41 Amendments of Sven GIEGOLD related to 2011/0298(COD)
Amendment 371 #
Proposal for a directive
Article 1 – paragraph 3
Article 1 – paragraph 3
3. The following provisions shall also apply tois directive shall also apply to the authorisation and operation conditions of credit institutions authorised under Directive 2006/48/EC, when providing one or more investment services and/or performing investment activities and when selling or advising clients in relation to deposits other than those with a rate of return which is determined in relation to an interest rate: – Articles 2(2), 9(6), 14, 16, 17 and 18, – Chapter II of Title II excluding second subparagraph of Article 29(2), – Chapter III of Title II excluding Articles 36(2), (3) and (4) and 37(2), (3), (4), (5), (6), (9) and (10), – Articles 69 to 80 and Articles 84, 89 and 90.
Amendment 398 #
Proposal for a directive
Article 2 – paragraph 1 – point e
Article 2 – paragraph 1 – point e
Amendment 444 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1 – introductory part
Article 3 – paragraph 1 – subparagraph 1 – introductory part
1. Member States may choose not to apply this Directive to any persons for which they are the home Member StateArticles 9, 15, 36, 37, 38, 39 and 41-58 of this Directive to any persons that:
Amendment 455 #
Proposal for a directive
Article 4 – paragraph 2 – point 3
Article 4 – paragraph 2 – point 3
3) ‘Investment advice’ means the independent provision of personal recommendations to a client, either upon its request or at the initiative of the investment firm, in respect of one or more transactions relating to financial instruments; not issued by the advisor or an economically dependent issuer, which is unbiased by any fees, commissions, incentives or any 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 456 #
Proposal for a directive
Article 4 – paragraph 2 – point 3 a (new)
Article 4 – paragraph 2 – point 3 a (new)
3a) 'Product information' means the provision of personal recommendations to a client, either upon its request or at the initiative of the investment firm, in respect of one or more transactions relating to financial instruments.
Amendment 551 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. An investment firm shall establish adequate policies and procedures sufficient to ensure compliance of the firm including its managers, employees and tied agents with its obligations under the provisions of this Directive as well as appropriate rules governing personal transactions by such person, including an assessment of the compatibility of their sales targets and their range of products and services offered with their client structure as well as appropriate rules governing personal transactions by such persons. Those policies and rules should be published and made available to investors.
Amendment 667 #
Proposal for a directive
Article 23 – paragraph 1
Article 23 – paragraph 1
1. Member States shall require investment firms to take all appropriate steps to identify all conflicts of interest between themselves, including their managers, employees and tied agents, or any person directly or indirectly linked to them by control and their clients or, between one client and another that arise in the course of providing any investment and ancillary services, or conflicts of interests caused by inducements or conflicts occurring in investment firms selling own products, or combinations thereof.
Amendment 672 #
Proposal for a directive
Article 23 – paragraph 2
Article 23 – paragraph 2
2. Where organisational or administrative arrangements made by the investment firm in accordance with Article 16 (3) to manage conflicts of interest are not sufficient to ensure, with reasonable confidence, that risks of damage to client interests will be prevented, the investment firm shall clearly disclose the general nature and/or sources of conflicts of interest to the client beforenot undertakinge business on its behalf.
Amendment 677 #
Proposal for a directive
Article 23 – paragraph 3 – point b
Article 23 – paragraph 3 – point b
(b) establish appropriate criteria for determining the types of conflict of interest whose existence may damage the interests of the clients or potential clients of the investment firm, including conflicts of interest caused by inducements or conflicts occurring in investment firms selling own products.
Amendment 688 #
Proposal for a directive
Article 24 – paragraph 2 a (new)
Article 24 – paragraph 2 a (new)
2 a. Member States shall ensure, that investment firms provide national competent authorities on an ongoing basis with: – their product range – a description of their target markets – a description of their client structure – internal sales targets – their actual sales – their code of conduct on internal inducements. If the whole lot of products sold by an investment firm or its internal sales targets are not matching its client structure, sales targets shall be revised and the supervisor shall have the possibility to suspend sales of certain products.
Amendment 699 #
Proposal for a directive
Article 24 – paragraph 3 – subparagraph 1 – indent 1 a (new)
Article 24 – paragraph 3 – subparagraph 1 – indent 1 a (new)
– if the investment advice is considering the full portfolio of the client or if advice is just given concerning specific products,
Amendment 701 #
Proposal for a directive
Article 24 – paragraph 3 – subparagraph 1 – indent 1 b (new)
Article 24 – paragraph 3 – subparagraph 1 – indent 1 b (new)
Amendment 710 #
Proposal for a directive
Article 24 – paragraph 3 – subparagraph 1 – indent 4
Article 24 – paragraph 3 – subparagraph 1 – indent 4
– costs and associated charges in a detailed manner separately for every transaction or service stating a percentage and a total amount including the cost of advice and how those costs shall be covered.
Amendment 716 #
Proposal for a directive
Article 24 – paragraph 3 – subparagraph 2 a (new)
Article 24 – paragraph 3 – subparagraph 2 a (new)
The information about costs and charges shall include all depreciations of the investment, which are not caused by the occurrence of underlying risk.
