BETA

38 Amendments of Pascal CANFIN related to 2011/0295(COD)

Proposal for a regulation
Recital 27

(27) Insider lists are an important tool for regulators when investigating possible market abuse, but national differences in regards to data to be included in those lists impose unnecessary administrative burdens on issuers. Data fields required for insider lists should therefore be uniform in order to reduce those costs. The requirement to keep and constantly update insider lists imposes administrative burdens specifically on issuers on SME growth markets. As competent authorities are able to exercise effective market abuse supervision without having those lists available at all times for those issuers they should be exempt from this obligation in order to reduce the administrative costs imposed by this RegulationIt is also important that persons included on insider lists are informed of that fact and its implications under this Directive and Regulation [MAR]. Since such persons have access to inside information, it should further more be an obligation under this Directive for them to disclose any information they have of actual potential market abuse.

2012/05/11
Committee: ECON

Proposal for a regulation
Recital 28

(28) Greater transparency of transactions conducted by persons discharging managerial responsibilities at the issuer level and, where applicable, persons closely associated with them, constitutes a preventive measure against market abuse. The publication of those transactions on at least an individual basis can also be a highly valuable source of information to investors. It is necessary to clarify that the obligation to publish those managers' transactions also includes the pledging or lending of financial instruments and also transactions by another person exercising discretion for the manager. In order to ensure an appropriate balance between the level of transparency and the number of reports notified to competent authorities and the public, a uniform threshold should be introduced in this Regulation below which transactions shall not be notified.

2012/05/11
Committee: ECON

Proposal for a regulation
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. 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~~impact of the breach on third parties and the orderly functioning of markets, the need for fines to have a deterrent effect and prevent repeated breaches, including the possibility of permanent disbarment from functions within investment firms or market operators, 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).

2012/05/11
Committee: ECON

Proposal for a regulation
Recital 48

(48) The provisions of Directive 2003/6/EC being no longer relevant and sufficient, that Directive should be repealed from [~~24 months after entry into force of this Regulation]~~...]*.The requirements and prohibitions of this Regulation are strictly related to those in the MiFD, therefore they should enter in to application on the date of entry into application of the MiFID review. ____________ * OJ: please insert date: 12months after the date of entry into force of this Regulation.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 4 a (new)

4 a. ESMA shall publish and maintain a list setting out the instruments referred to in paragraph 1 points (a) and (b) and the regulated markets, MTFs and OTFs on which they are traded. An instrument or venue that is not on the list may nonetheless be subject to this regulation.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 7 – paragraph 3 a (new)

3 a. The use or onward disclosure of the recommendations or inducements referred to in paragraph 3 amounts to insider dealing when the person using or disclosing the recommendation or inducement knows or ought to know, that it is based on inside information.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 8 – paragraph 3 – introductory part

3. The following behaviour shall be considered, inter alia, as market manipulation or attempts to engage in market manipulation:

2012/05/11
Committee: ECON

Proposal for a regulation
Article 8 – paragraph 3 – point c – introductory part

(c) the ~~send~~placing of orders to a trading venue, including any cancellation or modification thereof, generally within a short period by means of algorithmic trading, including high frequency trading~~, without an intention to trade but for the purpose of~~ strategies, which notably consists in at least one of the following:

2012/05/11
Committee: ECON

Proposal for a regulation
Article 8 – paragraph 3 – point c – indent 1

– disrupting or delaying the functioning of the trading system of the trading venue, or which is likely to do so;

2012/05/11
Committee: ECON

Proposal for a regulation
Article 8 – paragraph 3 – point c – indent 2

– making it more difficult for other persons to identify genuine orders on the trading system of the trading venue; or which is likely to do so notably by entering orders which result in the overloading or destabilisation of the order book;

2012/05/11
Committee: ECON

Proposal for a regulation
Article 8 – paragraph 3 – point c – indent 3

– creating, or likely to create, a false or misleading impression about the supply of or demand for, or price of a financial instrument, notably by entering orders to initiate or exacerbate a trend.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 10 a (new)

