Article 1: Amendments to Directive 98/26/EC
SFIPSSSD is hereby amended as follows:
1
Article 6(3) is replaced by the following: ( *1 ) OJ L 331, 15.12.2010, p. 84 .’."
2
In Article 10(1) the first subparagraph is replaced by the following:
3
The following Article is inserted:
Article 2: Amendments to Directive 2002/87/EC
Directive 2002/87 is hereby amended as follows:
1
Article 4 is amended as follows:
a
paragraph 2 is replaced by the following: ( *2 ) OJ L 331, 15.12.2010, p. 12 ." ( *3 ) OJ L 331, 15.12.2010, p. 48 ." ( *4 ) OJ L 331, 15.12.2010, p. 84 .’;"
b
the following paragraph is added:
2
In Article 9(2), the following point is added:
‘d
arrangements in place to contribute to and develop, if required, adequate recovery and resolution arrangements and plans. Such arrangements shall be updated regularly.’.
3
The title of Section 3 is replaced by the following: ‘MEASURES TO FACILITATE SUPPLEMENTARY SUPERVISION AND POWERS OF THE JOINT COMMITTEE’.
4
The following Article is inserted in Section 3:
5
Article 10(1) is replaced by the following:
6
In Article 11(1), the second subparagraph is replaced by the following: ‘In order to facilitate and establish supplementary supervision on a broad legal basis, the coordinator, and the other relevant competent authorities, and, where necessary, the other competent authorities concerned, shall have coordination arrangements in place. The coordination arrangements may entrust additional tasks to the coordinator and may specify the procedures for the decision-making process among the relevant competent authorities as referred to in Articles 3 and 4, Article 5(4), Article 6, Article 12(2) and Articles 16 and 18, and for cooperation with other competent authorities. In accordance with Article 8 and the procedure set out in Article 56 of ESAEBAR, of Regulation 2010/1094 and of ESAESMAR respectively, the ESA, through the Joint Committee, shall develop guidelines aimed at the convergence of supervisory practices with regard to the consistency of supervisory coordination arrangements in accordance with Article 131a of Directive 2006/48 and Article 248(4) of II.’.
7
In Article 12(1), the third subparagraph is replaced by the following: ‘The competent authorities may also exchange with the following authorities such information as may be needed for the performance of their respective tasks, regarding regulated entities in a financial conglomerate, in line with the provisions laid down in the sectoral rules: central banks, the European System of Central Banks, the European Central Bank and the European Systemic Risk Board in accordance with Article 15 of Regulation 2010/1092 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board ( *5 ) . ( *5 ) OJ L 331, 15.12.2010, p. 1 .’."
8
The following Article is inserted:
9
Article 14(1) is replaced by the following:
10
The second paragraph of Article 16 is replaced by the following: ‘Without prejudice to Article 17(2), Member States may determine what measures may be taken by the competent authorities with respect to mixed financial holding companies. In accordance with Articles 16 and 56 of ESAEBAR, of Regulation 2010/1094 and of ESAESMAR respectively, the ESA, through the Joint Committee, may develop guidelines for measures in relation to mixed financial holding companies.’.
11
Article 18 is amended as follows:
a
paragraph 1 is replaced by the following:
b
the following paragraph is inserted:
12
Article 19(2) is replaced by the following:
13
In Article 20(1), the following subparagraph is added: ‘Those measures shall not include the subject matter of the power delegated and conferred on the Commission with regard to the items listed in Article 21a.’.
14
Article 21 is amended as follows:
a
paragraph 4 is replaced by the following:
b
paragraph 5 is replaced by the following:
15
The following Article is inserted:
Article 3: Amendments to Directive 2003/6/EC
IDMMMAD is hereby amended as follows:
1
In Article 1(5) the following subparagraphs are added: ‘The European Supervisory Authority (European Securities and Markets Authority) (hereinafter “ESMA”), established by ESAESMAR of the European Parliament and of the Council ( *6 ) may develop draft implementing technical standards to ensure uniform conditions of application of the acts adopted by the Commission in accordance with this Article in relation to accepted market practices. Power is conferred on the Commission to adopt the implementing technical standards referred to in the second subparagraph in accordance with Article 15 of ESAESMAR. ( *6 ) OJ L 331, 15.12.2010, p. 84 .’."
2
In Article 6, the following paragraph is added:
3
Article 8 is amended as follows:
a
the existing text is numbered as paragraph 1.
b
the following paragraph is added:
4
In Article 14 the following paragraph is added:
5
The following Article is inserted:
6
Article 16 is amended as follows:
a
in paragraph 2, the fourth subparagraph is replaced by the following: ‘Without prejudice to Article 258 of the Treaty on the Functioning of the European Union (TFEU), a competent authority whose request for information is not acted upon within a reasonable time or whose request for information is rejected may refer that rejection or absence of action within a reasonable timeframe to ESMA. In the situations referred to in the first sentence, ESMA may act in accordance with Article 19 of ESAESMAR, without prejudice to the possibilities for refusing to act on a request for information provided for in the second subparagraph of this paragraph and to the possibility of ESMA acting in accordance with Article 17 of ESAESMAR.’;
b
in paragraph 4, the fifth subparagraph is replaced by the following: ‘Without prejudice to Article 258 TFEU, a competent authority whose application to open an inquiry or whose request for authorisation for its officials to accompany those of the other Member State's competent authority is not acted upon within a reasonable time or is rejected may refer that rejection or absence of action within a reasonable timeframe to ESMA. In the situations referred to in the first sentence, ESMA may act in accordance with Article 19 of ESAESMAR, without prejudice to the possibilities for refusing to act on a request for information provided in the fourth subparagraph of this paragraph and to the possibility of ESMA acting in accordance with Article 17 of ESAESMAR.’;
c
paragraph 5 is replaced by the following:
7
The following Article is inserted:
Article 4: Amendments to Directive 2003/41/EC
ASIORPD is hereby amended as follows:
1
Article 9 is amended as follows:
a
in paragraph 1, point (a) is replaced by the following: ( *7 ) OJ L 331, 15.12.2010, p. 48 .’;"
‘a
the institution is registered in a national register by the competent authority or authorised; in the case of cross-border activities referred to in Article 20, the register shall also indicate the Member States in which the institution is operating; that information shall be communicated to the European Supervisory Authority (European Insurance and Occupational Pensions Authority (hereinafter “EIOPA”), established by Regulation 2010/1094 of the European Parliament and of the Council ( *7 ) which shall publish it on its website;
b
paragraph 5 is replaced by the following:
2
Article 13 is amended as follows:
a
the existing text is numbered as paragraph 1;
b
the following paragraph is added:
3
In Article 14(4), the second subparagraph is replaced by the following: ‘Any decision to prohibit the activities of an institution shall contain detailed reasons and be notified to the institution in question. It shall also be notified to EIOPA.’.
4
In Article 15(6), the first subparagraph is replaced by the following:
5
In Article 20, the following paragraph is added:
6
Article 21 is amended as follows:
a
the title is replaced by the following: ‘Cooperation between Member States, EIOPA and the Commission’;
b
the following paragraph is inserted:
c
paragraph 3 is replaced by the following:
Article 5: Amendments to Directive 2003/71/EC
Directive 2003/71 is hereby amended as follows:
1
In Article 4, paragraph 3 is replaced by the following: ( *8 ) OJ L 331, 15.12.2010, p. 84 .’."
2
In Article 5(2), the following subparagraphs are added: ‘In order to ensure uniform conditions of application of this Directive and of the delegated acts adopted by the Commission in accordance with paragraph 5, ESMA shall develop draft implementing technical standards in order to ensure uniform conditions of application of the delegated acts adopted by the Commission in accordance with paragraph 5 in relation to a uniform template for the presentation of the summary and to allow investors to compare the security concerned with other relevant products. Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of ESAESMAR.’.
