Proposal for a Directive of the European Parliament and of the Council  amending Directives 1998/26/EC, 2002/87/EC, 2003/6/EC, 2003/41/EC, 2003/71/EC, 2004/39/EC, 2004/109/EC, 2005/60/EC, 2006/48/EC, 2006/49/EC, and 2009/65/EC in respect of the powers of the European Banking Authority, the European Insurance and Occupational Pensions Authority and the European Securities and Markets Authority (Text with EEA relevance)
Date: 2009-10-26
Institutions: European Commission
Subjects: EU office or agency, European Monetary System, cooperation policy, exchange of information, financial control, financial legislation, financial market, market supervision, technical standard

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 26.10.2009 
COM(2009) 576 final 

2009/0161 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

Amending Directives 1998/26/EC, 2002/87/EC, 2003/6/EC, 2003/41/EC, 2003/71/EC, 
2004/39/EC, 2004/109/EC, 2005/60/EC, 2006/48/EC, 2006/49/EC, and 2009/65/EC in 
respect of the powers of the European Banking Authority, the European Insurance and 
Occupational Pensions Authority and the European Securities and Markets Authority 

(Text with EEA relevance) 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Experience of the financial crisis has exposed important failures in financial supervision, both 
in  particular  cases  and  in  relation  to  the  financial  system  as  a  whole.  President  Barroso 
therefore  requested  a  group  of  high  level  experts,  chaired  by  Mr  Jacques  de  Larosière,  to 
make  proposals  to  strengthen  European  supervisory  arrangements,  with  the  objective  of 
establishing a more efficient, integrated and sustainable European system of supervision. The 
Group  presented  its  report  on  25  February  2009.  Building  on  its  recommendations,  the 
Commission  set  out  proposals  for  a  new  European  financial  supervisory  architecture  in  its 
Communication to the Spring European Council of March 2009. The Commission presented 
its ideas in more detail in its Communication of May 2009 which proposed:  

–  Establishing a European System of Financial Supervisors (ESFS), consisting of a network 
of  national  financial  supervisors  working  in  tandem  with  new  European  Supervisory 
Authorities  (ESAs),  created  by 
the  existing  European  supervisory 
committees1  into  a  European  Banking  Authority  (EBA),  a  European  Insurance  and 
Occupational  Pensions  Authority  (EIOPA),  and  a  European  Securities  and  Markets 
Authority  (ESMA),  thereby  combining  the  advantages  of  an  overarching  European 
framework  for  financial  supervision  with  the  expertise  of  local  micro-prudential 
supervisory bodies that are closest to the institutions operating in their jurisdictions; and 

transforming 

–  Establishing  a  European  Systemic  Risk  Board  (ESRB),  to  monitor  and  assess  potential 
threats  to  financial  stability  that  arise  from  macro-economic  developments  and  from 
developments within the financial system as a whole. To this end, the ESRB would provide 
an early warning of system-wide risks that may be building up and, where necessary, issue 
recommendations for action to deal with these risks.2  

The Communication also concluded that in order for the ESFS to work effectively, changes to 
the financial  services legislation would be necessary, in particular  to provide an  appropriate 
scope to the more general powers provided for in the individual regulations establishing the 
Authorities,  ensuring  a  more  harmonised  set  of  financial  rules  through  the  possibility  to 
develop  draft  technical  standards  and  facilitate  the  sharing,  where  necessary,  of  micro-
prudential information. 

2. 

CONSULTATION OF THE INTERESTED PARTIES 

Two  open  consultations  were  conducted  in  the  development  of  these  proposals.  Firstly, 
following  the  report  of  the  high-level  group  chaired  by  Jacques  de  Larosière  and  the 
publication of the 4 March 2009 Commission Communication, the Commission organised a 
first consultation from 10 March to 10 April 2009 as input to its Communication on Financial 
Supervision  in  Europe  published  on  27  May  2009.  A  summary  of  the  public  submissions 
received can be found on: 

1 

2 

These are the Committee of European Banking Supervisors (CEBS), the Committee of European Insurance and Occupational Pensions Supervisors (CEIOPS) 
and the Committee of European Securities Regulators (CESR). 
It  should  be  noted  that  this  explanatory  memorandum  focuses  on  the  proposals  to  establish  the  ESFS  by  transforming  the  existing  European  supervisory 
committees into ESAs. The proposal to establish the ESRB is being discussed in a separate memorandum. 

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http://ec.europa.eu/internal_market/consultations/docs/2009/fin_supervision/summary_en.pdf 

Secondly,  from  27  May  to  15  July  2009,  the  Commission  organised  another  consultation 
round, inviting all interested parties to comment on the more detailed reforms presented in the 
Communication on Financial Supervision in Europe of 27 May 2009. The responses received 
were  for  the  greater  part  supportive  of  the  suggested  reforms,  with  comments  on  detailed 
aspects of the proposed ESRB and ESFS. A summary of the public submissions received can 
be found on: 

http://ec.europa.eu/internal_market/consultations/docs/2009/fin_supervision_may/replies_su
mmary_en.pdf 

Additionally,  a  Commission  Services  Staff  Working  Paper  was  published  on  23  September 
2009  to  preview  the  possible  areas  where  amendments  to  sectoral  legislation  may  be 
necessary. 

3. 

IMPACT ASSESSMENT 

The May Commission Communication on Financial Supervision in Europe was accompanied 
by  an  impact  assessment  analysing  the  main  policy  options  for  establishing  the  ESFS  and 
ESRB.  A  second  impact  assessment  accompanies  these  proposals,  examining  the  options  in 
more  detail.  The  second  impact  assessment  analysed  the  options  for  the  appropriate  powers 
for the Authority to work towards achieving a single set of harmonised rules and concluded 
that this capacity would be rightly limited to those areas to be defined in forthcoming sectoral 
legislation, and identified such potential areas. Additionally, in developing the draft technical 
standards  themselves,  the  Authorities  should  undertake  appropriate  analysis  of  potential 
related costs and benefits and consult stakeholders before submitting them to the Commission. 

The second impact assessment report is available on the Commission website. 

4. 

LEGAL ELEMENTS OF THE PROPOSAL 

Given that changes need to be introduced into existing Directives to ensure the development 
of  a  single  rule  book,  an  amending  Directive  is  the  most  appropriate  instrument.  This 
amending Directive should have the same legal basis as the Directives it amends. 

5. 

BUDGETARY IMPLICATIONS 

The proposal has no implication for the Community budget. 

6. 

DETAILED EXPLANATION OF THE PROPOSAL 

On  23  September  2009,  the  Commission  adopted  proposals  for  a  Regulation  establishing  a 
European  Banking  Authority,  a  Regulation  establishing  a  European  Insurance  and 
Occupational  Pensions  Authority,  and  a  Regulation  establishing  a  European  Securities  and 

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Markets  Authority.3  Along  with  those  Regulations  and  in  order  for  the  ESFS  to  work 
effectively, changes to the sectoral legislation are necessary. The areas in which amendments 
are proposed fall broadly into the following categories: 

•  Definition  of  the  appropriate  scope  of  technical  standards  as  an  additional  tool  for 

supervisory convergence and with a view of developing a single rule book; 

•  To  appropriately  integrate  the  possibility  for  the  authority  to  settle  disagreements  in  a 
balanced  way  to  those  areas  where  common  decision  making  processes  already  exist  in 
sectoral legislation; and 

•  General  amendments  which  are  common  to  most  sectoral  legislation  and  necessary  for 
the directives to operate in the context of new authorities for example, renaming the level 3 
committees to the new authorities and ensuring the appropriate gateways for the exchange 
of information are present. 

This amending directive is proposed to amend the following legislation: 

•  2006/48/EC and 2006/49/EC: Capital Requirements Directive 

•  2002/87/EC: Financial Conglomerates Directive 

•  2003/41/EC: Institutions for Occupational Retirement Provisions Directive 

•  2003/6/EC: Market Abuse Directive 

•  2004/39/EC: Markets in Financial Instruments Directive 

•  2003/71/EC: Prospectus Directive 

•  1998/26/EC: Settlement Finality Directive 

•  2004/109/EC: Transparency Directive 

•  2005/60/EC: Anti Money-Laundering Directive 

•  2009/65/EC: Undertakings for Collective Investments in Transferable Securities 

Moreover, where appropriate, the Commission will make further proposals for amendments to 
the  Solvency  II  Directive,  which  is  currently  being  finalised,  after  publication  of  the 
Directive. 

6.1. 

Technical Standards 

The  proposals  for  a  Regulation  establishing  a  European  Banking  Authority,  a  Regulation 
establishing  a  European  Insurance  and  Occupational  Pensions  Authority  and  a  Regulation 
establishing a European Securities and Markets Authority adopted by the Commission on 23 
September  2009  provide  that  the  Authorities  may  develop  draft  technical  standards  in  the 

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areas  specified  in  sectoral  legislation.  The  identification  of  areas  for  technical  standards  is 
based on the following high level principles: 

•  Technical issues: those areas selected are genuinely technical, where the development of 
standards  is  best  left  to  supervisory  experts.  They  are  areas  which  do  not  involve  policy 
decisions. 

to 

•  Practical  issues/cooperation  procedures:  relate  to  practical  issues  like  procedural 
information  exchange  which  could  enhance  cooperation  between 
approaches 
supervisory authorities, and which are of a direct concern to the authorities involved. These 
areas should only include such issues where a common approach or predictability would be 
of benefit to all concerned. 

•  Flexibility: where it is important to have technical flexibility to respond rapidly to future 
market developments or where in some areas it is not necessary to make changes now but 
to have the option to do so if necessary at a later date.  

•  Necessity: Only those areas where detailed, technical and consistent rules are needed for 
financial  stability,  depositor,  policy  holder  and  investor  protection,  to  ensure  market 
efficiency and integrity or to strengthen the single market have been selected. 

In practice, the types of areas covered by technical standards fall into three categories. Firstly, 
standards  may  be  developed  in  those  areas  where  detailed  methodological  or  quantitative 
standards  are  required  to  ensure  consistent  application  of  certain  rules  and  where  there  is 
generally  less  need  for  supervisory  judgement.  Secondly,  in  those  areas  that  would  benefit 
from a uniform approach to reporting or disclosure for example in facilitating work towards a 
uniform reporting format in banking by 2012. Finally, in those areas where supervisors would 
benefit from a consistent approach to cooperation processes including in terms of supervisory 
risk assessment and information sharing for example in situations where host supervisors of 
branches would benefit from a consistent minimum set of information from home supervisors. 

In  addition  to  the  areas  identified  in  this  Directive,  the  Commission  is  considering  further 
whether additional empowerments for technical standards should be made in some areas – in 
particular  securities  -  which  are  covered  by  level  2  rules,  which  have  been  adopted  on  the 
basis  of  an  empowerment  to  the  Commission  given  under  the  Level  1  instruments,  to 
determine the  conditions  of  application those rules without supplementing the level 1 and 2 
instruments  concerned.  These  further  amendments  would  concern  in  particular  Directives 
2003/6/EC, 2003/71/EC and 2004/39/EC and could form a second Omnibus Directive, along 
with proposals for amendments to the Solvency II Directive. 

