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Regulations, 2017

14 Articles / Provisions · Malta
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Malta Government Gazette — Legal Notice 2017 397 · Gazzetta tal-Gvern ta’ Malta Nru. 19,925 – 22.12.2017 — Regulations, 2017

Suppliment tal-Gazzetta tal-Gvern ta’ Malta Nru. 19,925, 22 ta’ Diċembru, 2017

Taqsima B

L.N. 397 of 2017

Investment Services Act

(Cap. 370)

European Passport Rights for Investment Firms (Amendment)

Regulations, 2017

IN EXERCISE of the powers conferred by article 12 of the

Investment Services Act, the Minister responsible for the regulation of

financial services, acting on the advice of the Malta Financial Services

Authority, has made the following regulations:-

Malta Government Gazette — Legal Notice 2017 397 · Gazzetta tal-Gvern ta’ Malta Nru. 19,925 – 22.12.2017 — Regulations, 2017

(1) The title of these regulations is the European Passport Title and

Rights for Investment Firms (Amendment) Regulations, 2017 and commencement.

these regulations shall be read and construed as one with the European S.L. 370.10.

Passport Rights for Investment Firms Regulations, hereinafter referred

to as "the principal regulations".

(2)

These regulations shall come into force on 3rd January

2018.

Malta Government Gazette — Legal Notice 2017 397 · Gazzetta tal-Gvern ta’ Malta Nru. 19,925 – 22.12.2017 — Regulations, 2017

In sub-regulation (2) thereof, for the words, "Articles 31, Amends

32, 61 and 62 of the Directive,", there shall be substituted the words, regulation

the principal

"Article 4(1) paragraph (30), Articles 34(1)–(5), 35(1)-(10), 85 and regulations.

86(1), (2) and (4) of MiFID,".

Malta Government Gazette — Legal Notice 2017 397 · Gazzetta tal-Gvern ta’ Malta Nru. 19,925 – 22.12.2017 — Regulations, 2017

Regulation 2 thereof shall be amended as follows

Amends

regulation 2 of

the principal

(a) for the definition "ancillary service" there shall be

regulations.

substituted the following

" "ancillary service" means any of the services listed

within the Third Schedule to the Act;";

(b) in the definition "branch", for the words, "which

provides the services for which the investment firm has been

authorised", there shall be substituted the words, "which

provides investment services and which may also perform

ancillary services for which the investment firm has been

authorised";

(c) in the definition "competent authority", for the words,

"appointed under Article 2A of the Act;", there shall be

substituted the words, "established by the Malta Financial Cap. 330.

Services Authority Act;";

(d)

immediately

after

the

definition

"competent

authority", as amended, there shall be inserted the following new

definition

" "Conduct of Business Rules" refers to Rules issued

by the competent authority under various articles of the

Act;";

(e) in the definition "core investment service", for the

words, "the Directive", there shall be substituted the word,

"MiFID";

(f)

the definition "Directive" shall be deleted;

(g) immediately after the definition "core investment

service", there shall be inserted the following new definitions

" "ESMA" means the European Securities and

Markets Authority;

"European credit institution" shall have the same

meaning assigned to it by regulation 2 of the European

Passport Rights for Credit Institutions Regulations;";

(h)

in the definition "European investment firm"

a.

for the words, "article 4 (1) of the Directive",

there shall be substituted the words, "article 4 (1) of

MiFID"; and

b.

for the words, "article 5 of the Directive", there

shall be substituted the words, "article 5 of MiFID";

(i) for paragraph (b) of the definition "European right"

there shall substituted the following

"(b) subject to the requirements of MIFID and subject

to any regulations made under the Act and, or Investment

Services Rules and, or Conduct of Business Rules issued by

the competent authority in terms of article 6 of the Act,

implementing such requirements as may be applicable.";

(j) in the definition "investment firm", for the words, "the

Directive", wherever it occurs there shall be substituted the

word, " MiFID"; and

(k) immediately after the definition "Maltese investment

firm", there shall be inserted the following new definitions

" "MiFID" means Directive 2014/65/EU of the

European Parliament and of the Council of 15 May 2014 on

markets in financial instruments and amending Directive

2002/92/EC and Directive 2011/61/EU, as amended from

time to time, and includes any implementing measures that

have been or may be issued thereunder;

"Regulation (EU) No 600/2014" means Regulation

(EU) No 600/2014 of the European Parliament and of the

Council of 15 May 2014 on markets in financial

instruments and amending Regulation (EU) No 648/2012,

as amended from time to time;

"Regulation (EU) No 1095/2010" means Regulation

(EU) No 1095/2010 of the European Parliament and of the

Council of 24 November 2010 establishing a European

Supervisory Authority (European Securities and Markets

Authority), amending Decision No 716/2009/EC and

repealing Commission Decision 2009/77/EC, as amended

from time to time;".