3
In Article 7, the following paragraph is added:
4
In Article 8, the following paragraph is added:
5
Article 13 is amended as follows:
a
in paragraph 2, the following subparagraph is added: ‘The competent authority shall notify ESMA of the approval of the prospectus and any supplement thereto at the same time as that approval is notified to the issuer, the offeror or the person asking for admission to trading on a regulated market, as the case may be. The competent authorities shall at the same time provide ESMA with a copy of the prospectus and any supplement thereto.’;
b
paragraph 5 is replaced by the following:
6
Article 14 is amended as follows:
a
paragraph 1 is replaced by the following:
b
the following paragraph is inserted:
7
In Article 16, the following paragraph is added:
8
Article 17 is amended as follows:
a
paragraph 1 is replaced by the following:
b
paragraph 2 is replaced by the following:
9
In Article 18, the following paragraphs are added:
10
Article 21 is amended as follows:
a
the following paragraphs are inserted:
b
in paragraph 2, the third subparagraph is replaced by the following: ‘The Member States shall inform the Commission, ESMA and the competent authorities of other Member States of any arrangements entered into with regard to delegation of tasks, including the precise conditions regulating such delegation.’;
c
in paragraph 4, the following subparagraph is added: ‘In accordance with Article 21 of ESAESMAR, ESMA shall be entitled to participate in on-site inspections referred to in point (d) where they are carried out jointly by two or more competent authorities.’.
11
Article 22 is amended as follows:
a
in paragraph 2, the following subparagraph is added: ‘The competent authorities may refer to ESMA situations where a request for cooperation, in particular to exchange information, has been rejected or has not been acted upon within a reasonable time. Without prejudice to Article 258 of the Treaty on the Functioning of the European Union (TFEU), ESMA may, in the situations referred to in the first sentence, act in accordance with the power conferred on it under Article 19 of ESAESMAR.’;
b
paragraph 3 is replaced by the following: ( *9 ) OJ L 331, 15.12.2010, p. 1 .’;"
c
The following paragraph is added:
12
Article 23 is replaced by the following:
Article 6: Amendments to Directive 2004/39/EC
MIFID is hereby amended as follows:
1
Article 5(3) is replaced by the following: ( *10 ) OJ L 331, 15.12.2010, p. 84 .’."
2
In Article 7, the following paragraph is added:
3
In Article 8 the following paragraph is added: ‘Every withdrawal of authorisation shall be notified to ESMA.’.
4
In Article 10a, the following paragraph is added:
5
Article 15 is amended as follows
a
paragraph 1 is replaced by the following::
b
paragraph 2 is replaced by the following:
6
In Article 16(2), the following subparagraph is added: ‘ESMA may develop guidelines regarding the monitoring methods referred to in this paragraph.’.
7
In Article 19(6), the first indent is replaced by the following:
‘—
the services referred to in the introductory part relate to shares admitted to trading on a regulated market or in an equivalent third-country market, money market instruments, bonds or other forms of securitised debt (excluding those bonds or securitised debt that embed a derivative), UCITS and other non-complex financial instruments. A third-country market shall be considered as equivalent to a regulated market if it complies with equivalent requirements to those established under Title III. The Commission and ESMA shall publish on their websites a list of those markets that are to be considered as equivalent. That list shall be updated periodically. ESMA shall assist the Commission in the assessment of third-country markets.’.
8
In Article 23(3), the first subparagraph is replaced by the following:
9
Article 25 is amended as follows:
a
paragraph 1 is replaced by the following: ( *11 ) OJ L 96, 12.4.2003, p. 16 .’;"
b
paragraph 2 is replaced by the following:
10
Article 27(2) is replaced by the following:
11
Article 31 is amended as follows:
a
in paragraph 2, the second subparagraph is replaced by the following: ‘In cases where the investment firm intends to use tied agents, the competent authority of the home Member State of the investment firm shall, at the request of the competent authority of the host Member State and within a reasonable time, communicate the identity of the tied agents that the investment firm intends to use in that Member State. The host Member State may make public such information. ESMA may request access to that information in accordance with the procedure and under the conditions set out in Article 35 of ESAESMAR.’.
b
the following paragraph is added:
12
In Article 32, the following paragraph is added:
13
In Article 36, the following paragraph is added:
14
Article 41(2) is replaced by the following:
15
In Article 42(6), the second subparagraph is replaced by the following: ‘The regulated market shall communicate to the competent authority of its home Member State the Member State in which it intends to provide such arrangements. The competent authority of the home Member State shall communicate that information to the Member State in which the regulated market intends to provide such arrangements within 1 month. ESMA may request access to that information in accordance with the procedure and under the conditions set out in Article 35 of ESAESMAR.’.
16
Article 47 is replaced by the following:
17
Article 48 is amended as follows:
a
paragraph 1 is replaced by the following:
b
in paragraph 2, the third subparagraph is replaced by the following: ‘Member States shall inform the Commission, ESMA and the competent authorities of other Member States of any arrangements entered into with regard to delegation of tasks, including the precise conditions regulating such delegation.’;
c
paragraph 3 is replaced by the following:
18
In Article 51, the following paragraphs are added:
19
In Article 53, the following paragraph is added:
20
The Title of Chapter II is replaced by the following: ‘Cooperation between the competent authorities of the Member States and with ESMA’.
21
Article 56 is amended as follows:
a
in paragraph 1, the third subparagraph is replaced by the following: ‘In order to facilitate and accelerate cooperation, and more particularly exchange of information, Member States shall designate a single competent authority as a contact point for the purposes of this Directive. Member States shall communicate to the Commission, ESMA and to the other Member States the names of the authorities which are designated to receive requests for exchange of information or cooperation pursuant to this paragraph. ESMA shall publish and keep up-to-date a list of those authorities on its website.’;
b
paragraph 4 is replaced by the following:
c
the following paragraph is added:
22
Article 57 is amended as follows:
a
the existing text is renumbered as paragraph 1.
b
the following paragraphs are added:
23
Article 58 is amended as follows:
a
paragraph 4 is replaced by the following:
b
paragraph 5 is replaced by the following:
24
The following Article is inserted:
25
Article 59, the second paragraph is replaced by the following: ‘In the case of such a refusal, the competent authority shall notify the requesting competent authority and ESMA accordingly, providing as detailed information as possible.’.
26
In Article 60, the following paragraph is added:
27
Article 62 is amended as follows:
a
in paragraph 1, the second subparagraph is replaced by the following: ‘If, despite the measures taken by the competent authority of the home Member State or because such measures prove inadequate, the investment firm persists in acting in a manner that is clearly prejudicial to the interests of host Member State investors or the orderly functioning of markets, the following shall apply:
a
after informing the competent authority of the home Member State, the competent authority of the host Member State shall take all the appropriate measures needed in order to protect investors and the proper functioning of the markets, which shall include the possibility of preventing offending investment firms from initiating any further transactions within their territories. The Commission and ESMA shall be informed of such measures without delay;
b
in addition, the competent authority of the host Member State may refer the matter to ESMA, which may act in accordance with the powers conferred on it under Article 19 of ESAESMAR.’;
b
in paragraph 2, the third subparagraph is replaced by the following: ‘If, despite the measures taken by the host Member State, the investment firm persists in breaching the legal or regulatory provisions referred to in the first subparagraph in force in the host Member State, the following shall apply:
a
after informing the competent authority of the home Member State, the competent authority of the host Member State shall take all the appropriate measures needed in order to protect investors and the proper functioning of the markets. The Commission and ESMA shall be informed of such measures without delay;
b
in addition, the competent authority of the host Member State may refer the matter to ESMA, which may act in accordance with the powers conferred on it under Article 19 of ESAESMAR.’;
c
in paragraph 3, the second subparagraph is replaced by the following: ‘If, despite the measures taken by the competent authority of the home Member State or because such measures prove inadequate, that regulated market or the MTF persists in acting in a manner that is clearly prejudicial to the interests of host Member State investors or the orderly functioning of markets, the following shall apply:
a
after informing the competent authority of the home Member State, the competent authority of the host Member State shall take all the appropriate measures needed in order to protect investors and the proper functioning of the markets, which shall include the possibility of preventing that regulated market or the MTF from making their arrangements available to remote members or participants established in the host Member State. The Commission and ESMA shall be informed of such measures without delay;
b
in addition, the competent authority of the host Member State may refer the matter to ESMA, which may act in accordance with the powers conferred on it under Article 19 of ESAESMAR.’.
