Legal provisions of COM(2020)280 - Amendment of Directive 2014/65/EU as regards information requirements, product governance and position limits to help the recovery from the COVID-19 pandemic - Main contents
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dossier | COM(2020)280 - Amendment of Directive 2014/65/EU as regards information requirements, product governance and position limits to help the ... |
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document | COM(2020)280 |
date | February 16, 2021 |
Article 1
Amendments to Directive 2014/65/EU
Directive 2014/65/EU is amended as follows:
(1) | Article 2 is amended as follows:
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(2) | Article 4(1) is amended as follows:
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(3) | the following article is inserted: ‘Article 16a Exemptions from product governance requirements An investment firm shall be exempted from the requirements set out in the second to fifth subparagraphs of Article 16(3) and in Article 24(2), where the investment service it provides relates to bonds with no other embedded derivative than a make-whole clause or where the financial instruments are marketed or distributed exclusively to eligible counterparties.’; |
(4) | Article 24 is amended as follows:
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(5) | in Article 25(2), the following subparagraph is added: ‘When providing either investment advice or portfolio management that involves the switching of financial instruments, investment firms shall obtain the necessary information on the client’s investment and shall analyse the costs and benefits of the switching of financial instruments. When providing investment advice, investment firms shall inform the client whether or not the benefits of the switching of financial instruments are greater than the costs involved in such switching.’; |
(6) | in Article 27(3), the following subparagraph is added: ‘The periodic reporting requirement to the public laid down in this paragraph shall not apply until 28 February 2023. The Commission shall comprehensively review the adequacy of the reporting requirements laid down in this paragraph and submit a report to the European Parliament and the Council by 28 February 2022.’; |
(7) | in Article 27(6), the following subparagraph is added: ‘The Commission shall comprehensively review the adequacy of the periodic reporting requirements laid down in this paragraph and submit a report to the European Parliament and the Council by 28 February 2022.’; |
(8) | the following article is inserted: ‘Article 29a Services provided to professional clients 1. The requirements laid down in point (c) of Article 24(4) shall not apply to services provided to professional clients except for investment advice and portfolio management. 2. The requirements laid down in the third subparagraph of Article 25(2) and in Article 25(6) shall not apply to services provided to professional clients, unless those clients inform the investment firm either in electronic format or on paper that they wish to benefit from the rights provided for in those provisions. 3. Member States shall ensure that investment firms keep a record of the client communications referred to in paragraph 2.’; |
(9) | in Article 30(1), the first subparagraph is replaced by the following: ‘1. Member States shall ensure that investment firms authorised to execute orders on behalf of clients, and/or to deal on own account, and/or to receive and transmit orders have the possibility of bringing about or entering into transactions with eligible counterparties without being obliged to comply with Article 24, with the exception of paragraph 5a thereof, Article 25, Article 27 and Article 28(1), in respect of those transactions or in respect of any ancillary service directly relating to those transactions.’; |
(10) | Article 57 is amended as follows:
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(11) | Article 58 is amended as follows:
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(12) | in Article 73, paragraph 2 is replaced by the following: ‘2. Member States shall require investment firms, market operators, APAs and ARMs authorised in accordance with Regulation (EU) No 600/2014 that have a derogation in accordance with Article 2(3) of that Regulation, credit institutions in relation to investment services or activities and ancillary services and branches of third-country firms to have in place appropriate procedures for their employees to report potential or actual infringements internally through a specific, independent and autonomous channel.’; |
(13) | in Article 89, paragraphs 2 to 5 are replaced by the following: ‘2. The delegation of power referred to in Article 2(3), Article 2(4), second subparagraph of Article 4(1)(2), Article 4(2), Article 13(1), Article 16(12), Article 23(4), Article 24(13), Article 25(8), Article 27(9), Article 28(3), Article 30(5), Article 31(4), Article 32(4), Article 33(8), Article 52(4), Article 54(4), Article 58(6), Article 64(7), Article 65(7) and Article 79(8) shall be conferred on the Commission for an indeterminate period of time from 2 July 2014. 3. The delegation of power referred to in Article 2(3), Article 2(4), second subparagraph of Article 4(1)(2), Article 4(2), Article 13(1), Article 16(12), Article 23(4), Article 24(13), Article 25(8), Article 27(9), Article 28(3), Article 30(5), Article 31(4), Article 32(4), Article 33(8), Article 52(4) Article 54(4), Article 58(6), Article 64(7), Article 65(7) and Article 79(8) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 5. A delegated act adopted pursuant to Article 2(3), Article 2(4), second subparagraph of Article 4(1)(2), Article 4(2), Article 13(1), Article 16(12), Article 23(4), Article 24(13), Article 25(8), Article 27(9), Article 28(3), Article 30(5), Article 31(4), Article 32(4), Article 33(8), Article 52(4), Article 54(4), Article 58(6), Article 64(7), Article 65(7) or Article 79(8) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council.’; |
