Changes from report parliamentary committee draft to plenary report

Added‘An issuer that is a credit institution or a financial institution or an issuer that is a parent undertaking or related undertaking of such an institution, may, on its own responsibility, delay the public disclosure of inside information, including information which is related to a temporary liquidity problem and, in particular, the need to receive temporary liquidity assistance from a central bank or lender of last resort, provided that all of the following conditions are met:’;

Added(e) in paragraph 7, the second subparagraph is replaced by the following:

Added‘This paragraph includes situations where a rumour explicitly relates to inside information the disclosure of which has been delayed in accordance with paragraph 4 or 5, where that rumour is sufficiently accurate ▌ to indicate that the confidentiality of that information is no longer ensured.’;

Added(f) paragraph 11 is replaced by the following:

Added‘11. ESMA shall develop draft regulatory technical standards to establish a non-exhaustive list of situations in which delays in the disclosure of inside information, or the absence of such disclosure, are likely to mislead the public, as referred to in paragraphs 1 and 4.

AddedESMA shall submit those draft regulatory technical standards to the Commission by ...[12 months from the date of the entry into force of this amending Regulation].

AddedPower is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council*.

Added__________________

Added* Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).’;

Added▌

Added(7) Article 19 is amended as follows:

Added(-a) paragraph 5 is replaced by the following:

Added‘5. Issuers and emission allowance market participants shall notify, in writing, the person discharging managerial responsibilities of its obligations under this Article. Issuers and emission allowance market participants shall draw up a list of all persons discharging managerial responsibilities and persons closely associated with them.’;

Added(a) paragraphs 8 and 9 are replaced by the following:

Added‘8. Paragraph 1 shall apply to any subsequent transaction once a total amount of EUR 20 000 has been reached within a calendar year. The threshold of EUR 20 000 shall be calculated by adding without netting all transactions referred to in paragraph 1. Thresholds for different securities shall be calculated separately.

Added9. A competent authority may decide to decrease the threshold set out in paragraph 8 to EUR 10 000 and shall inform ESMA of its decision and the justification for its decision, with specific reference to market conditions, to adopt the lower threshold prior to its application. ESMA shall publish on its website the list of thresholds that apply in accordance with this Article and the justifications provided by competent authorities for such thresholds.’;

Added(aa) in paragraph 11, the following subparagraph is added:

Added‘This paragraph shall not apply to transactions or trade activities that do not relate to active investment decisions or active involvement by the person discharging managerial responsibilities, or that result exclusively from external factors or third parties, or are transactions or trade activities, including the exercise of derivatives, based on predetermined terms.’;

Added(b) paragraph 12 is replaced by the following:

Added‘12. Without prejudice to Articles 14 and 15, an issuer may allow a person discharging managerial responsibilities within it to trade or to make transactions on its own account or for the account of a third party during a closed period as referred to in paragraph 11:

Added(a) on a case-by-case basis due to the existence of exceptional circumstances, such as severe financial difficulty, which require the immediate sale of shares; or

Added(b) due to the characteristics of the trading involved for transactions made under, or related to, an employee share or saving scheme and employees’ schemes concerning financial instruments other than shares, qualification or entitlement of shares and qualifications or entitlements of financial instruments other than shares, or transactions where the beneficial interest in the relevant security does not change; or

Added(c) where those transactions or trade activities do not imply active investment decisions by the person discharging managerial responsibilities, or result exclusively from external factors or third parties, or are the exercise of derivatives based on predetermined terms.’;

Added(8) in Article 23(2), point (g) is replaced by the following:

Added‘(g) to require existing recordings of telephone conversations, electronic communications or data traffic records held by investment firms, credit institutions or financial institutions as well as benchmark administrators or supervised contributors;’;

Added(9) Article 25 is amended as follows:

Added(a) the following paragraph 1a is inserted:

Added‘1a. ESMA shall facilitate and coordinate the cooperation and exchange of information between competent authorities and regulatory authorities in other Member States and third countries. When justified by the character of the case, and at the request of the competent authority, ESMA shall contribute to the investigation of the case by the competent authority.’;

Added(b) in paragraph 6, the second subparagraph is replaced by the following:

Added‘A requesting competent authority may inform ESMA of any request referred to in the first subparagraph. In the case of an investigation or an inspection with cross-border effect, ESMA may decide to coordinate the investigation or inspection.’;

Added(10) the following articles▌ are inserted:

Added‘Article 25a Mechanism to exchange order data

Added1. Competent authorities supervising trading venues and systematic internalisers with a significant cross-border dimension shall, by [12 months from the date of entry into force of this Regulation], set up a mechanism to permit ongoing and timely exchange of order ▌ data referred to in paragraph 2 and collected from those trading venues and systematic internalisers in accordance with Article 25 of Regulation (EU) No 600/2014 with respect to the instruments traded in such market. Competent authorities may delegate the set-up of the mechanism to ESMA.