28
The following Article is inserted:
29
Article 63(1) is replaced by the following:
30
The following Article is inserted
Article 7: Amendments to Directive 2004/109/EC
Directive 2004/109 is hereby amended as follows:
1
Article 2(3) is amended as follows:
a
the first subparagraph is replaced by the following:
b
the third subparagraph is replaced by the following: ‘The measures referred to in points (a) and (b) of the second subparagraph shall be laid down by means of delegated acts in accordance with Article 27(2a), (2b) and (2c), and subject to the conditions of Articles 27a and 27b.’.
2
Article 5(6) is amended as follows:
a
the first subparagraph is replaced by the following:
b
the third subparagraph is replaced by the following: ‘The measures referred to in point (a) shall be adopted in accordance with the regulatory procedure referred to in Article 27(2). The measures referred to in points (b) and (c) shall be laid down by means of delegated acts in accordance with Article 27(2a), (2b) and (2c), and subject to the conditions of Articles 27a and 27b.’;
c
the fourth subparagraph is replaced by the following: ‘Where appropriate, the Commission may also adapt the five-year period referred to in paragraph 1 by means of a delegated act in accordance with Article 27(2a), (2b) and (2c), and subject to the conditions of Articles 27a and 27b.’.
3
Article 9(7) is amended as follows:
a
the first subparagraph is replaced by the following:
b
the second subparagraph is replaced by the following: ‘The Commission shall specify, by means of delegated acts in accordance with Article 27(2a), (2b) and (2c), and subject to the conditions of Articles 27a and 27b, the maximum length of the “short settlement cycle” referred to in paragraph 4 of this Article, as well as the appropriate control mechanisms by the competent authority of the home Member State.’.
4
Article 12 is amended as follows:
a
in paragraph 8:
i
in the first subparagraph, the introductory part is replaced by the following:
ii
point (a) is deleted;
iii
the second subparagraph is deleted;
b
the following paragraph is added: ( *12 ) OJ L 331, 15.12.2010, p. 84 .’."
5
Article 13 is amended as follows:
a
in paragraph 2:
i
the first subparagraph is replaced by the following:
ii
point (c) is replaced by the following:
‘c
the contents of the notification to be made;’;
iii
the second subparagraph is deleted;
b
the following paragraph is added:
6
Article 14(2) is replaced by the following:
7
Article 17(4) is replaced by the following:
8
Article 18(5) is replaced by the following:
9
Article 19(4) is replaced by the following:
10
Article 21(4) is replaced by the following:
11
In Article 22, the first subparagraph of paragraph 1 is replaced by the following:
12
Article 23 is amended as follows:
a
paragraph 1 is replaced by the following:
b
paragraph 4 is replaced by the following:
c
paragraph 5 is replaced by the following:
d
in paragraph 7, the second subparagraph is replaced by the following: ‘The Commission shall also adopt, by means of delegated acts in accordance with Article 27(2a), (2b) and (2c), and subject to the conditions of Articles 27a and 27b, measures aimed at establishing general equivalence criteria for the purpose of the first subparagraph.’.
e
the following paragraph is added:
13
Article 24 is amended as follows:
a
in paragraph 1, the first subparagraph is replaced by the following:
b
paragraph 3 is replaced by the following:
14
Article 25 is amended as follows:
a
the following paragraphs are inserted:
b
in paragraph 3, the first sentence is replaced by the following: ( *13 ) OJ L 331, 15.12.2010, p. 1 .’;"
c
paragraph 4 is replaced by the following:
15
Article 26 is replaced by the following:
16
The title of Chapter VI is replaced by the following: ‘DELEGATED ACTS AND IMPLEMENTING MEASURES’.
17
Article 27 is amended as follows:
a
paragraph 2a is replaced by the following:
b
the following paragraphs are inserted:
18
The following Articles are inserted:
Article 8: Amendments to Directive 2005/60/EC
Directive 2005/60 is hereby amended as follows:
1
Article 11(4) is replaced by the following: ( *14 ) OJ L 331, 15.12.2010, p. 12 ." ( *15 ) OJ L 331, 15.12.2010, p. 48 ." ( *16 ) OJ L 331, 15.12.2010, p. 84 .’."
2
Article 16(2) is replaced by the following:
3
Article 28(7) is replaced by the following:
4
Article 31 is amended as follows:
a
paragraph 2 is replaced by the following:
b
the following paragraph is added:
5
In Article 34, the following paragraph is added:
6
The following Article is inserted:
7
The title of Chapter VI is replaced by the following: ‘DELEGATED ACTS AND IMPLEMENTING MEASURES’
8
Article 40 is amended as follows:
a
in paragraph 1:
i
in the first subparagraph, the introductory part is replaced by the following:
ii
the second subparagraph is replaced by the following: ‘The measures shall be adopted by means of delegated acts in accordance with Article 41(2a), (2b) and (2c), and subject to the conditions of Articles 41a and 41b.’;
b
in paragraph 3, the second subparagraph is replaced by the following: ‘The measures shall be adopted by means of delegated acts in accordance with Article 41(2a), (2b) and (2c), and subject to the conditions of Articles 41a and 41b.’.
9
Article 41 is amended as follows:
a
in paragraph 2, the first subparagraph is replaced by the following:
b
paragraph 2a is replaced by the following:
c
the following paragraphs are inserted:
d
paragraph 3 is deleted.
10
The following Articles are inserted:
Article 9: Amendments to Directive 2006/48/EC
Directive 2006/48 is hereby amended as follows:
1
Article 6 is amended as follows:
a
the existing paragraph is replaced by the following: ( *17 ) OJ L 331, 15.12.2010, p. 12 .’;"
b
the following paragraphs are added:
2
In Article 9(2), point b is replaced by the following:
‘b
the Member States concerned shall notify the Commission and EBA of their reasons for exercising that option; and’.
3
Article 14 is replaced by the following:
4
Article 17(2) is replaced by the following:
5
In Article 19, the following paragraph is added:
6
In Article 22, the following paragraph is added:
7
In Article 25, the following paragraph is added:
8
In Article 26, the following paragraph is added:
9
In Article 28, the following paragraph is added:
10
In Article 33, the first paragraph is replaced by the following: ‘Before following the procedure provided for in Article 30, the competent authorities of the host Member State may, in emergencies, take any precautionary measures necessary to protect the interests of depositors, investors and others to whom services are provided. The Commission, EBA and the competent authorities of the other Member States concerned shall be informed of such measures at the earliest opportunity.’.
11
Article 36 is replaced by the following:
12
Article 38(2) is replaced by the following:
13
In Article 39 is amended as follows:
a
in paragraph 2, the following point is added:
‘c
that EBA is able to obtain the information from the competent authorities of the Member States received from national authorities of third countries in accordance with Article 35 of ESAEBAR;’;
b
the following paragraph is added:
14
In Article 42, the following paragraphs are added: ‘The competent authorities may refer to EBA situations where a request for collaboration, in particular to exchange information, has been rejected or has not been acted upon within a reasonable time. Without prejudice to Article 258 of the Treaty on the Functioning of the European Union (TFEU), EBA may, in situations referred to in the first sentence, act in accordance with the powers conferred on it under Article 19 of ESAEBAR. In order to ensure consistent harmonisation of this Article, EBA shall develop draft regulatory technical standards to specify the information contained in this Article. In order to ensure uniform conditions of application of this Article, EBA shall develop draft implementing technical standards to establish standard forms, templates and procedures for the information sharing requirements which are likely to facilitate the monitoring of credit institutions. EBA shall submit those draft technical standards to the Commission by 1 January 2014. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the third paragraph in accordance with the procedure laid down in Articles 10 to 14 of ESAEBAR. Power is also conferred on the Commission to adopt the implementing technical standards referred to in the fourth paragraph in accordance with Article 15 of ESAEBAR.’.
15
Article 42a is amended as follows:
a
in paragraph 1, the following subparagraph is inserted after the fourth subparagraph: ‘If, at the end of the initial two-month period any of the competent authorities concerned has referred the matter to EBA in accordance with Article 19 of ESAEBAR, the competent authorities of the host Member State shall defer their decision and await the decision that EBA may take in accordance with Article 19(3) of that Regulation. The competent authorities of the host Member State shall take their decision in conformity with that of EBA. The two-month period shall be deemed to be the “conciliation phase” within the meaning of Article 19 of that Regulation. EBA shall take its decision within 1 month. The matter shall not be referred to EBA after the end of the initial two month period or after a joint decision has been reached.’;
b
in paragraph 3, the following subparagraphs are added: ‘In order to ensure consistent harmonisation of this Article, EBA may develop draft regulatory technical standards in order to specify general conditions for the functioning of colleges of supervisors. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the fourth subparagraph in accordance with the procedure laid down in Articles 10 to 14 of ESAEBAR. In order to ensure uniform conditions of application of this Article, EBA may develop draft implementing technical standards in order to determine the operational functioning of colleges of supervisors. Power is conferred on the Commission to adopt the implementing technical standards referred to in the sixth subparagraph in accordance with Article 15 of ESAEBAR.’.
16
Article 42b is amended as follows:
a
paragraph 1 is replaced by the following:
b
paragraph 2 is deleted.
17
Article 44(2) is replaced by the following:
18
Article 46 is replaced by the following:
19
Article 49 is amended as follows:
a
the first paragraph is replaced by the following: ‘This Section shall not prevent a competent authority from transmitting information to the following for the purposes of their tasks: ( *18 ) OJ L 331, 15.12.2010, p. 1 .’;"
a
central banks of the European System of the Central Banks and other bodies with a similar function in their capacity as monetary authorities when the information is relevant for the exercise of their respective statutory tasks, including the conduct of monetary policy and related liquidity provision, oversight of payments, clearing and settlement systems, and the safeguarding of stability of the financial system;
b
where appropriate, other public authorities responsible for overseeing payment systems;
c
the European Systemic Risk Board (hereinafter the “ESRB”), where that information is relevant for the exercise of its statutory tasks under Regulation 2010/1092 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board ( *18 ) . This Section shall not prevent the authorities or bodies referred to in the first subparagraph from communicating to the competent authorities such information as they may need for the purposes of Article 45.
b
the fourth paragraph is replaced by the following: ‘In an emergency situation as referred to in Article 130(1), Member States shall allow the competent authorities to communicate, without delay, information to the central banks in the European System of the Central Banks where that information is relevant for the exercise of their statutory tasks, including the conduct of monetary policy and related liquidity provision, the oversight of payments, clearing and securities settlement systems, and the safeguarding stability of the financial system, and to the ESRB under Regulation 2010/1092, where such information is relevant for the exercise of its statutory tasks.’
20
Article 63a is amended as follows:
a
paragraph 4 is replaced by the following:
b
paragraph 6 is replaced by the following:
21
In Article 74(2), the second subparagraph is replaced by the following: ‘In order to ensure uniform conditions of application of this Directive, for the communication of those calculations by credit institutions, the competent authorities shall apply, from 31 December 2012, uniform formats, frequencies and dates of reporting. In order to ensure uniform conditions of application of this Directive, EBA shall develop draft implementing technical standards to introduce, within the Union, uniform formats (with associated instructions), frequencies and dates of reporting before 1 January 2012. The reporting formats shall be proportionate to the nature, scale and complexity of the credit institutions’ activities. In order to ensure uniform conditions of application of this Directive, EBA shall also develop draft implementing technical standards regarding IT solutions to be applied for such reporting. Power is conferred on the Commission to adopt the implementing technical standards referred to in the second and third subparagraphs in accordance with Article 15 of ESAEBAR.’.
22
In Article 81(2) the following subparagraphs are added: ‘In order to ensure consistent harmonisation of this Article, EBA, in consultation with the European Supervisory Authority (European Securities and Markets Authority) (hereinafter “ESMA”), established by ESAESMAR of the European Parliament and of the Council ( *19 ) , shall develop draft regulatory technical standards to specify the assessment methodology relating to credit assessments. EBA shall submit those draft regulatory technical standards to the Commission by 1 January 2014. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the second subparagraph in accordance with the procedure laid down in Articles 10 to 14 of ESAEBAR. ( *19 ) OJ L 331, 15.12.2010, p. 84 .’."
23
In Article 84(2), the following subparagraphs are added: ‘In order to ensure consistent harmonisation of this Article, EBA may develop draft regulatory technical standards to specify the assessment methodology under which the competent authorities permit credit institutions to use the IRB approach. Power is delegated to the Commission to adopt the regulatory technical standards referred to in point (a) of the first subparagraph in accordance with the procedure laid down in Articles 10 to 14 of ESAEBAR.’.
24
In Article 97(2), the following subparagraphs are added: ‘In order to ensure consistent harmonisation of this Article, EBA, in consultation with ESMA, shall develop draft regulatory technical standards to specify the assessment methodology relating to credit assessments. EBA shall submit those draft regulatory technical standards to the Commission by 1 January 2014. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the second subparagraph in accordance with the procedure laid down in Articles 10 to 14 of ESAEBAR.’.
25
In Article 105(1), the following subparagraphs are added: ‘In order to ensure consistent harmonisation of this Article, EBA may develop draft regulatory technical standards to specify the assessment methodology under which the competent authorities permit credit institutions to use Advanced Measurement Approaches. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the second subparagraph in accordance with the procedure laid down in Articles 10 to 14 of ESAEBAR.’.
26
In Article 106(2), the second subparagraph is replaced by the following: ‘In order to ensure consistent harmonisation of this paragraph, EBA shall develop draft regulatory technical standards in order to specify the exemptions in points (c) and (d) as well as to specify the conditions used to determine the existence of a group of connected clients, as stated in paragraph 3. EBA shall submit those draft regulatory technical standards to the Commission by 1 January 2014. Power is delegated to the Commission to adopt the regulatory technical standards referred to the second subparagraph in accordance with the procedure laid down in Articles 10 to 14 of ESAEBAR.’.
27
Article 110(2) is replaced by the following:
28
In Article 111(1), the fourth subparagraph is replaced by the following: ‘Member States may set a lower limit than EUR 150 million and shall inform EBA and the Commission thereof.’.
29
Article 122a(10) is replaced by the following:
30
In Article 124, the following paragraph is added:
31
Article 126(4) is replaced by the following.
