161 Amendments of Sven GIEGOLD related to 2020/0265(COD)
Amendment 25 #
Proposal for a regulation
Recital 3
Recital 3
(3) Some crypto-assets qualify as financial instruments as defined in Article 4(1), point (15), of Directive 2014/65/EU of the European Parliament and of the Council33 . The majority of crypto-assets, however, fall currently outside of the scope of Union legislation on financial services. There are no rules for services related to crypto- assets, including for the operation of trading platforms for crypto- assets, the service of exchanging crypto- assets against fiat currency or other crypto- assets, or the custody of crypto-assets. The lack of such rules leaves holders of crypto- assets exposed to risks, in particular in areas not covered by consumer protection rules. The lack of such rules can also lead to substantial risks to market integrity in the secondary market of crypto-assets, including market manipulation and financial crime. To address those risks, some Member States have put in place specific rules for all – or a subset of – crypto-assets that fall outside Union legislation on financial services. Other Member States are considering to legislate in this area. _________________ 33Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349).
Amendment 36 #
Proposal for a regulation
Recital 5 a (new)
Recital 5 a (new)
(5a) The consensus mechanisms used for the validation of transactions can have a substantial environmental impact. This is particularly the case for the consensus mechanism known as proof-of-work, which requires participating miners to solve computational puzzles and compensates them proportional to their computational effort. Rising prices of the associated crypto-asset create incentives for increases in computational power as well as the frequent replacement of mining hardware. As a result, proof-of- work is often associated with high energy consumption, a material carbon footprint and significant generation of electronic waste. These characteristics could undermine European and global efforts to achieve the climate and sustainability goals. The best-known application of the proof-of-work consensus mechanism is Bitcoin. According to most estimates, the energy consumption of the Bitcoin network equals that of entire countries. Moreover, between the period of 1 January 2016 and 30 June 2018, the Bitcoin network was responsible for up to 13 million metric tons of CO2 emissions. The increasing energy consumption was accompanied by a growth in mining equipment and a generation of significant of electronic waste. It is therefore urgent to introduce environmental sustainability criteria for crypto-assets. The Commission should identify those consensus mechanisms that could pose a threat to the environment having regard to energy consumption, carbon emissions, depletion of real resources, electronic waste and the specific incentive structures. These unsustainable consensus mechanisms should only be applied at small scale.
Amendment 38 #
Proposal for a regulation
Recital 5 b (new)
Recital 5 b (new)
(5b) In line with the objectives of the Sustainable Finance Agenda, sustainability disclosures requirements as defined in Regulation (EU) 2019/2088 and the EU Taxonomy for sustainable activities should also apply to crypto assets as well as crypto-asset service provider and issuers.
Amendment 39 #
Proposal for a regulation
Recital 6
Recital 6
(6) Union legislation on financial services should not favour one particular technologybased on the principle ‘same business, same risks, same rules’ and follow a technologically neutral approach. Crypto-assets that qualify as ‘financial instruments’ as defined in Article 4(1), point (15), of Directive 2014/65/EU should therefore remain regulated under the general existing Union legislation, including Directive 2014/65/EU, regardless of the technology used for their issuance or their transfer. Moreover, crypto-assets that have the same or highly similar features to financial instruments should be treated as equivalent to financial instruments, insofar they provide profit or governance rights or a claim on a future cash flow, and should therefore be subject to the Union financial sector legislation and not to this Regulation. In order to achieve legal clarity with regard to which crypto- assets fall under the scope of this Regulation and which crypto-assets are excluded, the ESMA should specify the conditions under which a crypto-asset should be treated as a financial instrument because of its substance and regardless of its form.
Amendment 104 #
Proposal for a regulation
Recital 34 a (new)
Recital 34 a (new)
(34a) A significant proportion of crypto- asset service providers are deemed to have inadequate KYC and customer due diligence procedures pose increased risks of money laundering and terrorist financing. In 2019 the FATF adopted ‘the Travel Rule’ requiring all firms providing services in crypto-assets to obtain and hold required and accurate originator information and required beneficiary information on any transfers in crypto- assets, submit the information to beneficiary service provider and counterparts, if any, and make it available on request to the authorities. The Travel Rule has so far been implemented in a few jurisdictions, but not in the Union. With a view to stepping up the fight against money laundering and terrorist financing, the Union should ensure that crypto-asset service providers comply with stringent AML obligations, and that the Union AML regulatory framework is aligned with the FATF international standards on combating money laundering and the financing of terrorism.
Amendment 123 #
Proposal for a regulation
Recital 51
Recital 51
(51) This Regulation should not affect the possibility for persons established in the Union to receiveDue to the inherently digital nature of crypto-asset services by a, third- country firms at their own initiative. Where are often able to offer theird-country firm provides crypto-asset services at the own initiative of a person established in the Union, the crypto-asset services should not be deemed as provided in the Union. Where a third-country firm solicits clients or potential clients in the Union or promotes or advertises services to customers in the Union without any physical or legal presence in the Union. This poses significant risks of circumvention of the standards of this Regulation and of putting crypto-asset service providers authorised in the Union at a competitive disadvantage vis-a-vis third-country competitors. No legal or natural person shall therefore be allowed to provide crypto-asset services or activitieto Union citizens ion the Union, it should not be deemed as a crypto-asseta non-occasional basis without having a legal representative in the Union and being authorised under this Regulation, even if services are provided solely at the own initiative of theEU clients. In such a case, theESMA should monitor and report annually on the scale and severity of circumvention of this Regulation by third- country firm should be authorised as a crypto- asset service provideractors, as well as propose possible countermeasures. The European Commission should, in its final report, analyse the scale and severity of circumvention of this Regulation by third- country actors and propose concrete and effective dissuasive sanctions to such entities to end or significantly reduce such circumvention.
Amendment 135 #
Proposal for a regulation
Recital 65
Recital 65
(65) Competent authoritiesESMA should be conferred with sufficient powers to supervise the issuance of crypto-assets, including asset-referenced tokens or e- money tokens, as well as crypto-asset service providers, including the power to suspend or prohibit an issuance of crypto- assets or the provision of a crypto-asset service, and to investigate infringements of the rules on market abuse. Given the cross- border nature of crypto-asset markets, competent authorities should cooperate with each otherthere should be a European single supervisor responsible for the supervision of those crypto-assets and crypto-asset service providers with the view of ensuring consistency and effectiveness in the supervision. ESMA should cooperate with the relevant authorities in Member States to detect and deter any infringements of the legal framework governing crypto-assets and markets for crypto-assets. Competent authorities should also have the power to impose sanctions on issuers of crypto- assets, including asset-referenced tokens or e- money tokens and crypto-asset service providers.
Amendment 156 #
Proposal for a regulation
Article 1 –point e a (new)
Article 1 –point e a (new)
(ea) measures to prevent the misuse of crypto-assets for illicit purposes to protect the internal market from the risks relating to money laundering, terrorist financing and other criminal activities.
Amendment 166 #
Proposal for a regulation
Article 2 – paragraph 2 – point e a (new)
Article 2 – paragraph 2 – point e a (new)
(ea) moreover, this Regulation does not apply to crypto-assets which resemble in substance or share a high degree of similarity with any of the categories listed in point (a) to (e) of this paragraph;
Amendment 170 #
Proposal for a regulation
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
2a. For the purpose of paragraph 2, ESMA shall develop draft regulatory technical standards outlining the criteria and conditions under which a crypto-asset can be considered in substance as equivalent or highly similar to a financial instrument irrespective of its form. ESMA shall submit those draft regulatory technical standards to the Commission by [12 months after the date of entry into force of this Regulation]. 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.’
Amendment 190 #
Proposal for a regulation
Article 3 – paragraph 1 – point 1
Article 3 – paragraph 1 – point 1
(1) ‘distributed ledger technology’ or ‘DLT’ means a type of technology that support the distributed recording of encrypted dataenables to store and share records of data and transactions in a synchronized manner across network nodes, using a consensus mechanism;
Amendment 194 #
Proposal for a regulation
Article 3 – paragraph 1 – point 1 a (new)
Article 3 – paragraph 1 – point 1 a (new)
(1a) ‘consensus mechanism’ means a set of rules and procedures by which an agreement, among DLT network nodes, is achieved leading to the validation of a transaction;
Amendment 222 #
Proposal for a regulation
Article 3 – paragraph 1 – point 6 a (new)
Article 3 – paragraph 1 – point 6 a (new)
(6a) ‘offeror of crypto-assets’ means any natural or legal person which offers crypto-assets, if different from the issuer;
Amendment 226 #
Proposal for a regulation
Article 3 – paragraph 1 – point 7
Article 3 – paragraph 1 – point 7
(7) ‘offer to the public’ means an offer to third parties to acquire a crypto-asset in exchange for fiat currency or other crypto-asset communication to persons in any form and by any means, presenting sufficient information on the terms of the offer and the crypto-assets to be offered, so as to enable a person to decide to purchase those crypto-assets. This definition also applies to the placing of crypto-assets through crypto-assets service providers;
Amendment 237 #
Proposal for a regulation
Article 3 – paragraph 1 – point 9 – point c
Article 3 – paragraph 1 – point 9 – point c
(c) the exchange of crypto-assets for fiat currency that is legal tenderunds;
Amendment 240 #
Proposal for a regulation
Article 3 – paragraph 1 – point 9 – point h a (new)
Article 3 – paragraph 1 – point 9 – point h a (new)
(ha) providing portfolio management on crypto-assets;
Amendment 244 #
Proposal for a regulation
Article 3 – paragraph 1 – point 17 a (new)
Article 3 – paragraph 1 – point 17 a (new)
(17a) ‘portfolio management’ means managing portfolios in accordance with mandates given by clients on a discretionary client-by-client basis where such portfolios include one or more crypto-assets;
Amendment 247 #
Proposal for a regulation
Article 3 – paragraph 1 – point 17 b (new)
Article 3 – paragraph 1 – point 17 b (new)
(17b) 'unhosted wallet’ means a software or hardware that allows to hold, store and transfer crypto-assets which is not hosted by a third party, such as a financial institution or a credit service provider;
Amendment 259 #
Proposal for a regulation
Article 3 – paragraph 1 – point 28 a (new)
Article 3 – paragraph 1 – point 28 a (new)
(28a) ‘client’ means any natural or legal person to whom a crypto-asset provider provides a crypto-asset service;
Amendment 265 #
Proposal for a regulation
Article 3 a (new)
Article 3 a (new)
Article 3a Environmental sustainability of crypto- assets 1. Crypto-assets issued, offered or admitted to trading in the Union shall meet the environmental sustainability criteria in accordance with this Article. 2. Where a crypto-asset relies on an environmentally unsustainable consensus mechanism, this consensus mechanism shall only be operated at small scale. 3. A consensus mechanism shall be deemed environmentally unsustainable if it might have a significant environmental impact when operated at sufficiently large scale, considering the consumption of energy, the use of real resources, carbon emissions, electronic waste and specificities of the incentive design. 4. An environmentally unsustainable consensus mechanism shall be deemed to be operated at small scale if, due to the limited scale of its operations, its environmental impact can be safely assumed not to cause significant harm to any of the environmental objectives set out in Regulation (EU) 2020/852 [Taxonomy Regulation] as well as not to jeopardise the achievement of the EU objectives of the Paris Agreement. 5. A crypto-asset shall be deemed to rely on a certain consensus mechanism also if it relies on a digital infrastructure which relies on that consensus mechanism. In that case, the full environmental impact of the digital infrastructure’s operation of the consensus mechanism shall be counted towards the crypto-asset for the purpose of assessing the criterion in paragraph 2. 6. The Commission is empowered to adopt delegated acts in accordance with Article 121 to determine environmentally unsustainable consensus mechanisms as well as criteria to determine whether they are operated at small scale. Where environmentally unsustainable consensus mechanisms are currently in use at large scale, the Commission may set an appropriate transition period to allow for a potential transition to more sustainable alternatives.
Amendment 266 #
Proposal for a regulation
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. No issuer ofperson shall offer crypto-assets, other than asset-referenced tokens or e- money tokens, shall, in the Union, offer such crypto-assets to the public, or seek an admission of such crypto-assets to trading on a trading platform for crypto- assets, unless that issuerperson:
Amendment 272 #
Proposal for a regulation
Article 4 – paragraph 1 – point c
Article 4 – paragraph 1 – point c
(c) has notified that crypto-asset white paperand obtained the approval by ESMA of the crypto-asset key information sheet in accordance with Article 7;
Amendment 280 #
Proposal for a regulation
Article 4 – paragraph 2 – point c
Article 4 – paragraph 2 – point c
Amendment 290 #
Proposal for a regulation
Article 4 – paragraph 2 – point f
Article 4 – paragraph 2 – point f
Amendment 299 #
Proposal for a regulation
Article 4 – paragraph 3 a (new)
Article 4 – paragraph 3 a (new)
3a. The operator of a trading platform shall be liable to comply with this Article when crypto-assets are admitted to trading on its own initiative. The operator of a trading platform shall ensure compliance and be liable for such compliance when a person seeking admission of a crypto-assets to trading is established in a third country. In such case, the operator of the trading platform shall ensure that the person seeking admission of a crypto-assets to trading provides all the necessary information to enable the operator to comply with the requirements set out in this Article.
Amendment 306 #
Proposal for a regulation
Article 5 – title
Article 5 – title
5 Content and form of the crypto- asset white paperkey information sheet
Amendment 313 #
Proposal for a regulation
Article 5 – paragraph 1 – point a a (new)
Article 5 – paragraph 1 – point a a (new)
(aa) information about the offeror or the person seeking admission to trading if different from the issuer;
Amendment 315 #
Proposal for a regulation
Article 5 – paragraph 1 – point a b (new)
Article 5 – paragraph 1 – point a b (new)
(ab) the relevant key financial information on the issuer, or offeror or person seeking admission to trading, as applicable, for the purpose of assessing the ability to fulfil its obligations in relation to potential liability claims;
Amendment 316 #
Proposal for a regulation
Article 5 – paragraph 1 – point a c (new)
Article 5 – paragraph 1 – point a c (new)
(ac) where applicable, information about the crypto-asset service provider operating a trading platform;
Amendment 317 #
Proposal for a regulation
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) a detailed description of the issuer’scrypto- asset project, the type of crypto-asset that will be offered to the public or for which admission to trading is sought, the reasons why the crypto-assets will be offered to the public or why admission to trading is sought and the planned use of the fiat currency or other crypto-assets collected via the offer to the public;
Amendment 324 #
Proposal for a regulation
Article 5 – paragraph 1 – point e
Article 5 – paragraph 1 – point e
(e) information on the underlying technology, protocols, and standards applied by the issuer of the crypto-assets allowing for the holding, storing and transfer of those crypto-assets;
Amendment 325 #
Proposal for a regulation
Article 5 – paragraph 1 – point f a (new)
Article 5 – paragraph 1 – point f a (new)
(fa) a description of any adverse impact by the issuer or the crypto-asset project, including its consensus mechanism and underlying technology, on sustainability factors in relation to any adverse impact on climate and other environmental, social and governance adverse impacts;
Amendment 326 #
Proposal for a regulation
Article 5 – paragraph 1 – point f b (new)
Article 5 – paragraph 1 – point f b (new)
(fb) a declaration by the issuer, offeror or person seeking admission to trading or where applicable the operator of a trading platform or its management body that, to the best of their knowledge, the information contained in the key information sheet is in accordance with the facts and that the key information sheet makes no omission likely to affect its import;
Amendment 334 #
Proposal for a regulation
Article 5 – paragraph 5 – point d a (new)
Article 5 – paragraph 5 – point d a (new)
Amendment 344 #
Proposal for a regulation
Article 7 – title
Article 7 – title
Amendment 345 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Competent authorities shall not require an ex ante approval of a crypto- asset white paper, nor of any marketing communications relating to it before their publicationA crypto-asset key information sheet shall not be published unless it has been approved by ESMA.
Amendment 351 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Issuers, offerors or persons seeking admission to trading of crypto-assets, other than asset-referenced tokens or e- money tokens, or the operator of a trading platform, where applicable, shall notify their crypto-asset white paper, and, in case of marketing communications as referred to in Article 6, such marketing communications, to the competent authority of their home Member State at least 20 working days before publication of the crypto-asset white paper. That competent authorityESMA. ESMA may exercise the powers laid down in Article 82(1).