Article 10 a Abusive order entry 1. Operators of trading venues shall have in place rules to avoid abusive order entry. Those rules shall provide that market participants that make more than a 10:1 ratio of orders to transactions pay an additional fee. The amount of the fee shall be established by the operator of the trading venue. Those rules shall ensure that the ratio of orders to transactions does not exceed a maximum limit, which shall not be more than 50:1, to be set taking into account the capacity of venue's systems and the interests of orderly trading for all participants. 2. ESMA shall develop draft implementing technical standards to determine the methodology to be used in setting the fees referred to in the first subparagraph of paragraph 1 and the maximum limit referred to in the second subparagraph of paragraph . ESMA shall submit the draft implementing technical standards referred to in the first subparagraph to the Commission by [...]. 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.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 11 – paragraph 1 a (new)

1 a. Any person who operates the business of a trading venue shall adopt and maintain effective arrangements and procedures to exchange information with operators of the trading venues with significant liquidity in the same or closely related instruments aimed at preventing and detecting market abuse across such venues.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 11 – paragraph 2 a (new)

2 a. ESMA and the national competent authority shall provide one or more secure communication channel for persons to provide notification of market abuse. Such channels shall ensure that the identity of persons providing information is known only to ESMA or the national competent authority.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 11 – paragraph 2 b (new)

2 b. Any person included on an insider list that becomes aware of activities that might constitute insider dealing, market manipulation or an attempt to engage in market manipulation or insider dealing shall report such information through the channels referred to in paragraph 2 and paragraph 2a.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 12 – paragraph 4 – subparagraph 2

Where an issuer of a financial instrument or emission allowance market participant ~~has~~intends to delayed the disclosure of inside information under this paragraph it shall inform the competent authority of that ~~disclosure of the information was delayed immediat~~intention and provide sufficient information to justify the necessity of the delay according to the criteria set out in paragraph 5. In the event that the competent authority does not permit the delay ~~after~~in accordance with paragraph 5, the information ishall be disclosed ~~to the public~~immediately after the refusal has been communicated.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 12 – paragraph 5 – subparagraph 2

Thate decision to grant or withhold permission shall be communicated in writing. The competent authority shall ensure that the delay is only for such period as is necessary in the public interest.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 12 – paragraph 6

6. Where an issuer of a financial instrument or an emission allowance market participant, not exempted pursuant to the second subparagraph of paragraph 2 of Article 12, or a person acting on his behalf or for his account, discloses any inside information to any third party in the normal exercise of his duties resulting from employment or profession, as referred to in Article 7(4), he must make complete and effective public disclosure of that information, simultaneously in the case of an intentional disclosure, and promptly in the case of a non-intentional disclosure. This paragraph shall not apply if the person receiving the information owes a duty of confidentiality which effectively prevents that person from disclosing the relevant information to another third party, regardless of whether such duty is based on a law, on regulations, on articles of association, or on a contract.

2012/05/11
Committee: ECON

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

- notify persons included on such lists of their inclusion and the implications of that fact regarding the application of this Regulation

2012/05/11
Committee: ECON

Proposal for a regulation
Article 13 – paragraph 2

2. Issuers of a financial instrument whose financial instruments are admitted to trading on an SME growth market shall be exempt from drawing up such a list. However, if requested to do so by the competent authority as part of the exercise of its supervisory or investigatory functions, that issuer shall provide the competent authority with a list identifying those persons working for them with access to inside information.deleted

2012/05/11
Committee: ECON

Proposal for a regulation
Article 13 – paragraph 3

3. This Article shall not apply to issuers who have not requested or approved admission of their financial instruments to trading on a regulated market in a Member State or, in the case of an instrument only traded on a MTF or an OTF, have not requested or approved trading of their financial instruments on a MTF or an OTF in a Member State.deleted

2012/05/11
Committee: ECON

Proposal for a regulation
Article 14 – paragraph 3

~~3. Paragraph 1 shall not apply to transactions totalling under EUR 20,000 over the period of a calendar year.~~deleted