32
Article 129 is amended as follows:
a
in paragraph 1, the following subparagraph is inserted after the first subparagraph: ‘Where the consolidating supervisor fails to carry out the tasks referred to in the first subparagraph or where the competent authorities do not cooperate with the consolidating supervisor to the extent required in carrying out the tasks in the first subparagraph, any of the competent authorities concerned may refer the matter to EBA, which may act in accordance with Article 19 of ESAEBAR.’;
b
in paragraph 2, the following is added to the fifth subparagraph: ‘If, at the end of the six month period, any of the competent authorities concerned has referred the matter to EBA in accordance with Article 19 of ESAEBAR, the consolidating supervisor shall defer its decision and await any decision that EBA may take in accordance with Article 19(3) of that Regulation on its decision, and shall take its decision in conformity with the decision of EBA. The six-month period shall be deemed the conciliation period within the meaning of that Regulation. EBA shall take its decision within 1 month. The matter shall not be referred to EBA after the end of the six month period or after a joint decision has been reached.’;
c
in paragraph 2, the following subparagraphs are added: ‘EBA may develop draft implementing technical standards to ensure uniform conditions of application of the joint decision process referred to in this paragraph, with regard to the applications for permissions referred to in Article 84(1), Article 87(9) and Article 105 and in Annex III part 6, with a view to facilitating joint decisions. Power is conferred on the Commission to adopt the implementing technical standards referred to in the sixth and the seventh subparagraphs in accordance with the procedure laid down in Article 15 of ESAEBAR.’;
d
paragraph 3 is amended as follows:
i
in the third subparagraph, the term ‘Committee of European Banking Supervisors’ is replaced by ‘EBA’;
ii
the fourth subparagraph is replaced by the following: ‘In the absence of such a joint decision between the competent authorities within 4 months, a decision on the application of Articles 123 and 124 and Article 136(2) shall be taken on a consolidated basis by the consolidating supervisor after duly considering the risk assessment of subsidiaries performed by relevant competent authorities. If, at the end of the four month period, any of the competent authorities concerned has referred the matter to EBA in accordance with Article 19 of ESAEBAR, the consolidating supervisor shall defer its decision and await any decision that EBA may take in accordance with Article 19(3) of that Regulation, and shall take its decision in conformity with the decision of EBA. The four month period shall be deemed the conciliation period within the meaning of the Regulation. EBA shall take its decision within 1 month. The matter shall not be referred to EBA after the end of the four month period or after a joint decision has been reached.’;
iii
the fifth subparagraph is replaced by the following: ‘The decision on the application of Articles 123 and 124 and Article 136(2) shall be taken by the respective competent authorities responsible for supervision of subsidiaries of a Union parent credit institution or a Union parent financial holding company on an individual or sub-consolidated basis after duly considering the views and reservations expressed by the consolidating supervisor. If, at the end of the four-month period, any of the competent authorities concerned has referred the matter to EBA in accordance with Article 19 of ESAEBAR, the competent authorities shall defer their decision and await any decision that EBA shall take in accordance with Article 19(3) of that Regulation, and shall take its decision in conformity with the decision of EBA. The four month period shall be deemed the conciliation period within the meaning of that Regulation. EBA shall take its decision within 1 month. The matter shall not be referred to EBA after the end of the four-month period or after a joint decision has been reached.’;
iv
the seventh subparagraph is replaced by the following: ‘Where EBA has been consulted, all the competent authorities shall consider its advice, and explain any significant deviation therefrom.’;
v
the tenth subparagraph is replaced by the following: ‘EBA may develop draft implementing technical standards to ensure uniform conditions of application of the joint decision process referred to in this paragraph, with regard to the application of Articles 123 and 124 and Article 136(2) with a view to facilitating joint decisions. Power is conferred on the Commission to adopt the implementing technical standards referred to in the tenth subparagraph in accordance with the procedure laid down in Article 15 of ESAEBAR.’.
33
In Article 130(1), the first and second subparagraphs are replaced by the following:
34
In Article 131, the third paragraph is replaced by the following: ‘The competent authorities responsible for authorising the subsidiary of a parent undertaking which is a credit institution may, by bilateral agreement, in accordance with Article 28 of ESAEBAR, delegate their responsibility for supervision to the competent authorities which authorised and supervise the parent undertaking so that they assume responsibility for supervising the subsidiary in accordance with this Directive. EBA shall be kept informed of the existence and content of such agreements. It shall forward such information to the competent authorities of the other Member States and to the European Banking Committee.’.
35
Article 131a is amended as follows:
a
paragraph 1 is replaced by the following:
b
in paragraph 2:
i
the second subparagraph is replaced by the following: ‘In order to ensure consistent harmonisation of this Article, EBA may develop draft regulatory technical standards in order to specify general conditions of functioning of the colleges of supervisors. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the second subparagraph in accordance with the procedure laid down in Articles 10 to 14 of Regulation (EU) No1093/2010. In order to ensure uniform conditions of application of this Article, EBA may develop draft implementing technical standards in order to determine the operational functioning of the colleges of supervisors. Power is conferred on the Commission to adopt the implementing technical standards referred to in the fourth subparagraph in accordance with the procedure laid down in Article 15 of ESAEBAR.’;
ii
the sixth subparagraph is replaced by the following: ‘The consolidating supervisor, subject to the confidentiality requirements under Chapter 1, Section 2, shall inform EBA of the activities of the college of supervisors, including in emergency situations, and communicate to EBA all information that is of particular relevance for the purposes of supervisory convergence.’.
36
Article 132(1) is amended as follows:
a
the following subparagraphs are inserted after the first subparagraph: ‘The competent authorities shall cooperate with EBA for the purposes of this Directive, in accordance with ESAEBAR. The competent authorities shall provide EBA with all information necessary to carry out its duties under this Directive and under ESAEBAR, in accordance with Article 35 of that Regulation.’;
b
a
a competent authority has not communicated essential information, or
b
a request for cooperation, in particular to exchange relevant information, has been rejected or has not been acted upon within a reasonable time.
37
In Article 140, paragraph 3 is replaced by the following:
38
Article 143 is amended as follows:
a
paragraph (2) is amended as follows:
i
the following sentence is added at the end of the first subparagraph: ‘EBA shall assist the Commission and the European Banking Committee in carrying out those tasks, including as to whether such guidance should be updated.’;
ii
the second subparagraph is replaced by the following: ‘The competent authority carrying out the verification referred to in the first subparagraph of paragraph 1 shall take into account any such guidance. For that purpose, the competent authority shall consult EBA before adopting a decision.’.
b
in paragraph 3, the fourth subparagraph is replaced by the following: ‘The supervisory techniques shall be designed to achieve the objectives of consolidated supervision as defined in this Chapter and shall be notified to the other competent authorities involved, EBA and the Commission.’.
39
In Article 144, the following paragraphs are added: ‘In order to ensure uniform conditions of application of this Article, EBA shall develop draft implementing technical standards to determine the format, structure, contents list and annual publication date of the disclosures provided for in this Article. EBA shall submit those draft implementing technical standards to the Commission by 1 January 2014. Power is conferred on the Commission to adopt the implementing technical standards referred to in the third paragraph in accordance with Article 15 of ESAEBAR.’.
40
In Article 150, the following paragraph is added:
41
Article 156 is amended as follows:
a
the term ‘Committee of European Banking Supervisors’ is replaced by ‘EBA’;
b
the first subparagraph is replaced by the following: ‘The Commission, in cooperation with EBA and the Member States, and taking into account the contribution of the European Central Bank, shall periodically monitor whether this Directive, together with CAIFCID, has significant effects on the economic cycle and, in the light of that examination, shall consider whether any remedial measures are justified.’.
Article 10: Amendments to Directive 2006/49/EC
CAIFCID is hereby amended as follows:
1
In Article 18, the following paragraph is added: ( *20 ) OJ L 331, 15.12.2010, p. 12 .’."
2
In Article 22(1), the following subparagraph is added: ‘Where the competent authorities waive the application of capital requirements on a consolidated basis provided for in this Article, they shall notify the Commission and EBA.’.
3
Article 32(1) is amended as follows:
a
the second subparagraph is replaced by the following: ‘The competent authorities shall notify EBA, the Council and the Commission of those procedures.’;
b
the following subparagraph is added: ‘EBA shall issue guidelines in relation to the procedures referred to in this paragraph.’.
4
Article 36(1) is replaced by the following:
5
In Article 38(1), the following subparagraphs are added: ‘The competent authorities shall cooperate with EBA for the purposes of this Directive, in accordance with ESAEBAR. The competent authorities shall without delay provide EBA with all information necessary to carry out its duties under this Directive and under ESAEBAR, in accordance with Article 35 of that Regulation.’.
Article 11: Amendments to Directive 2009/65/EC
UCITS2 is hereby amended as follows:
1
In Article 5, the following paragraph is added: ( *21 ) OJ L 331, 15.12.2010, p. 84 .’."