Amendment 717 #
Proposal for a directive
Article 24 – paragraph 3 – subparagraph 2 b (new)
Article 24 – paragraph 3 – subparagraph 2 b (new)
The information has to be presented regularly, but at least annually and shall specify exact amounts.
Amendment 734 #
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 marketcarry out a comprehensive and fair analysis of the relevant market and provide advice which is unbiased and unrestricted. The financial instruments should be diversified with regard to their type and issuers or product providers and should not be limited to financial instruments issued or provided by entities having close links with the investment firm,.
Amendment 741 #
Proposal for a directive
Article 24 – paragraph 5 – point ii
Article 24 – paragraph 5 – point ii
(ii) shall not accept orany inducements and shall not receive 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. except those fees, commissions or monetary benefits are transferred to the client. The investment firms are neither authorised to offer services remunerated by fees, commissions or any benefits paid or provided by a financial institution or a person acting on behalf of a financial institution that issues investment products they advise except they are transferring fees, commissions or any benefits to the investor.
Amendment 752 #
Proposal for a directive
Article 24 – paragraph 5 – subparagraph 1 a (new)
Article 24 – paragraph 5 – subparagraph 1 a (new)
Member States shall allow investment firms which are not allowed to keep monetary benefits from third parties according to this article to charge own commissions on every sales process and to set off inducements transferred to the investors against advisory fees.
Amendment 770 #
Proposal for a directive
Article 24 – paragraph 6
Article 24 – paragraph 6
6. When providing portfolio management the investment firm shall not accept or receive 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. If any monetary benefit is foreseen it has to be passed to the investor
Amendment 774 #
Proposal for a directive
Article 24 – paragraph 6 a (new)
Article 24 – paragraph 6 a (new)
Amendment 778 #
Proposal for a directive
Article 24 – paragraph 7 – subparagraph 1
Article 24 – paragraph 7 – subparagraph 1
When an investment service is offered together with another service or product as part of a package or as a condition for the same agreement or package, the investment firm shall inform the client whether it is possible to buy the different components separately and shall provide for a separate evidence of the costs and charges of each component. Investment products may not be offered in a contingent sale with other investment products, deposits or financial services with the exception of current account or securities account.
Amendment 782 #
Proposal for a directive
Article 24 – paragraph 7 – subparagraph 2
Article 24 – paragraph 7 – subparagraph 2
ESMA shall develop by [] at the latest, and update periodically, guidelines for the assessment and the supervision of cross- selling practices indicating, in particular, situations in which cross-selling practices are not compliant with obligations in paragraph 1 and Article 25.
Amendment 787 #
Proposal for a directive
Article 24 a (new)
Article 24 a (new)
Article 24 a Member States shall ensure that competent authorities are responsible for the implementation of the investor protection provisions set by this Directive.
Amendment 789 #
Proposal for a directive
Article 24 b (new)
Article 24 b (new)
Article 24 b Member States may establish independent bodies besides their competent authorities to monitor markets and approve the suitability of products for retail investors.
Amendment 790 #
Proposal for a directive
Article 25 – paragraph 1
Article 25 – paragraph 1
1. When providing product information, investment advice or portfolio management the investment firm shall obtain the necessary information regarding the client's or potential client's knowledge and experience in the investment field relevant to the specific type of product or service, his financial situation including credit obligations, his current risk exposure, the acceptance of economical losses and his investment objectives so as to enable the firm to recommend to the client or potential client the investment services and financial instruments that are suitable for him. ESMA shall develop by […]* at the latest, guidelines for minimum information to be obtained from the client and for the assessment of the suitability of the financial instrument or service. _________________ *OJ please insert date: …
Amendment 792 #
Proposal for a directive
Article 25 – paragraph 1 a (new)
Article 25 – paragraph 1 a (new)
1 a. When providing product information, investment advice or portfolio management the investment firm shall demonstrate that the product sold was the most suitable from the product range to meet the client's needs.
Amendment 793 #
Proposal for a directive
Article 25 – paragraph 1 b (new)
Article 25 – paragraph 1 b (new)
1 b. When providing product information, investment advice or portfolio management the investment firm shall assess if any investment is suitable for a client, especially when the client has open loan liabilities. If an investment is deemed as unsuitable at this moment, the investment firm shall issue a warning to the client.
Amendment 795 #
Proposal for a directive
Article 25 – paragraph 2 – subparagraph 3 a (new)
Article 25 – paragraph 2 – subparagraph 3 a (new)
Amendment 796 #
Proposal for a directive
Article 25 – paragraph 2 a (new)
Article 25 – paragraph 2 a (new)
2 a. Member States shall ensure that investment firms providing products bundled by cross-selling practices pursuant to Article 24(7) are assessing the suitability for the investor of each product separately as well as the suitability of the whole package.
