Directive 2008/10/EC of the European Parliament and of the Council of 11 March 2008 amending Directive 2004/39/EC on markets in financial instruments, as regards the implementing powers conferred on the Commission
Date: 2008-03-11
Institutions: Council of the European Union, European Parliament
Subjects: European Commission, credit institution, financial instrument, investment company, powers of the institutions (EU), provision of services, securities

19.3.2008

EN

Official Journal of the European Union

L 76/33

DIRECTIVES

DIRECTIVE 2008/10/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 11 March 2008

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

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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.

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

establishing the European

Having regard to the proposal from 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

(3)

(4)

Whereas:

(1)

(2)

Directive 2004/39/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

Council Decision 1999/468/EC has been amended by
Decision 2006/512/EC, which introduced the regulatory
procedure with scrutiny for the adoption of measures of
scope and designed to amend non-essential
general
elements of a basic instrument adopted in accordance

(5)

(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 145, 30.4.2004, p. 1. Directive as last amended by Directive

2007/44/EC (OJ L 247, 21.9.2007, p. 1).

(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).

and

the Council

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

that Directive. Those measures

The Commission should be empowered to adopt the
measures necessary for the implementation of Directive
2004/39/EC in order to take account of technical deve-
lopments on financial markets and ensure the uniform
application of
are
designed to adapt definitions or modify the scope of
that Directive; elaborate upon or
exemptions under
supplement provisions of that Directive concerning orga-
nisational requirements or operating conditions imposed
upon investment firms or credit institutions; and add
detailed specifications on the pre- and post-trade trans-
parency obligations imposed upon the various nego-
tiating
those
measures are of general scope and are designed to
amend non-essential elements of Directive 2004/39/EC
by supplementing it with new non-essential elements,
they must be adopted in accordance with the regulatory
procedure with scrutiny provided for in Article 5a of
Decision 1999/468/EC.

that Directive.

venues

under

Since

Directive 2004/39/EC provides for a time restriction
concerning the implementing powers conferred on the
In their
statement concerning Decision
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

instruments adopted under

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

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Official Journal of the European Union

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limit. The European Parliament and the Council also
declared that
the proposals
they would ensure that
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 2004/39/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
to determine
European Parliament and the Council
whether the extent of those powers and the procedural
requirements imposed on the Commission are appro-
priate
and democratic
accountability.

and ensure both efficiency

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

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

It

(6)

(7)

(8)

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments

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

referred to in Article 64(2),’ shall be deleted;

(ii) the following subparagraph shall be added:

‘The measures referred to in this Article, 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).’;

3. Article 13(10) shall be amended as follows:

(a)

the words ‘in accordance with the procedure referred to
in Article 64(2),’ shall be deleted;

(b) the following sentence shall be added:

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

in accordance with the

adopted

4.

in the second and third subparagraphs of Article 15(3), the
words ‘in accordance with the procedure referred to in
Article 64(2),’ shall be replaced by ‘in accordance with
the regulatory procedure referred to in Article 64(3),’;

5. Article 18(3) shall be amended as follows:

Directive 2004/39/EC is hereby amended as follows:

(a)

the words ‘in accordance with the procedure referred to
in Article 64(2),’ shall be deleted;

1. Article 2(3) shall be amended as follows:

(b) the following subparagraph shall be added:

(a)

the words ‘acting in accordance with the procedure
referred to in Article 64(2),’ shall be deleted;

(b) the following sentence shall be 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
procedure with
regulatory
scrutiny referred to in Article 64(2).’;

the

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

in accordance with the

adopted

2. Article 4 shall be amended as follows:

(a)

in point 2 of paragraph 1,
accordance with
Article 64(2)’ shall be deleted;

the

the words

procedure

referred

‘acting in
in
to

(b) paragraph 2 shall be amended as follows:

6. Article 19(10) shall be amended as follows:

(a)

the words ‘in accordance with the procedure referred to
in Article 64(2),’ shall be deleted;

(b) the following subparagraph shall be 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
procedure with
regulatory
scrutiny referred to in Article 64(2).’;

the

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7. Article 21(6) shall be amended as follows:

(a)

the words ‘in accordance with the procedure referred to
in Article 64(2),’ shall be deleted;

(a)

the terms ‘in accordance with the procedure referred to
in Article 64(2),’ shall be deleted;