2
In Article 6(1) the following subparagraph is added: ‘ESMA shall be notified of every authorisation granted and shall publish and keep up-to-date a list of authorised management companies on its website.’.
3
In Article 7, the following paragraph is added:
4
Article 9(2) is replaced by the following:
5
In Article 11, the following paragraph is added:
6
Article 12 is amended as follows:
a
paragraph 3 is amended as follows:
i
the first subparagraph is replaced by the following:
ii
the second subparagraph is deleted.
b
the following paragraph is added:
7
Article 14 is amended as follows:
a
paragraph 2 is amended as follows:
i
in the first subparagraph, the introductory part is replaced by the following:
ii
the second subparagraph is deleted.
b
the following paragraph is added:
8
In Article 17, the following paragraph is added:
9
In Article 18, the following paragraph is added:
10
In Article 20, the following paragraph is added:
11
Article 21 is amended as follows:
a
paragraph 5 is replaced by the following:
b
in paragraph 7, the first and second subparagraphs are replaced by the following:
c
in paragraph 9, the first subparagraph is replaced by the following:
12
Article 23(6) is amended as follows:
a
the first subparagraph is replaced by the following:
b
the second subparagraph is deleted.
13
In Article 29, the following paragraphs are added:
14
Article 32(6) is replaced by the following:
15
Article 33(6) is amended as follows:
a
the first subparagraph is replaced by the following:
b
the second subparagraph is deleted.
16
Article 43 is amended as follows:
a
in paragraph 5:
i
the first subparagraph is replaced by the following:
ii
the second subparagraph is deleted.
b
the following paragraph is added:
17
In Article 50, the following paragraph is added:
18
Article 51 is amended as follows:
a
in paragraph 1, the following subparagraph is added: ‘Competent authorities shall ensure that all information received under the third paragraph aggregated in respect of all the management or investment companies they supervise is accessible to ESMA in accordance with Article 35 of the ESAESMAR, and the European Systemic Risk Board (the “ESRB”) established by Regulation 2010/1092 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board ( *22 ) in accordance with Article 15 of that Regulation for the purpose of monitoring systemic risks at Union level. ( *22 ) OJ L 331, 15.12.2010, p. 1 .’;"
b
paragraph 4 is replaced by the following:
c
the following paragraph is added:
19
In Article 52(4), the third subparagraph is replaced by the following: ‘Member States shall send to ESMA and to the Commission a list of the categories of bonds referred to in the first subparagraph together with the categories of issuers authorised, in accordance with the laws and supervisory arrangements mentioned in that subparagraph, to issue bonds complying with the criteria set out in this Article. A notice specifying the status of the guarantees offered shall be attached to those lists. The Commission and ESMA shall immediately forward that information to the other Member States together with any comments they consider appropriate and shall make the information available to the public on their website. Such communications may be the subject of exchanges of views within the European Securities Committee referred to in Article 112(1).’.
20
Article 60 is amended as follows:
a
in paragraph 6:
i
in the first subparagraph, the introductory part is replaced by the following:
ii
the second subparagraph is deleted;
b
the following paragraph is added:
21
Article 61 is amended as follows:
a
paragraph 3 is replaced by the following:
b
the following paragraph is added:
22
Article 62(4) is replaced by the following:
23
Article 64 is amended as follows:
a
paragraph 4 is replaced by the following:
b
the following paragraph is added:
24
In Article 69, the following paragraph is added:
25
In Article 75, paragraph 4 is replaced by the following:
26
Article 78 is amended as follows:
a
paragraph 7 is replaced by the following:
b
the following paragraph is added:
27
Article 81(2) is replaced by the following:
28
In Article 83, the following paragraph is added:
29
In Article 84, the following paragraph is added:
30
Article 95 is replaced by the following:
31
Article 97(1) is replaced by the following:
32
Article 101 is amended as follows:
a
the following paragraph is inserted:
b
paragraphs 8 and 9 are replaced by the following:
33
Article 102 is amended as follows:
a
in paragraph 2, the first subparagraph is replaced by the following:
b
in paragraph 5, the following point is added: ( *23 ) OJ L 331, 15.12.2010, p. 12 ." ( *24 ) OJ L 331, 15.12.2010, p. 48 .’."
‘d
ESMA, the European Supervisory Authority (European Banking Authority) established by ESAEBAR of the European Parliament and of the Council ( *23 ) , the European Supervisory Authority (European Insurance and Occupational Pensions Authority) established by Regulation 2010/1094 of the European Parliament and of the Council ( *24 ) and the ESRB.
34
Article 103 is amended as follows:
a
paragraph 3 is replaced by the following:
b
paragraph 7 is replaced by the following:
35
Article 105 is replaced by the following:
36
Article 108(5) is amended as follows:
a
point (b) of the first subparagraph is replaced by the following:
‘b
if necessary, refer the matter to ESMA, which may act in accordance with the powers conferred on it under Article 19 of ESAESMAR.’;
b
the second subparagraph is replaced by the following: ‘The Commission and ESMA shall be informed without delay of any measure taken pursuant to point (a) of the first subparagraph.’.
37
The title of chapter XIII is replaced by the following: ‘DELEGATED ACTS AND POWERS OF EXECUTION’
38
Article 111 is replaced by the following:
39
Article 112 is replaced by the following:
40
The following Articles are inserted:
Article 12: Review
The Commission shall, by 1 January 2014, submit to the European Parliament and to the Council a report specifying whether the ESA have submitted the draft regulatory technical standards and the draft implementing technical standards provided for in this Directive, whether the submission is mandatory or optional, with any appropriate proposals.
Article 13: Transposition
1
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with Article 1(1) and (2), Article 2(1)(a), Article 2(2), (5), (7) and (9), Article 2(11)(b), Article 3(4), Article 3(6)(a) and (b), Article 4(1)(a), Article 4(3), Article 5(5)(a), the first subparagraph of Article 5(5)(b), Article 5(6), (8), (9) (in relation to Article 18(3) of Directive 2003/71), Article 5(10), Article 5(11)(a) and (b), Article 5(12), Article 6(1) (in relation to the first subparagraph of Article 5(3) of Directive 2004/39/EC), Article 6(3), Article 6(5)(a), Article 6(10), (13), (14) and (16), Article 6(17)(a) and (b), Article 6(18) and (19) (in relation to the first subparagraph of Article 53(3) of Directive 2004/39/EC), Article 6(21)(a) and (b), Article 6(23)(b), Article 6(24), (25) and (27), Article 7(12)(a), Article 7(13), (14) (15) and (16), Article 9(1)(a), Article 9(2), (3), (4), (10), (11), (12), (15), (16), (17), (18), (20), (29) and (32), Article 9(33)(a) and (b), Article 9(33)(d)(ii) to (iv), Article 9(34) and (35), Article 9(36)(b)(ii), Article 9(37)(b), Article 9(38) and (39), Article 10(2), Article 10(3)(a), Article 10(4), Article 11(2), (4), (11), (14), (19) and (31), Article 11(32)(b) in regard to Article 101(8) of Directive 2009/65/EC, and Article 11(33), (34) and (36) of this Directive, by 31 December 2011. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
2
Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.
Article 14: Entry into force
This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union . Official Journal of the European Union
Article 15: Addressees
This Directive is addressed to the Member States.
Recitals
Recital 1
The financial crisis in 2007 and 2008 exposed important shortcomings in financial supervision, both in particular cases and in relation to the financial system as a whole. Nationally based supervisory models have lagged behind financial globalisation and the integrated and interconnected reality of European financial markets, in which many financial institutions operate across borders. The crisis exposed shortcomings in the areas of cooperation, coordination, consistent application of Union law and trust between national competent authorities.
