52 Amendments of Olle SCHMIDT related to 2011/0295(COD)
Amendment 66 #
Proposal for a regulation
Recital 12 a (new)
Recital 12 a (new)
(12 a) It is prohibited to use inside information to recommend or induce another person to acquire or dispose of financial instruments. This Regulation should also prohibit the use of such recommendations by a person who knows or ought to know that the person giving the recommendation used inside information. The prohibition should apply when the particular circumstances surrounding the recommendation ought to lead to the conclusion that the person giving the recommendation used inside information.
Amendment 94 #
Proposal for a regulation
Recital 20 a (new)
Recital 20 a (new)
(20 a) The opportunities to commit market manipulation have increased with the fragmentation of markets. Due to a lack of consolidated data there is no overall market supervision and competent authorities have considerable difficulties to detect and investigate market manipulation. Therefore, the Commission should, during the next review of a relevant legal instrument, consider how to solve the problem of market surveillance due to the fragmentation of markets and, if appropriate, put forward a proposal on cross-market surveillance.
Amendment 95 #
Proposal for a regulation
Recital 21
Recital 21
(21) In order to ensure uniform market conditions between trading venues and facilities subject to this Regulation, operators of regulated markets, MTFs and OTFs should be required to adopt proportionate structural provisions aimed at preventing and detecting market manipulation practicstructural provisions aimed at preventing and detecting market manipulation and abusive practices. When the trading in one security is fragmented across more than one trading venue, the primary listing venue shall be designated to take the overall responsibility for real-time surveillance and the primary and secondary venues shall be required to cooperate. The primary listing venue should not be allowed to use information from the secondary venue for business purposes. There should be in place "Chinese walls", or ethical barriers between the business and surveillance departments of the primary listing venue in order to avoid conflict of interest or market manipulation. The secondary market should be allowed to use any surveillance technology that enables it to comply with its obligations according to Directive... [new MiFID] and Regulation... [MAR], irrespective of which surveillance technology the primary listing venue uses.
Amendment 113 #
Proposal for a regulation
Recital 31
Recital 31
Amendment 121 #
Proposal for a regulation
Recital 35
Recital 35
(35) Therefore, as well as providing regulators with effective supervisory tools and powers, a set of administrative measures, sanctions and fines should be laid down to ensure a common approach in Member States and to enhance their deterrent effect. Member States are however not obliged to provide for administrative sanctions when national law provides for sanctions within the criminal justice system. Administrative fines should take into account factors such as the disgorgement of any identified financial benefit, the gravity and duration of the breach, any aggravating or mitigating factors, the need for fines to have a deterrent effect and, where appropriate, include a discount for cooperation with the competent authority. The adoption and publication of sanctions should respect fundamental rights as laid down in the Charter of Fundamental Rights of the European Union, in particular the right to respect for private and family life (Article 7), the right to the protection of personal data (Article 8) and the right to an effective remedy and to a fair trial (Article 47).
Amendment 122 #
Proposal for a regulation
Recital 35 a (new)
Recital 35 a (new)
(35 a) This Regulation does not imply that Member States have to give administrative authorities the power to conduct criminal investigations.
Amendment 123 #
Proposal for a regulation
Recital 36
Recital 36
(36) Whistleblowers bring new information to the attention of competent authorities which assists them in detecting and sanctioning cases of insider dealing and market manipulation. However, whistleblowing may be deterred for fear of retaliation, or for lack of incentivadequate procedures for reporting breaches. This Regulation should therefore ensure that adequate arrangements are in place to encourage whistleblowers to alert competent authorities to possible breaches of this Regulation and to protect them from retaliation. However, whistleblowers should only be eligible for those incentives where they bring to light new information which they are not already legally obliged to notify and where this information results in a sanction for a breach of this Regulation. Member States should also ensure that whistleblowing schemes they implement include mechanisms that provide appropriate protection of a reported person, particularly with regard the right to the protection of his personal data and procedures to ensure the right of the reported person of defence and to be heard before the adoption of a decision concerning him as well as the right to seek effective remedy before a court against a decision concerning him.
Amendment 126 #
Proposal for a regulation
Article 2 – paragraph 1 – point b
Article 2 – paragraph 1 – point b
(b) financial instruments traded on a MTF or on an OTF in at least one Member State defined by implementing technical standards developed by ESMA, according to paragraph 2a;
Amendment 128 #
Proposal for a regulation
Article 2 – paragraph 1 – point c
Article 2 – paragraph 1 – point c
(c) behaviour or transactions relating totransactions having an effect on a financial instrument referred to in points (a) or (b), irrespective of whether or not the behaviour or transaction actually takes place on a regulated market, MTF or OTF;
Amendment 129 #
Proposal for a regulation
Article 2 – paragraph 1 – point d
Article 2 – paragraph 1 – point d
(d) behaviour or transactions, including bids, relating to the auctioning of emission allowances or other auctioned products based thereon pursuant to Commission Regulation No 1031/2010.34 Without prejudice to any specific provisions referring to bids submitted in the context of an auction, any requirements and prohibitions in this Regulation referring to orders to trade, shall apply to such bids.