Amendment 353 #
Proposal for a regulation
Article 7 – paragraph 3 – point a
Article 7 – paragraph 3 – point a
(a) a financial instrument as defined in Article 4(1), point (15), of Directive 2014/65/EU or a crypto-asset which is deemed to be equivalent to a financial instrument in accordance with the criteria to be specified by ESMA in accordance with Article 2a;
Amendment 356 #
Proposal for a regulation
Article 7 – paragraph 4 – subparagraph 1
Article 7 – paragraph 4 – subparagraph 1
4. Issuers, offerors or persons seeking admission to trading of crypto-assets, other than asset-referenced tokens or e- money tokens, shall, together with the notification referred to in paragraphs 2 and 3, provide the competent authority of their home Member State with a list of host Member States, if any, whereinform ESMA of the starting date of they intend toed offer their crypto-assets to the public or intend to seeked admission to trading on such a trading platform for crypto-assets. TheyESMA shall also inform their home Member State of the stnotify the issuer, the offeror or the person asking for admission to trading of its decision regartding date of the intended offer tothe approval of the crypto-asset key information sheet within 10 working days of the psublic or intended admission to trading on such a trading platform for crypto-assetsmission of the draft crypto-asset key information sheet. Where ESMA fails to take a decision within such time limit, such failure shall not be deemed to constitute approval of the application.
Amendment 358 #
Proposal for a regulation
Article 7 – paragraph 5
Article 7 – paragraph 5
5. Competent authorities shall communicate to ESMA the crypto-asset white papers that have been notified to them and the date of their notification. ESMA shall make the notified crypto-asset white papers available in the register referred to in Article 57.
Amendment 360 #
Proposal for a regulation
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Issuers offerors or persons seeking admission to trading of crypto-assets, other than asset-referenced tokens or e- money tokens, shall publish their crypto- asset white paper, and, where applicable, their marketing communications, on their website, which shall be publicly accessible, by no later than the starting date of the offer to the public of those crypto-assets or the admission of those crypto-assets to trading on a trading platform for crypto- assets. The crypto-asset white paper, and, where applicable, the marketing communications, shall remain available on the issuer’s website for as long as the crypto-assets are held by the public.
Amendment 364 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
2. The published crypto-asset white paper, and, where applicable, the marketing communications, shall be identical to the version notified to the relevant competent authorityapproved by ESMA in accordance with Article 7, or, where applicable, modified in accordance with Article 11.
Amendment 369 #
Proposal for a regulation
Article 11 – paragraph 1 a (new)
Article 11 – paragraph 1 a (new)
1a. The issuer, offeror or person seeking admission to trading of crypto- assets, other than asset-referenced tokens or e-money tokens, shall immediately notify to ESMA the modified crypto-asset key information sheet, and where applicable, modified marketing communications, including the reasons for such modification. ESMA shall notify the issuer, the offeror or the person asking for admission to trading of its decision regarding the approval of the crypto-asset key information sheet within 5 working days of the submission of the draft crypto-asset key information sheet.
Amendment 370 #
Proposal for a regulation
Article 11 – paragraph 2
Article 11 – paragraph 2
2. The issuerOnce, approved, the issuer or offeror or person seeking admission to trading, shall immediately inform the public on its website of the notification to ESMA of a modified crypto-asset white paper with the competent authority of its home Member Statekey information sheet and shall provide a summary of the reasons for which it has notified a modified crypto- asset white paper.
Amendment 379 #
Proposal for a regulation
Article 13 – paragraph 3
Article 13 – paragraph 3
3. Where an offer to the public of crypto-assets, other than asset-referenced tokens or e-money tokens, is cancelled for any reason, issuers of such crypto-assets shall ensure that any funds collected from purchasers or potential purchasers are duly returned to them as soon as possible and within 14 days at the latest.
Amendment 382 #
Proposal for a regulation
Article 14 – paragraph 1 – subparagraph 1
Article 14 – paragraph 1 – subparagraph 1
1. Where an issuer of crypto-assets, other than asset-referenced tokens or e- money tokens, or its management body or the operator of an exchange that has admitted the crypto-assets to trading at its own initiative has infringed Article 5, by providing in its crypto-asset white paper or in a modified crypto-asset white paper information which is not complete, fair or clear or by providing information which is misleading, a holder of crypto-assets may claim damages from that issuer of crypto- assets, other than asset-referenced tokens or e- money tokens, or its management body or the operator of an exchange that has admitted the crypto-assets to trading at its own initiative for damage caused to her or him due to that infringement.
Amendment 383 #
Proposal for a regulation
Article 14 – paragraph 2
Article 14 – paragraph 2
Amendment 386 #
Proposal for a regulation
Article 15 – paragraph 1
Article 15 – paragraph 1
1. No issuer of asset-referenced tokens shall, within the Union, offer such tokens to the public, or seek an admission of such assets to trading on a trading platform for crypto-assets, unless such issuers have been authorised to do so in accordance with Article 19 by the competent authority of their home Member StateESMA.
Amendment 390 #
Proposal for a regulation
Article 15 – paragraph 3 – subparagraph 1 – point b
Article 15 – paragraph 3 – subparagraph 1 – point b
Amendment 394 #
Proposal for a regulation
Article 15 – paragraph 5
Article 15 – paragraph 5
5. The authorisation granted by the competent authorityESMA shall be valid for the entire Union and shall allow an issuer to offer the asset- referenced tokens for which it has been authorised throughout the Union, or to seek an admission of such asset-referenced tokens to trading on a trading platform for crypto-assets.
Amendment 400 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Issuers of asset-referenced tokens shall submit their application for an authorisation as referred to in Article 15 to the competent authority of their home Member StateESMA.
Amendment 401 #
Proposal for a regulation
Article 16 – paragraph 2 – point d
Article 16 – paragraph 2 – point d
(d) an independent and reasoned legal opinion that the asset- referenced tokens do not qualify as financial instruments, electronic money, deposits or structured deposits;
Amendment 402 #
Proposal for a regulation
Article 16 – paragraph 2 – point e a (new)
Article 16 – paragraph 2 – point e a (new)
(ea) a description of the applicant crypto-asset service provider’s internal control mechanisms and procedures, referred to in [Article 30a], to ensure compliance with the obligations in relation to money laundering and terrorist financing under Directive(EU) 2015/849 of the European Parliament and of the Council;
Amendment 403 #
Proposal for a regulation
Article 16 – paragraph 2 – point e b (new)
Article 16 – paragraph 2 – point e b (new)
(eb) a description of the policies and procedures to identify, manage and disclose any conflicts of interests;
Amendment 417 #
Proposal for a regulation
Article 17 – paragraph 1 – subparagraph 1 – point e
Article 17 – paragraph 1 – subparagraph 1 – point e
(e) detailed information on the nature and enforceability of rights, including any: (i) information on the direct redemption right or any claims, that holders of asset-referenced tokens and any legal or natural person as granted in accordance with Article 32; (ii) any other rights that holders of asset- referred in Article 35(3)nced tokens, may have on the reserve assets or against the issuer, including how such rights may be treated in insolvency procedures.
Amendment 427 #
Proposal for a regulation
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Competent authoritiesESMA shall, within 20 working days of receivingpt of an application for authorisation as referred to in Article 16 shall, within 20 working days of receipt of such application, assess whether that application, including the crypto-asset white paperkey information sheet referred to in Article 16(2), point (i), is complete. They shall immediately notify the applicant issuer of whether the application, including the crypto-asset white paperkey information sheet, is complete. Where the application, including the crypto-asset white paperkey information sheet, is not complete, ithey shall set a deadline by which the applicant issuer is to provide any missing information.
Amendment 428 #
Proposal for a regulation
Article 18 – paragraph 2
Article 18 – paragraph 2
2. The competent authoritiesESMA shall, within 3 months from the receipt of a complete application, assess whether the applicant issuer complies with the requirements set out in this Title and take a fully reasoned draft decision granting or refusing authorisation. Within those three months, competent authorities may request from the applicant issuer any information on the application, including on the crypto- asset white paperkey information sheet referred in Article 16(2), point (i).
