Proposal for a Directive of the European Parliament and of the Council amending Directive 2004/39/EC relating to markets in financial instruments as regards the implementing powers conferred on the Commission
Date: 2006-12-22
Institutions: European Commission
Subjects: EU law, credit institution, financial instrument, financial market, investment company, operation of the Institutions, provision of services, securities

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 22.12.2006 
COM(2006) 910 final 

2006/0305 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending 

Directive 2004/39/EC relating to markets in financial instruments as regards the 
implementing powers conferred on the Commission 

(presented by the Commission) 

EN 

   EN 

 
 
 
  
 
2006/0305(COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending 

Directive 2004/39/EC relating to markets in financial instruments as regards the 
implementing powers conferred on the Commission 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 
47(2) thereof, 

Having regard to the proposal from the Commission1, 

Having regard to the opinion of the European Economic and Social Committee2, 

Having regard to the opinion of the European Central Bank, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty, 

Whereas: 

(1) 

(2) 

Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 
on markets in financial instruments and amending Council Directives 85/611/EEC and 
93/6/EEC  and  Directive  2000/12/EC  of  the  European  Parliament  and  of  the  Council 
and repealing Council Directive 93/22/EEC3 provides that certain measures are to be 
adopted  in  accordance  with  Council  Decision  1999/468/EC  of  28  June  1999  laying 
down  the  procedures  for  the  exercise  of  implementing  powers  conferred  on  the 
Commission4. 

Decision 1999/468/EC has been amended by Decision 2006/512/EC which introduced 
a  regulatory  procedure  with  scrutiny  to  be  used  for  the  adoption  of  implementing 
measures  of  general  scope  which  seek  to  amend  non-essential  elements  of  a  basic 
instrument adopted in accordance with the procedure referred to in Article 251 of the 
Treaty,  including  by  deleting  some  of  those  elements  or  by  supplementing  the 
instrument by the addition of new non-essential elements. 

1 
2 
3 
4 

OJ C […], […], p. […]. 
OJ C […], […], p. […]. 
OJ L 145, 30. 4. 2004, p.1. Directive as amended by Directive 2006/31/EC (OJ L 114, 27.4.2006, p.60). 
OJ L184, 17.7.1999, p.23 . Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p.11). 

EN 

2 

   EN 

 
 
                                                 
(3) 

(4) 

(5) 

In accordance with the joint statement of the European Parliament, the Council and the 
Commission5 on Decision 2006/512/EC, instruments which are already in force must 
be  adjusted  in  accordance  with  the  applicable  procedures.  That  statement  indicates  a 
list  of  instruments  which  should  be  adjusted  as  a  matter  of  urgency,  including 
Directive 2004/39/EC. 

In  particular,  power  should  be  conferred  on  the  Commission  to  adopt  measures 
necessary for the implementation of Directive 2004/39/EC, in order to take account of 
technical developments on financial markets and to ensure uniform application of that 
Directive.  More  particularly,  those  measures  are  designed  to  adapt  definitions  or 
modify  the  scope  of  exemptions,  to  elaborate  upon  or  supplement  the  provisions  of 
that Directive concerning organisational requirements or operating conditions imposed 
upon  investment  firms  or  credit  institutions  and  to  add  detailed  specifications  on  the 
pre-  and  post-trade  transparency  obligations  imposed  upon  the  various  negotiating 
venues  under  that  Directive.  Since  those  measures  are  of  general  scope  and  are 
designed to amend non-essential elements of Directive 2004/39/EC and to supplement 
it by the addition of new non-essential elements they should be adopted in accordance 
with  the  regulatory  procedure  with  scrutiny  provided  for  in  Article  5a  of  Decision 
1999/468/EC. 

Directive  2004/39/EC  provided  for  a  time  restriction  concerning  the  implementing 
powers  conferred  to  the  Commission.  In  their  joint  statement  on  Decision 
2006/512/EC, the European Parliament, the Council and the Commission have stated 
that  Decision  2006/512/EC  provides  a  horizontal  and  satisfactory  solution  to  the 
European  Parliament's  wish  to  scrutinise  the  implementation  of  instruments  adopted 
under the co-decision procedure and that, accordingly, implementing powers should be 
conferred  on  the  Commission  without  time-limit.  The  European  Parliament  and 
Council also declared that they would make sure that the proposals aimed at repealing 
the  provisions  in  the  instruments  that  provide  for  a  time-limit  on  the  delegation  of 
implementing powers to the Commission are adopted as rapidly as possible. Following 
the  introduction  of  the  regulatory  procedure with  scrutiny,  the  provision  establishing 
that time restriction in Directive 2004/39/EC should be deleted. 

