(5)

The following articles are inserted: "Article 4a 1. Member States shall ensure that investor-compensation schemes have in place adequate systems to determine their potential liabilities. Member States shall ensure that investor-compensation schemes are adequately financed in proportion to their liabilities. Member States shall provide ESMA on a regular basis with relevant information concerning the potential liabilities and the correlated proportional financing. [Am. 28] 2. Member States shall ensure that each investor-compensation scheme establishes a target fund level of at least 0.5 % 0,3 % of the value of the monies and financial instruments held, administered or managed by the investment firms or UCITS that are covered by the protection of the investor-compensation scheme. The value of the covered monies and financial instruments shall be calculated annually as at 1 January 31 December . [Am. 29] The Commission shall be empowered to adopt, by means of delegated acts in accordance with Article 13a and subject to the conditions of Articles 13b and 13c, measures to determine the method by which to calculate the value of monies and financial instruments covered by the protection of the investor-compensation schemes in order to determine the target fund level to be established by the schemes and to modify the target fund level taking account of the developments in financial markets. Taking into account the value of the covered monies calculated annually as referred to in the first subparagraph, and taking into account developments in the financial markets and the need to ensure effective compensation for investors, the Commission shall also be empowered to adopt delegated acts in accordance with Article 13a to amend the minimum value of the target fund level. By … (22), the Commission shall submit to the European Parliament and Council a report on the need to adjust the target fund level provided for under this paragraph. In order allow the Commission to calculate an appropriate target fund level as referred to in the third subparagraph, every Member State shall, on an annual basis, provide the Commission and ESMA with the necessary data regarding the funding of investor-compensation schemes in their territory as at 31 December. Member States shall submit that data to the Commission by 31 March of the following year. Member States shall also provide the Commission and ESMA with data concerning: (a) the amount of covered securities and monies held in investment firms on behalf of the investors; (b) the value of the covered monies and financial instruments held or managed; (c) the number of clients; (d) the revenues or income generated by investment businesses; (e) the level of capital of each investment firm; (f) the maximum amount of compensation per client; (g) the average turnover of the securities sale and purchase transactions; (h) the number of approved persons or traders. [Am. 30] 3. The target fund level shall be financed prior to and irrespective of the occurrence of any event relevant under Article 2(2) or (2b). Member States shall ensure that the target level of funding for each investor-compensation scheme is reached within a ten-year period after the entry into force of this Directive by … (23) and that each investor-compensation scheme adopts and complies with an appropriate planning in order to fulfil this objective. [Ams. 21 and 31] Contributions collected to reach the target fund level shall be invested only in cash deposits and low-risk assets with a residual term to financial maturity of 24 months or less, which can be liquidated within a time limit not exceeding one month. 3a. Each member's contribution to an investor-compensation scheme shall be determined on the basis of the degree of risk incurred. To achieve a certain level of harmonisation in the application of this paragraph across the Member States, the Commission shall adopt delegated acts in accordance with Article 13a to clarify how the contribution of each member to an investor-compensation scheme is to be determined. [Am. 32] 3b. Competent authorities may reduce the contributions of members of the investor-compensation scheme that voluntarily take additional measures to reduce the operational risk. Competent authorities may also reduce the contributions of members of the investor-compensation scheme that provide evidence that sub-custodians used by them meet the same standards to reduce operational risk. The target fund level of the investor-compensation scheme shall not be affected by any such reduction. [Am. 33] 3c. In order to ensure uniform conditions of application of paragraph 3b, ESMA shall develop draft implementing technical standards to establish the conditions for reducing the contributions to an investor-compensation scheme. ESMA shall submit those draft implementing technical standards to the Commission on an annual basis. Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010. The assessment of conditions for risk-based reductions shall be based on criteria such as the volume of monies and financial instruments, capital adequacy, and stability of each member taking into account its legal status and the legal framework applicable at its seat. [Am. 34] 4. Member States shall allow the investor-compensation schemes to make additional calls for contributions by the members of the scheme where the target fund level is insufficient to meet the payment of the compensation claims referred to in Article 9(2). Those additional contributions shall not exceed 0.5 % 0,3 % of the covered monies and financial instruments as referred to in paragraph 2. Those additional contributions shall not jeopardise the stability of the financial system of the Member State concerned and be based on affordability criteria. Member States may call for additional contributions after having consulted ESMA and the European Systemic Risk Board established by Regulation (EU) No 1092/2010 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 (24). [Am. 35] 5. Member States shall ensure that investor-compensation schemes have in place adequate alternative funding arrangements to enable them to obtain short-term funding to meet claims against the scheme once the pre-funded amount has been exhausted. Those arrangements may include borrowing commercial lending arrangements and lending facilities from commercial banks. They may also include borrowing facilities from and public institutions , including from the Member States, provided that those facilities are based on commercial grounds. [Am. 36] 6. Member States shall ensure that the cost of financing investor-compensation schemes is ultimately borne in relation to investment business and only by the investment firms or third party custodians covered by the scheme and in relation to UCITS activities, by UCITS or their depositaries or third partiesthat are covered by the scheme. Regular contributions by members shall be raised annually. [Am. 37] In order to assist the operation of the investor-compensation schemes further, Member States shall ensure that: (a) the schemes are able to levy their members in order to make payments within the period laid down in Article 9(2), in anticipation of payments and after payments have been made, as appropriate; (b) competent authorities have the power to take action against any firm that fails to pay a levy on request. [Am. 38] 7. Member States shall annually inform the ESMA of the target fund level, as referred to in paragraph 2, and the level of funding, as referred to in paragraph 3, of the investor-compensation schemes in their territory. This information shall be confirmed by the competent authorities and shall, accompanied by this confirmation, be transmitted to the ESMA annually by 31 January. Member States shall ensure that the information referred to in the first subparagraph is published on the web-site of the investor-compensation schemes at least on an annual basis. 7a. Member States shall ensure that investor-compensation schemes receive from their members, at any time and in any event at their request, all information necessary to prepare a repayment of investors. [Am. 39] 8. Member States shall ensure that 10 % 5 % of the ex-ante funding amount of the investor-compensation schemes referred to in paragraph 2 is available for lending to other investor-compensation schemes under the conditions established in Article 4c Article 4b . Such a funding method shall be used only when ordinary means of financing are not available . The Commission may amend, by means of delegated acts in accordance with Article 13a and subject to the conditions of Articles 13b and 13c, the percentage of the ex-ante funding amount to be made available for lending to other schemes, taking into account the developments in financial markets. [Am. 40] 9. The Commission shall adopt delegated acts in accordance with Article 13a to determine: (a) the method to determine the potential liabilities of investor-compensation schemes as referred to in paragraph 1 and the risk-based contributions; [Am. 41] (b) the factors to be considered in assessing the ability of additional contributions as referred to in paragraph 4 to not jeopardise the stability of the financial system of a Member State; (c) the alternative funding arrangements as referred to in paragraph 5 that investor-compensation schemes must have in place to be able to obtain short term funding if necessary; (d) the criteria to determine the contributions by entities covered as referred to in paragraph 6. 10. In order to ensure uniform conditions of application of the second subparagraph of paragraph 7, ESMA shall develop draft implementing technical standards to specify the details of the information to be published by the schemes. ESMA shall submit those draft implementing technical standards to the Commission by 31 December 2012. Power is conferred on the Commission may to adopt the draft implementing technical standards referred to in the first subparagraph in accordance with Article 7e Article 15 of Regulation (EU) No 1095/2010. [Am. 42] Article 4b 1. After … (25) , an investor-compensation scheme shall have the right to may borrow from all other investor-compensation schemes referred to in Article 2 within the Union subject to the following conditions: [Am. 43] (a) the borrowing investor-compensation scheme is not able to fulfil its obligations under Article 2(2a) or (2c) because of previous payments made to fulfil those obligations; [Am. 22] (b) the borrowing investor-compensation scheme the situation referred to in point (a) is due to a lack of funds as previously reached