Amendment 429 #
Proposal for a regulation
Article 18 – paragraph 3
Article 18 – paragraph 3
3. Competent authoritiesESMA shall, after the three months referred to in paragraph 2, transmit theirits draft decision to the applicant issuer, and theirits draft decision and the application file to the EBA, ESMA and the ECB. Where the applicant issuer is establishedntends to make an offer of crypto- assets to the public or is seeking admission to trading in a Member State the currency of which is not the euro, or where a currency that is not the euro is included in the reserve assets, competent authorities the ESMA shall consult the central bank of that Member State. Applicant issuers shall have the right to provide their competent authorityESMA with observations and comments on their draft decisions.
Amendment 431 #
Proposal for a regulation
Article 18 – paragraph 4
Article 18 – paragraph 4
4. The EBA, ESMA, the ECB and, where applicable, a central bank as referred to in paragraph 3 shall, within 2 months after having received the draft decision and the application file, issue a non-bindingn opinion on the application and transmit their non-binding opinions to the competent authority concerned. That competent authorityESMA. ESMA shall duly consider those non-binding opinions and the observations and comments of the applicant issuer and refuse the authorisations in the cases indicated in Article 19 (2).
Amendment 438 #
Proposal for a regulation
Article 19 – paragraph 1
Article 19 – paragraph 1
1. Competent authoritiesESMA shall, within one month after having received the non- binding opinion referred to in Article 18(4), take a fully reasoned decision granting or refusing authorisation to the applicant issuer and, and, within 5 working days, notify that decision to applicant issuers. Where an applicant issuer is authorised, its crypto-asset white paper shall be deemed to be approved.
Amendment 442 #
2. Competent authoritiesESMA shall refuse authorisation where there are objective and demonstrable grounds for believing that:
Amendment 447 #
Proposal for a regulation
Article 19 – paragraph 2 – point c a (new)
Article 19 – paragraph 2 – point c a (new)
(ca) the EBA has assessed that the asset-referenced token has a payment function and gives a negative opinion;
Amendment 448 #
Proposal for a regulation
Article 19 – paragraph 2 – point c b (new)
Article 19 – paragraph 2 – point c b (new)
(cb) the ECB or the national central banks of the ESCB give a negative opinion within their exclusive competence for the conduct of the monetary policy, and the promotion of the smooth operation of payment systems.
Amendment 450 #
Proposal for a regulation
Article 19 – paragraph 3 – introductory part
Article 19 – paragraph 3 – introductory part
3. Competent authoritiesThe ESMA shall inform the EBA, ESMA and the ECB and, where applicable, the central banks referred to in Article 18(3), of all authorisations granted. ESMA shall include the following information in the register of crypto-assets and crypto-asset service providers referred to in Article 57:
Amendment 452 #
Proposal for a regulation
Article 20 – paragraph 1 – subparagraph 1 – point g a (new)
Article 20 – paragraph 1 – subparagraph 1 – point g a (new)
(ga) the issuer fails to have in place effective measures and procedures to prevent, detect and investigate illicit activities connected to its asset-referenced tokens;
Amendment 454 #
Proposal for a regulation
Article 20 – paragraph 1 – subparagraph 1 – point g b (new)
Article 20 – paragraph 1 – subparagraph 1 – point g b (new)
(gb) the issuer’s activity poses a threat to financial stability, market integrity or investor and consumer protection.
Amendment 455 #
Proposal for a regulation
Article 20 – paragraph 1 – subparagraph 1 – point g c (new)
Article 20 – paragraph 1 – subparagraph 1 – point g c (new)
(gc) the ECB or the national central banks of the ESCB within their exclusive competences, issue a negative opinion that the asset-referenced tokens pose a serious threat to monetary policy transmission or monetary sovereignty and the smooth operation of payment systems.
Amendment 458 #
Proposal for a regulation
Article 22 – paragraph 1 – subparagraph 1
Article 22 – paragraph 1 – subparagraph 1
1. WThere an issuer of asset-referenced tokens or its management body has infringed Article 17, byis solely responsible for the information providinged in its crypto-asset white paperkey information sheet or in a modified crypto- asset white paperkey information which is not complete, fair or clear or by providing information which is misleading, asheet and shall be held legally liable to pay compensation for any claim, loss or damage resulting from providing information which is not complete, fair or clear or misleading, in infringement of Article17. A holder of such asset- referenced tokens may claim damages from that issuer of asset- referenced tokens or its management body for damage caused to her or him due to that infringement, in accordance with the applicable national law as determined by the relevant rules of private international law.
Amendment 459 #
Proposal for a regulation
Article 22 – paragraph 2
Article 22 – paragraph 2
Amendment 468 #
Proposal for a regulation
Article 26 a (new)
Article 26 a (new)
Article 26a Reporting obligations to ESMA Issuers of asset-referenced tokens shall regularly report to ESMA on the developments in the markets in relation of their asset-referenced tokens. An issuer of asset-referenced tokens provide the following information to ESMA for each asset reference token: (a) the customer base; (b) the value and market capitalisation of the asset referenced tokens; (c) the size of the reserve; (d) the average number of transactions per day; (e) the average number of transactions linked with the purchase of goods or services.
Amendment 469 #
Proposal for a regulation
Article 27 – paragraph 1
Article 27 – paragraph 1
1. Issuers of asset-referenced tokens shall establish and maintain effective and transparent procedures for the prompt, fair and consistent handling of complaints received from holders of asset-referenced tokens and other interested parties, including consumer associations. Where the asset-referenced tokens are distributed, totally or partially, by third- party entities as referred to in Article 30(5) point (h), issuers of asset-referenced tokens shall establish procedures to facilitate the handling of such complaints between holders of asset-referenced tokens and such third-party entities.
Amendment 478 #
Proposal for a regulation
Article 30 – paragraph 3
Article 30 – paragraph 3
3. Natural persons who either own, directly or indirectly, more than 20% of the share capital or voting rights of issuers of asset-referenced tokens, or who exercise, by any other means, a power of control over such issuers shall have the necessary good repute and competence and be fit and proper for the purpose of anti-money laundering and combatting the financing of terrorism.
Amendment 484 #
Proposal for a regulation
Article 30 – paragraph 11
Article 30 – paragraph 11
11. Issuers of asset-referenced tokens shall ensure that they are regularly audited by independent auditorsexternal auditors, at least annually. The results of those audits shall be communicated to the management body of the issuer concerned and made available to the competent authorthe ESMA at the latest within 4 weeks of the date of the valuation and shall be made publicly available without delay, unless the competent authority has requested a delay of such publication in the interest of the holders and financial stability.
Amendment 495 #
Proposal for a regulation
Article 31 – paragraph 3 – point g a (new)
Article 31 – paragraph 3 – point g a (new)
(ga) any vulnerability revealed by the results of the stress test referred to in Article 31a.
Amendment 499 #
Proposal for a regulation
Article 31 – paragraph 4 – subparagraph 1 – point c a (new)
Article 31 – paragraph 4 – subparagraph 1 – point c a (new)
(ca) the common reference parameters of the stress test scenarios to be included in the stress tests taking into account the factors specified in paragraph 1. The draft regulatory standards shall be updated at least every two years taking into account the latest market developments”.
Amendment 502 #
Proposal for a regulation
Article 31 a (new)
Article 31 a (new)
Article 31a Stress testing 1. Issuers of asset-referenced tokens shall have in place sound stress testing processes that identify possible events or future changes in financial conditions which could have unfavourable effects on the asset-referenced token. Without prejudice to the provisions on digital operational resilience testing laid down in Regulation (EU) 2021/xx of the European Parliament and of the Council [DORA],the issuer of asset referenced tokens shall conduct, on a regular basis, stress testing that consider the effects of severe plausible scenarios. The stress test scenarios shall at least take into consideration reference parameters that include the following factors: (a) hypothetical changes in the level of liquidity of the assets held in the portfolio of the asset-referenced tokens; (b) hypothetical changes in the level of credit risk of the assets held in the portfolio of the asset-referenced tokens; (c) hypothetical movements of the interest rates and exchange rates; (d) hypothetical levels of redemption; (e) hypothetical widening or narrowing of spreads among indices to which interest rates of portfolio assets are tied; (f) hypothetical macrosystemic shocks affecting the economy as a whole. 2. Where the stress test reveals any vulnerability, the issuer of the asset- referenced tokens shall draw up a report with the results of the stress testing and an action plan and submit them to the ESMA. Where necessary, the issuer of the asset-referenced tokens shall take action to strengthen the robustness of the asset- referenced tokens, including actions that reinforce the liquidity or the quality of the assets of the asset-referenced tokens and shall immediately inform the ESMA of the measures taken.