(b) the following subparagraph shall be added:

(b) the following subparagraph shall be 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
procedure with
regulatory
scrutiny referred to in Article 64(2).’;

the

8. Article 22(3) shall be amended as follows:

(a)

the words ‘in accordance with the procedure referred to
in Article 64(2),’ shall be deleted;

(b) the following subparagraph shall be 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
procedure with
regulatory
scrutiny referred to in Article 64(2).’;

the

‘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
procedure with
regulatory
scrutiny referred to in Article 64(2).’;

the

12. Article 28(3) shall be amended as follows:

(a)

the words ‘in accordance with the procedure referred to
in Article 64(2),’ shall be deleted;

(b) the following subparagraph shall be 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
procedure with
accordance with
regulatory
scrutiny referred to in Article 64(2).’;

the

9. Article 24(5) shall be amended as follows:

(a)

the words ‘in accordance with the procedure referred to
in Article 64(2),’ shall be deleted;

(a)

in the first subparagraph, the words ‘in accordance with
the procedure referred to in Article 64(2)’ shall be
deleted;

13. Article 29(3) shall be amended as follows:

(b) the following subparagraph shall be added:

(b) the following subparagraph shall be 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
procedure with
regulatory
scrutiny referred to in Article 64(2).’;

the

‘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
procedure with
regulatory
scrutiny referred to in Article 64(2).’;

the

10. Article 25(7) shall be amended as follows:

14. Article 30(3) shall be amended as follows:

(a)

the words ‘in accordance with the procedure referred to
in Article 64(2),’ shall be deleted;

(b) the following sentence shall be added:

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

in accordance with the

adopted

11. Article 27(7) shall be amended as follows:

(a)

in the first subparagraph the words ‘in accordance with
the procedure referred to in Article 64(2)’ shall be
deleted;

(b) the following subparagraph shall be 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
procedure with
regulatory
scrutiny referred to in Article 64(2).’;

the

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15. Article 40(6) shall be amended as follows:

20. Article 64 shall be amended as follows:

(a)

the words ‘in accordance with the procedure referred to
in Article 64(2)’ shall be deleted;

(b) the following subparagraph shall be 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
procedure with
regulatory
scrutiny referred to in Article 64(2).’;

the

16. Article 44(3) shall be amended as follows:

(a)

the words ‘in accordance with the procedure referred to
in Article 64(2)’ shall be deleted;

(a) paragraph 2 shall be replaced by the following:

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

apply, having

to (4)

(b) paragraph 3 shall be replaced by the following:

‘3. Where reference is made to this paragraph,
Articles 5 and 7 of Decision 1999/468/EC shall
apply, having regard to the provisions of Article 8
thereof.

The period laid down in Article 5(6) of Decision
1999/468/EC shall be set at three months.’;

(b) the following subparagraph shall be added:

(c)

the following paragraph shall be 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
procedure with
accordance with
regulatory
scrutiny referred to in Article 64(2).’;

the

17. Article 45(3) shall be amended as follows:

(a)

the words ‘in accordance with the procedure referred to
in Article 64(2)’ shall be deleted;

(b) the following subparagraph shall be 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
procedure with
accordance with
regulatory
scrutiny referred to in Article 64(2).’;

the

18. Article 56(5) shall be amended as follows:

(a)

the words ‘in accordance with the procedure referred to
in Article 64(2),’ shall be deleted;

(b) the following sentence shall be added:

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

in accordance with the

adopted

‘4.
By 31 December 2010, and, thereafter, at least
every three years,
the Commission shall review the
provisions concerning its implementing powers and
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 imple-
menting powers conferred on the Commission. The
conclusion as
is
necessary
detailed
statement of reasons. If necessary, the report shall be
accompanied by a legislative proposal to amend the
provisions conferring implementing powers on the
Commission.’.

to whether or not amendment

accompanied

shall

by

be

a

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.

Article 3

Addressees

This Directive is addressed to the Member States.

Done at Strasbourg, 11 March 2008.

19.

the words

‘in accordance with the
in Article 58(4),
procedure referred to in Article 64(2),’ shall be replaced
by ‘, in accordance with the regulatory procedure referred
to in Article 64(3),’;

For the European Parliament
The President

H.-G. PÖTTERING

For the Council
The President

J. LENARČIČ