Amendment 804 #
Proposal for a directive
Article 25 – paragraph 3 – subparagraph 1 – point a – point i
Article 25 – paragraph 3 – subparagraph 1 – point a – point i
(i) shares admitted to trading on a regulated market or on an equivalent third-country market or on a MTF, where these are shares in companies, and excluding shares in non-UCITS collective investment undertakings and shares that embed a derivative;
Amendment 814 #
Proposal for a directive
Article 25 – paragraph 3 – subparagraph 1 – point a – point iv
Article 25 – paragraph 3 – subparagraph 1 – point a – point iv
Amendment 832 #
Proposal for a directive
Article 25 – paragraph 5
Article 25 – paragraph 5
5. The client must receive from the investment firm adequate reports in writing or on a durable medium on the service provided to its clients. These reports shall include periodic communications to clients, taking into account the type and the complexity of financial instruments involved and the nature of the service provided to the client and shall include, where applicable, the costs associated with the transactions and services undertaken on behalf of the client. When providing investment advice, the investment firm shall specify how the advice given meets the personal characteristics of the client. If the services included the conclusion of sales the report shall state if the sale was in accordance with internal sales targets of the investment firm. When providing investment advice, the investment firm shall specify how the advice given meets the personal characteristics of the client. ESMA shall develop by […]* at the latest, guidelines for the content and the layout of the adequate reports to be provided to the client. _________________ *OJ please insert date: …
Amendment 857 #
Proposal for a directive
Article 27 a (new)
Article 27 a (new)
Article 27 a Member States shall ensure that national competent authorities supervise the compliance of investment firms with the best execution provisions set in this Directive.
Amendment 862 #
Proposal for a directive
Article 29 – paragraph 3 – subparagraph 1
Article 29 – paragraph 3 – subparagraph 1
3. 1 Tied agents shall be registered in the public register in the Member State where they are established. ESMA shall publish on its website references or hyperlinks to the public registers established under this Article by the Member States that decide to allow investment firms to appoint tied agents.
Amendment 867 #
Proposal for a directive
Article 29 – paragraph 3 – subparagraph 2
Article 29 – paragraph 3 – subparagraph 2
Member States shall ensure that tied agents are only admitted to the public register if it has been established that they are of sufficiently good repute and that they possess appropriate general, commercial and professional knowledge so as to be able to communicate accurately all relevant information regarding the proposed service to the client or potential client.
Amendment 868 #
Proposal for a directive
Article 29 – paragraph 3 – subparagraph 3
Article 29 – paragraph 3 – subparagraph 3
Member States may decidshall ensure that investment firms can verify whether the tied agents which they have appointed are of sufficiently good repute and possess the knowledge as referred to in the third subparagraph.
Amendment 872 #
Proposal for a directive
Article 30 – paragraph 1 – subparagraph 1
Article 30 – paragraph 1 – subparagraph 1
Member States shall ensure that investment firms authorised to execute orders on behalf of clients and/or to deal on own account and/or to receive and transmit orders, may bring about or enter into transactions with eligible counterparties without being obliged to comply with the obligations under Articles 24 (with the exception of paragraph 3, 5, 6, 7), 25 (with the exception of paragraph 5) , 27 and 28(1) in respect of those transactions or in respect of any ancillary service directly related to those transactions.
Amendment 1216 #
Proposal for a directive
Article 71 – paragraph 2 – point c a (new)
Article 71 – paragraph 2 – point c a (new)
(ca) carry out mystery shopping;
Amendment 1258 #
Proposal for a directive
Article 79 – paragraph 2 – introductory part
Article 79 – paragraph 2 – introductory part
2. Member States shall provide that one or more of the following bodies, as determined by national law, also may, in the interests of consumers and in accordance with national law, take action before the courts or competent administrative bodies to ensure that Regulation (EU) No …/… [MiFIR] and the national provisions for the implementation of this Directive are applied:
Amendment 1259 #
Proposal for a directive
Article 79 a (new)
Article 79 a (new)
Article 79a Civil liability Member States shall ensure that where an investment firm or a market operator has committed intentionally or with gross negligence any of the infringements listed in Article 75 of this Directive detrimental to an investor, such an investor may bring an action against that investment firm or market operator for any damage caused to that investor. An investment firm or a market operator acts with gross negligence if it seriously neglects duties imposed upon it by this Directive. Where an investor establishes facts from which it may be inferred that an investment firm or a market operator has committed any of the infringements listed in Article 75 of this Directive Member States shall ensure that it will be for the investment firm or the market operator to prove that it has not committed that infringement or that that infringement did not have an impact on the investor's interests. The civil liability referred to in paragraph 1 shall not be excluded or limited in advance by agreement. Member States shall ensure that any clause in such agreements excluding or limiting the civil liability in advance shall be deemed null and void. Member States shall ensure that the limitation period for claims related to an infringement listed in Article 75 of this Directive starts when investors gain positive knowledge of the infringement or should have gained positive knowledge without gross-negligence. Limitation periods shall be at least 10 years.
Amendment 1303 #
Proposal for a directive
Annex 1 – Section C – point 3 a (new)
Annex 1 – Section C – point 3 a (new)
(3a) closed end investment funds