Amendment 503 #
Proposal for a regulation
Article 32 – paragraph 1
Article 32 – paragraph 1
1. Issuers of asset-references tokens shall at all times constitute and maintain a reserve of assets. to cover the claims from holders in respect to the asset referenced tokens in circulation. The aggregate value of reserve assets shall always be at least equal to the aggregate face value of the claims on the issuer from holders of asset- referenced tokens in circulation. For the purpose of calculating the aggregate face value of token holders’ claims, and for any valuation of the reserve assets under paragraph 5 of this Article, Article 30(11), point (c) of Article 35(2), Article 41 and Article 42, the face value of claims, and the value of funds and other reserve assets, including other crypto-assets, shall be expressed in the same official currency
Amendment 513 #
Proposal for a regulation
Article 33 – paragraph 1 – subparagraph 1– point a
Article 33 – paragraph 1 – subparagraph 1– point a
(a) the reserve assets are legally and operationally segregated from the issuers’ own assets and insulated in the interest of the holders of asset-referenced tokens, in particular in the event of insolvency;
Amendment 523 #
Proposal for a regulation
Article 34 – paragraph 4 – subparagraph 1 – point c a (new)
Article 34 – paragraph 4 – subparagraph 1 – point c a (new)
(ca) liquidity requirements establishing which percentage of the reserve assets should be comprised of daily maturing assets, reverse repurchase agreements which are able to be terminated by giving one working day’s prior notice or cash which is able to be withdrawn by giving one working day’s prior notice;
Amendment 527 #
Proposal for a regulation
Article 34 – paragraph 4 –subparagraph 1 – point c b (new)
Article 34 – paragraph 4 –subparagraph 1 – point c b (new)
(cb) liquidity requirements establishing which percentage of the reserve assets should be comprised of weekly maturing assets, reverse repurchase agreements which are able to be terminated by giving five working days’ prior notice, or cash which is able to be withdrawn by giving five working days’ prior notice;
Amendment 530 #
Proposal for a regulation
Article 34 – paragraph 4 – subparagraph 1– point c c (new)
Article 34 – paragraph 4 – subparagraph 1– point c c (new)
(cc) concentration requirements preventing the issuer from investing more than a certain percentage of assets issued by a single body;
Amendment 534 #
Proposal for a regulation
Article 34 – paragraph 4 – subparagraph 1 – point c d (new)
Article 34 – paragraph 4 – subparagraph 1 – point c d (new)
(cd) issuer from keeping in custody more than a certain percentage of crypto- assets or assets with crypto-asset service providers or credit institutions which belong to the same group, as defined in Article 2(11) of Directive 2013/34/EU of the European Parliament and of the Council(*);
Amendment 544 #
Proposal for a regulation
Article 35 – paragraph 1
Article 35 – paragraph 1
1. Issuers of asset-referenced tokens shall establish, maintain and implement clear and detailed policies and procedures on the rights granted to holders of asset- referenced tokens, including any to ensure a direct claim or redemption rights on the issuer of those asset-referenced tokens or on the reserve assets.
Amendment 545 #
Proposal for a regulation
Article 35 – paragraph 1 a (new)
Article 35 – paragraph 1 a (new)
1a. Holders of asset-referenced tokens shall be provided with a permanent right of redemption on the issuer of such asset- referenced tokens. Any asset-referenced token that does not provide all holders with a permanent redemption right shall be prohibited. Upon request by the holder of asset-referenced tokens, the respective issuers shall redeem , at any moment and at market value, the monetary value of the asset-referenced tokens held to the holders of asset-referenced tokens, either in cash or by credit transfer. Such right of redemption shall be granted without prejudice to the application of restrictive measures imposed on the issuer under other Union or national legislation and in particular in accordance with anti- money laundering and anti-terrorist financing rules, which may require the issuer to take appropriate action to freeze the funds or take any specific measure linked to the prevention and investigation of crimes.
Amendment 546 #
Proposal for a regulation
Article 35 – paragraph 1 b (new)
Article 35 – paragraph 1 b (new)
1b. By way of derogation from paragraph 1a, issuers of asset-referenced tokens may, in accordance with the conditions set out in the crypto-asset key information sheet and only in exceptional cases temporarily suspend the redemption of its tokens, where such suspension is in the interests of the holders of the asset referenced tokens. In the event of a temporary suspension, the issuers of asset referenced tokens shall, without delay, communicate their decision to the ESMA. The ESMA may require the suspension of the redemption of tokens in the interest of the holders of the asset-referenced tokens or of the public.
Amendment 550 #
Proposal for a regulation
Article 35 – paragraph 2 – subparagraph 1 – introductory part
Article 35 – paragraph 2 – subparagraph 1 – introductory part
2. Where holders of asset-referenced tokens are granted rights as referred to in paragraph 1, iIssuers of asset-referenced tokens shall establish a policy setting out:
Amendment 559 #
Proposal for a regulation
Article 35 – paragraph 2 – subparagraph 1 – point c
Article 35 – paragraph 2 – subparagraph 1 – point c
(c) the valuation, or the principles ofmethodology and criteria to ensure a fair, reliable and transparent valuation, of the asset-referenced tokens and of the reserve assets when those rights are exercised by the holder ofe issuer offers the right to redeem the asset- referenced tokens at market value, and its verification by an independent auditor;
Amendment 562 #
Proposal for a regulation
Article 35 – paragraph 2 – subparagraph 1 – point e
Article 35 – paragraph 2 – subparagraph 1 – point e
Amendment 567 #
Proposal for a regulation
Article 35 – paragraph 2 – subparagraph 2
Article 35 – paragraph 2 – subparagraph 2
Amendment 570 #
Proposal for a regulation
Article 35 – paragraph 3
Article 35 – paragraph 3
Amendment 577 #
Proposal for a regulation
Article 35 – paragraph 4
Article 35 – paragraph 4
Amendment 590 #
Proposal for a regulation
Article 35 – paragraph 5 – subparagraph 1 – introductory part
Article 35 – paragraph 5 – subparagraph 1 – introductory part
5. The EBA shall, in close cooperation with ESMA and the ESCB, develop draft regulatory technical standards specifying:
Amendment 595 #
Proposal for a regulation
Article 35 – paragraph 5 – subparagraph 1 – point b a (new)
Article 35 – paragraph 5 – subparagraph 1 – point b a (new)
(ba) the conditions which need to be met by the issuer after the adoption of the temporary suspension of the redemption of the asset referenced tokens, once the suspension has been decided.
Amendment 606 #
Proposal for a regulation
Article 39 – paragraph 1 – introductory part
Article 39 – paragraph 1 – introductory part
1. The EBA shall classifyA issuer of asset- referenced tokens as significantshall be designated asset- referenced tokens on the basis of the following criteria, as specified in accordance with paragraph 6 andas significant asset-referenced tokens where at least threewo of the following criteria are met:
Amendment 610 #
Proposal for a regulation
Article 39 – paragraph 1 – point a
Article 39 – paragraph 1 – point a
(a) the size of the customer base of the promoters of the asset-referenced tokens, the shareholders of the issuer of asset- referenced tokens or of any of the third- party entities referred to in Article 30(5), point (h) is at least 5 million;
Amendment 611 #
Proposal for a regulation
Article 39 – paragraph 1 – point b
Article 39 – paragraph 1 – point b
(b) the value of the asset-referenced tokens issued or, where applicable, their market capitalisation is at least EUR 5 billion in the last financial year;
Amendment 612 #
Proposal for a regulation
Article 39 – paragraph 1 – point c
Article 39 – paragraph 1 – point c
(c) the number and value of transactions in those asset-referenced tokens is at least [xxx] transactions per day or EUR 300 million per day respectively;
Amendment 613 #
Proposal for a regulation
Article 39 – paragraph 1 – point d a (new)
Article 39 – paragraph 1 – point d a (new)
(da) the issuer of the asset-referenced tokens is a provider of core platforms services designated as gatekeeper in accordance with Regulation (EU).../... (Digital Markets Act);
Amendment 614 #
Proposal for a regulation
Article 39 – paragraph 1 – point d b (new)
Article 39 – paragraph 1 – point d b (new)
(db) the asset-referenced tokens are used in at least 5 Member States;
Amendment 619 #
Proposal for a regulation
Article 39 – paragraph 2 a (new)
Article 39 – paragraph 2 a (new)
2a. Where an issuer of assets referenced tokens authorised in accordance with Article 19 meets at least two of the thresholds in paragraph 2, it shall notify ESMA without undue delay and at the latest 7 days after those thresholds are satisfied and provide it with the relevant information identified in paragraph.