the target fund level referred to in Article 4a(3) Article 4a(2) ; [Am. 44] (c) the borrowing investor-compensation scheme has made recourse to additional contributions referred in Article 4a(4); (d) the borrowing investor-compensation scheme has undertaken the legal commitment that the borrowed funds will be used in order to pay claims under Article 2(2a) and (2c); [Am. 22] (e) [Point moved down as a new third subparagraph] (f) the borrowing investor-compensation scheme has established the amount of money requested; (g) the borrowing investor-compensation scheme has informed ESMA, without delay, that it intends to borrow from another investor-compensation scheme, stating how the conditions set out in points (a) to (f) are fulfilled and the amount of money it intends to borrow. The amount referred to in point (f) of the first subparagraph shall be determined as follows: [amount of claims to be paid under Article 2(2a) and 2(2c)] – [level of funding as referred to in Article 4a(7)] + [maximum amount of additional contributions referred to in Article 4a(4)] [Am. 22] The borrowing investor-compensation scheme that has not repaid a loan to other schemes under this Article shall neither borrow from nor lend to other investor-compensation schemes. The other investor-compensation schemes shall act as lending schemes. For this purpose, Member States in which more than one scheme is established shall designate one scheme to act as its lending scheme and shall inform the ESMA thereof. Member States shall undertake all necessary steps to ensure that all stakeholders are informed about which scheme is the lending scheme and how it works. Member States may decide if and how the lending scheme is reimbursed by other investor-compensation schemes established in the same Member State. [Am. 45] 2. The loan shall be granted subject to the following conditions: (a) subject to the limit established in the second subparagraph, each investor-compensation scheme lends the amount proportionate to the amount of covered monies and financial instruments in each scheme without taking account of the borrowing investor-compensation scheme and the amount is calculated pursuant to the latest information referred to in Article 4a(2); (b) the borrowing investor-compensation scheme repays the loan within five years; [Second sentence converted into a third subparagraph] (c) the interest rate during the credit period is equivalent to the marginal lending facility rate of the European Central Bank during the credit period central bank issuing the currency in which the loan was made . [Am. 46] The total amount lent to each borrowing investor-compensation scheme shall not exceed the 20 % of the total amount of the funds available at Union level for lending as referred to in Article 4a(8). Repayment under point (b) of the first subparagraph may be made in annual instalments and interest shall be due only at the time of repayment. 3. ESMA shall confirm that the conditions referred to in paragraph 1 have been met, state the amounts to be lent by each investor-compensation scheme as calculated pursuant to paragraph 2(a) and the initial interest rate pursuant to paragraph 2(c) as well as the duration of the loan. ESMA shall transmit its confirmation, together with the information referred to in paragraph 1(g), to the lending schemes within 15 working days of receipt of that information from the borrowing schemes. The lending schemes shall, without delay, but in any event within 15 working days of receipt of the confirmation and information from ESMA, effect payment of the loan to the borrowing investor-compensation scheme. 4. Member States shall ensure that the contributions levied by the borrowing investor-compensation scheme are sufficient to reimburse the amount borrowed and to re-establish the target fund level as soon as possible and in any event within ten-year five years of receipt of the loan. [Am. 47] All other claims shall be subordinate to that of the investor-compensation scheme which granted the loan. Such an investor-compensation scheme shall be considered to be a preferred creditor and shall have first rank of priority among creditors. [Am. 48] Without prejudice to the second subparagraph, Member States may establish other priorities in preference between different categories of creditors. [Am. 49] 5. In order to facilitate effective cooperation between investor-compensation schemes, the schemes, or, where appropriate, the competent authorities, shall have conclude written cooperation agreements in place. Such agreements shall take into account the requirements set out in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (26). [Am. 50] The competent authorities shall notify ESMA of the existence and the content of the agreements referred to in the first subparagraph. ESMA may issue opinions on such agreements under Article 8(2)(g) and Article 34 of Regulation (EU) No 1095/2010. If competent authorities or investor-compensation schemes cannot reach an agreement or if there is a dispute about the interpretation of such an agreement, ESMA shall settle disagreements pursuant to Article 19 of Regulation (EU) No 1095/2010. The absence of the agreements referred to in the first subparagraph shall not affect the claims of investors under Article 2(2a)or (2c). [Am. 22]