(6) 

Directive 2004/39/EC should therefore be amended accordingly. 

(7) 

Since  the  amendments  to  be  made  to  Directive  2004/39/EC  are  adjustments  of  a 
technical nature which only concern the committee procedure they do not need to be 
transposed by the Member States. It is therefore not necessary to lay down provisions 
to that effect, 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Directive 2004/39/EC is amended as follows: 

(1) 

Article 2(3) is amended as follows: 

5 

OJ C255, 21.10.2006, p. 1 

EN 

3 

   EN 

 
                                                 
(a) 

the terms “acting in accordance with the procedure referred to in Article 64(2)” 
are deleted; 

(b) 

the following sentence is added: 

”Those  measures,  designed  to  amend  non-essential  elements  of  this  Directive  by 
supplementing it shall be adopted in accordance with the regulatory procedure with 
scrutiny referred to in Article 64(2).” 

(2) 

Article 4 is amended as follows: 

(a) 

in point (2) of paragraph 1 the terms “acting in accordance with the procedure 
referred to in Article 64(2)” are deleted: 

(b)  paragraph 2 is amended as follows: 

(i) 

the terms “acting in accordance with the procedure referred to in Article 
64(2)” are deleted; 

(ii) 

the following subparagraph is added: 

”The measures referred to in point (2) of paragraph 1 and in the first subparagraph of 
this paragraph, designed to amend non-essential elements of this Directive including 
by  supplementing  it,  shall  be  adopted  in  accordance  with  the  regulatory  procedure 
with scrutiny referred to in Article 64(2)”. 

(3) 

Article 13(10) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  64(2)”  are 
deleted; 

(b) 

the following sentence is added: 

”Those  measures,  designed  to  amend  non-essential  elements  of  this  Directive  by 
supplementing it shall be adopted in accordance with the regulatory procedure with 
scrutiny referred to in Article 64(2).” 

(4) 

Article 15(3) is amended as follows: 

(a) 

in  the  second  and  third  subparagraphs  the  terms  “in  accordance  with  the 
procedure referred to in Article 64(2)” are deleted; 

(b) 

the following subparagraph is added: 

”The measures referred to in the second and third subparagraphs, designed to amend 
non-essential  elements  of  this  Directive  including  by  supplementing  it,  shall  be 
adopted  in  accordance  with  the  regulatory  procedure  with  scrutiny  referred  to  in 
Article 64(2)”. 

EN 

4 

   EN 

 
(5) 

Article 18(3) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  64(2)”  are 
deleted; 

(b) 

the following subparagraph is added: 

”The measures referred to in the first subparagraph, designed to amend non-essential 
elements  of  this  Directive  by  supplementing  it shall be adopted  in accordance with 
the regulatory procedure with scrutiny referred to in Article 64(2).” 

(6) 

Article 19(10) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  64(2)”  are 
deleted; 

(b) 

the following subparagraph is added: 

”The measures referred to in the first subparagraph, designed to amend non-essential 
elements  of  this  Directive  by  supplementing  it shall be adopted  in accordance with 
the regulatory procedure with scrutiny referred to in Article 64(2).” 

(7) 

Article 21(6) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  64(2)”  are 
deleted; 

(b) 

the following subparagraph is added: 

”The measures referred to in the first subparagraph, designed to amend non-essential 
elements  of  this  Directive  by  supplementing  it shall be adopted  in accordance with 
the regulatory procedure with scrutiny referred to in Article 64(2).” 

(8) 

Article 22(3) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  64(2)”  are 
deleted; 

(b) 

the following subparagraph is added: 

”The measures referred to in the first subparagraph, designed to amend non-essential 
elements  of  this  Directive  by  supplementing  it shall be adopted  in accordance with 
the regulatory procedure with scrutiny referred to in Article 64(2).” 