Amendment 656 #
Proposal for a regulation
Article 40 a (new)
Article 40 a (new)
Amendment 675 #
Proposal for a regulation
Article 43 – paragraph 2
Article 43 – paragraph 2
Amendment 693 #
Proposal for a regulation
Article 44 – paragraph 6
Article 44 – paragraph 6
Amendment 703 #
Proposal for a regulation
Article 46 – title
Article 46 – title
46 Content and form of the crypto- asset white paperkey information sheet for electronic money tokens
Amendment 704 #
Proposal for a regulation
Article 46 – paragraph 1
Article 46 – paragraph 1
1. Before offering e-money tokens to the public in the EU or seeking an admission of such e-money tokens to trading on a trading platform, the issuer of e-money tokens shall publishobtain approval for its a crypto- asset white paperkey information sheet and, once approved, it shall publish it on its website.
Amendment 714 #
Proposal for a regulation
Article 46 – paragraph 2 – point f a (new)
Article 46 – paragraph 2 – point f a (new)
(fa) a declaration by the issuer or its management body that, to the best of their knowledge, the information contained in the key information sheet is in accordance with the facts and that the key information sheet makes no omission likely to affect its import;
Amendment 721 #
Proposal for a regulation
Article 46 – paragraph 9 – subparagraph 1
Article 46 – paragraph 9 – subparagraph 1
9. The issuer of e-money tokens shall notify its draft crypto-asset white paperkey information sheet , and where applicable their marketing communications, to the relevant competent authority as referred to in Article 3(1) point (24)(b) at least 20 working days before its date of its publication. The relevant authority shall notify the issuer of its decision regarding the approval within 20 working days of the submission of the draft key information sheet.
Amendment 723 #
Proposal for a regulation
Article 47 – paragraph 1 – subparagraph 1
Article 47 – paragraph 1 – subparagraph 1
1. WThere an issuer of e-money tokens or its management body has infringed Article 46, byis solely responsible for the information providinged in its crypto- asset white paperkey information sheet or in a in a modified crypto-asset white paperkey information sheet and shall be held legally liable to pay compensation for any claim, loss or damage resulting from providing information which is not complete, fair or clear or by providing information which is misleading, ain infringement of Article 46. A holder of such e-money tokens may claim damages from that issuer of e-money tokens or its management body for damage caused to her or him due to that infringement, in accordance with the applicable national law as determined by the relevant rules of private international law.
Amendment 764 #
Proposal for a regulation
Article 53 – paragraph 1 – subparagraph 2
Article 53 – paragraph 1 – subparagraph 2
Crypto-asset service providers shall, at all times, meet the conditions for their initial authorisation and shall notify ESMA without undue delay, of any material changes to the conditions for their authorisation.
Amendment 772 #
Proposal for a regulation
Article 53 – paragraph 3 – subparagraph 2
Article 53 – paragraph 3 – subparagraph 2
Crypto-asset service providers tshat provide crypto-asset services on a cross-border basis shall not be required to have a physical presence in the territory of a host Member Statell be required to appoint a resident director and to have substantive management presence in the Union.
Amendment 776 #
Proposal for a regulation
Article 54 – paragraph 1
Article 54 – paragraph 1
1. Legal persons that intend to provide crypto-asset services shall apply for authorisation as a crypto-asset service provider to the competent authority of the Member State where they have their registered officeESMA.
Amendment 779 #
Proposal for a regulation
Article 54 – paragraph 2 – point a a (new)
Article 54 – paragraph 2 – point a a (new)
(aa) name and contact details of a central contact person in charge of compliance with this Regulation and anti- money laundering obligations;
Amendment 784 #
Proposal for a regulation
Article 54 – paragraph 2 – point e a (new)
Article 54 – paragraph 2 – point e a (new)
Amendment 786 #
Proposal for a regulation
Article 54 – paragraph 2 – point f
Article 54 – paragraph 2 – point f
(f) for all natural persons involved in the management body of the applicant crypto-asset service provider, and for all natural persons who, directly or indirectly, hold 210% or more of the share capital or voting rights, or ownership interest in the crypto-asset service provider, including through bearer shareholdings, or through control via other means, information on their identities, proof of the absence of a criminal record in respect of infringements of national rules in the fields of commercial law, insolvency law, financial services law, anti-money laundering law, counter-terrorism legislation, and professional liability obligations;
Amendment 790 #
Proposal for a regulation
Article 54 – paragraph 2 – point g
Article 54 – paragraph 2 – point g
(g) proof that the natural persons involved in the management body of the applicant crypto-asset service provider collectively possess sufficient knowledge, skills and experience to manage that provider and that those natural persons are required to commit sufficient time to the performance of their duties;
Amendment 791 #
Proposal for a regulation
Article 54 – paragraph 2 – point g a (new)
Article 54 – paragraph 2 – point g a (new)
(ga) for the persons involved in the management body, a declaration of any potential conflicts of interest that may exist or arise in performing the duties and how those conflicts are managed;
Amendment 799 #
Proposal for a regulation
Article 54 – paragraph 2 – point m a (new)
Article 54 – paragraph 2 – point m a (new)
(ma) a description of the policies and procedures to identify, manage and disclose any conflicts of interests;
Amendment 800 #
Proposal for a regulation
Article 54 – paragraph 2 – point m b (new)
Article 54 – paragraph 2 – point m b (new)
(mb) a description of the applicant crypto-asset service provider’s internal control mechanisms and procedures, referred to in Article 61 Article 61a, including the procedures to ensure compliance with the obligations in relation to money laundering and terrorist financing;
Amendment 829 #
Proposal for a regulation
Article 56 – paragraph 1 – point e a (new)
Article 56 – paragraph 1 – point e a (new)
(ea) fails to have in place effective measures and procedures to prevent, detect and investigate illicit activities connected to the provision of crypto-asset services; (eb) its activity poses a threat to financial stability, market integrity or investor and consumer protection;
Amendment 867 #
1. Members of the management body of crypto-asset service providers shall have the necessary good repute and competence, in terms of qualifications, experience and skills to perform their duties and be fit and proper for the purpose of anti-money laundering and combatting the financing of terrorism. They shall demonstrate that they are capable of committing sufficient time to effectively carry out their functions.
Amendment 869 #
Proposal for a regulation
Article 61 – paragraph 2
Article 61 – paragraph 2
2. Natural persons who either own, directly or indirectly, more than 210% of the crypto-asset service provider's share capital or voting rights, or who exercise, by any other means, a power of control over the said crypto-asset service provider shall provide evidence that they have the necessary good repute and competence and be fit and proper for the purpose of anti- money laundering and combatting the financing of terrorism.
Amendment 872 #
Proposal for a regulation
Article 61 – paragraph 3
Article 61 – paragraph 3
3. None of the persons referred to in paragraphs 1 or 2 shall have been convicted of offences relating to money laundering or terrorist financing or other financial crimes or for misconduct or fraud in the management of a business..
Amendment 873 #
Proposal for a regulation
Article 61 – paragraph 3 a (new)
Article 61 – paragraph 3 a (new)
3a. Crypto-asset service providers shall establish, implement and maintain decision-making procedures and an organisational structure which clearly and in documented manner specifies reporting lines and allocates functions and responsibilities;
Amendment 874 #
Proposal for a regulation
Article 61 – paragraph 3 b (new)
Article 61 – paragraph 3 b (new)
3b. Crypto-asset service providers shall establish, implement and maintain adequate internal control mechanisms designed to secure compliance with decisions and procedures at all levels of crypto-asset service provider;
Amendment 878 #
Proposal for a regulation
Article 61 – paragraph 9 a (new)
Article 61 – paragraph 9 a (new)
9a. Crypto-asset service providers shall not provide services related in any way, shape, or form to crypto-assets with an in built anonymisation function that limits the traceability of transactions. In particular, they shall not facilitate the purchase or trading of such crypto-assets and shall not offer custody services for such crypto-assets.