(14) | in Article 90, the following paragraph is inserted: ‘1a. By 31 December 2021, the Commission shall review the impact of the exemption laid down in point (j) of Article 2(1) with regard to emission allowances or derivatives thereof, and shall accompany that review, where appropriate, with a legislative proposal to amend that exemption. In that context, the Commission shall assess the trading in emission allowances and derivatives thereof in the Union and in third countries, the impact of the exemption laid down in point (j) of Article 2(1) on investor protection, the integrity and transparency of the markets in emission allowances and derivatives thereof and whether measures should be adopted in relation to trading that takes place on third country trading venues.’. |
Article 2
Amendments to Directive (EU) 2019/878
In Article 2, paragraph 1 is replaced by the following:
‘1. Member States shall adopt and publish, by 28 December 2020, the measures necessary to comply with:
(a) | provisions of this Directive insofar as they concern credit institutions; |
(b) | Article 1(1) and (9) of this Directive as regards Article 2(5) and (6) and Article 21b of Directive 2013/36/EU, insofar as they concern credit institutions and investment firms. |
They shall immediately inform the Commission thereof.
They shall apply those measures from 29 December 2020. However, the provisions necessary to comply with the amendments set out in point (21) and points (29)(a), (b) and (c) of Article 1 of this Directive as regards Article 84 and Article 98(5) and (5a) of Directive 2013/36/EU shall apply from 28 June 2021 and the provisions necessary to comply with the amendments set out in points (52) and (53) of Article 1 of this Directive as regards Articles 141b, 141c and Article 142(1) of Directive 2013/36/EU shall apply from 1 January 2022.
Member States shall adopt, publish and apply by 26 June 2021 the measures necessary to comply with the provisions of this Directive insofar as they concern investment firms, except for those measures referred to in point (b) of the first subparagraph.
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.’.
Article 3
Amendments to Directive 2013/36/EU
The third, fourth and fifth subparagraphs of Article 94(2) are replaced by the following:
‘For the purpose of identifying staff whose professional activities have a material impact on the institution’s risk profile as referred to in Article 92(3), except as regards staff in investment firms, EBA shall develop draft regulatory technical standards setting out the criteria to define the following:
(a) | managerial responsibility and control functions; |
(b) | material business unit and significant impact on the relevant business unit’s risk profile; and |
(c) | other categories of staff not expressly referred to in Article 92(3) whose professional activities have an impact on the institution’s risk profile comparably as material as that of those categories of staff referred to therein. |
EBA shall submit those draft regulatory technical standards to the Commission by 28 December 2019.
Power is delegated to the Commission to supplement this Directive by adopting the regulatory technical standards referred to in this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010. As regards regulatory technical standards applying to investment firms, the empowerment laid down in Article 94(2) of this Directive as amended by Directive (EU) 2018/843 of the European Parliament and of the Council (*3) shall continue to apply until 26 June 2021.
Article 4
Transposition
1. Member States shall adopt and publish by 28 November 2021 the laws, regulations and administrative provisions necessary to comply with this Directive. They shall immediately communicate the text of those measures to the Commission.
They shall apply those measures from 28 February 2022.
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.
3. By way of derogation from paragraph 1, the amendments to Directives 2013/36/EU and (EU) 2019/878 shall apply from 28 December 2020.
Article 5
Review
By 31 July 2021, and based on the outcome of a public consultation conducted by the Commission, the Commission shall review, inter alia, (a) the operation of the structure of the securities markets, reflecting the new economic reality after 2020, data and data quality issues related to market structure, and the transparency rules, including issues related to third countries; (b) the rules on research; (c) the rules on all forms of payments to advisers and their level of professional qualification; (d) product governance; (e) loss reporting; and (f) client categorisation. If appropriate, the Commission shall submit a legislative proposal to the European Parliament and to the Council.
Article 6
Entry into force
This Directive shall enter into force on the day following that of its publication in the Official Journal of the European Union.
Article 7
Addressees
This Directive is addressed to the Member States.