish the conditions for the provisions of this service when firms inform clients that the service is provided on an independent basis. In order to strengthen the protection of investors and increase clarity to clients as to the service they receive, it is appropriate to further restrictclarify the possibility for firms to accept or receive inducements from third parties, and particularly from issuers or product providers, when providing the service of investment advice on an independent basis and the service of portfolio management. In such cases, only limited non-monetary benefits such as training on the features of the products should be allowed subject to the condition that they do not impair the ability of investment firms to pursue the best interest of their clients, as further clarified in Directive 2006/73/EC.
Amendment 321 #
Proposal for a directive
Recital 73
Recital 73
(73) TUnless the legal and supervisory arrangements of a third country where a third country firm is authorised in are equivalent to the EU requirements, the provision of services to retail clients should always require the establishment of a branch in the Union. The establishment of the branch shall be subject to authorisation and supervision in the Union. Proper cooperation arrangements should be in place between the competent authority concerned and the competent authority in the third country. Sufficient initial capital should be at free disposal of the branch. Once authorised the branch should be subject to supervision in the Member State where the branch is established; the third country firm should be able to provide services in other Member States through the authorised and supervised branch, subject to a notification procedure. The provision of services without branches should be limited to eligible counterparties and professional clients. It should be subject to registration by ESMA and to supervision in the third country. Proper cooperation arrangements should be in place between ESMA and the competent authorities in the third country.
Amendment 329 #
Proposal for a directive
Recital 74
Recital 74
(74) The provision of this directive regulating the provision of services by third country firms from third countries not meeting the equivalence criteria in the Union should not affect the possibility for personretail clients established in the Union to receive investment services by a third country firm at their own exclusive initiative. When a third country firm provides services at own exclusive initiative of a personretail client established in the Union, the services should not be deemed as provided in the territory of the Union. In case a third country firm solicits clients or potential clients in the Union or promotes or advertises investment services or activities together with ancillary services in the Union, it should not be deemed as a service provided at the own exclusive initiative of the client.
Amendment 463 #
Proposal for a directive
Article 4 – paragraph 2 – point 12
Article 4 – paragraph 2 – point 12
12) ‘Small and medium-sized enterprise’ for the purposes of this Directive, means a company that had an average market capitalisation of less than EUR 1200 000 000 on the basis of end-year quotes for the previous three calendar years;
Amendment 475 #
Proposal for a directive
Article 4 – paragraph 2 – point 30 a (new)
Article 4 – paragraph 2 – point 30 a (new)
30a) 'High-frequency trading' means trading in financial instruments where a computer programme automatically determines individual parameters of orders, access to execution venues, market data access and order routing, and having following features: a) very high order-to-trade ratio; b) very short holding periods; c) use of co-location facilities; d) daily portfolio turnover of at least 50 %. Competent authorities shall determine individual features for each trading venue according to its characteristics and liquidity.
Amendment 554 #
Proposal for a directive
Article 16 – paragraph 7 – subparagraph 1
Article 16 – paragraph 7 – subparagraph 1
Amendment 558 #
Proposal for a directive
Article 16 – paragraph 7 – subparagraph 2
Article 16 – paragraph 7 – subparagraph 2
Amendment 643 #
Proposal for a directive
Article 20 – paragraph 1
Article 20 – paragraph 1
1. Member States shall require that investment firms and market operators operating an OTFs establish arrangements preventing the execution of client orders in an OTF against the proprietary capital of the investment firm or market operator operating the OTF. The investment firm shall not act as a systematic internaliser in an OTF operated by itself. An OTF shall not connect with another OTF in a way which enables orders in different OTFs to interact without the consent of the client. The operator of the OTF shall publish on a regular basis data in accordance with Article 27(2) disaggregated by orders executed against the proprietary capital of the operator and orders between third party buying and selling interests. The investment firm shall not act as a systematic internaliser in an OTF operated by itself. An OTF shall not connect with another OTF in a way which enables orders in different OTFs to interact unless the operator of the OTF can demonstrate compliance with the requirements in this Directive and Regulation (EU) No …/… [MiFIR] and that such an operational arrangement supports the requirements in Article 27.
Amendment 651 #
Proposal for a directive
Article 20 – paragraph 1 a (new)
Article 20 – paragraph 1 a (new)
1 a. Investment firms or market operators operating an OTF shall have discretion over how a transaction is to be executed and how clients interact.