Amendment 884 #
Proposal for a regulation
Article 61 – paragraph 9 b (new)
Article 61 – paragraph 9 b (new)
9b. Crypto-asset service providers shall not provide services related in any way, shape, or form to crypto-assets that do not meet the environmental sustainability criteria in accordance with Article 3a. In particular, they shall not facilitate the purchase or trading of such crypto-assets and shall not offer custody services for such crypto-assets.
Amendment 885 #
Proposal for a regulation
Article 61 a (new)
Article 61 a (new)
Amendment 886 #
Proposal for a regulation
Article 61 b (new)
Article 61 b (new)
Amendment 895 #
Proposal for a regulation
Article 65 – paragraph 1 – introductory part
Article 65 – paragraph 1 – introductory part
1. Crypto-asset service providers shall maintain and operate an effective policy to prevent, identify, or manage and disclose conflicts of interest between themselves and:
Amendment 896 #
Proposal for a regulation
Article 65 – paragraph 1 a (new)
Article 65 – paragraph 1 a (new)
1a. The conflicts of interest policy established in accordance with paragraph 1 shall specify procedures to be followed and measures to be adopted in order to prevent or manage such conflicts, including at least the following: (a) effective procedures to prevent or control the exchange of information between relevant persons engaged in activities involving a risk of a conflict of interest where the exchange of that information may harm the interests of one or more clients; (b) the separate supervision of relevant persons whose principal functions involve carrying out activities on behalf of, or providing services to, clients whose interests may conflict, or who otherwise represent different interests that may conflict, including those of the firm; (c) the removal of any direct link between the remuneration of relevant persons principally engaged in one activity and the remuneration of, or revenues generated by, different relevant persons principally engaged in another activity, where a conflict of interest may arise in relation to those activities; (d) measures to prevent or limit any person from exercising inappropriate influence over the way in which a relevant person carries out investment or ancillary services or activities; (e) measures to prevent or control the simultaneous or sequential involvement of a relevant person in separate investment or ancillary services or activities where such involvement may impair the proper management of conflicts of interest.
Amendment 897 #
Proposal for a regulation
Article 65 – paragraph 2 – subparagraph 1
Article 65 – paragraph 2 – subparagraph 1
2. Crypto-asset service providers shall clearly disclose to their clients and potential clients the general nature and sources of conflicts of interest and the steps taken to mitigate them. s well as the risks to the client that arise as a result of the conflicts of interest and the steps taken to mitigate them before undertaking business on their behalf. Crypto-asset service providers shall ensure that disclosure to clients and potential clients is a measure of last resort that shall be used only where the effective conflicts of interest policy established to prevent or manage its conflicts of interest is not sufficient to ensure, with reasonable confidence, that risks of damage to the interests of the client will be prevented.
Amendment 899 #
Proposal for a regulation
Article 65 – paragraph 4
Article 65 – paragraph 4
4. Crypto-asset service providers shall assess and at least annually review, their policy on conflicts of interest and take all appropriate measures to address any deficiencies. Over-reliance on disclosure of conflicts of interest shall be considered a deficiency in the crypto-asset service provider’s conflicts of interest policy.
Amendment 913 #
Proposal for a regulation
Article 67 – paragraph 8
Article 67 – paragraph 8
8. Crypto-asset service providers that are authorised for the custody and administration of crypto-assets on behalf of third parties shall be liable to their clients for loss of crypto-assets as a resulting fromor of the means of access to the crypto-assets as a resulting from an operational incident associate with the provision of the service or the operation of the service provider, including a malfunction or hacks, up to the market value of the crypto-assets lost.
Amendment 940 #
Proposal for a regulation
Article 70 – paragraph 3
Article 70 – paragraph 3
3. Crypto-asset service providers that are authorised to execute orders for crypto- assets on behalf of third parties shall provide appropriate and clear information to their clients on their order execution policy and any significant change to it. That information shall explain clearly, in sufficient detail and in a way that can be easily understood by clients, how orders will be executed by the crypto-asset service provider for the client. Crypto- asset service providers shall obtain the prior and informed consent of their clients to the order execution policy. Where a bundle of services or products is envisaged pursuant to Article 24(11), the assessment shall consider whether the overall bundled package is appropriate. Where the crypto-asset service provider considers, on the basis of the information received under the first subparagraph, that the product or service is not appropriate to the client or potential client, the crypto-asset service provider shall warn the client or potential client. That warning may be provided in a standardised format. Where clients or potential clients do not provide the information referred to under the first subparagraph, or where they provide insufficient information regarding their knowledge and experience, the investment firm shall warn them that the investment firm is not in a position to determine whether the service or product envisaged is appropriate for them. That warning may be provided in a standardised format.
Amendment 945 #
Proposal for a regulation
Article 73 – title
Article 73 – title
Advice on crypto-assets and portfolio management
Amendment 948 #
Proposal for a regulation
Article 73 – paragraph 1
Article 73 – paragraph 1
1. Crypto-asset service providers that are authorised to provide advice on crypto- assets shall assess the compatibilityor portfolio management of crypto- assets shall assess the suitability and appropriateness of such crypto-assets and services with the needs and specific situation of the clients and recommendprovide them only when this is in the interest of the clients. 1a. Crypto-asset service providers that are authorised to provide advice on crypto- assets or portfolio management of crypto shall not accept and retain fees, commissions or any monetary or nonmonetary benefits paid or provided by an issuer or any third party or a person acting on behalf of a third party in relation to the provision of the service to their clients.
Amendment 954 #
Proposal for a regulation
Article 73 – paragraph 3 – subparagraph 1
Article 73 – paragraph 3 – subparagraph 1
3. For the purposes of the assessment referred to in paragraph 1, crypto-asset service providers that are authorised to provide advice on crypto-assets shall request information about the client or prospective client’s knowledge of, and experience inor portfolio management of crypto-assets shall obtain from the client or prospective client the information referred to in Article 73a (2), so as to enable the crypto- assets, objectives, financial service provider to provide to the client or prospective client the services and crypto-assets that are suituation including the ability to bear losses and a basic understanding of risks involved in purchasing crypto-assets.able for him or her and, in particular, are in accordance with his risk tolerance and ability to bear losses. Crypto-asset service providers that are authorised to provide advice on crypto- assets or portfolio management of crypto- assets shall warn clients that: (a) due to their tradability, the value of crypto-assets may fluctuate; (b) the crypto-assets may be subject to full or partial losses; (c) the crypto-assets may not always be transferable; (d) the crypto-assets may not be liquid;
Amendment 959 #
Proposal for a regulation
Article 73 – paragraph 5
Article 73 – paragraph 5
5. Where clients do not provide the information required pursuant to paragraph 4, or where crypto-asset service providers that are authorised to provide advice on crypto-assets consider, on the basis of the information received under paragraph 43 , that the prospective clients or clients have insufficient knowledge,crypto-assets services or crypto-assets are not suitable nor appropriate for the investment profile of the client, the crypto-asset service providers that are authorised to provide advice on crypto- assets shall inform those clients or prospective clients that the crypto-assets or crypto-asset services may bare inappropriate for them and issue them a warning on the risks associated with crypto-assets. That risk warning shallshall not recommend or shall not decide to trade where the services or crypto-assets are not suitable for the client clearly state the risk of losing the entirety of the money invested or converted into crypto-assets. Clients shall expressly acknowledge that they have received and understood the warning issued by the crypto-asset service provider concerned.
Amendment 963 #
Proposal for a regulation
Article 73 a (new)
Article 73 a (new)
Amendment 974 #
Proposal for a regulation
Article 77 – paragraph 2
Article 77 – paragraph 2
Amendment 992 #
Proposal for a regulation
Article 81 – paragraph 1
Article 81 – paragraph 1
1. Member States shall designate the competESMA shall be the single direct supervisor of all crypto-assets and asset- referenced tokens, except for e-money tokens, and all crypto-asset service providers in the Union. ESMA shall be responsible for carrying out the supervisory functions and duties provided for in this Regulation and ensuring compliance with the requirements authoritiesnd obligations laid down in this Regulation, in close cooperation with the EBA. EBA shall be the single direct supervisor of significant e-money tokens and asset- referenced tokens designated as ‘quasi-e- money tokens’. EBA shall be responsible for carrying out the supervisory functions and duties provided for in this Regulation and shall inform the EBA andensuring compliance with the requirements and obligations laid down in this Regulation, in close cooperation with the ESMA , thereof. ECB, the ESCB and the national competent authorities.