Malta Government Gazette — Legal Notice 2017 397 · Gazzetta tal-Gvern ta’ Malta Nru. 19,925 – 22.12.2017 — Regulations, 2017

Regulation 3 thereof shall be amended as follows

Amends

regulation 3 of

the principal

(a) sub-regulation (1) thereof shall be substituted by the

regulations.

following

"(1) A European investment firm which is seeking to

provide investment services and, or activities as well as

ancillary services in Malta, either through the

establishment of a branch in Malta in exercise of its

European right or by the use of a tied agent established in

Malta, shall satisfy the conditions prescribed in sub-

regulation (2) and shall thereafter be exempt from the

requirements prescribed in article 3 of the Act

Provided that the European investment firm shall be

exempt from the provisions of article 3 of the Act if those

investment services are covered by the authorisation

granted to the investment firm in the home Member State or

EEA State;

Provided further that ancillary services may only be

provided together with an investment service.";

(b)

sub-regulation (2) thereof shall be amended as

follows

(i)

in sub-paragraph (i) of paragraph (a) thereof,

immediately after the words, "branch in Malta", there shall

be added the words, "or that it has not established a branch

in Malta but plans to use tied agents established in Malta";

(ii) sub-paragraph (iii) of paragraph (a) thereof,

shall be substituted with the following

"(iii) where established the organizational

structure of the branch and indicating whether the

branch intends to use tied agents and the identity of

those tied agents;";

(iii) sub-paragraphs (iv) and (v) thereof shall be

renumbered as sub-paragraphs (v) and (vi) respectively;

(iv) immediately after sub-paragraph (iii) thereof, as

amended, there shall be inserted the following new sub-

paragraph (iv)

"(iv) where tied agents are to be used and the

investment firm has not established a branch in

Malta, a description of the intended use of the tied

agents and an organisational structure including

reporting lines, indicating how the agents fit into the

corporate structure of the investment firm;";

(v) in sub-paragraph (vi) thereof, as renumbered,

for the words, "of the branch;", there shall be substituted

the words, "of the branch or of the tied agent;";

(vi) in sub-paragraph (ii) of paragraph (b) of sub-

regulation (2) thereof, for the words, "Directive 97/9/EC.",

there shall be substituted the words, "Directive 97/9/EC

Provided that in the event of change in the

particulars, the competent authority shall receive

notification thereof from the European regulatory

authority of the European investment firm.";

(c) in sub-regulation (4) thereof, for the words,

"Investment Services Rules", there shall be substituted the

words, "Investment Services Rules, Conduct of Business Rules

(d) immediately after sub-regulation (4) thereof, as

amended, there shall be inserted the following new sub-

regulation (5)

"(5) The provisions of this regulation shall also

apply, mutatis mutandis, to credit institutions authorised in

another Member State or EEA State wishing to provide

investment services as well as ancillary services through

tied agents in accordance with Article 35(7) of MiFID, and

accordingly references in this regulation to a "European

investment firm" shall be deemed to include references to a

"European credit institution"".

Malta Government Gazette — Legal Notice 2017 397 · Gazzetta tal-Gvern ta’ Malta Nru. 19,925 – 22.12.2017 — Regulations, 2017

Regulation 4 thereof shall be amended as follows

Amends

regulation 4 of

the principal

(a)

in sub-regulation (1) thereof

regulations.

