Directive 2008/26/EC of the European Parliament and of the Council of 11 March 2008 amending Directive 2003/6/EC on insider dealing and market manipulation (market abuse), as regards the implementing powers conferred on the Commission
Date: 2008-03-11
Institutions: Council of the European Union, European Parliament
Subjects: European Commission, approximation of laws, dissemination of information, financial legislation, financial market, insider trading, powers of the institutions (EU), securities

L 81/42

EN

Official Journal of the European Union

20.3.2008

DIRECTIVE 2008/26/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 11 March 2008

amending Directive 2003/6/EC on insider dealing and market manipulation (market abuse), as
regards the implementing powers conferred on the Commission

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty
Community, and in particular Article 95 thereof,

establishing the European

Having regard to the proposal of the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Having regard to the opinion of the European Central Bank (2),

Acting in accordance with the procedure
Article 251 of the Treaty (3),

laid down in

Whereas:

(1)

(2)

(3)

Directive 2003/6/EC of the European Parliament and of
the Council (4) provides that certain measures are to be
adopted
Council Decision
1999/468/EC of 28 June 1999 laying down the
procedures for
implementing powers
the exercise of
conferred on the Commission (5).

accordance with

in

the

which

introduced

Decision 1999/468/EC has been amended by Decision
2006/512/EC
regulatory
procedure with scrutiny for the adoption of measures
of general scope and designed to amend non-essential
elements of a basic instrument adopted in accordance
with the procedure referred to in Article 251 of the
Treaty, inter alia, by deleting some of those elements or
by supplementing the instrument with new non-essential
elements.

In accordance with the statement by the European
the Commission (6)
Parliament,
for the regulatory
concerning Decision 2006/512/EC,
procedure with scrutiny to be applicable to instruments

the Council

and

(1) OJ C 161, 13.7.2007, p. 45.
(2) OJ C 39, 23.2.2007, p. 1.
(3) Opinion of the European Parliament of 14 November 2007 (not yet
published in the Official Journal) and Council Decision of 3 March
2008.

(4) OJ L 96, 12.4.2003, p. 16.
(5) OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision

2006/512/EC (OJ L 200, 22.7.2006, p. 11).

(6) OJ C 255, 21.10.2006, p. 1.

(4)

(5)

(6)

adopted in accordance with the procedure referred to in
Article 251 of the Treaty which are already in force,
those instruments must be adjusted in accordance with
the applicable procedures.

the

provisions

that Directive. Those measures

The Commission should be empowered to adopt the
measures necessary for the implementation of Directive
2003/6/EC in order to take account of technical deve-
lopments in financial markets and ensure the uniform
application of
are
elaborate upon or
designed to adapt definitions;
supplement
by
that Directive
of
technical modalities for disclosure of inside information,
insider lists, reporting of managerial and suspicious trans-
actions
the
research in a fair manner. Since those measures are of
general scope and are designed to amend non-essential
elements of Directive 2003/6/EC by supplementing it
with new non-essential elements, they must be adopted
regulatory procedure with
in accordance with the
scrutiny provided for
in Article 5a of Decision
1999/468/EC.

to competent

and present

authorities;

instruments adopted under

for a time restriction
Directive 2003/6/EC provides
concerning the implementing powers conferred on the
statement concerning Decision
In their
Commission.
2006/512/EC,
the Council
the European Parliament,
and the Commission stated that Decision 2006/512/EC
provides a horizontal and satisfactory solution to the
European Parliament’s wish to scrutinise the implemen-
the co-decision
tation of
procedure and that, accordingly,
implementing powers
should be conferred on the Commission without time
limit. The European Parliament and the 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
imple-
menting powers to the Commission are adopted as
rapidly as possible. Following the introduction of the
regulatory procedure with scrutiny, the provision estab-
lishing that
time restriction in Directive 2003/6/EC
should be deleted.

The Commission should, at regular intervals, evaluate the
functioning of
the provisions concerning the imple-
menting powers conferred on it in order to allow the
European Parliament and the Council
to determine
whether the extent of those powers and the procedural
requirements imposed on the Commission are appro-
priate
and democratic
accountability.

and ensure both efficiency

(7)

Directive 2003/6/EC should therefore be
accordingly.

amended

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Official Journal of the European Union

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(8)

Since the amendments made to Directive 2003/6/EC by
in nature and concern
this Directive are technical
they do not need to be
committee procedure only,
transposed by the Member States.
is therefore not
necessary to lay down provisions to that effect,

It

3. Article 8 shall be amended as follows:

(a)

the words ‘adopted in accordance with the procedure laid
down in Article 17(2)’ shall be deleted;

HAVE ADOPTED THIS DIRECTIVE:

(b) the following sentence shall be added:

Article 1

Amendments

Directive 2003/6/EC is hereby amended as follows:

‘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 17(2a).’;

1. Article 1 shall be amended as follows:

4. Article 16(5) shall be replaced by the following:

(a)

in the first paragraph, point 5 shall be replaced by the
following:

‘5.

“Accepted market practices” shall mean practices that
are reasonably expected in one or more financial
markets
competent
authority in accordance with guidelines adopted by
the Commission in accordance with the regulatory
procedure with scrutiny laid down in Article 17(2a).’;

accepted by

and are

the

(b) the second paragraph shall be amended as follows:

(i) the words ‘acting in accordance with the procedure

laid down in Article 17(2),’ shall be deleted;

‘5.
In accordance with the regulatory procedure laid down
in Article 17(2), the Commission shall adopt implementing
measures on the working procedures for exchange of infor-
mation and cross-border inspections as referred to in this
Article.’;

5. Article 17 shall be amended as follows:

(a)

the following paragraph shall be inserted:

‘2a. Where reference is made to this paragraph,
and Article 7 of Decision
Article 5a(1)
to the
1999/468/EC shall
provisions of Article 8 thereof.’;

apply, having

to (4)

regard

(ii) the following sentence shall be added:

(b) paragraphs 3 and 4 shall be replaced by the following:

‘Those measures, designed to amend non-essential
elements of this Directive by supplementing it, shall
regulatory
be
procedure with scrutiny referred to in Article 17(2a).’;

adopted in accordance with the

2. Article 6(10) shall be amended as follows:

(a)

the words ‘in accordance with the procedure referred to
in Article 17(2),’ shall be deleted;

(b) the following subparagraph shall be 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 17(2a).’;

‘3.
By 31 December 2010, and, thereafter, at least
every three years,
review the
the Commission shall
implementing powers and
provisions concerning its
present a report to the European Parliament and to the
Council on the functioning of those powers. The report
shall examine, in particular, the need for the Commission
to propose amendments to this Directive in order to
ensure the appropriate scope of
the implementing
powers conferred on the Commission. The conclusion
as to whether or not amendment is necessary shall be
accompanied by a detailed statement of
If
necessary, the report shall be accompanied by a legis-
lative proposal
to amend the provisions conferring
implementing powers on the Commission’.

reasons.

Article 2

Entry into force

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

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This Directive is addressed to the Member States.

Article 3

Addressees

Done at Strasbourg, 11 March 2008.

For the European Parliament
The President

H.-G. PÖTTERING

For the Council
The President

J. LENARČIČ