Amendment 993 #
Proposal for a regulation
Article 82 – paragraph 1 – subparagraph 1 – introductory part
Article 82 – paragraph 1 – subparagraph 1 – introductory part
1. In order to fulfil their duties under Titles II, III, IV and V of this Regulation, ESMA, EBA and the national competent authorities shall have, in accordance with national law, at least the following supervisory and investigative powers:
Amendment 1015 #
Proposal for a regulation
Article 94 – paragraph 1 a (new)
Article 94 – paragraph 1 a (new)
Amendment 1106 #
Proposal for a regulation
Article 116 a (new)
Article 116 a (new)
Amendment 1119 #
Proposal for a regulation
Article 122 – title
Article 122 – title
Amendment 1121 #
Proposal for a regulation
Article 122 – paragraph 1
Article 122 – paragraph 1
1. By … [36 months after the date of entry into force of this Regulation] after consulting the EBA and ESMA and taking into account the findings of their annual reports, the Commission shall present a report to the European Parliament and the Council on the application and implementation of this Regulation, and on the compliance with its obligations and requirements. The report shall where appropriate be accompanied by a legislative proposal.
Amendment 1122 #
Proposal for a regulation
Article 122 – paragraph 2 – point b a (new)
Article 122 – paragraph 2 – point b a (new)
(ba) an estimation of the number of EU residents using or investing in crypto- assets issued and offered outside the EU;
Amendment 1123 #
Proposal for a regulation
Article 122 – paragraph 2 – point c
Article 122 – paragraph 2 – point c
(c) the number and value of fraud, hackscams, hacks, ransomwares and thefts of crypto-assets reported in the EU, types of fraudulent behaviour, the number of complaints received by crypto-asset service providers and issuers of asset-referenced tokens, the number of complaints received by competent authorities and the subjects of the complaints received;
Amendment 1124 #
Proposal for a regulation
Article 122 – paragraph 2 – point i a (new)
Article 122 – paragraph 2 – point i a (new)
(ia) an assessment of the enforcement and effectiveness of the obligations laid down in this Regulation, including any infringement of the requirement for third- country firms providing crypto-assets services to persons established in the Union to be authorised as crypto-assets service providers in accordance with this Regulation; (ib) an assessment of possible measures and effective and dissuasive sanctions to prevent third country actors to offer crypto-asset services to persons established in the Union without authorisation, to prevent circumvention of this Regulation and with a view to ensure consumer and investor protection;
Amendment 1125 #
Proposal for a regulation
Article 122 – paragraph 2 – point i b (new)
Article 122 – paragraph 2 – point i b (new)
(ib) an assessment of fraudulent marketing communications and scams involving crypto-assets occurring through social media networks;
Amendment 1126 #
Proposal for a regulation
Article 122 – paragraph 2 – point i c (new)
Article 122 – paragraph 2 – point i c (new)
(ic) an assessment of the level of threat of money laundering, terrorist financing and other criminal activity in relation to crypto-assets channelled through decentralised finance systems and the necessity and feasibility to establish appropriate and effective measures, including transactional restrictions on payments in crypto-assets for goods and services involving payments above a de minimis thresholds, stronger intelligence channels and a regime of effective, proportionate and dissuasive sanctions to prevent illicit transactions in crypto-assets;
Amendment 1128 #
Proposal for a regulation
Article 122 – paragraph 2 – point j a (new)
Article 122 – paragraph 2 – point j a (new)
(ja) an assessment of whether the prudential requirements for crypto-assets service providers are appropriate and whether they should be aligned with the requirements for initial capital and own funds applicable to investment firms under Regulation (EU) 2019/2033 and Directive 2019/2034/EU;
Amendment 1137 #
Proposal for a regulation
Article -122 a (new)
Article -122 a (new)
Amendment 1138 #
Proposal for a regulation
Article 122 b (new)
Article 122 b (new)
Article 122b Commission report on a EU list of banned crypto-addresses and non-compliant entities By … [12 months after the date of entry into force of this Regulation], with a view to strengthen the fight against financial crime and ensure that financial institutions, firms, crypto-assets service providers and other obliged entities under the scope of the European AML legislation do not engage in unauthorized transactions or facilitate criminal activities, the Commission shall assess the possibility of creating a central EU List of banned addresses, persons and entities, including crypto-assets wallet addresses owned or associated with persons, groups and entities which are subject to European sanctions, which should integrate the ESMA list of non-compliant crypto-asset service providers. The Commission shall also assess how the use of smart contracts can be integrated in the AML/CFT framework to ensure compliance with AML obligations, facilitate due diligence procedures and prevent transactions with listed addresses.
Amendment 1140 #
Proposal for a regulation
Article 123 – paragraph 1
Article 123 – paragraph 1
1. Articles 4 to 14 shall not apply to cCrypto-assets, other than asset- referenced tokens and e-money tokens, which were offered to the public in the Union or admitted to trading on a trading platform for crypto-assets before [please insert date of entry into application]. shall comply with Articles 4 to 14 if they want to continue to be admitted to trading. By way of derogation from this Regulation, for crypto-assets, other than asset-referenced tokens and e-money tokens, which were admitted to trading on a trading platform for crypto-assets before [please insert date of entry into application of this Regulation], a crypto- asset service provider operating a trading platform shall: a) provide or draft a crypto-asset information sheet in accordance with Article 4a; b) comply with the applicable requirements laid down in Articles 5 to 11; and c) be liable for the information provided in the key information sheet they drafted in accordance with Article 14.
Amendment 1145 #
Proposal for a regulation
Article 123 a (new)
Article 123 a (new)
Article 123a Amendment of Directive 2014/57/EU Directive 2014/57/EU is amended as follows: In Article 1, paragraph 2, point (da) is added: da) a crypto-asset admitted to trading or for which a request for admission to trading to a crypto-asset service provider has been made;
Amendment 1146 #
Proposal for a regulation
Article 123 b (new)
Article 123 b (new)
Article 123b Amendment of Directive (EU) 2015/849 Directive (EU) 2015/849 is amended as follows: In Article 2, point (gh) is added: other crypto-asset service providers as defined in Article 2 of Regulation (EU) …./… of the European Parliament and of the Council of … on Markets in Crypto- Assets (EU) 2021/XXX In Article 2, point (ea) is added: other persons trading in goods to the extent that payments are made or received in crypto-assets of whatever form in an amount of EUR 10 000 or more, whether the transaction is carried out in a single operation or in several operations which appear to be linked;
Amendment 1147 #
Proposal for a regulation
Article 123 c (new)
Article 123 c (new)
Article 123c Amendment to Regulation 2019/2088/EU[Sustainability-related disclosures Regulation] Regulation 2019/2088 is amended as follows: In Article 2 point 1 the following item is added: ja) a crypto-asset service provider which provides portfolio management as defined in point (17a) of Article 3 of Regulation (EU) …./… of the European Parliament and of the Council of … on Markets in Crypto-Assets (EU) 2021/XXX. In Article 2 point 11 the following item is added: (da) a crypto-asset service provider which provides investment advice as defined in point (17) of Article 3 of Regulation (EU) …./… of the European Parliament and of the Council of … on Markets in Crypto- Assets (EU) 2021/XXX. In Article 2 point 12 the following item is added: ga) an issuer of crypto-assets as defined in point (6) of Article 3 of Regulation (EU) …./… of the European Parliament and of the Council of … on Markets in Crypto- Assets(EU) 2021/XXX.
Amendment 1150 #
Proposal for a regulation
Annex I – Part F – point 5 a (new)
Annex I – Part F – point 5 a (new)
5a. 1. Description of risks that may have an adverse impact on factors, including environmental, social and governance factors (if any). .
Amendment 1152 #
Proposal for a regulation
Annex II – Part D – point 3 a (new)
Annex II – Part D – point 3 a (new)
3a. 1. Description of risks that may have an adverse impact on factors, including environmental, social and governance factors (if any).
Amendment 1153 #
Proposal for a regulation
Annex III – Part F – point 3 a (new)
Annex III – Part F – point 3 a (new)
3a. 1. Description of risks that may have an adverse impact on factors, including environmental, social and governance factors (if any).