Amendment 130 #
Proposal for a regulation
Article 2 – paragraph 2
Article 2 – paragraph 2
2. Articles 7 and 9 also apply to the acquisition or disposal of financial instruments not referred to in points (a) and (b) of paragraph 1, but whose value relates tosubject matter is a financial instrument referred to in that paragraph. This notably includes derivative instruments for the transfer of credit risk that relate to a financial instrument referred to paragraph 1 and financial contracts for differences that relate to such a, or where its price or value is expressed by reference to that financial instrument.
Amendment 131 #
Proposal for a regulation
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
Amendment 132 #
Proposal for a regulation
Article 2 – paragraph 3 – introductory part
Article 2 – paragraph 3 – introductory part
3. Articles 8 and 10 also apply to transactions, or orders to trade or other behaviour relating tohaving an effect on:
Amendment 133 #
Proposal for a regulation
Article 2 – paragraph 3 – point a
Article 2 – paragraph 3 – point a
(a) types of financial instruments, including derivative contracts or derivative instruments for the transfer of credit risk, where the transaction, order or behaviouder has or is likely or intended to have an effect on a financial instrument referred to in points (a) and (b) of paragraph 1;
Amendment 134 #
Proposal for a regulation
Article 2 – paragraph 3 – point b
Article 2 – paragraph 3 – point b
(b) spot commodity contracts, which are not wholesale energy products, where the transaction, order or behaviouder has or is likely or intended to have an effect on a financial instrument referred to in points (a) and (b) of paragraph 1; or
Amendment 135 #
Proposal for a regulation
Article 2 – paragraph 3 – point c
Article 2 – paragraph 3 – point c
(c) types of financial instruments, including derivative contracts or derivative instruments for the transfer of credit risk referred to in points (a) and (b) of paragraph 1, where the transaction, order or behaviouder has or is likely or intended to have an effect on spot commodity contracts.
Amendment 154 #
Proposal for a regulation
Article 5 – paragraph 1 – point 11
Article 5 – paragraph 1 – point 11
11. ‘spot market’ means any commodity market in which commodities are sold for cash and promptly delivered when the transaction is settled'physical commodity contract' means any contract for the supply of a commodity traded on a spot market which is promptly delivered when the transaction is settled, including any forward and derivatives contracts that must settled physically and that are not financial instruments.
Amendment 157 #
Proposal for a regulation
Article 5 – paragraph 1 – point 19 a (new)
Article 5 – paragraph 1 – point 19 a (new)
19a. "derivatives on commodities" means those financial instruments within the meaning of Art 2(1) (15) of Regulation [MiFIR].
Amendment 158 #
Proposal for a regulation
Article 5 – paragraph 1 – point 19 b (new)
Article 5 – paragraph 1 – point 19 b (new)
19b. "related physical commodity contract" means a physical commodity contract where that physical commodity contract or its underlying commodity is the subject matter of a financial instrument referred to in Article 2(1) (a) and (b), or where the price or value of a financial instrument referred to in Article 2(1) (a) or (b) is expressed by reference to that physical commodity contract or its underlying commodity.
Amendment 159 #
Proposal for a regulation
Article 5 – paragraph 1 – point 19 c (new)
Article 5 – paragraph 1 – point 19 c (new)
19 c. "related derivative financial instrument" means a financial instrument referred to in Article 2(2) of this Regulation.
Amendment 164 #
Proposal for a regulation
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) in relation to derivatives on commodities, information of a precise nature, which has not been made public, relating, directly or indirectly, to one or more such derivatives or to the related spot commodity contract, and which, if it were made public, would be likely to have a significant effect on the prices of such derivatives or related spot commodity contracts; notably informationand which is required to be disclosed in accordance with legal or regulatory provisions at the Union or national level, applicable market rules, standard contracts or customs, on the relevant commodity derivatives or spot markets.