2012/05/11
Committee: ECON

Proposal for a regulation
Article 14 – paragraph 4 a (new)

4 a. A person discharging managerial responsibilities within an issuer of a financial instrument shall not conduct any transactions on his or her own account relating to the shares of that issuer or to derivatives or other financial instruments linked to them outside a trading window of one week following the disclosure of quarterly or annual reports.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 15 – paragraph 1 a (new)

1 a. Where the persons referred to in paragraph 1 trade on their own account in instruments for which they give the advice referred to in paragraph 1, competent authorities may request such information as they deem necessary information from such persons and, where appropriate, other competent authorities in order to determine whether the advice is compliant with the requirements under paragraph 1.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 17 a (new)

Article 17 a Cross-market order-book surveillance 1. For any financial instrument admitted to trading on a regulated market or an MTF, the competent authority of the Member State which is the most relevant market in terms of liquidity within the meaning of Article 23 [of MIFIR] shall have the power to conduct cross-market supervision of market manipulation conducted through order-book activity. 2. Operators of regulated markets and MTFs shall provide order-book data regarding financial instruments that are actively traded on that regulated market or MTF to their home Member State competent authority. Where that competent authority is not the competent authority referred to in paragraph 1, it shall make the necessary arrangements to consolidate and forward the corresponding order-book data to the competent authority referred to in paragraph 1. In any event, the home Member State competent authority of the regulated markets or MTF shall remain responsible for ensuring that regulated markets and MTFs under its supervision report orders in compliance with applicable data standards. 3. The order-book data referred to in paragraph 2 shall be clear, precise and appropriately detailed so as to allow the competent authorities to perform cross- market supervision pursuant to paragraph 1. Such data shall include the following: (a) the identification code of the member which transmitted the order to the regulated market or MTF; (b) the identification of the financial instrument; (c) the date and time (with milliseconds) on which the order was transmitted to the regulated market or MTF; (d) the characteristics of the order including in particular: - the buy / sell indicator; - the initial and remaining / outstanding quantity (taking into account any partial execution(s) or event(s) affecting the order), both displayed and hidden; - the type of the order (e.g., market, limit, stop); - the limit price (if applicable); - the validity period as specified by the market participant (e.g., end of day, good till cancelled, any specified date and time, next closing); - any condition(s) for the order to be executed (e.g., minimum executable size, stop price); (e) date and time (with milliseconds) of any event affecting those characteristics; (f) type of event which resulted in a change of these characteristics (e.g., modification of characteristics by the market participant, cancellation, partial (or full) execution, market interruption, stop trigger); (g) the identification code of the order; (h) whether the order is entered by the market member (of the regulated market and where available the MTF) on own account (principal capacity) or on behalf of a third party (agent capacity). That information shall be provided for every characteristic validity period of the order, defined as a period of time during which the characteristics listed in point (d) remain the same and are not affected by any event. For the avoidance of doubt, that information shall include for each characteristic validity period its start date / time (with milliseconds), end date / time (with milliseconds) and the type of event which resulted in its ending. 4. The competent authority referred to in paragraph 1 shall make order-book data available to any other competent authority on its request. 5. ESMA shall develop draft regulatory technical standards in order to define: (a) the list of financial instruments that should be subject to cross-market supervision, the details and the technical specifications for order book data as well as the periodicity in which such data must be provided; (b) the instances where other competent authorities may in accordance with paragraph 4 request order book data from the competent authority of the most relevant market in terms of liquidity. ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by ...*. Power is conferred 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. 7. By ...* ESMA shall draw up a report assessing the functioning of cross-market order book surveillance including how ESMA could assist and support the execution of this task. ______________ * OJ: please insert date: 24 months after the entry into force of this Regulation.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 19 a (new)

Article 19 a Resolution of disagreements between competent authorities Where a competent authority disagrees about the procedure or content of an action or inaction of another competent authority of another Member State related to any provisions of that Regulation or of the Directive (EU) No .../... [MAD], ESMA may act in accordance with Article 19 of Regulation (EU) No 1095/2010;