Recital 2
In several resolutions before and during the financial crisis, the European Parliament has called for a move towards more integrated European supervision, in order to ensure a true level playing field for all actors at Union level and reflect the increasing integration of financial markets in the Union (in its resolutions of 13 April 2000 on the Commission communication on implementing the framework for financial markets: Action Plan, of 21 November 2002 on prudential supervision rules in the European Union, of 11 July 2007 on financial services policy (2005 to 2010) – White Paper, of 23 September 2008 with recommendations to the Commission on hedge funds and private equity, and of 9 October 2008 with recommendations to the Commission on Lamfalussy follow-up: future structure of supervision, and in its positions of 22 April 2009 on the amended proposal for a directive of the European Parliament and of the Council on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) and of 23 April 2009 on the proposal for a regulation of the European Parliament and of the Council on Credit Rating Agencies).
Recital 3
In November 2008, the Commission mandated a High-Level Group chaired by Jacques de Larosière to make recommendations on how to strengthen European supervisory arrangements with a view to better protecting the citizen and rebuilding trust in the financial system. In its final report presented on 25 February 2009 (the ‘de Larosière Report’), the High-Level Group recommended that the supervisory framework be strengthened to reduce the risk and severity of future financial crises. It recommended far-reaching reforms to the supervisory structure of the financial sector within the Union. The de Larosière Report also recommended that a European System of Financial Supervisors (ESFS) be created, comprising three European Supervisory Authorities (ESA) – one for each of the banking, the securities and the insurance and occupational pensions sectors – and a European Systemic Risk Council.
Recital 4
In its Communication of 4 March 2009 entitled ‘Driving European Recovery’, the Commission proposed to put forward draft legislation creating the ESFS and in its Communication of 27 May 2009 entitled ‘European Financial Supervision’, it provided more details of the possible architecture of that new supervisory framework.
Recital 5
In its conclusions following its meeting on 18 and 19 June 2009, the European Council recommended that a European System of Financial Supervisors, comprising three new ESA, be established. The system should be aimed at upgrading the quality and consistency of national supervision, strengthening oversight of cross-border groups, establishing a European single rule book applicable to all financial institutions in the internal market. It emphasised that the ESA should also have supervisory powers for credit rating agencies and invited the Commission to prepare concrete proposals on how the ESFS could play a strong role in crisis situations.
Recital 6
On 23 September 2009, the Commission adopted proposals for three regulations establishing the ESFS including the creation of the three ESA.
Recital 7
In order for the ESFS to work effectively, changes to legal acts of the Union in the field of operation of the three ESA are necessary. Such changes concern the definition of the scope of certain powers of the ESA, the integration of certain powers established in legal acts of the Union, and amendments to ensure a smooth and effective functioning of the ESA in the context of the ESFS.
Recital 8
The establishment of the three ESA should be accompanied by the development of a single rule book to ensure consistent harmonisation and uniform application and thus contribute to a more effective functioning of the internal market.
Recital 9
The regulations establishing the ESFS provide that, in the areas specifically set out in the relevant legislation, the ESA may develop draft technical standards, to be submitted to the Commission for adoption in accordance with Articles 290 and 291 of the Treaty on the Functioning of the European Union (TFEU) by means of delegated or implementing acts. This Directive should identify a first set of such areas and should be without prejudice to adding further areas in the future.
Recital 10
The relevant legislation should define those areas where the ESA are empowered to develop draft technical standards and how they should be adopted. The relevant legislation should lay down the elements, conditions and specifications as detailed in Article 290 TFEU in the case of delegated acts.
Recital 11
The identification of areas for technical standards should strike an appropriate balance between building a single set of harmonised rules and avoiding unduly complicated regulation and enforcement. The only areas selected should be those in which consistent technical rules will contribute significantly and effectively to the achievement of the objectives of the relevant legislation, while ensuring that policy decisions are taken by the European Parliament, the Council and the Commission in accordance with their usual procedures.
Recital 12
Matters subject to technical standards should be genuinely technical, where their development requires the expertise of supervisory experts. The technical standards adopted as delegated acts should further develop, specify and determine the conditions for consistent harmonisation of the rules included in basic instruments adopted by the European Parliament and the Council, supplementing or amending certain non-essential elements of the legislative act. The technical standards adopted as implementing acts should set conditions for the uniform application of legally binding Union acts. Technical standards should not involve policy choices.
Recital 13
In the case of regulatory technical standards it is appropriate to introduce the procedure provided for in Articles 10 to 14 of ESAEBAR of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority) ( 4 ) , of Regulation 2010/1094 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority) ( 5 ) and of ESAESMAR of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority) ( 6 ) , respectively. Implementing technical standards should be adopted in accordance with the procedure provided for in Article 15 of ESAEBAR, of Regulation 2010/1094 and of ESAESMAR, respectively. The European Council endorsed the four-level ‘Lamfalussy’ approach to make the regulatory process for Union financial legislation more efficient and transparent. The Commission is empowered to adopt level-2 measures in many areas, and a large number of level-2 Commission regulations and directives are in force. In cases where the regulatory technical standards are designed to further develop, specify or determine the conditions of application of such level-2 measures, they should be adopted only once the relevant level-2 measures have been adopted and should be compatible with that level-2 measure.
Recital 14
Binding technical standards contribute to a single rulebook for financial services legislation as endorsed by the European Council in its conclusions of June 2009. To the extent that certain requirements in Union legislative acts are not fully harmonised, and in accordance with the precautionary principle on supervision, binding technical standards developing, specifying or determining the conditions of application for those requirements should not prevent Member States from requiring additional information or imposing more stringent requirements. Technical standards should therefore allow Member States to do so in specific areas, when those legislative acts provide for such discretion.
Recital 15
As set out in the regulations establishing the ESFS, before submitting the technical standards to the Commission, the ESA should, where appropriate, conduct open public consultations relating thereto and analyse the potential related costs and benefits.
Recital 16
It should be possible for technical standards to provide for transitional measures subject to adequate deadlines, if the costs of immediate implementation would be excessive compared to the benefits involved.
Recital 17
The regulations establishing the ESFS provide for a mechanism to settle disagreements between national competent authorities. Where a competent authority disagrees with the procedure or content of an action or inaction by another competent authority in areas specified in legal acts of the Union in accordance with ESAEBAR, Regulation (EU) No 1094/2010 and ESAESMAR, where the relevant legislation requires cooperation, coordination or joint decision-making by national competent authorities from more than one Member State, the ESA, at the request of one of the competent authorities concerned, should be able to assist the authorities in reaching an agreement within the time limit set by the ESA which should take into account any relevant time limits in the relevant legislation, and the urgency and complexity of the disagreement. In the event that such disagreement persists, the ESA should be able to settle the matter.
Recital 18
The regulations establishing the ESA require that the cases where the mechanism to settle disagreements between national competent authorities may be applied are to be specified in the sectoral legislation. This Directive should identify a first set of such cases and should be without prejudice to adding further cases in the future. This Directive should not prevent the ESA from acting in accordance with other powers or fulfilling tasks specified in their establishing regulations, including non-binding mediation and contributing to the consistent, efficient and effective application of legal acts of the Union. Moreover, in those areas where some form of non-binding mediation is already established in the relevant legal act, or where there are time limits for joint decisions to be taken by one or more national competent authorities, amendments are needed to ensure clarity and minimum disruption of the process for reaching a joint decision, but also that where necessary, the ESA should be able to resolve disagreements. The binding procedure for the settlement of disagreements is designed to solve situations where national competent authorities cannot resolve, among themselves, procedural or substantive issues relating to compliance with legal acts of the Union.
Recital 19
This Directive should therefore identify situations in which a procedural or a substantive issue of compliance with Union law needs to be resolved and the national competent authorities are not able to resolve the matter on their own. In such a situation, one of the national competent authorities concerned should be able to raise the issue with the European Supervisory Authority concerned. That European Supervisory Authority should act in accordance with its establishing regulation and with this Directive. The European Supervisory Authority concerned should be able to require the competent authorities concerned to take specific action or to refrain from action in order to settle the matter and to ensure compliance with Union law, with binding effects on the competent authorities concerned. In cases where the relevant legal act of the Union confers discretion on Member States, decisions taken by a European Supervisory Authority should not replace the exercise of discretion by the competent authorities in compliance with Union law.