6.2. 

Settlement of disagreements between national supervisory authorities 

In the regulations setting up the European Supervisory Authorities, a mechanism is proposed 
to  ensure  that  relevant  national  supervisory  authorities  take  due  account  of  the  interests  of 
other  Member  States  as  well  as  the  soundness  and  stability  of  the  European  system  as  a 
whole.  

In  general,  disagreements  between  supervisors  are  fully  covered  by  the  regulation  with  no 
consequential  changes  to  the  sectoral  legislation  required.  However,  in  those  areas  where 
there is already some form of non-binding mediation process possible, or where there are time 
limits for joint decisions to be taken by one or more supervisors, amendments will be needed 

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to incorporate in an appropriate way the possibility for the authorities to settle disagreements. 
Such  amendments  should  have  the  objective  to  ensure  there  is  clarity  over  and  minimum 
disruption  to  the  process  for  reaching  a  joint  decision,  but  also  that,  where  necessary,  the 
Authorities are able to resolve disagreements. 

6.3. 

General amendments 

There  are  a  number  of  areas  where  consequential  amendments  which  are  common  to  most 
sectoral legislation and necessary for the directives to operate in the context of new authorities 
should be made, outlined below. 

To discharge the current tasks of the present Level 3 Committees 

In order to ensure that the new Authorities can continue to undertake the current tasks of the 
level  3  Committees  smoothly,  in  all  of  the  directives  listed  above,  the  following  references 
will be renamed to: 

'Committee of European Banking Supervisors' with 'European Banking Authority' 

'Committee  of  European  Insurance  and  Occupational  Pensions  Supervisors'  with  'European 
Insurance and Occupational Pensions Authority' 

'Committee  of  European  Securities  Regulators'  with  'European  Securities  and  Markets 
Authority' 

Cooperation obligations and information sharing with the ESAs 

The  new  supervisory  architecture  will  require  national  supervisory  authorities  to  cooperate 
closely  with  the  European  Supervisory  Authorities.  In  particular,  they  should  receive 
sufficient  information  from  the  national  supervisory  authorities  in  order  to  be  able  to 
discharge their duties under the regulation. 

Where necessary, specific information sharing requirements to facilitate the above will be set 
out in sectoral  legislation. Amendments to the  relevant  legislation  clarify  the  obligations  on 
national supervisors to provide the necessary information for the discharge of the tasks of the 
authorities and appropriate information gateways to ensure there are no legal obstacles to the 
information sharing obligations included in the Regulations establishing the Authorities. 

International and advisory role 

The  ESAs  could  serve  as  helpful  contact  points  for  supervisory  authorities  from  third 
countries.  In  this  context,  they  may,  without  prejudice  to  the  competences  of  the  European 
Institutions,  enter  into  administrative  arrangements  with  international  organisations  and  the 
administrations  of  third  countries.  The  ESAs  may  also  assist  in  preparing  equivalence 
decisions pertaining to supervisory regimes in third countries. Moreover, the ESAs may, upon 
request or on their own initiative, provide advice to the European Parliament, the Council and 
the Commission or publish opinions, including with respect to the prudential assessments of 
cross-border mergers and acquisitions. The latter should provide for additional safeguards to 
ensure a sound and objective assessment of future cross-border mergers or acquisitions. 

List keeping and other amendments 

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It is proposed that the ESAs will be given the duty to establish, publish and regularly update 
registers and lists of financial actors in the Community and other important issues, which is 
currently  the  duty  of  each  national  competent  authority,  e.g.  to  keep  the  register  of  all 
investment firms according to Art 5 (3) MiFID or the list of regulated markets according to 
Art 47 MiFID. Having one consolidated list or register for each category of financial actors in 
the  Community  may  improve  transparency  and  better  reflects  the  single  financial  market

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2009/0161 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

Amending Directives 1998/26/EC, 2002/87/EC, 2003/6/EC, 2003/41/EC, 2003/71/EC, 
2004/39/EC, 2004/109/EC, 2005/60/EC, 2006/48/EC, 2006/49/EC, and 2009/65/EC in 
respect of the powers of the European Banking Authority, the European Insurance and 
Occupational Pensions Authority and the European Securities and Markets Authority 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Articles 
44, 47 (2), 55 and 95 thereof, 

Having regard to the proposal from the Commission4, 

Having regard to the opinion of the European Economic and Social Committee5, 

Having regard to the opinion of the European Central Bank6, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty7, 

Whereas: 

(1) 

(2) 

The  financial  crisis  in  2007/2008  exposed  important  shortcomings  in  financial 
supervision, both in particular cases and in relation to the financial system as a whole. 
National  supervisory  models  have  lagged  behind  the  integrated  and  interconnected 
reality  of  European  financial  markets,  in  which  many  financial  firms  operate  across 
borders and offer financial  services to businesses and consumers. The crisis exposed 
shortcomings  in  the  area  of  cooperation,  coordination,  consistent  application  of 
Community law and trust between national supervisors.  

A report published on 25 February 2009 by a high-level group of experts chaired by J. 
de Larosière, requested by the Commission, concluded that the supervisory framework 
needs  to  be  strengthened  to  reduce  the  risk  and  severity  of  future  financial  crises. 
Accordingly, it recommended far-reaching reforms to the supervisory structure of the 
financial  sector  within  the  Community.  That  group  of  experts  also  concluded  that  a 
European  System  of  Financial  Supervisors  should  be  created,  comprising  three 
European  Supervisory  Authorities,  one  for  the  banking  sector,  one  for  the  securities 

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7 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 

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(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

sector and one for the insurance and occupational pensions sector, and the creation of a 
European Systemic Risk Board. 

The Commission in its Communication of 4 March 2009 entitled "Driving European 
Recovery"8 proposed to bring forward draft legislation creating a European System of 
Financial Supervisors, and in its Communication of 27 May 2009 entitled "European 
Financial Supervision"9 provided more detail about the possible architecture of such a 
new supervisory framework. 

The  European  Council,  in  its  conclusions  of  19  June  2009,  recommended  that  a 
European  System  of  Financial  Supervisors,  comprising 
three  new  European 
Supervisory Authorities, be established. The system should be aimed at upgrading the 
quality  and  consistency  of  national  supervision,  strengthening  oversight  of  cross 
border groups and establishing a European single rule book applicable to all financial 
institutions  in  the  Internal  Market.  It  emphasised  that  the  European  Supervisory 
Authorities should also have supervisory powers for credit rating agencies and invited 
the  Commission  to  prepare  concrete  proposals  on  how  the  European  System  of 
Financial Supervisors could play a strong role in crisis situations. 

On  23  September  2009,  the  Commission  adopted  proposals  for  three  Regulations 
establishing  the  European  System  of  Financial  Supervisors  including  the  creation  of 
the three European Supervisory Authorities. 

In  order  for  the  European  System  of  Financial  Supervisors  to  work  effectively, 
changes to Community legislation in the field of operation of the three Authorities are 
necessary. These changes concern the definition of the scope of certain powers of the 
European  Supervisory  Authorities,  the  integration  of  certain  powers  in  existing 
processes established in relevant Community legislation and amendments to ensure a 
smooth and effective functioning in the context of the European System of Financial 
Supervisors. 

The  establishment  of  the  three  European  Supervisory  Authorities  (ESA)  should  be 
accompanied by the development of a single set of harmonised rules so as to ensure 
uniform application and thus contribute to a more effective functioning of the Internal 
Market. The Regulations establishing the ESFS provide that the European Supervisory 
Authorities  may  develop  draft  technical  standards  in  the  areas  specifically  set  out  in 
the relevant legislation, to be submitted to the Commission for adoption by means of 
Regulations or Decisions. The relevant legislation should define those areas where the 
European Supervisory Authorities are empowered to develop draft technical standards. 

The identification of areas for technical standards should strike an appropriate balance 
between  building  a  single  set  of  harmonised  rules,  without  unduly  complicating 
regulation.  Only  those  areas  should  be  selected  where  consistent  technical  rules  will 
contribute  significantly  to  financial  stability,  depositor,  policy  holder  and  investor 
protection,  market  efficiency  and  integrity,  and  eliminate  distortions  of  competition 
and risks of regulatory arbitrage. 

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COM (2009) 114 final. 
COM (2009) 252 final. 

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(9)  Matters  subject  to  technical  standards  should  be  genuinely  technical,  where  their 
development  requires  the  expertise  of  supervisory  experts.  The  technical  standards 
should  determine  the  conditions  of  application  of  the  rules  included  in  basic 
instruments  adopted  by  the  European  Parliament  and  the  Council  and,  where 
applicable,  in  Commission  implementing  measures  without  amending  non-essential 
elements  of  those  acts,  inter  alia  by  deleting  some  of  those  elements  or  by 
supplementing  the  act  by  the  addition  of  new  non-essential  elements.  Technical 
standards  should  not  therefore  involve  policy  choices.  In  cases  where  the  technical 
standards  are  designed  to  determine  the  conditions  of  application  of  a  Commission 
implementing  measure,  they  should  only  be  developed  once  the  Commission 
implementing  measure  has  been  adopted.  In  certain  cases  where  at  present  the 
Commission  is  empowered  to  adopt  implementing  measures  in  accordance  with 
committee  procedures  pursuant  to  Council  Decision  1999/468/EC  of  28  June  1999 
laying down the procedures for the exercise of implementing powers conferred on the 
Commission10,  and  the  content  of  those  implementing  measures  is  limited  to 
determining  the  conditions  of  application  of  rules  included  in  the  basic  instruments, 
which  do  not  require  further  supplementing,  it  is  appropriate  for  the  sake  of 
consistency to introduce the procedure for adoption of technical standards provided for 
in Article 7 of Regulations (EC) No. …/…[EBA], No. …/… [ESMA], and No. …/… 
[EIOPA]. 

(10)  As  set  out  in  the  Regulations  establishing  the  ESFS,  before  submitting  the  technical 
standards  to  the  Commission,  the  European  Supervisory  Authorities  should,  where 
appropriate,  conduct  open  public  consultations  on  them  and  analyse  the  potential 
related costs and benefits. 

(11)  The  Regulations  establishing 

the  ESFS  provide  for  a  mechanism 

to  settle 
disagreements  between  competent  national  authorities.  Where  a  competent  authority 
disagrees  on  the  procedure  or  content  of  an  action  or  inaction  by  another  competent 
authority in areas where the relevant legislation requires cooperation, coordination or 
joint decision making by competent national authorities from more than one Member 
State,  the  European  Supervisory  Authorities,  at  the  request  of  one  of  the  competent 
authorities concerned, may assist the authorities in reaching an agreement  within the 
time  limit  set  by  the  European  Supervisory  Authority  which  takes  into  account  any 
relevant time limits in the relevant legislation, and the urgency and complexity of the 
disagreement. In the event that such disagreement persists, the European Supervisory 
Authorities may settle the matter. 