2012/05/11
Committee: ECON

Proposal for a regulation
Article 26 – paragraph 1 – point f

(f) temporary or permanent prohibition of an activity;

2012/05/11
Committee: ECON

Proposal for a regulation
Article 26 – paragraph 1 – point h

(h) a temporary or permanent ban against any member of an investment firm's body or any other natural person, who is held responsible, to exercise functions in investment firms;. Where such a person has committed a breach of the provisions on insider trading or market manipulation, they will be prohibited for two years from trading on a trading venue subject to this regulation. Where such a person has been previously subject to sanctions for insider trading or market manipulation, they shall be permanently prohibited from trading on a trading venue subject to this regulation.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 26 – paragraph 1 – point k

(k) administrative pecuniary sanctions of up to t~~wice~~en times the amount of the profits gained or losses avoided because of the breach where those can be determined;

2012/05/11
Committee: ECON

Proposal for a regulation
Article 26 – paragraph 1 – point l

(l) without prejudice to point (k), in respect of a natural person, administrative pecuniary sanctions of ~~up to~~the greater of - three times their total annual remuneration or - [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;

2012/05/11
Committee: ECON

Proposal for a regulation
Article 26 – paragraph 1 – point m

(m) without prejudice to point (k), in respect of a legal person, administrative pecuniary sanctions of up to 120 % of its total annual turnover in the preceding business year; where the legal person is a subsidiary of a parent undertaking [as defined in Articles 1 and 2 of Directive 83/349/EEC], the relevant total annual turnover shall be the total annual turnover resulting from the consolidated account of the ultimate parent undertaking in the preceding business year.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 26 – paragraph 2

2. Competent authorities may have other sanctioning powers in addition to those referred to in paragraph 2 and may provide for higher levels of administrative pecuniary sanctions than those established in that paragraph. In setting levels of administrative pecuniary sanctions above those established in paragraph 2, competent authorities may take into consideration the extent to which a breach of one or more of the requirements of this Regulation has negatively impacted the functioning of markets, the financial positions of participants in those markets and broader economic, social and environmental interests.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 26 – paragraph 3

3. Every administrative measure and sanction imposed for breach of this Regulation shall be published without undue delay, including at least information on the type and nature of the breach and the identity of persons responsible for it, unless such publication would seriously jeopardise the stability of financial markets. Where publication would cause disproportionate damage to the ~~partie~~natural persons involved, competent authorities shall publish the measures and sanctions against such natural persons on an anonymous basis.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 27 – paragraph 1 – subparagraph 1 – introductory part

When determining the type of administrative measures and sanctions and level of fines, competent authorities shall take into account all relevant circumstances, including:

2012/05/11
Committee: ECON

Proposal for a regulation
Article 27 – paragraph 2

2. In order to ensure their consistent application and dissuasive effect across the Union, ESMA shall issue guidelines addressed to competent authorities in accordance with Article 16 of Regulation No (EU) 1095/2010 on types of administrative measures and sanctions and level of fines.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 29 – paragraph 1 – introductory part

1. Member States shall put in place effective mechanisms to supplement those referred to in Article 11(2 a) (new) to encourage reporting of breaches of this Regulation to competent authorities, including at least:

2012/05/11
Committee: ECON

Proposal for a regulation
Article 34 – paragraph 1

Directive 2003/6/EC shall be repealed with effect from [124 months after entry into force of this Regulation]. References to Directive 2003/6/EC shall be construed as references to this Regulation.

2012/05/11
Committee: ECON

Proposal for a regulation
Article 36 – paragraph 2 – subparagraph 1

It shall apply from [124 months after entry into force of this Regulation] except for Articles 3(2), , 8(5), 11(3), 12(9), 13(4), 13(6), 14(5), 14(6), 15(3), 18(9), 19(9), 28(3) and 29(3) which shall apply immediately following the entry into force of this Regulation.

2012/05/11
Committee: ECON