(9) 

Article 24(5) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  64(2)”  are 
deleted; 

(b) 

the following subparagraph is added: 

EN 

5 

   EN 

 
”The measures referred to in the first subparagraph, designed to amend non-essential 
elements  of  this  Directive  by  supplementing  it shall be adopted  in accordance with 
the regulatory procedure with scrutiny referred to in Article 64(2).” 

(10)  Article 25(7) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  64(2)”  are 
deleted; 

(b) 

the following sentence is added: 

”Those  measures,  designed  to  amend  non-essential  elements  of  this  Directive  by 
supplementing it shall be adopted in accordance with the regulatory procedure with 
scrutiny referred to in Article 64(2).” 

(11)  Article 27(7) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  64(2)”  are 
deleted; 

(b) 

the following subparagraph is added: 

”The measures referred to in the first subparagraph, designed to amend non-essential 
elements  of  this  Directive  by  supplementing  it shall be adopted  in accordance with 
the regulatory procedure with scrutiny referred to in Article 64(2).” 

(12)  Article 28(3) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  64(2)”  are 
deleted; 

(b) 

the following subparagraph is added: 

”The measures referred to in the first subparagraph, designed to amend non-essential 
elements  of  this  Directive  by  supplementing  it shall be adopted  in accordance with 
the regulatory procedure with scrutiny referred to in Article 64(2).” 

(13)  Article 29(3) is amended as follows: 

(a) 

in the first subparagraph the terms “in accordance with the procedure referred 
to in Article 64(2)” are deleted; 

(b) 

the following subparagraph is added: 

”The measures referred to in the first subparagraph, designed to amend non-essential 
elements  of  this  Directive  by  supplementing  it shall be adopted  in accordance with 
the regulatory procedure with scrutiny referred to in Article 64(2).” 

(14)  Article 30(3) is amended as follows: 

(a) 

in the first subparagraph the terms “in accordance with the procedure referred 
to in Article 64(2)” are deleted; 

EN 

6 

   EN 

 
(b) 

the following subparagraph is added: 

”The measures referred to in the first subparagraph, designed to amend non-essential 
elements  of  this  Directive  by  supplementing  it shall be adopted  in accordance with 
the regulatory procedure with scrutiny referred to in Article 64(2).” 

(15)  Article 40(6) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  64(2)”  are 
deleted; 

(b) 

the following subparagraph is added: 

”The measures referred to in the first subparagraph, designed to amend non-essential 
elements  of  this  Directive  by  supplementing  it shall be adopted  in accordance with 
the regulatory procedure with scrutiny referred to in Article 64(2).” 

(16)  Article 44(3) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  64(2)”  are 
deleted; 

(b) 

the following subparagraph is added: 

”The measures referred to in the first subparagraph, designed to amend non-essential 
elements  of  this  Directive  by  supplementing  it shall be adopted  in accordance with 
the regulatory procedure with scrutiny referred to in Article 64(2).” 

(17)  Article 45(3) is amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  64(2)”  are 
deleted; 

(b) 

the following subparagraph is added: 

”The measures referred to in the first subparagraph, designed to amend non-essential 
elements  of  this  Directive  by  supplementing  it shall be adopted  in accordance with 
the regulatory procedure with scrutiny referred to in Article 64(2).” 

(18)  Articles 56(5) and 58(4) are amended as follows: 

(a) 

the  terms  “in  accordance  with  the  procedure  referred  to  in  Article  64(2)”  are 
deleted; 

(b) 

the following sentence is added: 

”Those  measures,  designed  to  amend  non-essential  elements  of  this  directive  by 
supplementing it shall be adopted in accordance with the regulatory procedure with 
scrutiny referred to in Article 64(2)”. 

(19)  Article 64 is amended as follows: 

(a) 

paragraph 2 is replaced by the following: 

EN 

7 

   EN 

 
“2. Where reference is made to this paragraph, Article 5a(1) to (4), and Article 7 of 
Decision  1999/468/EC  shall  apply,  having  regard  to  the  provisions  of  Article  8 
thereof.” 

(b)  paragraph 3 is deleted 

Article 2 

This  Directive  shall  enter  into  force  on  the  [..]  day  following  that  of  its  publication  in  the 
Official Journal of the European Union. 

Article 3 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

EN 

8 

   EN