AddedWhere a competent authority submits a request for data under paragraph 2, the relevant trading venue or systematic internaliser shall provide that data to the requested competent authority in a timely manner and not later than two calendar days from the date of the request. The requested competent authority shall forward that data immediately upon receipt thereof. The request for ongoing data from a competent authority may be submitted for a specific set of instruments.

Added2. A competent authority may obtain order▌ data originating from a trading venue or a systematic internaliser that has a cross-border dimension when that competent authority is the competent authority of the most relevant market referred to in Article 26 of Regulation (EU) No 600/2014 for the following financial instruments:

Added(a) shares;

Added(b) bonds;

Added(c) futures.

Added3. A Member State may decide that its competent authority participates in the mechanism set up pursuant to paragraph 1 even if none of the trading venues and systematic internalisers under the supervision of such competent authority has a significant cross-border dimension. Such decision shall be communicated to ESMA which shall make it public on its website.

AddedWhen a competent authority is not part of the mechanism set up pursuant to paragraph 1, it shall still comply with a request of exchange of ongoing order▌ data pursuant to Article 25 in a timely manner and not later than 5 calendar days from the date of the request.

Added4. ESMA shall develop draft implementing technical standards to specify the appropriate mechanism for the exchange of order▌ data. In particular, the implementing technical standards shall lay down the operational arrangements to ensure the swift transmission of information between competent authorities.

AddedESMA shall submit those draft implementing technical standards to the Commission by [9 months after the application/entering into force of this Regulation].

AddedPower is delegated to the Commission to supplement this Regulation by adopting the implementing technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.

Added5. The Commission is empowered to adopt delegated acts to establish a list of designated trading venues and systematic internalisers that have a significant cross-border dimension in the supervision of market abuse, by taking into account at least the market share of the trading venues and systematic internalisers on the instruments. The Commission shall review such list at least every 4 years.

Added6. The Commission is empowered to adopt delegated acts in accordance with Article 35 to amend paragraph 2 by updating the financial instruments, taking into account the developments in financial markets and the capacity of competent authorities to process the data on those financial instruments.

Added1. ESMA may, on its own initiative or at the request of one or more competent authorities, in the case of concerns about market integrity or the good functioning of markets, set up and coordinate a collaboration platform.

Added2. Without prejudice to Article 35 of Regulation (EU) No 1095/2010, at the request of ESMA, the relevant competent authorities shall provide all necessary information in a timely manner.

Added3. Where two or more competent authorities of a collaboration platform disagree about the procedure or content of an action to be taken, or inaction, ESMA may, at the request of any relevant competent authority or on its own initiative, assist the competent authorities in reaching an agreement in accordance with Article 19(1) of Regulation (EU) No 1095/2010.

AddedESMA may also decide to initiate and coordinate on-site inspections. It shall invite the competent authority of the home Member State as well as other relevant competent authorities of the collaboration platform to participate in such on-site inspections.

AddedESMA may also set up a collaboration platform jointly with ACER and the public bodies monitoring wholesale commodity markets where the concerns about market integrity and the good functioning of markets affect both financial and spot markets.’;

Added(11) Article 28 is deleted

Added(12) Article 29 is replaced by the following:

Added‘Article 29

AddedDisclosure of personal data to third countries

Added1. Competent authorities of a Member State may transfer personal data to a third country provided the requirements of Regulation (EU) 2016/679 of the European Parliament and of the Council*▌ are fulfilled and only on a case-by-case basis. Competent authorities shall ensure that such a transfer is necessary for the purpose of this Regulation and that the third country does not transfer the data to another third country unless it is given express written authorisation and complies with the conditions specified by the competent authority of the Member State.

Added2. Competent authorities of a Member State shall only disclose personal data received from a competent authority of another Member State to a supervisory authority of a third country where the competent authority of the Member State concerned has obtained express agreement from the competent authority which transmitted the data and, where applicable, provided that the data are disclosed solely for the purposes for which that competent authority gave its agreement.’

Added______________________________________________

Added*▌ Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).’;

Added(13) Article 30 is amended as follows:

Added(a) paragraph 2 is amended as follows: