sou · GUB374 · 2007-01-01 00:00:00 — (b)the size of the transaction is equal to or exceeds the relevant minimum qualifying size, as specified in Table 4 in . In order to determine the relevant minimum qualifying size for the purposes of point (b), all shares admitted to trading on a regulated market shall be classified in accordance with their average daily turnover to be calculated in accordance with Article 33. PROVISIONS COMMON TO PRE- AND POST-TRADE TRANSPARENCY (Articles 27(3), 28(1), 29(1), 44(1) and 45(1) of Directive 2004/39/EC) Publication and availability of pre- and post-trade transparency data 1.A regulated market, MTF or systematic internaliser shall be considered to publish pre-trade information on a continuous basis during normal trading hours if that information is published as soon as it becomes available during the normal trading hours of the regulated market, MTF or systematic internaliser concerned, and remains available until it is updated. 2.Pre-trade information, and post-trade information relating to transactions taking place on trading venues and within normal trading hours, shall be made available as close to real time as possible. Post-trade information relating to such transactions shall be made available in any case within three minutes of the relevant transaction. 3.Information relating to a portfolio trade shall be made available with respect to each constituent transaction as close to real time as possible, having regard to the need to allocate prices to particular shares. Each constituent transaction shall be assessed separately for the purposes of determining whether deferred publication in respect of that transaction is available under Article 28. 4.Post-trade information relating to transactions taking place on a trading venue but outside its normal trading hours shall be made public before the opening of the next trading day of the trading venue on which the transaction took place. 5.For transactions that take place outside a trading venue, post-trade information shall be made public: (a)if the transaction takes place during a trading day of the most relevant market for the share concerned, or during the investment firm's normal trading hours, as close to real time as possible. Post-trade information relating to such transactions shall be made available in any case within three minutes of the relevant transaction; (b)in a case not covered by point (a), immediately upon the commencement of the investment firm's normal trading hours or at the latest before the opening of the next trading day in the most relevant market for that share. (Articles 27, 28, 29, 30, 44 and 45 of Directive 2004/39/EC) Public availability of pre- and post-trade information For the purposes of Articles 27, 28, 29, 30, 44 and 45 of Directive 2004/39/EC and of this Regulation, pre- and post-trade information shall be considered to be made public or available to the public if it is made available generally through one of the following to investors located in the Community: (a)the facilities of a regulated market or an MTF; (b)the facilities of a third party; (c)proprietary arrangements. (Article 22(2) of Directive 2004/39/EC) Disclosure of client limit orders An investment firm shall be considered to disclose client limit orders that are not immediately executable if it transmits the order to a regulated market or MTF that operates an order book trading system, or ensures that the order is made public and can be easily executed as soon as market conditions allow. (Article 22(2), 27, 28, 29, 30, 44 and 45 of Directive 2004/39/EC) Arrangements for making information public arrangement to make information public, adopted for the purposes of Articles 30 and 31, shall satisfy the following conditions: (a)it must include all reasonable steps necessary to ensure that the information to be published is reliable, monitored continuously for errors, and corrected as soon as errors are detected; (b)it must facilitate the consolidation of the data with similar data from other sources; (c)it must make the information available to the public on a non-discriminatory commercial basis at a reasonable cost. (Articles 27, 28, 29, 30, 44 and 45 of Directive 2004/39/EC) Calculations and estimates for shares admitted to trading on a regulated market 1.In respect of each share that is admitted to trading on a regulated market, the relevant competent authority for that share shall ensure that the following calculations are made in respect of that share promptly after the end of each calendar year: (a)the average daily turnover; (b)the average daily number of transactions; (c)for those shares which satisfy the conditions laid down in Article 22(1)(a) or (b) (as applicable), the free float as at ; (d)if the share is a liquid share, the average value of the orders executed. This paragraph and paragraph 2 shall not apply to a share which is first admitted to trading on a regulated market four weeks or less before the end of the calendar year. 2.The calculation of the average daily turnover, average value of the orders executed and average daily number of transactions shall take into account all the orders executed in the Community in respect of the share in question between 1 January and of the preceding year, or, where applicable, that part of the year during which the share was admitted to trading on a regulated market and was not suspended from trading on a regulated market. In the calculations of the average daily turnover, average value of the orders executed and average daily number of transactions of a share, non-trading days in the of the relevant competent authority for that share shall be excluded. 3.Before the first admission of a share to trading on a regulated market, the relevant competent authority for that share shall ensure that estimates are provided, in respect of that share, of the average daily turnover, the market capitalisation as it will stand at the start of the first day of trading and, where the estimate of the market capitalisation is million or more: (a)the average daily number of transactions and, for those shares which satisfy the conditions laid down in Article 22(1)(a) or (b) (as applicable), the free float; (b)in the case of a share that is estimated to be a liquid share, the average value of the orders executed. The estimates shall relate to the six-week period following admission to trading, or the end of that period, as applicable, and shall take account of any previous trading history of the share, as well as that of shares that are considered to have similar characteristics. 4.After the first admission of a share to trading on a regulated market, the relevant competent authority for that share shall ensure that, in respect of that share, the figures referred to in points (a) to (d) of paragraph 1 are calculated, using data relating to the first four weeks trading, as if a reference in point (c) of paragraph 1 to were a reference to the end of the first four weeks trading, as soon as practicable after those data are available, and in any case before the end of the six- week period referred to in Article 22(5). 5.During the course of a calendar year, the relevant competent authorities shall ensure the review and where necessary the recalculation of the average daily turnover, average value of the orders executed, average daily number of transactions executed and the free float whenever there is a change in relation to the share or the issuer which significantly affects the previous calculations on an ongoing basis. 6.The calculations referred to in paragraphs 1 to 5 which are to be published on or before the first trading day in 2009 shall be made on the basis of the data relating to the regulated market or markets of the which is the most relevant market in terms of liquidity for the share in question. For those purposes, negotiated transactions within the meaning of Article 19 shall be excluded from the calculations. (Articles 27, 28, 29, 30, 44 and 45 of Directive 2004/39/EC) Publication and effect of results of required calculations and estimates 1.On the first trading day of of each year, each competent authority shall, in relation to each share for which it is the relevant competent authority that was admitted to trading on a regulated market at the end of the preceding calendar year, ensure the publication of the following information: (a)the average daily turnover and average daily number of transactions, as calculated in accordance with Article 33(1) and (2); (b)the free float and average value of the orders executed, where calculated in accordance with Article 33(1) and (2). This paragraph shall not apply to shares to which the second sub-paragraph of Article 33(1) applies. 2.The results of the estimates and calculations required under Article 33(3), (4) or (5) shall be published as soon as practicable after the calculation or estimate is completed. 3.The information referred to in paragraphs 1 or 2 shall be considered as published when it is published by the Committee of Regulators in accordance with paragraph 5. 4.For the purposes of this Regulation, the following shall apply: (a)the classification based on the publication referred to in paragraph 1 shall apply for the 12-month period starting on following publication and ending on the following 31 ; (b)the classification based on the estimates provided for in Article 33(3) shall apply from the relevant first admission to trading until the end of the six-week period referred to in Article 22(5); (c)the classification based on the calculations specified in Article 33(4) shall apply from the end of the six-week period referred to in Article 22(5), until: (i)where the end of that six-week period falls between 15 January and 31 (both inclusive) in a given year, 31 of the following year; (ii)otherwise, the following 31 after the end of that period. However, the classification based on the recalculations specified in Article 33(5) shall apply from the date of publication and, unless further recalculated under Article 33(5), until the following 31 . 5.The Committee of Regulators shall, on the basis of data supplied to it by or on behalf of competent authorities, publish on its website consolidated and regularly updated lists of: (a)every systematic internaliser in respect of a share admitted to trading on a regulated market; (b)every share admitted to trading on a regulated market, specifying: (i)the average daily turnover, average daily number of transactions and, for those shares which satisfy the conditions laid down in Article 22(1)(a) or (b) (as applicable), the free float; (ii)in the case of a liquid share, the average value of the orders executed and the standard market size for that share; (iii)in the case of a liquid share which has been designated as an additional liquid share in accordance with Article 22(3), the name of the competent authority that so designated it; and (iv)the relevant competent authority. 6.Each competent authority shall ensure the first publication of the details referred to in points (a) and (b) of paragraph 1 on the first trading day in 2007, based on the reference period to 31 2007. By way of derogation from paragraph 4, the classification based on that publication shall apply for the 5-month period starting on and ending on 31 2008. Admission of financial instruments to trading (Article 40(1) of Directive 2004/39/EC) 1.Transferable securities shall be considered freely negotiable for the purposes of Article 40(1) of Directive 2004/39/EC if they can be traded between the parties to a transaction, and subsequently transferred without restriction, and if all securities within the same class as the security in question are fungible. 2.Transferable securities which are subject to a restriction on transfer shall not be considered as freely negotiable unless that restriction is not likely to disturb the market. 3.Transferable securities that are not fully paid may be considered as freely negotiable if arrangements have been made to ensure that the negotiability of such securities is not restricted and that adequate information concerning the fact that the securities are not fully paid, and the implications of that fact for shareholders, is publicly available. 4.When exercising its discretion whether to admit a share to trading, a regulated market shall, in assessing whether the share is capable of being traded in a fair, orderly and efficient , take into account the following: (a)the distribution of those shares to the public; (b)such historical financial information, information about the issuer, and information providing a business overview as is required to be prepared under Directive 2003/71/EC, or is or will be otherwise publicly available. 5.A transferable security that is officially listed in accordance with Directive 2001/34/EC, and the listing of which is not suspended, shall be deemed to be freely negotiable and capable of being traded in a fair, orderly and efficient . 6.For the purposes of Article 40(1) of Directive 2004/39/EC, when assessing whether a transferable security referred to in Article 4(1)(18)(c) of that Directive is capable of being traded in a fair, orderly and efficient , the regulated market shall take into account, depending on the nature of the security being admitted, whether the following criteria are satisfied: (a)the terms of the security are clear and unambiguous and allow for a correlation between the price of the security and the price or other value measure of the underlying; (b)the price or other value measure of the underlying is reliable and publicly available; (c)there is sufficient information publicly available of a kind needed to value the security; (d)the arrangements for determining the settlement price of the security ensure that this price properly reflects the price or other value measure of the underlying; (e)where the settlement of the security requires or provides for the possibility of the delivery of an underlying security or asset rather than cash settlement, there are adequate settlement and delivery procedures for that underlying as well as adequate arrangements to obtain relevant information about that underlying. (Article 40(1) of Directive 2004/39/EC) Units in collective investment undertakings 1.A regulated market shall, when admitting to trading units in a collective investment undertaking, whether or not that undertaking is constituted in accordance with Directive 85/611/EEC, satisfy itself that the collective investment undertaking complies or has complied with the registration, notification or other procedures which are a necessary precondition for the marketing of the collective investment undertaking in the jurisdiction of the regulated market. 2.Without prejudice to Directive 85/611/EEC or any other Community legislation or national law relating to collective investment undertakings, Member States may provide that compliance with the requirements referred to in paragraph 1 is not a necessary precondition for the admission of units in a collective investment undertaking to trading on a regulated market. 3.When assessing whether units in an open-ended collective investment undertaking are capable of being traded in a fair, orderly and efficient in accordance with Article 40(1) of Directive 2004/39/EC, the regulated market shall take the following aspects into account: (a)the distribution of those units to the public; (b)whether there are appropriate market-making arrangements, or whether the management company of the scheme provides appropriate alternative arrangements for investors to redeem the units; (c)whether the value of the units is made sufficiently transparent to investors by means of the periodic publication of the net asset value. 4.When assessing whether units in a closed-end collective investment undertaking are capable of being traded in a fair, orderly and efficient in accordance with Article 40(1) of Directive 2004/39/EC, the regulated market shall take the following aspects into account: (a)the distribution of those units to the public; (b)whether the value of the units is made sufficiently transparent to investors, either by publication of information on the funds investment strategy or by the periodic publication of net asset value. (Article 40(1) and (2) of Directive 2004/39/EC) 1.When admitting to trading a financial instrument of a kind listed in points of Sections C(4) to (10) of to Directive 2004/39/EC, regulated markets shall verify that the following conditions are satisfied: (a)the terms of the contract establishing the financial instrument must be clear and unambiguous, and enable a correlation between the price of the financial instrument and the price or other value measure of the underlying; (b)the price or other value measure of the underlying must be reliable and publicly available; (c)sufficient information of a kind needed to value the derivative must be publicly available; (d)the arrangements for determining the settlement price of the contract must be such that the price properly reflects the price or other value measure of the underlying; (e)where the settlement of the derivative requires or provides for the possibility of the delivery of an underlying security or asset rather than cash settlement, there must be adequate arrangements to enable market participants to obtain relevant information about that underlying as well as adequate settlement and delivery procedures for the underlying. 2.Where the financial instruments concerned are of a kind listed in Sections C (5), (6), (7)or (10) of to Directive 2004/39/EC, point (b) of paragraph 1 shall not apply if the following conditions are satisfied: (a)the contract establishing that instrument must be likely to provide a means of disclosing to the market, or enabling the market to assess, the price or other value measure of the underlying, where the price or value measure is not otherwise publicly available; (b)the regulated market must ensure that appropriate supervisory arrangements are in place to monitor trading and settlement in such financial instruments; (c)the regulated market must ensure that settlement and delivery, whether physical delivery or by cash settlement, can be effected in accordance with the contract terms and conditions of those financial instruments. (Article 4(1)(2) of Directive 2004/39/EC) Characteristics of other derivative financial instruments 1.For the purposes of Section C(7) of to Directive 2004/39/EC, a contract which is not a spot contract within the meaning of paragraph 2 of this Article and which is not covered by paragraph 4 shall be considered as having the characteristics of other derivative financial instruments and not being for commercial purposes if it satisfies the following conditions: (a)it meets one of the following sets of criteria: (i)it is traded on a third country trading facility that performs a similar function to a regulated market or an MTF; (ii)it is expressly stated to be traded on, or is subject to the rules of, a regulated market, an MTF or such a third country trading facility; (iii)it is expressly stated to be equivalent to a contract traded on a regulated market, MTF or such a third country trading facility; (b)it is cleared by a clearing house or other entity carrying out the same functions as a central counterparty, or there are arrangements for the payment or provision of in relation to the contract; (c)it is standardised so that, in particular, the price, the lot, the delivery date or other terms are determined principally by reference to regularly published prices, standard lots or standard delivery dates. 2.A spot contract for the purposes of paragraph 1 means a contract for the sale of a commodity, asset or right, under the terms of which delivery is scheduled to be made within the longer of the following periods: (a)two trading days; (b)the period generally accepted in the market for that commodity, asset or right as the standard delivery period. However, a contract is not a spot contract if, irrespective of its explicit terms, there is an understanding between the parties to the contract that delivery of the underlying is to be postponed and not to be performed within the period mentioned in the first subparagraph. 3.For the purposes of Section C(10) of to Directive 2004/39/EC, a derivative contract relating to an underlying referred to in that Section or in Article 39 shall be considered to have the characteristics of other derivative financial instruments if one of the following conditions is satisfied: (a)that contract is settled in cash or may be settled in cash at the option of one or more of the parties, otherwise than by reason of a default or other termination event; (b)that contract is traded on a regulated market or an MTF; (c)the conditions laid down in paragraph 1 are satisfied in relation to that contract. 4.A contract shall be considered to be for commercial purposes for the purposes of Section C(7) of to Directive 2004/39/EC, and as not having the characteristics of other derivative financial instruments for the purposes of Sections C(7) and (10) of that , if it is entered into with or by an operator or administrator of an energy transmission grid, energy balancing mechanism or pipeline network, and it is necessary to keep in balance the supplies and uses of energy at a given time. (Article 4(1)(2) of Directive 2004/39/EC) Derivatives within Section C(10) of to Directive 2004/39/EC In addition to derivative contracts of a kind referred to in Section C(10) of to Directive 2004/39/EC, a derivative contract relating to any of the following shall fall within that Section if it meets the criteria set out in that Section and in Article 38(3): (a)telecommunications bandwidth; (b)commodity storage capacity; (c)transmission or transportation capacity relating to commodities, whether cable, pipeline or other means; (d)an allowance, credit, permit, right or similar asset which is directly linked to the supply, distribution or consumption of energy derived from renewable resources; (e)a geological, environmental or other physical variable; (f)any other asset or right of a fungible nature, other than a right to receive a service, that is capable of being transferred; (g)an index or measure related to the price or value of, or volume of transactions in any asset, right, service or obligation. 1.At least once every two years, and after consulting the Committee of Regulators, the Commission shall re-examine the definition of transaction for the purposes of this Regulation, the Tables included in , as well as the criteria for determination of liquid shares contained in Article 22. 2.The Commission shall, after consulting the Committee of Regulators, re-examine the provisions of Articles 38 and 39 relating to criteria for determining which instruments are to be treated as having the characteristics of other derivative financial instruments, or as being for commercial purposes, or which fall within Section C(10) of to Directive 2004/39/EC if the other criteria set out in that Section are satisfied in relation to them. The Commission shall report to Parliament and to the Council at the same time that it makes its reports under Article 65(3)(a) and (d) of Directive 2004/39/EC. 3.The Commission shall, no later than two years after the date of application of this Regulation, after consulting the Committee of Regulators, re- examine Table 4 of and report on the results of this re-examination to Parliament and the Council. 1.This Regulation shall enter into force on the twentieth day following that of its publication in the . 2.This Regulation shall apply from , except Article 11 and Article 34(5) and (6), which shall apply from 1 2007. 3.This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at , [] For the Commission [] Member of the Commission