Amendment 695 #
Proposal for a directive
Article 24 – paragraph 3 – subparagraph 1 – indent 1
Article 24 – paragraph 3 – subparagraph 1 – indent 1
– the investment firm and its services; when investment advice is provided, information shall specify whether the advice is provided on an independent basiin conjunction with the acceptance or receipt of third-party inducements and whether it is based on a broad or on a more restricted analysis of the market and shall indicate whether the investment firm will provide the client with the on- goingregular assessment of the suitability of the financial instruments recommended to clients,
Amendment 703 #
Proposal for a directive
Article 24 – paragraph 3 – subparagraph 1 – indent 2
Article 24 – paragraph 3 – subparagraph 1 – indent 2
– the intended target market, financial instruments, their structure and proposed investment strategies; this should include appropriate guidance on and warnings of the risks associated with investments in those financial instruments or in respect of particular investment strategies,
Amendment 721 #
Proposal for a directive
Article 24 – paragraph 5 – introductory part
Article 24 – paragraph 5 – introductory part
5. When the investment firm informs the client that investment advice is provided on an independent basisprovides investment advice, the firm:
Amendment 731 #
Proposal for a directive
Article 24 – paragraph 5 – point i
Article 24 – paragraph 5 – point i
(i) shall assess a sufficiently large number of financial instruments available on the market. The financial instruments should be diversified with regard to their type and issuers or product providers and should notdiversify its offer with regard to the type of financial instrument or investment strategy. The offer does not have to be limited to financial instruments issued or provided by entities having close links with the investment firm,
Amendment 744 #
Proposal for a directive
Article 24 – paragraph 5 – point ii
Article 24 – paragraph 5 – point ii
(ii) shall not accept or receiveinform its client prior the agreement about expected fees, commissions or any monetary benefits to be paid or provided by any third party or a person acting on behalf of a third party in relation to the provision of the service to clients.
Amendment 760 #
Proposal for a directive
Article 24 – paragraph 6
Article 24 – paragraph 6
6. When providing portfolio management the investment firm shall not accept or receiveo professional or retail clients in accordance with Article 4(2) the investment firm shall prior the agreement inform its client about expected fees, commissions or any monetary benefits to be paid or provided by any third party or a person acting on behalf of a third party in relation to the provision of the service to clients. The periodic report disclosed by the investment firm every 6 months shall disclose all fees, commissions or any monetary benefits paid or provided by any third party or a person acting on behalf of a third party in relation to the provision of the service to clients.
Amendment 794 #
Proposal for a directive
Article 25 – paragraph 2 – subparagraph 1
Article 25 – paragraph 2 – subparagraph 1
Member States shall ensure that investment firms, when providing investment services other than those referred to in paragraph 1, ask the client or potential client to provide information regarding his knowledge and experience in the investment field relevant to the specific type of product or service offered or demanded so as to enable the investment firm to assess whether the investment service or product envisaged is appropriate for the client. This shall not apply to the service of safekeeping and administration of financial instruments as specified in Section A (9) of Annex I.
Amendment 817 #
Proposal for a directive
Article 25 – paragraph 3 – subparagraph 1 – point a – point iv
Article 25 – paragraph 3 – subparagraph 1 – point a – point iv
(iv) shares or units in UCITS excluding structured UCITS as referred to in Article 36 paragraph 1 subparagraph 2 of Commission Regulation 583/2010;
Amendment 920 #
Proposal for a directive
Article 41 – paragraph 1 – introductory part
Article 41 – paragraph 1 – introductory part
1. Member States shall require that a third country firm intending to provide investment services or activities together with any ancillary services to retail clients in their territory through a branch acquire a prior authorisation by the competent authorities of those Member States in accordance with the following provisions:
Amendment 923 #
Proposal for a directive
Article 41 – paragraph 1 – point a
Article 41 – paragraph 1 – point a
(a) this requirement shall apply only if the Commission has adopted a negative equivalence decision in accordance with paragraph 3;
Amendment 936 #
Proposal for a directive
Article 41 – paragraph 3 – subparagraph 1
Article 41 – paragraph 3 – subparagraph 1
The Commission mayshall by 31 December 2014 adopt a decision in accordance with the procedure referred to in Article 95 in relation to a third country if the legal and supervisory arrangements of that third country ensure that firms authorised in that third comply with legally binding requirements which have equivalent effect to the requirements set out in this Directive, in Regulation (EU) No …/… [MiFIR] and in Directive 2006/49/EC [Capital Adequacy Directive] and their implementing measures and that third country provides for equivalent reciprocal recognition of the prudential framework applicable to investment firms authorised in accordance with this directive.
Amendment 1235 #
Proposal for a directive
Article 75 – paragraph 1 – point n
Article 75 – paragraph 1 – point n
(n) an investment firm repeatedly failing to obtain the best possible result for clients when executing orders and failing to establish arrangements in accordance with national provisions implementing Article 27 and Article 28;
Amendment 1290 #
Proposal for a directive
Article 99 – paragraph 1
Article 99 – paragraph 1
1. Existing third country firms shall be able to continue to provide services and activities for retail clients in Member States, in accordance with national regimes until [4 years after the entry into force of this directive]31 December 2016.