(12) 

In general, the provision that provides the possibility for disputes to be resolved in the 
Regulations  establishing  the  ESFS  does  not  require  consequential  changes  to  the 
relevant  legislation.  However,  in  those  areas  where  some  form  of  non-binding 
mediation  is  already  established  in  the  relevant  legislation,  or  where  there  are  time 
limits  for  joint  decisions  to  be  taken  by  one  or  more  competent  national  authorities, 
amendments  are  needed  to  ensure  clarity and  minimum  disruption  to  the  process  for 
reaching  a  joint  decision,  but  also  that  where  necessary,  the  European  Supervisory 
Authorities are able to resolve disagreements. 

10 

OJ L 184, 17.7.1999, p. 23. 

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(13)  Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 
relating to the taking up and pursuit of the business of credit institutions11 provides for 
mediation  or  joint  decisions  as  regards  the  determination  of  significant  branches  for 
the  purposes  of  supervisory  college  membership,  model  validation  and  group  risk 
assessment. In all of these areas, an amendment should clearly state that in the event of 
disagreement during the specified time period, the European Banking Authority may 
resolve the disagreement using the process outlined in Regulation …/… [EBA]. This 
approach  makes  it  clear  that  disagreements  can  be  resolved  and  cooperation 
strengthened before a final decision is made or issued to an institution. 

(14) 

In  order  to  ensure  that  the  new  European  Supervisory  Authorities  continue  to 
undertake  the  current  tasks  of  the  level  3  Committees  smoothly,  references  to  the 
Committee of European Banking Supervisors, the Committee of European Insurance 
and  Occupational  Pensions  Supervisors  or  the  Committee  of  European  Securities 
Regulators  should  be  replaced  in  all  the  relevant  legislation  with  references  to  the 
European  Banking  Authority,  the  European  Insurance  and  Occupational  Pensions 
Authority or the European Securities and Markets Authority respectively. 

(15)  The  new  supervisory  architecture  established  by  the  ESFS  will  require  national 
the  European  Supervisory 
supervisory  authorities 
Authorities.  Amendments  to  the  relevant  legislation  should  ensure  there  are  no  legal 
obstacles to the information sharing obligations included in the Regulations proposed 
by the Commission establishing the European Supervisory Authorities.  

to  cooperate  closely  with 

(16)  The Regulations establishing the ESFS proposed by the Commission provide that the 
European  Supervisory  Authorities  may  develop  contacts  with  supervisory  authorities 
from  third  countries  and  shall  assist  in  preparing  equivalence  decisions  pertaining  to 
supervisory  regimes  in  third  countries.  Directives  2004/39/EC  of  the  European 
Parliament and of the Council of 21 April 2004 on markets in financial instruments12 
and  Directive  2006/48/EC  should  be  amended  to  allow  the  European  Supervisory 
Authorities  to  establish  cooperation  agreements  with  third  countries  and  exchange 
information  where  those  third  countries  can  provide  guarantees  of  professional 
secrecy. 

(17)  Having a single consolidated list or register for each category of financial actors in the 
Community,  which  is  currently  the  duty  of  each  national  competent  authority,  will 
improve  transparency  and  better  reflects  the  single  financial  market.  The  European 
Supervisory  Authorities  should  be  given  the  duty  to  establish,  publish  and  regularly 
update registers and lists of financial actors within the Community. This concerns the 
list  of  authorisations  of  credit  institutions  granted  by  national  supervisors.  It  also 
concerns  the  register  of  all  investment  firms  and  the  list  of  regulated  markets  under 
Directive  2004/39/EC.  Similarly,  the  European  Securities  and  Markets  Authority 
should be given the duty to establish, publish and regularly update the list of approved 
prospectuses  and  the  certificates  of  approval  under  Directive  2003/71/EC  of  the 
European Parliament and of the Council of 4 November 2003 on the prospectus to be 

11 
12 

OJ L 177, 30.6.2006, p. 1. 
OJ L 145, 30.4.2004, p. 1. 

EN 

11 

   EN 

 
                                                 
published  when  securities  are  offered  to  the  public  or  admitted  to  trading  and 
amending Directive 2001/34/EC13.  

(18) 

In those areas where the Authorities are under an obligation to develop draft technical 
standards,  those  draft  technical  standards  should  be  submitted  to  the  Commission 
within three years of the creation of the Authorities. 

regulation  and  supervision,  protecting  depositors, 

(19)  Since  the  objectives  of  this  Directive,  namely  improving  the  functioning  of  the 
Internal  Market  by  means  of  ensuring  a  high,  effective  and  consistent  level  of 
prudential 
investors  and 
beneficiaries  and  thereby  businesses  and  consumers,  protecting  the  integrity, 
efficiency and orderly functioning of financial markets, maintaining the stability of the 
financial system, and  strengthening  international supervisory coordination, cannot be 
sufficiently achieved by the Member States and can, therefore, by reason of scale of 
the  action,  be  better  achieved  at  Community  level,  the  Community  may  adopt 
measures, in accordance with the principle of subsidiarity as set out in Article 5 of the 
Treaty. In accordance with the principle of proportionality, as set out in that Article, 
this  Directive  does  not  go  beyond  what  is  necessary  in  order  to  achieve  those 
objectives. 

in 

finality 

payment 

securities 

settlement 

(20)  Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on 
systems,14 
settlement 
and 
Directive 2002/87/EC of the European Parliament and of the Council of 16 December 
2002  on  the  supplementary  supervision  of  credit  institutions,  insurance  undertakings 
and  investment  firms  in  a  financial  conglomerate  and  amending  Council  Directives 
73/239/EEC,  79/267/EEC,  92/49/EEC,  92/96/EEC,  93/6/EEC  and  93/22/EEC, 
Directives 98/78/EC and 2000/12/EC of the European Parliament and of the Council15, 
,  Directive  2003/6/EC  of  the  European  Parliament  and  of  the  Council  of  28  January 
2003  on  insider  dealing  and  market  manipulation  (market  abuse)16,  Directive 
2003/41/EC  of  the  European  Parliament  and  of  the  Council  of  3  June  2003  on  the 
activities  and  supervision  of  institutions  for  occupational  retirement  provision,17 
Directive 2003/71/EC, Directive 2004/39/EC, Directive 2004/109/EC of the European 
Parliament  and  of  the  Council  of  15 December 2004  on  the  harmonisation  of 
transparency requirements in relation to information about issuers whose securities are 
admitted  to  trading  on  a  regulated  market  and  amending  Directive  2001/34/EC18, 
Directive  2005/60/EC  of  the  European  Parliament  and  of  the  Council  of  26  October 
2005  on  the  prevention  of  the  use  of  the  financial  system  for  the  purpose  of  money 
laundering and terrorist financing,19 Directive 2006/48/EC of the European Parliament 
and of the Council of 14 June 2006 relating to the taking up and pursuit of the business 
of  credit  institutions20,  Directive  2006/49/EC  of  the  European  Parliament  and  of  the 
Council  of  14  June  2006  on  the  capital  adequacy  of  investment  firms  and  credit 

13 
14 
15 
16 
17 
18 
19 

20 

OJ L 345, 31.12.2003, p. 64. 
OJ L 166, 11.6.1998, p. 45. 
OJ L 35, 11.2.2003, p. 1. 
OJ L 96, 12.4.2003, p. 16. 
OJ L 235, 23.9.2003, p. 10. 
OJ L 390, 31.12.2004, p. 38. 
OJ L 309, 25.11.2005, p. 15. 
OJ L 177, 30.6.2006, p. 1. 

EN 

12 

   EN 

 
                                                 
institutions,21  and  Directive  2009/65/EC  of  the  European  Parliament  and  of  the 
Council  of  …on  the  coordination  of  laws,  regulations  and  administrative  provisions 
relating to undertakings for collective investment in transferable securities (UCITS)22 
should therefore be amended accordingly, 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 
Amendments to Directive 1998/26/EC 

Directive 1998/26/EC is amended as follows: 

(1) 

Article 6(3) is replaced by the following: 

"3.  The  Member  State  referred  to  in  paragraph  2  shall  immediately  notify  other 
Member  States  and  the  European  Securities  and  Markets  Authority  established  by 
Regulation…/…of  the  European  Parliament  and  of  the  Council23  and  shall 
communicate to the latter all information essential to achieve its tasks." 

(2) 

In Article 10(1) the first subparagraph is replaced by the following: 

"Member States shall specify the systems, and the respective system operators, which 
are to be included in the scope of this Directive and shall notify them to the European 
Securities  and  Markets  Authority  and  inform  it  of  the  authorities  chosen  in 
accordance with Article 6(2). The European Securities and Markets Authority shall 
publish that information on its website." 

Article 2 
Amendments to Directive 2002/87/EC 

Directive 2002/87/EC is amended as follows: 

(1) 

Article 4 is amended as follows: 

(a)  Paragraph 2 is replaced by the following: 

"The  coordinator  appointed  in  accordance  with  Article  10  shall  inform  the  parent 
undertaking  at  the  head  of  a  group  or,  in  the  absence  of  a  parent  undertaking,  the 
regulated  entity  with  the  largest  balance  sheet  total  in  the  most  important  financial 
sector in a group, that the group has been identified as a financial conglomerate and 
of  the  appointment  of  the  coordinator.  The  coordinator  shall  also  inform  the 
competent authorities which have authorised regulated entities in the group and the 
competent  authorities  of  the  Member  State  in  which  the  mixed  financial  holding 
company has its head office, and the Joint Committee of the European Supervisory 
Authorities  established  by  Articles  42  of  Regulation  …/…,  Regulation  …/…  and 

21 
22 
23 

OJ L 177, 30.6.2006, p. 201. 
OJ L 
OJ L 

EN 

13 

   EN 

 
                                                 
Regulation …/… of the European Parliament and of the Council24 (hereinafter 'Joint 
Committee')." 

(b) 

the following paragraph 3 is added: 

"3.  The Joint Committee shall publish the list of identified financial conglomerates 
and keep the list up-to-date." 

(2) 

Article 18(1) is replaced by the following: 

"Without  prejudice  to  the  sectoral  rules,  in  the  case  referred  to  in  Article  5(3), 
competent  authorities  shall  verify  whether  the  regulated  entities,  the  parent 
undertaking  of  which  has  its  head  office  outside  the  Community,  are  subject  to 
supervision  by  a  third-country  competent  authority,  which  is  equivalent  to  that 
provided for by the provisions of this Directive on the supplementary supervision of 
regulated entities referred to in Article 5(2). The verification shall be carried out by 
the  competent  authority  which  would  be  the  coordinator  if  the  criteria  set  out  in 
Article 10(2) were to apply, on the request of the parent undertaking or of any of the 
regulated  entities  authorised  in  the  Community  or  on  its  own  initiative.  That 
competent authority shall consult the other relevant competent authorities, and shall 
take into account any applicable guidance prepared through the Joint Committee in 
accordance  with  Article  21a(2).  For  this  purpose  the  competent  authority  shall 
consult the Joint Committee before taking a decision." 

(3) 

The title of Chapter III before Article 20 is replaced by the following: 

" CONFERRED POWERS AND COMMITTEE PROCEDURES" 

(4) 

In Article 20(1) the following sentence is added: 

"Those measures shall not include the determination of the conditions of application 
of the provisions which are the subject matter of the items listed in Article 21a." 

(5) 

Article 21(5) is deleted. (6) The following Article 21a is inserted: 

"Article 21a 
Technical Standards 

1. 