(i) immediately after the words, "provide

services", there shall be inserted the words, "and, or

perform investment services as well as ancillary services";

(ii) for the words, "of the Act,", there shall be

substituted the words, "of the Act

Provided that ancillary services may only be

provided together with an investment service.";

(b)

sub-regulation (2) thereof shall be amended as

(i) for sub-paragraph (ii) of paragraph (a) thereof,

there shall be substituted the following

"(ii) a programme of operations stating in

particular the investment services as well as ancillary

services which it intends to provide in Malta and

whether it intends to do so through the use of tied

agents, established in its home Member State or EEA

State. Where the European investment firm intends to

use tied agents, it shall communicate the identity of

those tied agents;"; and

(ii)

in the proviso to paragraph (b) thereof

a.

for the words, "may request the European

regulatory authority to disclose to it", there shall be

substituted the words, "shall, within one month of

receipt of all information, receive from the European

regulatory authority of the home Member State"; and

b.

for the words, "the competent authority

may publish", there shall be substituted the words,

"the competent authority shall publish"; and

(c) immediately after sub-regulation (2) thereof, there

shall be inserted the following new sub-regulations (3), (4) and

"(3) Upon receipt of the information referred to in

sub-regulation (2) by the competent authority, the European

investment firm may start to provide the investment

services concerned in Malta.

(4) The provisions of this regulation shall also

apply, mutatis mutandis, to credit institutions authorised in

another Member State or EEA State wishing to provide

investment services as well as ancillary services through

tied agents in accordance with Article 34(1) of MiFID, and

accordingly references in this regulation to a "European

investment firm" shall be deemed to include reference to a

"European credit institution.".

(5) The procedure outlined in this regulation shall

also be applicable where a European investment firm

wishes to change the range of services so provided in the

exercise of a European right.".

Malta Government Gazette — Legal Notice 2017 397 · Gazzetta tal-Gvern ta’ Malta Nru. 19,925 – 22.12.2017 — Regulations, 2017

Regulation 5 thereof shall be amended as follows

(1) in sub-regulation (1) thereof for the words, "on its activities

in Malta.", there shall be substituted the words, "on the activities of the

branch in Malta."; and

(2)

in sub-regulation (2) thereof

(a) for the words "the Directive", there shall be

substituted the word " MiFID";

(b) for the words, "compliance with Investment Services

Rules", there shall be substituted the words, "compliance with

Investment Services Rules and, or Conduct of Business Rules";

(c) in the proviso thereof, for the words, "said Investment

Services Rules.", there shall be substituted the words, "said

Investment Services Rules and, or Conduct of Business Rules.".

Malta Government Gazette — Legal Notice 2017 397 · Gazzetta tal-Gvern ta’ Malta Nru. 19,925 – 22.12.2017 — Regulations, 2017

Regulation 6 thereof, shall be substituted by the following

Substitutes

regulation 6 of

the principal

"6. (1) The competent authority shall assume

regulations.

responsibility for ensuring that in providing investment or

ancillary services in Malta, the branch of a European investment

firm complies with the obligations laid down in Articles 24, 25,

27 and 28 of MiFID as transposed in the Conduct of Business

Rules issued by the competent authority and Articles 14 to 26 of

Regulations (EU) No 600/2014 and the measures adopted

pursuant thereto by the competent authority where allowed in

accordance with Article 24(12) of MiFID

Provided that the competent authority shall not impose any

additional requirements save those allowed under sub-regulation

(1) on the organisation and operation of the branch of the

European investment firm in respect of the matters covered by

these regulations.

(2) The competent authority shall have the right to

examine branch arrangements of the European investment firm

and to request such changes as are strictly needed to enable it to

enforce the obligations laid down in Articles 24, 25, 27 and 28 of

MiFID as transposed in the Conduct of Business Rules issued by

the competent authority and Article 14 to 26 of Regulations (EU)

No 600/2014 and the measures adopted pursuant thereto by the

competent authority with respect to the services provided by the

branch in Malta.

(3) Without prejudice to the possibility of the European

Regulatory Authority of the European investment firm

establishing a branch in Malta in exercise of a European right to

have direct access to records it is required to hold in terms of

Article 6 and 7 of MIFID, the competent authority shall enforce

the obligations laid down in the said Articles of MiFID with

regard to transaction taken by such branch.".