Amendment 172 #
Proposal for a regulation
Article 6 – paragraph 1 – point e
Article 6 – paragraph 1 – point e
Amendment 174 #
Proposal for a regulation
Article 6 – paragraph 3
Article 6 – paragraph 3
3. For the purposes of applying paragraph 1, information which, if it were made public,deciding whether information would be likely to have a significant effect on the prices of the financial instruments, the related spot commodity contracts, or the auctioned products based on the emission allowances shall mean information a reasonable investor would be likely to use as part of the basis of his investment decisionsaccording to paragraph 1, account shall be taken of what a reasonable investor with market knowledge and experience would be likely to use as a material factor in deciding whether to acquire or dispose of that financial instrument, spot commodity contract, or auction product, the quantity of which to acquire or dispose and/or the price at which to do so.
Amendment 180 #
Proposal for a regulation
Article 7 – paragraph -1 (new)
Article 7 – paragraph -1 (new)
-1. Persons who possess inside information shall be prohibited from: (a) using that information to acquire or dispose of, for his own account or for the account of a third party, either directly or indirectly, financial instruments to which that information relates; (b) using that 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; (c) attempting to do (a) or (b); (d) using that information to recommend or induce another person to acquire or dispose of financial instruments to which that information relates; (e) disclosing the inside information to any other person, except where the disclosure is made in the normal course of the exercise of his employment, profession or duties.;
Amendment 181 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
Amendment 191 #
Proposal for a regulation
Article 7 – paragraph 5 a (new)
Article 7 – paragraph 5 a (new)
5 a. It shall also be prohibited to use a recommendation given in violation of paragraph 1(d) to acquire or dispose of financial instruments, or to cancel or amend an order concerning a financial instrument to which the recommendation related, when the person trading knows or ought to know that the person giving the recommendation used inside information.
Amendment 198 #
Proposal for a regulation
Article 7 – paragraph 7
Article 7 – paragraph 7
7. Where the person referred to in paragraph 1 is a legal person, the provisions of that paragraph shall not apply to a transaction by the legal person if the legal person had in place effectiveestablished, implemented and maintained adequate internal arrangements whichto ensure that no person in possession of inside information relevant to the transaction had any involvement in the decision or behaved in such a way as to influence the decision or had any contact with those involved in the decision whereby the information could have been transmitted or its existence could have been indicated.
Amendment 202 #
Proposal for a regulation
Article 7 – paragraph 8
Article 7 – paragraph 8
8. Paragraph 1 shall not apply to transactions conducted in the discharge of an obligation that has become due to acquire or dispose of financial instruments where that obligation results from an agreement concluded, or an order placed, or is to satisfy a legal or regulatory obligation that arose, before the person concerned possessed inside information.
Amendment 203 #
Proposal for a regulation
Article 7 – paragraph 9
Article 7 – paragraph 9
Amendment 208 #
Proposal for a regulation
Article 7 – paragraph 9 a (new)
Article 7 – paragraph 9 a (new)
9 a. When information is disclosed for the purposes of journalism and artistic expression, such disclosure of information shall be assessed taking into account the rules governing the freedom of the press and freedom of expression in other media, unless those persons derive, directly or indirectly, an advantage or profits from the disclosure of the information in question; or unless the disclosure is made with the intention of misleading the market as to the supply of, demand for, or price of financial instruments.
Amendment 233 #
Proposal for a regulation
Article 8 – paragraph 3 – point a
Article 8 – paragraph 3 – point a
(a) conduct by a person, or persons acting in collaboration, to secure a dominant position over the supply of or demand for a financial instrument or related spot commodity contracts which has the effect of fixing, directly or indirectly, purchase or sale prices or creating other unfair trading conditions, unless the person who entered into the transactions or issued the orders to trade establishes that his reasons for so doing are legitimate and that these transactions or orders to trade conform to accepted market practices on the regulated market concerned.
Amendment 258 #
Proposal for a regulation
Article 9
Article 9
Amendment 266 #
Proposal for a regulation
Article 11 – paragraph 1 a (new)
Article 11 – paragraph 1 a (new)
Amendment 274 #
Proposal for a regulation
Article 11 – paragraph 3 – subparagraph 1
Article 11 – paragraph 3 – subparagraph 1
ESMA shall develop draft regulatory technical standards to determine appropriate arrangements and procedures for persons to comply with the requirements established in paragraph 1 and 1a and to determine the systems and notification templates to be used by persons to comply with the requirements established in paragraph 2.
Amendment 314 #
Proposal for a regulation
Article 14 – paragraph 2 – indent 1
Article 14 – paragraph 2 – indent 1
Amendment 327 #
Proposal for a regulation
Article 15 – paragraph 1
Article 15 – paragraph 1
1. Persons whose business is to produce or disseminate information recommending or suggesting an investment strategy, intended for distribution channels or for the public, shall take reasonable care to ensure that such information is objectively presented, and to disclose their interests or indicate conflicts of interest concerning the financial instruments to which that information relates.