In  order  to  ensure  uniform  application  of  this  Directive,  the  European  Supervisory 
Authorities, in accordance with Articles 42 of Regulation …/… [EBA], Regulation 
…/…  [EIOPA],  and  Regulation  …/…  [ESMA]  may  develop  draft  technical 
standards, with regard to: 

(a)  Article  2(11)  in  order  to  determine  the  conditions  of  application  of 
Article  17  of  Council  Directive  78/660/EEC25  in  the  context  of  this 
Directive; 

24 
25 

OJ L 
OJ L 222, 14.8.1978, p. 11. Directive as last amended by […] 

EN 

14 

   EN 

 
 
                                                 
(b)  Article 2(17) in order to determine the conditions of application relating 
'relevant  competent 

the  determination  of 

the  procedures  for 

to 
authorities'; 

(c)  Article  3(5)  in  order  to  determine  the  conditions  of  application  of  the 

alternative parameters for the identification of a financial conglomerate; 

(d)  Article  6(2)  in  order  to  determine  the  conditions  of  application  of  the 
calculation  methods  listed  in  Annex  I  part  II,  but  without  prejudice  to 
article 6(4); 

(e)  Article 7(2) in order to determine the modalities for including the items 
within  the  scope  of  the  definition  of  'risk  concentrations'  in  the 
supervisory overview referred to in the second sub paragraph; 

(f)  Article 8(2) in order to determine the modalities for including the items 
within  the  scope  of  the  definition  of  'intra  group  transactions'  in  the 
supervisory overview referred to in the third sub paragraph. 

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Articles 7 of Regulation 
…/… [EBA], Regulation …/… [EIOPA], and Regulation …/… [ESMA]. 

2. 

The Joint Committee may provide general guidance as to whether the supplementary 
supervision  arrangements  of  competent  authorities  in  third  countries  are  likely  to 
achieve  the  objectives  of  the  supplementary  supervision  as  provided  for  in  this 
Directive, in relation to the regulated entities in a financial conglomerate, the head of 
which has its head office outside the Community.  

The Joint Committee shall regularly review such guidance and take into account any 
changes  to  the  supplementary  supervision  carried  out  by  the  relevant  competent 
authorities." 

Article 3 
Amendments to Directive 2003/6/EC 

Directive 2003/6/EC is amended as follows: 

(1) 

In Article 16(2), the fourth subparagraph is replaced by the following: 

"Without prejudice to Article 226 of the Treaty, a competent authority whose request 
for  information  is  not  acted  upon  within  a  reasonable  time  or  whose  request  for 
information  is  rejected  may  bring  that  non-compliance  to  the  attention  of  the 
European  Securities  and  Markets  Authority  established  by  Regulation…/…of  the 
European  Parliament  and  of  the  Council26,  which  may  act  in  accordance  with  the 
powers conferred on it by that Regulation".  

(2) 

In Article 16(4), the fifth subparagraph is replaced by the following: 

26 

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15 

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"Without  prejudice  to  the  provisions  of  Article  226  of  the  Treaty,  a  competent 
authority whose application to open an inquiry or whose request for authorisation for 
its officials to accompany those of the other Member State's competent authority is 
not acted upon within a reasonable time or is rejected may bring that non-compliance 
to the attention of the European Securities and Markets Authority, which may act in 
accordance with the powers conferred on it by Regulation .../... [ESMA] ". 

(3) 

In Article 16, paragraph 5 is replaced by the following: 

"In  order  to  ensure  uniform  application  of  paragraphs  2  and  4,  the  European 
Securities and Markets Authority may develop draft technical standards to determine 
the  conditions  of  application  regarding  the  conduct  of  requests  for  exchange  of 
information and cross border inspections.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]".  

Article 4 
Amendments to Directive 2003/41/EC 

Directive 2003/41/EC is amended as follows: 

(1) 

Article 13 is amended as follows: 

(a)  The existing text is numbered as paragraph 1. 

(b)  The following paragraph 2 is added: 

"2.  In  order  to  ensure  uniform  application  of  the  directive,  the  European  Insurance 
and Occupational Pension Authority established by Regulation…/…of the European 
Parliament  and  of  the  Council27  shall  develop  draft  technical  standards  concerning 
information provided to the competent authorities. The Authority shall submit those 
draft technical standards to the Commission by 1 January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EIOPA]. ". 

(2) 

In Article 20, the following paragraph 11is added: 

"11. In order to ensure uniform application of this Directive, the European Insurance 
and  Occupational  Pension  Authority  shall  develop  draft  technical  standards  listing 
for  each  Member  State  provisions  of  prudential  nature  relevant  to  the  field  of 
occupational  pension  schemes  which  are  not  covered  by  the  reference  to  national 
social and labour law in paragraph 1. The Authority shall submit those draft technical 
standards to the Commission by 1 January 2014.  

27 

OJ L 

EN 

16 

   EN 

 
                                                 
The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EIOPA].  

The  European  Insurance  and  Occupational  Pension  Authority  shall  update  the 
information on that legislation on a regular basis and at least every two years." 

Article 5 
Amendments to Directive 2003/71/EC 

Directive 2003/71/EC is amended as follows: 

1. 

In Article 8, the following paragraph 5 is added:  

"5.  In  order  to  ensure  uniform  application  of  paragraph  2  and  to  take  account  of 
technical  developments  on  financial  markets,  the  European  Securities  and  Markets 
Authority  established  by  Regulation…/…of  the  European  Parliament  and  of  the 
Council28  shall  develop  draft  technical  standards  to  determine  the  conditions  of 
application of the implementing measures adopted by the Commission according to 
paragraph  4.  The  Authority  shall  submit  those  draft  technical  standards  to  the 
Commission by 1 January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]."  

2. 

Article 13 is amended as follows:  

(a) 

In paragraph 2, the following subparagraph is added:  

"The competent authority shall notify the European Securities and Markets Authority 
of the approval of the prospectus at the same time as this approval is notified to the 
issuer,  the  offeror  or  the  person  asking  for  admission  to  trading  on  a  regulated 
market, as the case may be."  

(b)  Paragraph 5 is replaced by the following:  

"5. The competent authority of the home Member State may transfer the approval of 
a  prospectus  to  the  competent  authority  of  another  Member  State,  subject  to  prior 
notification to the European Securities and Markets Authority and the agreement of 
the competent authority. This transfer shall be notified to the issuer, the offeror or the 
person  asking  for  admission  to  trading  on  a  regulated  market  within  three  working 
days  from  the  date  of  the  decision  taken  by  the  competent  authority  of  the  home 
Member State. The time limit referred to in paragraph 2 shall apply from that date."  

3. 

In Article 14, the following paragraph 4a is inserted:  

28 

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17 

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"4a. The European Securities and Markets Authority shall publish on its website the 
list of prospectuses approved in accordance with Article 13, including, if applicable, 
a hyperlink to the prospectus published on the website of the competent authority of 
the  home  Member  State,  or  on  the  website  of  the  issuer,  or  on  the  website  of  the 
regulated market. The published list shall be kept up-to-date and shall remain on the 
website for a period of at least 12 months."  

4. 

In Article 16, the following paragraph 3 is added:  

"3.  In  order  to  ensure  uniform  application  of  this  Article  and  to  take  account  of 
technical  developments  on  financial  markets,  the  European  Securities  and  Markets 
Authority  shall  develop  draft  technical  standards  to  determine  the  conditions  of 
application of the obligation to provide a supplement to the prospectus in case of a 
significant  new  factor,  material  mistake  or  inaccuracy  relating  to  the  information 
included in the prospectus. The Authority shall submit those draft technical standards 
to the Commission by 1 January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]."  

5. 

In Article 17, paragraph 1 is replaced by the following:  

"1.  Without  prejudice  to  Article  23,  where  an  offer  to  the  public  or  admission  to 
trading on a regulated market is provided for in one or more Member States, or in a 
Member  State  other  than  the  home  Member  State,  the  prospectus  approved  by  the 
home Member State and any supplements thereto shall be valid for the public offer 
or the admission to trading in any number of host Member States, provided that the 
European Securities and Markets Authority and the competent authority of each host 
Member  State  is  notified  in  accordance  with  Article  18.  Competent  authorities  of 
host  Member  States  shall  not  undertake  any  approval  or  administrative  procedures 
relating to prospectuses."  

6. 

In Article 18, the following paragraphs 3 and 4 are added:  

"3. The competent authority of the home Member State shall notify to the European 
Securities and Markets Authority the certificate of approval of the prospectus at the 
same time as it is notified to the competent authority of the host Member State.  

The European Securities  and  Markets Authority  and the competent authority of the 
host Member State shall publish on their websites the list of certificates of approval 
notified  in  accordance  with  this  article,  including,  if  applicable,  a  hyperlink  to  the 
prospectus published on the website of the competent authority of the home Member 
State, or on the website of the issuer, or on the website of the regulated market. The 
published list shall be kept up-to-date and shall remain on the websites for a period 
of at least 12 months. 

4.  In  order  to  ensure  uniform  application  of  this  Directive  and  to  take  account  of 
technical  developments  on  financial  markets,  the  European  Securities  and  Markets 
Authority  may  develop  draft  technical  standards  to  determine  the  conditions  of 
application  relating  to  the  procedures  for  the  notification  of  the  certificate  of 

EN 

18 

   EN 

 
approval,  the  copy  of  the  prospectus,  the  translation  of  the  summary  and  any 
supplement to the prospectus.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]."  

7. 

In Article 21(2), the third subparagraph is replaced by the following:  

"Member States shall inform the Commission, the European Securities and Markets 
Authority and the competent authorities of other Member States of any arrangements 
entered  into  with  regard  to  delegation  of  tasks,  including  the  precise  conditions 
regulating such delegation."  

8. 

Article 22 is amended as follows:  

(a)  Paragraph 3 is replaced by the following:  

"3.  Paragraph  1  shall  not  prevent  the  competent  authorities  from  exchanging 
confidential  information  or  from  transmitting  confidential  information  to  the 
European  Securities  and  Markets  Authority  or  the  European  Systemic  Risk  Board. 
Information  exchanged  between  competent  authorities  and  the  European  Securities 
and Markets Authority or the European Systemic Risk Board shall be covered by the 
obligation  of  professional  secrecy,  to  which  the  persons  employed  or  formerly 
employed by the competent authorities receiving the information are subject."  

(b)  The following paragraph 4 is added:  

"4.  In  order  to  ensure  uniform  application  of  paragraph  2  and  to  take  account  of 
technical  developments  on  financial  markets,  the  European  Securities  and  Markets 
Authority  may  develop  draft  technical  standards  to  specify  the  conditions  of 
cooperation  and  exchange  of  information  between  competent  authorities,  including 
the development of standard forms or templates for such cooperation and exchange 
of information.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]."  

Article 6 
Amendments to Directive 2004/39/EC 

Directive 2004/39/EC is amended as follows: 

(1) 

Article 5 (3) is replaced by the following: 

“3. Member States shall establish a register of all investment firms. The register shall 
be publicly accessible and shall contain information on the services or activities for 
which the investment firm is authorised. It shall be updated on a regular basis. 