Recital 20
Directive 2006/48 of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions ( 7 ) provides for mediation or joint decisions as regards the determination of significant branches for the purposes of supervisory college membership, model validation and group risk assessment. In all of those areas, amendments should clearly state that in the event of disagreement during a specified time period, the European Supervisory Authority (European Banking Authority) may resolve the disagreement using the process outlined in ESAEBAR. That approach makes it clear that, while the European Supervisory Authority (European Banking Authority) should not replace the exercise of discretion by the competent authorities in compliance with Union law, it should be possible for disagreements to be resolved and cooperation to be strengthened before a final decision is taken or issued to an institution.
Recital 21
In order to ensure a smooth transition of the current tasks of the Committee of European Banking Supervisors, the Committee of European Insurance and Occupational Pensions Supervisors and the Committee of European Securities Regulators to the new ESA, references to those Committees should be replaced in the relevant legislation with references to the European Supervisory Authority (European Banking Authority), the European Supervisory Authority (European Insurance and Occupational Pensions Authority) and the European Supervisory Authority (European Securities and Markets Authority), respectively.
Recital 22
In order to give full effect to the new framework provided for in the TFEU, it is necessary to adapt and replace the implementing powers designed under Article 202 of the Treaty establishing the European Community (EC Treaty) with the appropriate provisions in accordance with Articles 290 and 291 TFEU. That review should be finalised within 3 years from the entry into force of the Treaty of Lisbon and the remaining powers conferred under Article 202 EC Treaty should cease to apply on that date.
Recital 23
The alignment of committee procedures to the TFEU and, in particular, to Articles 290 and 291 thereof, should be effected on a case-by-case basis. In order to take account of the technical developments in the financial markets and to specify the requirements laid down in the directives amended by this Directive, the Commission should be empowered to adopt delegated acts in accordance with Article 290 TFEU.
Recital 24
The European Parliament and the Council should have 3 months from the date of notification to object to a delegated act. At the initiative of the European Parliament or the Council, it should be possible to prolong that period by 3 months in regard to significant areas of concern. It should also be possible for the European Parliament and the Council to inform the other institutions of their intention not to raise objections. Such early approval of delegated acts is particularly appropriate when deadlines need to be met, for example where there are timetables in the basic act for the Commission to adopt delegated acts.
Recital 25
In the Declaration (No 39) on Article 290 TFEU, annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon, the Conference took note of the Commission's intention to continue to consult experts appointed by the Member States in the preparation of draft delegated acts in the financial services area, in accordance with its established practice.
Recital 26
The new supervisory architecture established by the ESFS will require national competent authorities to cooperate closely with the ESA. Amendments to the relevant legislation should ensure there are no legal obstacles to the information sharing obligations included in the regulations establishing the ESA.
Recital 27
Information transmitted to or exchanged between competent authorities and the ESA or the ESRB should be covered by the obligation of professional secrecy, to which the persons employed or formerly employed by the competent authorities receiving the information are subject.
Recital 28
The regulations establishing the ESA provide that they may develop contacts with supervisory authorities from third countries and assist in preparing equivalence decisions pertaining to supervisory regimes in third countries. MIFID of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments ( 8 ) and Directive 2006/48 should be amended to allow the ESA to establish cooperation agreements with third countries and exchange information where those third countries can provide guarantees that professional secrecy will be protected.
Recital 29
Having a single consolidated list or register for each category of financial institution in the Union, which is currently the duty of each national competent authority, will improve transparency and is more appropriate in the context of the single financial market. The ESA should be given the task of establishing, publishing and regularly updating registers and lists of financial actors within the Union. This concerns the list of authorisations of credit institutions granted by national competent authorities, the register of all investment firms and the list of regulated markets under MIFID. Similarly, the European Supervisory Authority (European Securities and Markets Authority) should be given the task of establishing, publishing and regularly updating the list of approved prospectuses and the certificates of approval under Directive 2003/71 of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading ( 9 ) .
Recital 30
In those areas where the ESA are under an obligation to develop draft technical standards, those draft technical standards should be submitted to the Commission within 3 years of the creation of the ESA unless another deadline is established by the relevant legislative act.
Recital 31
The tasks of the European Supervisory Authority (European Securities and Markets Authority) in relation to SFIPSSSD of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems ( 10 ) should be without prejudice to the competence of the European System of Central Banks to promote the smooth operation of payment systems, in line with the fourth indent of Article 127(2) TFEU.
Recital 32
The technical standards to be drafted by the European Supervisory Authority (European Insurance and Occupational Pensions Authority) in accordance with this Directive and in relation to ASIORPD of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision ( 11 ) should be without prejudice to the competences of Member States with regard to prudential requirements on such institutions as provided for in ASIORPD.
Recital 33
Under Article 13(5) of Directive 2003/71, the competent authority of the home Member State may transfer the approval of a prospectus to the competent authority of another Member State, subject to the agreement of that competent authority. Article 28(4) of ESAESMAR requires that such delegation agreements be notified to the European Supervisory Authority (European Securities and Markets Authority) at least 1 month before they are put into effect. However, given the experience in transfer of approval under Directive 2003/71, which provides for shorter deadlines, it is appropriate not to apply Article 28(4) of ESAESMAR to that situation.
Recital 34
There is currently no need for the ESA to develop draft technical standards on the existing requirements that the persons who effectively direct the business of investment firms, credit institutions, UCITS and their management companies be of sufficiently good repute and sufficiently experienced so as to ensure their sound and prudent management. However, given the importance of those requirements, the ESA should give priority to identifying best practices in guidelines and to ensuring the convergence of supervisory and prudential processes towards those best practices. They should similarly identify best practices and ensure convergence with respect to prudential requirements relative to the head office of those bodies.
Recital 35
The European single rule book, applicable to all financial institutions in the internal market, should ensure adequate harmonisation of criteria and methodology to be applicable by the competent authorities to assess the risk of credit institutions. More particularly, the purpose of developing draft technical standards in relation to the Internal Ratings Based approach, the Advanced Measurement Approach and the internal model for market risk approach, as provided for by this Directive, should be to ensure the quality and robustness of such approaches, as well as the consistency of their review by the competent authorities. Those technical standards should allow the competent authorities to permit financial institutions to develop different approaches based on their experience and specificities, in accordance with the requirements laid down in Directive 2006/48 and CAIFCID of the European Parliament and of the Council of 14 June 2006 on the capital adequacy of investment firms and credit institutions ( 12 ) and subject to the requirements of the relevant technical standards.
Recital 36
Since the objectives of this Directive, namely improving the functioning of the internal market by means of ensuring a high, effective and consistent level of prudential regulation and supervision, protecting depositors, investors and beneficiaries and thereby businesses and consumers, protecting the integrity, efficiency and orderly functioning of financial markets, maintaining the stability and sustainability of the financial system, preserving the real economy, safeguarding public finances and strengthening international supervisory coordination, cannot be sufficiently achieved by the Member States and can, therefore, by reason of their scale, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
Recital 37
The Commission should, by 1 January 2014, report to the European Parliament and to the Council on the submission by the ESA of the draft technical standards provided for in this Directive and present any appropriate proposals.
Recital 38
SFIPSSSD of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems ( 13 ) , Directive 2002/87 of the European Parliament and of the Council of 16 December 2002 on the supplementary supervision of credit institutions, insurance undertakings and investment firms in a financial conglomerate ( 14 ) , IDMMMAD of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse) ( 15 ) , ASIORPD, Directive 2003/71/EC, MIFID, Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market ( 16 ) , Directive 2005/60 of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing ( 17 ) , Directive 2006/48, Directive 2006/49/EC and UCITS2 of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) ( 18 ) should therefore be amended accordingly,
Footnote p0: Done at Strasbourg, 24 November 2010.