Amendment 329 #
Proposal for a regulation
Article 15 – paragraph 1 a (new)
Article 15 – paragraph 1 a (new)
1 a. When information is disseminated for the purposes of journalism or artistic expression, 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.
Amendment 333 #
Proposal for a regulation
Article 17 – paragraph 2 – point e
Article 17 – paragraph 2 – point e
Amendment 335 #
Proposal for a regulation
Article 17 – paragraph 2 – point e a (new)
Article 17 – paragraph 2 – point e a (new)
(e a) request the freezing and/or sequestration of assets;
Amendment 336 #
Proposal for a regulation
Article 17 – paragraph 2 – point e b (new)
Article 17 – paragraph 2 – point e b (new)
(e b) refer matters for criminal prosecution.
Amendment 337 #
Proposal for a regulation
Article 17 – paragraph 2 – point f
Article 17 – paragraph 2 – point f
(f) require existing telephone and existing data traffic records held by a telecommunication operator or by an investment firm, where a reasonable suspicion exists that such records related to the subject-matter of the inspection may be relevant to prove insider dealing or market manipulation as defined in[new MAD] in violation of this Regulation or Directive [new MAD]; these records shall however not concern the content of the communication to which they relate.]investment firm;
Amendment 360 #
Proposal for a regulation
Article 21 – paragraph 3
Article 21 – paragraph 3
3. All information exchanged between competent authorities under this Regulation that concern business or operational conditions and other economic or personal affairs shall be considered confidential, except when the competent authority states at the time of communication that the information may be disclosed or where such disclosure is necessary for legal proceedings.
Amendment 361 #
Proposal for a regulation
Article 23 – paragraph 1
Article 23 – paragraph 1
1. The competent authority of a Member State may transfer personal data to a third country provided the requirements of Directive 95/46/EC, particularly of Articles 25 or 26, are fulfilled and only on a case- by-case basis. The competent authority of the Member State shall ensure that the transfer is necessary for the purpose of this Regulation. The competent authority shall ensure that the third country does not transfer the data to another third country unless it is given express written authorisation and complies with the conditions specified by the competent authority of the Member State. Personal data may only be transferred to a third country which provides an adequate level of protection of personal data.
Amendment 362 #
Proposal for a regulation
Article 23 – paragraph 2
Article 23 – paragraph 2
2. The competent authority of a Member State shall only disclose information received from a competent authority of another Member State to a competent authority of a third country where the competent authority of the Member State concerned has obtained express agreement ofconsulted the competent authority which transmitted the information and, where applicable, the information is disclosed solely for the purposes for which that competent authority gave its agreement.
Amendment 363 #
Proposal for a regulation
Article 24 – paragraph 1 – subparagraph 1
Article 24 – paragraph 1 – subparagraph 1
Member States shall lay down the rules on administrative measures and sanctions applicable in the circumstances defined in Article 25 to the persons responsible for breaches of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The measures and sanctions provided for shall be effective, proportionate and dissuasive. Member States may decide not to lay down rules for administrative sanctions for breaches which are subject to criminal sanctions.
Amendment 365 #
Proposal for a regulation
Article 25 – paragraph 1 – point h
Article 25 – paragraph 1 – point h
(h) an issuer of a financial instrument or emission allowance market participant, not exempted pursuant to the second subparagraph of paragraph 2 of Article 12, fails to inform the public as soon as possible of inside information or to post on its Internet site inside information to be disclosed publicly, in breach of Article 12 (1) temporary ban against any member of an investment firm's body who is held responsible, to exercise management functions in investment firms;
Amendment 368 #
Proposal for a regulation
Article 25 – paragraph 1 – point o
Article 25 – paragraph 1 – point o
Amendment 377 #
Proposal for a regulation
Article 26 – paragraph 1 – point l
Article 26 – paragraph 1 – point l
(l) in respect of a natural person, administrative pecuniary sanctions of up to [EUR 5 000 000] or in the Member States where the Euro is not the official currency, the corresponding value in the national currency on the date of entry to force of this Regulation;
Amendment 383 #
Proposal for a regulation
Article 27 – paragraph 1 – subparagraph 1 – introductory part
Article 27 – paragraph 1 – subparagraph 1 – introductory part
Amendment 385 #
Proposal for a regulation
Article 27 – paragraph 2
Article 27 – paragraph 2
Amendment 391 #
Proposal for a regulation
Article 29 – paragraph 2
Article 29 – paragraph 2
Amendment 393 #
Proposal for a regulation
Article 29 – paragraph 3
Article 29 – paragraph 3