EN 

19 

   EN 

 
The  European  Securities  and  Markets  Authority  established  by  Regulation…/…of 
the European Parliament and of the Council29 shall establish a list of all investment 
firms  in  the  Community.  The  European  Securities  and  Markets  Authority  shall 
publish that list and shall keep it up to date.” 

(2) 

In Article 7, the following paragraph 4 is added: 

"4. In order to ensure uniform application of this Article and of Articles 7, 9(2)-(4), 
10(1)-(2), and 12, the European Securities and Markets Authority may develop draft 
technical  standards  to  determine  the  conditions  of  application  of  the  requirements 
and procedures for such authorisation as laid down in this Article and in Articles 7, 
9(2)-(4), 10(1)-(2) and 12.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]." 

(3) 

In Article 10a, the following paragraph 8 is added: 

"8. In order to ensure uniform application of this Article, the European Securities and 
Markets Authority shall develop draft technical standards to determine the conditions 
of  application  relating  to  the  list  of  information  required  for  the  assessment  of  an 
acquisition  as  referred  to  in  paragraph  1  and  the  modalities  of  the  consultation 
process  between  the  relevant  competent  authorities  as  referred  to  in  Article  10  (4). 
The  Authority  shall  submit  those  draft  technical  standards  to  the  Commission  by  1 
January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA].". 

(4) 

In Article 31, the following paragraph 7 is added: 

"7.  In  order  to  ensure  uniform  application  of  this  Article  and  establish  a  uniform 
notification procedure, the European Securities and Markets Authority may develop 
draft  technical  standards  to  determine  the  conditions  of  application  regarding  the 
obligation to notify information according to paragraphs 2 and 4 and the process of 
transmitting  this  information  according  to  paragraphs  3  and  6,  including  the 
development of standard forms and templates.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]." 

(5) 

In Article 32, the following paragraph 10 is added: 

"10.  In  order  to  ensure  uniform  application  of  this  Article  and  establish  a  uniform 
notification procedure, the European Securities and Markets Authority may develop 
draft  technical  standards  to  determine  the  conditions  of  application  regarding  the 

29 

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EN 

20 

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obligation to notify information according to paragraphs 2 and 4 and the process of 
transmitting this information according to paragraph 3, including the development of 
standard forms and templates.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]." 

(6) 

Article 47 is replaced by the following: 

"Article 47 
List of regulated markets 

Each Member State shall draw up a list of the regulated markets for which it is the 
home  Member  State  and  shall  forward  that  list  to  the  other  Member  States  and  the 
European  Securities  and  Markets  Authority.  A  similar  communication  shall  be 
effected in respect of each change to that list. The European Securities and Markets 
Authority shall publish a list of all regulated markets on its website and shall keep it 
up to date." 

(7) 

Article 48 is amended as follows: 

(a)  Paragraph 1 is replaced by the following: 

"1. Each Member State shall designate the competent authorities which are to carry 
out each of the duties provided for in this Directive. Member States shall inform the 
Commission,  the  European  Securities  and  Markets  Authority  and  the  competent 
authorities  of  other  Member  States  of  the  identity  of  the  competent  authorities 
responsible  for  enforcement  of  each  of  those  duties,  and  of  any  division  of  those 
duties." 

(b) 

In paragraph 2, the second subparagraph is replaced by the following: 

"Member States shall inform the Commission, the European Securities and Markets 
Authority and the competent authorities of other Member States of any arrangements 
entered  into  with  regard  to  delegation  of  tasks,  including  the  precise  conditions 
regulating such delegation. 

(c)  Paragraph 3 is replaced by the following: 

"3.  The  European  Securities  and  Markets  Authority  shall  publish  a  list  of  the 
competent authorities referred to in paragraphs 1 and 2 on its website and shall keep 
it up to date". 

(8) 

In Article 53, the following paragraph 3 is added: 

"3.  The  competent  authorities  shall  notify  to  the  European  Securities  and  Markets 
Authority  the  extra-judicial  mechanisms  as  referred  to  in  paragraph  1  which  are 
active under its jurisdictions. 

EN 

21 

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The  European  Securities  and  Markets  Authority  shall  publish  a  list  of  all  extra-
judicial mechanisms on its website and shall keep it up to date. " 

(9) 

In Article 56, the following paragraph 6 is added:  

"6.  In  order  to  ensure  uniform  application  of  paragraphs  1  and  2,  the  European 
Securities and Markets Authority may develop draft technical standards to determine 
the  conditions  of  application  relating  to  the  obligation  for  competent  authorities  to 
cooperate according to paragraph 1 and to the content of the cooperation agreements 
according  to  paragraph  2,  including  the  development  of  standard  forms  and 
templates.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]."  

(10) 

Article 57 is amended as follows: 

(a)  The existing text is renumbered as paragraph 1. 

(b)  The following paragraph 2 is added: 

"2.  In  order  to  ensure  uniform  application  of  paragraph  1,  the  European  Securities 
and  Markets  Authority  may  develop  draft  technical  standards  to  determine  the 
conditions of application of the obligation for competent authorities to cooperate in 
supervisory activities, on-the-spot-verifications, and investigations.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]."  

(11) 

Article 58 is amended as follows: 

(a)  Paragraph 4 is replaced by the following: 

"4.  In  order  to  ensure  uniform  application  of  paragraphs  1  and  2,  the  European 
Securities and Markets Authority may develop draft technical standards to determine 
the conditions of application of the obligation to exchange information, including the 
development of standard forms or templates.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]."  

(b)  Paragraph 5 is replaced by the following: 

"Articles 54, 58 and 63 shall not prevent a competent authority from transmitting to 
the European Securities and Markets Authority, the European Systemic Risk Board 
established by Regulation …/… of the European Parliament and of the Council30, to 

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central  banks,  the  European  System  of  Central  Banks  and  the  European  Central 
Bank,  in  their  capacity  as  monetary  authorities,  and,  where  appropriate,  to  other 
public  authorities  responsible  for  overseeing  payment  and  settlement  systems, 
confidential  information  intended  for  the  performance  of  their  tasks;  likewise  such 
authorities  or  bodies  shall  not  be  prevented  from  communicating  to  the  competent 
authorities  such  information  as  they  may  need  for  the  purpose  of  performing  their 
functions provided for in this Directive." 

(12) 

In Article 60, the following paragraph 4 is added: 

"4. In order to ensure uniform application of this Article, the European Securities and 
Markets Authority may develop draft technical standards to determine the conditions 
of  application  of  the  obligation  to  consult  other  competent  authorities  prior  to 
granting an authorisation, including the development of standard forms or templates.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]."  

(13) 

Article 62 is amended as follows: 

(a) 

In paragraph 1, the third sentence in the second subparagraph is replaced by the 
following: 

"The  Commission  and  the  European  Securities  and  Markets  Authority  shall  be 
informed of such measures without delay." 

(b) 

In paragraph 2, the second sentence in the third subparagraph is replaced by the 
following: 

"The  Commission  and  the  European  Securities  and  Markets  Authority  shall  be 
informed of such measures without delay." 

(c) 

In paragraph 3 , the second sentence in the second subparagraph is replaced by 
the following: 

"The  Commission  and  the  European  Securities  and  Markets  Authority  shall  be 
informed of such measures without delay." 

(14) 

Article 63 (1) is replaced by the following  

"1. Member States and the European Securities and Markets Authority may conclude 
cooperation  agreements  providing  for  the  exchange  of  information  with  the 
competent authorities of third countries only if the information disclosed is subject to 
guarantees of professional secrecy at least equivalent to those required under Article 
54. Such exchange of information must be intended for the performance of the tasks 
of those competent authorities. 

Member  States  and  the  European  Securities  and  Markets  Authority  may  transfer 
personal  data  to  a  third  country  in  accordance  with  Chapter  IV  of  Directive 
95/46/EC. 

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Member  States  and  the  European  Securities  and  Markets  Authority  may  also 
conclude  cooperation  agreements  providing  for  the  exchange  of  information  with 
third country authorities, bodies and natural or legal persons responsible for: 

(a) 

(b) 

(c) 

the  supervision  of  credit  institutions,  other  financial  organisations,  insurance 
undertakings and the supervision of financial markets; 

the  liquidation  and  bankruptcy  of  investment  firms  and  other  similar 
procedures; 

carrying  out  statutory  audits  of  the  accounts  of  investment  firms  and  other 
financial  institutions,  credit  institutions  and  insurance  undertakings,  in  the 
performance of their supervisory functions, or which administer compensation 
schemes, in the performance of their functions; 

(d)  overseeing the bodies involved in the liquidation and bankruptcy of investment 

firms and other similar procedures; 

(e) 

overseeing  persons charged with carrying out  statutory audits of  the accounts 
of  insurance  undertakings,  credit  institutions,  investment  firms  and  other 
financial institutions. 

The  cooperation  agreements  referred  to  in  the  third  subparagraph  may  only  be 
concluded  where  the  information  disclosed  is  subject  to  guarantees  of  professional 
secrecy  at  least  equivalent  to  those  required  under  Article  54.  Such  exchange  of 
information must be intended for the performance of the tasks of those authorities or 
bodies or natural or legal persons." 

Article 7 
Amendments to Directive 2004/109/EC 

Directive 2004/109/EC is amended as follows: 

(1) 

Article 12 is amended as follows: 

(a) 

In paragraph 8, point (a) is deleted; 

(b)  The following paragraph 9 is added: 

'9.  In  order  to  ensure  the  uniform  application  of  paragraph  1  of  this  Article  and  to 
take account of technical developments in financial markets, the European Securities 
and  Markets  Authority  established  by  Regulation…/…of  the  European  Parliament 
and of the Council31 shall develop draft technical standards to establish a harmonised 
standard form to be used when notifying the required information to the issuer under 
paragraph 1 of this Article or when filing information under Article 19(3).  

The  Authority  shall  submit  the  draft  technical  standards  referred  to  in  the  first 
subparagraph to the Commission by 1 January 2014. The Commission may adopt the 

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draft technical standards referred to in the first subparagraph in accordance with the 
procedure laid down in Article 7 of Regulation .../.... [ESMA].'; 

(2) 

Article 13 is amended as follows: 

(a) 

in paragraph 2, point (c) is replaced by the following: 

"(c) the contents of the notification to be made;"; 

(b) 

the following paragraph is added: 

'3. In order to ensure the uniform application of paragraph 1 and to take account of 
technical  developments  on  financial  markets,  the  European  Securities  and  Markets 
Authority shall develop draft technical standards to establish a harmonised standard 
form to when notifying the required information to the issuer under paragraph 1 or 
when filing information under Article 19(3).  

The  Authority  shall  submit  the  draft  technical  standards  referred  to  in  the  first 
subparagraph  to  the  Commission  by  1  January  2014.  The  Commission  may  adopt 
those draft technical standards in accordance with the procedure laid down in Article 
7 of Regulation .../.... [ESMA].'; 

(3) 

In Article 25(3), the first sentence is replaced by the following: 

"Paragraph  1  shall  not  prevent  the  competent  authorities  from  exchanging 
confidential  information  or  from  transmitting  it  to  the  European  Securities  and 
Markets  Authority  and  the  European  Systemic  Risk  Board  established  by 
Regulation…/…of the European Parliament and of the Council32." 

Article 8 
Amendments to Directive 2005/60/EC 

Directive 2005/60/EC is amended as follows: 

(1) 

In Article 31, the following paragraph 4 is added: 

'4. In order to ensure the uniform application  of this Article and to take  account of 
technical developments in the fight against money laundering or terrorist financing, 
the European Banking Authority, the European Securities and Markets Authority and 
the  European  Insurance  and  Occupational  Pensions  Authority  may  develop  draft 
technical standards in accordance with Articles  42  of  Regulation  …/…,  Regulation 
…/…  and  Regulation  …/…  of  the  European  Parliament  and  of  the  Council33  to 
determine  the  type  of  additional  measures  referred  to  in  Article  31(3)  and  the 
minimum action to be taken by credit and financial institutions where the legislation 
of the third country does not permit application of the measures required under the 
first subparagraph of paragraph 1.  

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The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Articles 7 of Regulation 
.../....  [EBA],  …/…,  Regulation  …/…  [ESMA]  and  …/…,  Regulation  …/….[ 
EIOPA]'; 

(2) 

In Article 34, the following paragraph is added: 

'4. In order to ensure the uniform application  of this  Article and to  take account of 
technical developments in the fight against money laundering or terrorist financing, 
the European Banking Authority, the European Securities and Markets Authority and 
the  European  Insurance  and  Occupational  Pensions  Authority  may  develop  draft 
technical standards in accordance with Articles  42  of  Regulation  …/…,  Regulation 
…/…  and  Regulation  …/…  of  the  European  Parliament  and  of  the  Council  to 
determine  the  conditions  of  application  relating  to  the  minimum  content  of  the 
communication referred to in paragraph 2.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Articles 7 of Regulation 
.../....  [EBA]  ],  …/…,  Regulation  …/…  [ESMA]  and  …/…,  Regulation  …/….[ 
EIOPA].';  

Article 9 
Amendments to Directive 2006/48/EC 

(1) 

In Article 6, the following paragraph is added:  

"In  order  to  ensure  uniform  application  of  this  Article,  the  European  Banking 
Authority  established  by  Regulation  …/…  of  the  European  Parliament  and  of  the 
Council34  may  develop  draft  technical  standards  to  determine  the  conditions  of 
application of the requirements and procedures for such authorisation as laid down in 
Articles 7, 8, 10, 11 and 12, with the exception of the conditions established in the 
second sentence of Article 11(1).  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]." 

(2) 

Article 14 is replaced by the following:  

"Article 14 

"Every authorisation shall be notified to the European Banking Authority. 

The name of each credit institution to which authorisation has been granted shall be 
entered  in  a  list.  The  European  Banking  Authority  shall  publish  that  list  and  shall 
keep it up-to-date". 

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(3) 

In Article 19, the following paragraph 9 is added:  

"9.  In  order  to  ensure  uniform  application  of  this  Article,  the  European  Banking 
Authority  shall  develop  draft  technical  standards  regarding  the  list  of  information 
required for the assessment of an acquisition as referred to in paragraph 1 and on the 
consultation  process  between  the  relevant  competent  authorities  as  referred  to  in 
Article  19b(1).  The  Authority  shall  submit  those  draft  technical  standards  to  the 
Commission by 1 January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA].". 

(4) 

In Article 26, the following paragraph 5 is added :  

"5. In order to ensure uniform application of Article 25 and this Article, and establish 
a  uniform  notification  procedure  by  electronic  means,  the  European  Banking 
Authority  shall  develop  draft  technical  standards  to  determine  the  conditions  of 
application  of  the  information  referred  to  in  Article  25  and  in  this  Article  and  the 
process  for  transmitting  this  information.  The  Authority  shall  submit  those  draft 
technical standards to the Commission by 1 January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]".  

(5) 

In Article 28, the following paragraph 4 is added :  

"4.  In  order  to  ensure  uniform  application  of  this  Article  and  establish  a  uniform 
notification  procedure  by  electronic  means,  the  European  Banking  Authority  shall 
develop  draft  technical  standards  to  determine  the  conditions  of  application  of  the 
information  referred  to  in  this  Article  and  the  process  for  transmitting  this 
information.  The  Authority  shall  submit  those  draft  technical  standards  to  the 
Commission by 1 January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]".  

(6) 

In Article 33, the first paragraph is replaced by the following: 

"Before following the procedure provided for in Article 30, the competent authorities 
of  the  host  Member  State  may,  in  emergencies,  take  any  precautionary  measures 
necessary to protect the interests of depositors, investors and others to whom services 
are provided. The Commission, the European Banking Authority and the competent 
authorities of the other Member States concerned shall be informed of such measures 
at the earliest opportunity.' 

(7) 

In Article 42, the following paragraph is added: 

"In  order  to  ensure  uniform  application  of  this  Article,  the  European  Banking 
Authority  shall  develop  draft  technical  standards  to  determine  the  procedures, 

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27 

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methods  and  conditions  of  application  of  the  information  sharing  requirements  for 
the information which is likely to facilitate the monitoring of credit institutions. The 
Authority  shall  submit  those  draft  technical  standards  to  the  Commission  by  1 
January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]".  

(8) 

In Article 42a(1) the following is added at the end of the fourth sub-paragraph:  

"If, at the end of the two month period, a competent authority has referred the matter 
to  the  European  Banking  Authority  in  accordance  with  Article  11  of  Regulation 
…/… [EBA], the consolidating supervisor shall await any decision that the European 
Banking Authority may take in accordance with Article 11(3) of that Regulation, and 
shall act in conformity with that decision. The two month period shall be deemed the 
conciliation  period  within  the  meaning  of  that  Regulation.  The  European  Banking 
Authority shall take its decision within one month. The matter shall not be referred to 
the Authority after the end of the two month period or after a joint decision has been 
reached". 

(9) 

Article 42b is amended as follows: 

(a) Paragraph 1 is replaced by the following: 

"In  the  exercise  of  their  duties,  competent  authorities  shall  take  into  account  the 
convergence  in  respect  of  supervisory  tools  and  supervisory  practices  in  the 
application  of  the  laws,  regulations  and  administrative  requirements  adopted 
pursuant to this Directive. For that purpose, Member States shall ensure that: 

(a) 

(b) 

(c) 

the  competent  authorities  participate  in  the  activities  of  the  European 
Banking Authority, 

the competent authorities follow the guidelines and recommendations of 
the  European  Banking  Authority,  and  shall  state  the  reasons  if  they  do 
not do so, 

national  mandates  conferred  on  the  competent  authorities  do  not  inhibit 
the performance of their duties as members of that Authority under this 
Directive. 

(b) Paragraph 2 is deleted. 

(10) 

Article 44(2) is replaced by the following: 

"2.  Paragraph  1  shall  not  prevent  the  competent  authorities  of  the  various  Member 
States  from  exchanging  information  or  transmitting  information  to  the  European 
Banking  Authority  in  accordance  with  this  Directive  and  with  other  Directives 
applicable to credit institutions. That information shall be subject to the conditions of 
professional secrecy set out in paragraph 1".  

(11) 

In Article 46, the first paragraph is replaced by the following: 

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"Member  States  and  the  European  Banking  Authority  may  conclude  cooperation 
agreements, providing for exchanges of information, with the competent authorities 
of  third  countries  or  with  authorities  or  bodies  of  third  countries  as  defined  in 
Articles  47  and  48(1)  only  if  the  information  disclosed  is  subject  to  guarantees  of 
professional secrecy at least equivalent to those referred to in Article 44(1)".  

(12) 

Article 49 is amended as follows:  

(a) 

In the first paragraph, a following point (c) is added: 

"(c)  the  European  Systemic  Risk  Board  where  this  information  is  relevant  for  the 
exercise of its statutory tasks under Regulation …/… of the European Parliament and 
of the Council [ESRB]35." 

(b) 

the fourth paragraph is replaced by the following: 

"In  an  emergency  situation  as  referred  to  in  Article  130(1),  Member  States  shall 
allow competent authorities to communicate information to the central banks in the 
European  system  of  the  central  banks  when  this  information  is  relevant  for  the 
exercise of their statutory tasks, including the conduct of monetary policy and related 
liquidity  provision,  the  oversight  of  payments,  clearing  and  securities  settlement 
systems, and the safeguarding stability of the financial system, and to the European 
Systemic  Risk  Board  when  this  information  is  relevant  for  the  exercise  of  its 
statutory tasks."  

(13) 

Article 63a is amended as follows: 

(a)  Paragraph 4 is replaced by the following: 

"4.  The  provisions  governing  the  instrument  shall  provide  for  principal,  unpaid 
interest  or  dividend  to  be  such  as  to  absorb  losses  and  to  not  hinder  the 
recapitalisation  of  the  credit  institution  through  appropriate  mechanisms,  as 
developed by the European Banking Authority under paragraph 6". 

(b)  Paragraph 6 is replaced by the following: 

"6.  In  order  to  ensure  uniform  application  of  paragraph  1  of  this  Article  and  the 
convergence of supervisory practices, the European Banking Authority shall develop 
draft technical standards to determine the conditions of application of the provisions 
governing  the  instruments  referred  to  in  paragraph  1  of  this  Article  The  Authority 
shall submit those draft technical standards to the Commission by 1 January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]. 

The  European  Banking  Authority  shall  also  issue  guidelines  in  relation  to 
instruments referred to in point (a) of the first paragraph of Article 57. 

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The  European  Banking  Authority  shall  monitor  the  application  of  the  technical 
standards referred to in the first subparagraph." 

(14) 

In Article 74(2), the second subparagraph is replaced by the following: 

"For  the  communication  of  these  calculations  by  credit  institutions,  competent 
authorities  shall  apply,  from  31  December  2012,  uniform  formats,  frequencies, 
language  and  dates  of  reporting.  In  order  to  ensure  uniform  application  of  the 
directive, the European Banking Authority shall develop draft technical standards to 
introduce, within the Community, uniform formats, frequencies, languages and dates 
of reporting before 1 January 2012. The reporting formats shall be proportionate to 
the nature, scale and complexity of the credit institutions' activities.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]". 

(15) 

In Article 81(2) the following subparagraphs are added: 

"In  order  to  ensure  uniform  application  of  this  Article,  the  European  Banking 
Authority, in consultation with the European Securities and Market Authority, shall 
develop  draft  technical  standards  to  determine  the  conditions  of  application  of  the 
assessment  methodology  relating  to  credit  assessments.  The  Authority  shall  submit 
those draft technical standards to the Commission by 1 January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  second 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]". 

(16) 

In Article 84(2), the following subparagraphs are added: 

"In  order  to  ensure  uniform  application  of  this  paragraph,  the  European  Banking 
Authority  may  develop  draft  technical  standards  to  determine  the  practical  and 
procedural  application  of  the  conditions  under  which  competent  authorities  permit 
credit institutions to use the IRB Approach.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  third 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]." 

(17) 

In Article 97(2), the following subparagraphs are added: 

"In  order  to  ensure  uniform  application  of  this  Article,  the  European  Banking 
Authority, in consultation with the European Securities and Market Authority, shall 
develop  draft  technical  standards  to  determine  the  conditions  of  application  of  the 
assessment  methodology  relating  to  credit  assessments.  The  Authority  shall  submit 
those draft technical standards to the Commission by 1 January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  second 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]". 

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30 

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(18) 

In Article 105(1), the following subparagraphs are added: 

"In  order  to  ensure  uniform  application  of  this  Article,  the  European  Banking 
Authority  may  develop  draft  technical  standards  to  determine  the  practical  and 
procedural  application  of  the  conditions  under  which  competent  authorities  permit 
credit institutions to use the Advanced Measurement Approaches.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  second 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]". 

(19) 

In Article 106(2), the last sub-paragraph is replaced by the following: 

"In  order  to  ensure  uniform  application  of  this  Paragraph,  the  European  Banking 
Authority shall develop draft technical standards in order to determine the conditions 
of  application  of  the  exemptions  in  point  (c)  and  (d).  The  Authority  shall  submit 
those draft technical standards to the Commission by 1 January 2014.  

The  Commission  may  adopt  those  draft  technical  standards  in  accordance  with  the 
procedure laid down in Article 7 of Regulation .../.... [EBA]". 

(20) 

Article 110(2) is replaced by the following: 

"2.  Member  States  shall  provide  that  reporting  shall  be  carried  out  at  least  twice  a 
year.  The  competent  authorities  shall  apply,  from  31  December  2012,  uniform 
formats,  frequencies,  language  and  dates  of  reporting.  In  order  to  ensure  uniform 
application  of  the  directive,  the  European  Banking  Authority  shall  develop  draft 
the  Community,  uniform  formats, 
technical  standards 
frequencies,  language  and  dates  of  reporting  before  1  January  2012.  The  reporting 
formats  shall  be  proportionate  to  the  nature,  scale  and  complexity  of  the  credit 
institutions' activities.  

introduce,  within 

to 

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]." 

(21) 

Article 122a(10) is replaced by the following: 

"10.  The  European  Banking  Authority  shall  report  to  the  Commission  annually  on 
the compliance with this Article by the competent authorities.  

In  order  to  ensure  uniform  application  of  this  Article,  the  European  Banking 
Authority  shall  develop  draft  technical  standards  to  determine  the  conditions  of 
application of this Article, including the measures taken in case of breach of the due 
diligence  and  risk  management  obligations.  The  Authority  shall  submit  those  draft 
technical standards to the Commission by 1 January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  second 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]." 

(22) 

In Article 124, the following paragraph 6 is added: 

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"6.  In  order  to  ensure  uniform  application  of  this  Article,  the  European  Banking 
Authority  shall  develop  draft  technical  standards  to  determine  the  conditions  of 
application of this Article and a common risk assessment procedure. The Authority 
shall submit those draft technical standards to the Commission by 1 January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]".  

(23) 

In Article 129(2), the fifth subparagraph is replaced by the following: 

"In  the  absence  of  a  joint  decision  between  the  competent  authorities  within  six 
months,  the  competent  authority  referred  to  in  paragraph  1  shall  make  its  own 
decision on the application. The  decision shall be set  out in a document containing 
the fully reasoned decision and shall take into account the views and reservations of 
the other competent authorities expressed during the six months period. The decision 
shall  be  provided  to  the  applicant  and  the  other  competent  authorities  by  the 
competent authority referred to in paragraph 1.  

If, at the end of the six month period, a competent authority has referred the matter to 
the European Banking Authority in accordance with Article 11 of Regulation …/… 
[EBA],  the  consolidating  supervisor  shall  await  any  decision  that  the  European 
Banking Authority may take in accordance with Article 11(3) of that regulation, and 
shall act in conformity with that decision. The six month period shall be deemed the 
conciliation  period  within  the  meaning  of  the  Regulation.  The  European  Banking 
Authority shall take its decision within one month. The matter shall not be referred to 
the Authority after the end of the six month period or after a joint decision has been 
reached". 

(24) 

Article 129(3) is amended as follows: 

(a) 

In the third sub-paragraph , "Committee of European Banking Supervisors" is 
replaced by "European Banking Authority". 

(b)  The fourth subparagraph is replaced by the following: 

"In  the  absence  of  such  a  joint  decision  between  the  competent  authorities  within 
four months, a decision on the application of Articles 123 and 124 and Article 136(2) 
shall  be  taken  on  a  consolidated  basis  by  the  consolidating  supervisor  after  duly 
considering  the  risk assessment  of  subsidiaries  performed  by  relevant  competent 
authorities. If, at the end of the four month period, a competent authority has referred 
the  matter  to  the  European  Banking  Authority  in  accordance  with  Article  11  of 
Regulation  …/…  [EBA],  the  consolidating  supervisor  shall  await  any  decision  that 
the European Banking Authority may take in  accordance with  Article  11(3) of  that 
Regulation,  and  shall  act  in  conformity  with  that  decision.  The  four  month  period 
shall  be  deemed  the  conciliation  period  within  the  meaning  of  the  Regulation.  The 
European  Banking  Authority  shall  take  its  decision  within  one  month.  The  matter 
shall not be referred to the Authority after the end of the four month period or after a 
joint decision has been reached." 

(c)  The fifth sub-paragraph is replaced by the following:  

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"The decision on the application of Articles 123 and 124 and Article 136(2) shall be 
taken  by  the  respective  competent  authorities  responsible  for  supervision  of 
subsidiaries  of  an  EU  parent  credit  institution  or  an  EU  parent  financial  holding 
company on an individual or sub-consolidated basis after duly considering the views 
and reservations expressed by the consolidating supervisor. If, at the end of the four 
month  period,  the  consolidating  supervisor  has  referred  the  matter  to  the  European 
Banking  Authority  in  accordance  with  Article  11  of  Regulation  …/…  [EBA],  the 
competent authorities shall await any decision that the European Banking Authority 
shall  take  in  accordance  with  Article  11(3)  of  that  Regulation,  and  shall  act  in 
conformity  with  that  decision.  The  four  month  period  shall  be  deemed  the 
conciliation  period  within  the  meaning  of  that  Regulation.  The  European  Banking 
Authority shall take its decision within one month. The matter shall not be referred to 
the Authority after the end of the four month period or after a joint decision has been 
reached." 

(d)  The seventh sub-paragraph is replaced by the following:  

"Where  the  European  Banking  Authority  has  been  consulted,  all  competent 
authorities shall consider its advice, and explain any significant deviation therefrom".  

(e)  The tenth sub-paragraph is replaced by the following: 

"In  order  to  ensure  uniform  application  of  this  Article,  the  European  Banking 
Authority  shall  develop  draft  technical  standards  to  determine  the  conditions  of 
application of the joint decision process referred to in this paragraph, with regard to 
the application of Articles 123, 124 and 132(2) and with a view to facilitating joint 
decisions.  The  Authority  shall  submit  those  draft  technical  standards  to  the 
Commission by 1 January 2014.  

The  Commission  may  adopt  thse  draft  technical  standards  referred  to  in  the  tenth 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]" 

(25) 

In Article 130(1), the first and second subparagraphs are replaced by the following: 

"Where  an  emergency  situation,  including  adverse  developments  in  financial 
markets, arises, which potentially jeopardises the market liquidity and the stability of 
the financial system in any of the Member State where entities of a group have been 
authorised  or  where  significant  branches  referred  to  in  Article  42a  are  established, 
the consolidating supervisor shall, subject to Chapter 1, Section 2, alert as soon as is 
practicable,  the  European  Banking  Authority  and  the  authorities  referred  to  in  the 
fourth  subparagraph  of  Article  49  and  Article  50  ,  and  shall  communicate  all 
information essential for the pursuance of their tasks. Those obligations shall apply 
to  all  competent  authorities  under  Articles  125  and  126  and  to  the  competent 
authority identified under Article 129(1).  

If the authority referred to in the fourth paragraph of Article 49 becomes aware of a 
situation described in the first subparagraph of this paragraph, it shall alert as soon as 
is practicable the competent authorities referred to in Articles 125 and 126, and the 
European Banking Authority." 

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(26) 

In Article 131, the third paragraph is replaced by the following: 

"The  competent  authorities  responsible  for  authorising  the  subsidiary  of  a  parent 
undertaking which is a credit institution may, by bilateral agreement, delegate their 
responsibility  for  supervision  to  the  competent  authorities  which  authorised  and 
supervise  the  parent  undertaking  so  that  they  assume  responsibility  for  supervising 
the  subsidiary  in  accordance  with  this  Directive.  The  European  Banking  Authority 
shall  be  kept  informed  of  the  existence  and  content  of  such  agreements.  It  shall 
forward  such  information  to  the  competent  authorities  of  the  other  Member  States 
and to the European Banking Committee".  

(27) 

Article 131a(2) is amended as follows: 

(a)  The second subparagraph is replaced by the following:  

"In  order  to  ensure  uniform  application  of  this  Article  and  Article  42a(3),  the 
European  Banking  Authority  shall  develop  draft  technical  standards  for  the 
operational  functioning  of  colleges,  including  in  relation  to  Article  42a(3).  The 
Authority  shall  submit  those  draft  technical  standards  to  the  Commission  by  1 
January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  second 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]". 

(b)  The seventh subparagraph is replaced by the following: 

"The  consolidating  supervisor,  subject  to  the  confidentiality  requirements  under 
Chapter 1, Section 2, shall inform the European Banking Authority of the activities 
of the college of supervisors, including in emergency situations, and communicate to 
that  Authority  all  information  that  is  of  particular  relevance  for  the  purposes  of 
supervisory convergence." 

(28) 

Article 143(2) is amended as follows: 

(a)  The following sentence is added at the end of the first sub-paragraph: 

"The  European  Banking  Authority  shall  assist  the  Commission  and  the  European 
Banking  Committee  in  carrying  out  those  tasks,  including  as  to  whether  such 
guidance should be updated". 

(b)  The second sub-paragraph is replaced by the following: 

"The  competent  authority  carrying  out  the  verification  referred  to  in  the  first  sub-
paragraph of paragraph 1 shall take into account any such guidance. For this purpose, 
the  competent  authority  shall  consult  the  European  Banking  Authority  before 
adopting a decision". 

(29) 

In Article 144, the following paragraph is added: 

"In  order  to  ensure  uniform  application  of  this  Article,  the  European  Banking 
Authority  shall  develop  draft  technical  standards  to  determine  the  key  aspects  on 

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which aggregate statistical data are to be disclosed and the format, structure, contents 
list  and  annual  publication  date  of  the  disclosures  provided  for  in  this  Article.  The 
Authority  shall  submit  those  draft  technical  standards  to  the  Commission  by  1 
January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  third 
paragraph  in  accordance  with  the  procedure  laid  down  in  Article  7  of  Regulation 
.../.... [EBA]." 

(30) 

Article 150 is amended as follows: 

(a) 

In paragraph 2, points (d) and (e) are deleted. 

(b)  The following paragraph 3 is added: 

"3.  The  European  Banking  Authority  shall  develop  draft  technical  standards  to 
determine: 

(a) 

the conditions of application of points 15 to 17 of Annex V; 

(b) 

the  conditions  of  application  of  Part  2  of  Annex  VI  in  respect  of  the 
quantitative factors referred to in point 12, the qualitative factors referred 
to in point 13 and the benchmark referred to in point 14; 

The  Authority  shall  submit  those  draft  technical  standards  to  the  Commission  by  1 
January 2014.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]".  

(31) 

In  Article  156,  "Committee  of  European  Banking  Supervisors"  is  replaced  by 
"European Banking Authority". 

Article 10 
Amendments to Directive 2006/49/EC 

In Article 18 of Directive 2006/49/EC, the following paragraph is added: 

"5.  In  order  to  ensure  uniform  application  of  paragraph  1,  the  European  Banking 
Authority  established  by  Regulation…/…of  the  European  Parliament  and  of  the 
Council may develop draft technical standards for endorsement by the Commission 
to determine the practical and procedural application of the conditions under which 
competent  authorities  permit  credit  institutions  to  use  internal  models  for  the 
purposes of calculating capital requirements under this Directive.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [EBA]". 

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Article 11 
Amendments to Directive 2009/65/EC 

Directive 2009/65/EC is amended as follows: 

1. 

In Article 5, the following paragraph 8 is added: 

"8. In order to ensure uniform application of this Article, the European Securities and 
Markets Authority established by Regulation…/…of the European Parliament and of 
the  Council36  may  develop  draft  technical  standards  to  determine  the  conditions  of 
application relating to the information to be provided to the competent authorities in 
the application for authorisation of a UCITS.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]." 

2. 

In Article 7, the following paragraph 6 is added: 

"6. In order to ensure uniform application of this Article, the European Securities and 
Markets  Authority  may  develop  draft  technical  standards  to  further  determine  the 
conditions of application of the requirements for the authorisation of the management 
company, with the exception of the conditions established in paragraph 1(b) of this 
Article.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]." 

3. 

In Article 12, the following paragraph 4 is added: 

"4. In order to ensure uniform application of this Article, the European Securities and 
Markets Authority may develop draft technical standards to determine the conditions 
of application of the implementing measures adopted by the Commission regarding 
the procedures, arrangements, structures and organisational requirements referred to 
in paragraph 3 of this Article.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]." 

4. 

In Article 14, the following paragraph 3 is added: 

"3. In order to ensure uniform application of this Article, the European Securities and 
Markets Authority may develop draft technical standards to determine the conditions 
of application of the implementing measures adopted by the Commission regarding 
the  criteria,  principles  and  steps  referred  to  in  points  (a),  (b),  and  (c)  of  the  first 
subparagraph of this Article.  

36 

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EN 

36 

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The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]." 

5. 

In Article 21(7), the first subparagraph is replaced by the following: 

"Before  following  the  procedure  laid  down  in  paragraphs  3,  4  or  5,  the  competent 
authorities  of  the  management  company's  host  Member  State  may,  in  emergencies, 
take  any  precautionary  measures  necessary  to  protect  the  interests  of  investors  and 
others  for  whom  services  are  provided.  The  Commission,  the  European  Securities 
and  Markets  Authority,  and  the  competent  authorities  of  the  other  Member  States 
concerned shall be informed of such measures at the earliest opportunity." 

6. 

In Article 29, the following paragraph 5 is added: 

"5. In order to ensure uniform application of this Article, the European Securities and 
Markets Authority may develop draft technical standards to determine the conditions 
of application of the conditions for the authorisation of the self-managed investment 
company, with the exception of the conditions established in paragraph 1(b) of this 
Article.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]." 

7. 

In Article 43, the following paragraph 6 is added:  

"6. In order to ensure uniform application of this Article, the European Securities and 
Markets Authority may develop draft technical standards to determine the conditions 
of application of the implementing measures adopted by the Commission regarding 
the content, format and method by which the information referred to in paragraphs 1 
and 3 of this Article should be provided.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]." 

8 

In Article 50, the following paragraph 4 is added: 

"4. In order to ensure uniform application of this Article, the European Securities and 
Markets Authority may develop draft technical standards to determine the conditions 
of application of the provisions concerning the categories of assets in which UCITS 
can invest in accordance to this Article.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]." 

9 

In Article 51, the following paragraph 5 is added: 

"5. In order to ensure uniform application of this Article, the European Securities and 
Markets Authority may develop draft technical standards to determine the conditions 

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37 

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of application of the implementing measures adopted by the Commission regarding 
the criteria and rules referred to in points (a), (b) and (c) of paragraph 4.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA].." 

10 

In Article 60, the following paragraph 7 is added: 

"7. In order to ensure uniform application of this Article, the European Securities and 
Markets Authority may develop draft technical standards to determine the conditions 
of application of the implementing measures adopted by the Commission regarding 
the  agreement,  measures  and  procedures  referred  to  in  points  (a),  (b)  and  (c)  of 
paragraph 6.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]." 

11 

In Article 61, the following paragraph 4 is added: 

"4. In order to ensure uniform application of this Article, the European Securities and 
Markets Authority may develop draft technical standards to determine the conditions 
of application of the implementing measures adopted by the Commission regarding 
the agreement and types of irregularities referred to in points (a) and (b) of paragraph 
3.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]." 

12 

In Article 64, the following paragraph 5 is added: 

"5. In order to ensure uniform application of this Article, the European Securities and 
Markets Authority may develop draft technical standards to determine the conditions 
of application of the implementing measures adopted by the Commission regarding 
the information and procedure referred to in points (a) and (b) of paragraph 4.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]." 

13. 

In Article 69, the following paragraph 5 is added: 

"5. In order to ensure uniform application of this Article, the European Securities and 
Markets Authority may develop draft technical standards to determine the conditions 
of application of the provisions concerning the content of the prospectus, the annual 
report  and  the  half-yearly  report  as  laid  down  in  Annex  I,  and  the  format  of  these 
documents.  

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The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]." 

14. 

In Article 78, the following paragraph 8 is added: 

"8. In order to ensure uniform application of this Article, the European Securities and 
Markets  Authority  may  develop  draft  technical  standards  for  endorsement  by  the 
Commission  to  determine  the  conditions  of  application  of  the  implementing 
measures  adopted  by  the  Commission  regarding  the  information  referred  to  in 
paragraph 3.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]."  

15. 

In Article 84, the following paragraph 4 is added:  

"4. In order to ensure uniform application of this Article, the European Securities and 
Markets Authority may develop draft technical standards to determine the conditions 
of  application  of  the  conditions  applying  to  the  temporary  suspension  of  the  re-
purchase  or  redemption  of  the  units  of  the  UCITS  as  referred  to  in  point  (a)  of 
paragraph 2, once the suspension has been decided.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]."  

16. 

In Article 95, paragraph 2 is replaced by the following:  

"2. In order to ensure uniform application of Article 93, the European Securities and 
Markets Authority may develop draft technical standards to determine the conditions 
of application with regard to: 

(a) 

(b) 

(c) 

the  form  and  contents  of  a  standard  model  notification  letter  to  be  used  by  a
 UCITS for the purpose of notification referred to in Article 93(1), including an
 indication as to which documents the translations refer to; 

the form and contents of a standard model attestation to be used by competent
 authorities of Member States referred to in Article 93(3); 

the  procedure  for  the  exchange  of  information  and  the  use  of  electronic
 communication  between  competent  authorities  for  the  purpose  of  notification
 under the provisions of Article 93. 

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]."  

17. 

In Article 101, paragraphs 8 and 9 are replaced by the following: 

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"8. Competent authorities may bring to the attention of the European Securities and 
Markets Authority situations where a request: 

(a) 

(b) 

(c) 

to exchange information as provided for in Article 109 has been rejected or has
 not been acted upon within a reasonable time; 

to  carry  out  an  investigation  or  on-the-spot  verification  as  provided  for  in
 Article 110 has been rejected or has not been acted upon within a reasonable
 time; or 

for authorisation for its officials to accompany those of the competent authority
 of the other Member State has been rejected or has not been acted upon within
 a reasonable time. 

The  European  Securities  and  Markets  Authority  may  act  in  accordance  with  the 
powers conferred on it by Regulation …/… [ESMA]. 

9. In order to ensure uniform application of this Article, the European Securities and 
Markets Authority may develop draft technical standards to determine the conditions 
of  application  with  regard  to  the  conduct  of  on-the-spot  verifications  and 
investigations as referred to in paragraphs 4 and 5.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]."  

18. 

Article 102 is amended as follows: 

(a) 

In paragraph 2, the first subparagraph is replaced by the following: 

"Paragraph 1 shall not prevent the competent authorities of the Member States from 
exchanging  information  in  accordance  with  this  Directive  or  other  Community  law 
applicable to UCITS or to undertakings contributing towards their business activity 
or  from  transmitting  it  to  the  European  Securities  and  Markets  Authority  or  the 
European  Systemic  Risk  Board  established  by  Regulation  …/…of  the  European 
Parliament and of the Council37. That information shall be subject to the conditions 
of professional secrecy laid down in paragraph 1." 

(b) 

In paragraph 5, the following point (d) is added: 

"(d)  the  European  Banking  Authority  established  by  Regulation  …/…  European 
Parliament and of the Council[EBA]38, the European  Insurance  and  Occupational 
Pensions Authority established by  Regulation  .../...  of  the  European  Parliament  and 
of  the  Council39  [EIOPA]  and  the  European  Systemic  Risk  Board  established  by

Regulation .../... of the European Parliament and of the Council40."  

19. 

Article 105 is replaced by the following: 

37 
38 
39 
40 

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OJ L  

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40 

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"Article 105 

In order to ensure uniform application of the provisions in this Directive concerning 
the  exchange  of  information,  the  European  Securities  and  Markets  Authority  may 
develop  draft  technical  standards  to  determine  the  conditions  of  application  with 
regard to the procedures for exchange of information between competent authorities 
and  between  the  competent  authorities  and  the  European  Securities  and  Markets 
Authority.  

The  Commission  may  adopt  the  draft  technical  standards  referred  to  in  the  first 
subparagraph in accordance with the procedure laid down in Article 7 of Regulation 
.../.... [ESMA]."  

20. 

In Article 108(5), point (b) of the first subparagraph and the second subparagraph are 
replaced by the following: 

"(b)  if  necessary,  bring  the  matter  to  the  attention  of  the  European  Securities  and 
Markets Authority, which may act in accordance with the powers conferred on it by 
Regulation .../... [ESMA]. 

The  Commission  and  the  European  Securities  and  Markets  Authority  shall  be 
informed  without  delay  of  any  measure  taken  pursuant  to  point  (a)  of  the  first 
subparagraph." 

Article 12 
Transposition 

1. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  31  December  2010  at  the 
latest.  They  shall  forthwith  communicate  to  the  Commission  the  text  of  those 
provisions and a correlation table between those provisions and this Directive. 

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  shall  be  accompanied  by  such  a  reference  on  the  occasion  of  their 
official  publication.  .Member  States  shall  determine  how  such  reference  is  to  be 
made. 

2.  Member States shall communicate to the Commission the text of the main provisions of 
national law which they adopt in the field covered by this Directive. 

Article 13 
Entry into force 

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

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Article 14 
Addressees 

This Directive is addressed to the Member States. 

Done at Brussels,  

For the European Parliament 
The President 
[…] 

For the Council 
The President 
[…] 

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