Malta Government Gazette — Legal Notice 2017 397 · Gazzetta tal-Gvern ta’ Malta Nru. 19,925 – 22.12.2017 — Regulations, 2017

Regulation 8 thereof shall be amended as follows

Amends

regulation 8 of

the principal

(a) for sub-regulation (1) thereof, there shall be

regulations.

substituted the following

"(1) A Maltese investment firm may provide

investment services as well as ancillary services whether

through the establishment of a branch in exercise of a

European right, or by the use of a tied agent established in a

Member State or EEA State other than Malta in which it

has not established a branch, if it satisfies the requirements

prescribed in this regulation.";

(b)

sub-regulation (2) thereof shall be amended as

(i) immediately after the words, "its intention to

establish a branch", there shall be inserted the words, "or

use tied agents established in a Member State or EEA State

other than Malta in which it has not established a branch,";

(ii) in paragraph (a) thereof, for the words, "plans to

establish a branch;", there shall be substituted the words,

"plans to establish a branch or the Member State or EEA

State in which it has not established a branch but plans to

use tied agents established there;";

(iii) in paragraph (b) thereof, the words "through the

branch, indicating whether it intends to use tied agents;",

there shall be substituted the words, "through the branch as

well as the ancillary services to be offered;";

(iv) for paragraph (c) thereof there shall be

substituted the following

"(c) the address in the host Member State or

EEA State from where documents may be obtained;";

(v) for paragraph (d) thereof, there shall be

substituted the following

"(d) where established, the organisational

structure of the branch and indicating whether the

branch intends to use tied agents and the identity of

those tied agents;";

(vi) paragraph (e) thereof shall be renumbered as

paragraph (g); and

(vii) immediately after paragraph (d) thereof, as

amended, there shall be inserted the new paragraphs (e) and

"(e) where tied agents are to be used in the host

Member State or EEA State in which the Maltese

investment firm has not established a branch, a

description of the intended use of the tied agents and

an organisational structure, including reporting lines,

indicating how the agents fit into the corporate

structure of the Maltese investment firm;

(f) the names of those responsible for the

management of the branch or of the tied agent;";

(c) in sub-regulation (3) thereof, for the words, "the

Maltese investment firm.", there shall be substituted the words,

"the Maltese investment firm and shall inform the Maltese

investment firm concerned accordingly.";

(d) in sub-regulation (4) thereof, for the words, "The

competent authority shall communicate", there shall be

substituted the words, "In addition to the information referred to

in sub-regulation (2), the competent authority shall

communicate"; ,";

(e) in sub-regulation (9) thereof, for the words, "the

Directive", there shall be substituted the word " MiFID";

(f) in sub-regulation (10) thereof, for the words, "the

Directive", there shall be substituted the word, "MiFID"; and

(g) immediately after sub-regulation (10) thereof, as

amended, there shall be inserted the following new sub-

regulation (11)

"(11) The provisions of this regulation shall also

apply, mutatis mutandis, to credit institutions authorised in

Malta wishing to provide investment services as well as

ancillary services through tied agents, in accordance with

Article 35(7) of MiFID, and accordingly references in this

regulation to a "Maltese investment firm" shall be deemed

to include reference to a "Maltese credit institution.".".

Malta Government Gazette — Legal Notice 2017 397 · Gazzetta tal-Gvern ta’ Malta Nru. 19,925 – 22.12.2017 — Regulations, 2017

Regulation 10 thereof shall be amended as follows

Amends

regulation 10 of

the principal

(a) in sub-regulation (1) thereof, the words "to provide

regulations.

services", shall be substituted by the words, "to provide

investment services including ancillary services";

(b) for paragraph (a) of sub-regulation (2) thereof, there

shall be substituted the following

"(a) a programme of operations stating in particular

the investment services as well as ancillary services which

it intends to provide in the territory of that Member State or

EEA State and whether it intends to do so through the use

of tied agents established in Malta. Where the Maltese

investment firm intends to use tied agents it shall

communicate to the competent authority the identity of

those agents;";

(c) in paragraph (b) of sub-regulation (2) thereof, for the

words, "to operate.", there shall be substituted the words, "to

operate

Provided that the information referred to in sub-

regulation (2) shall also be provided where the Maltese

investment firm wishes to change the range of service

already provided.";

(d) in sub-regulation (3) thereof, the words, "If the

European right of the Maltese investment firm derives from the

Directive, the competent authority shall," there shall be

substituted the words, "The competent authority shall,";

(e)

in sub-regulation (6) thereof

(i) immediately after the words, "tied agents in the

host Member State or EEA State,", there shall be inserted

the words, "in which it intends to provide services";

(ii) for the words "at the request of the European

regulatory authority and within a reasonable time

communicate", there shall be substituted the words, "within

one month from receipt of all information communicate to

the European regulatory authority"; and

(iii) for the words, "may make public" there shall be

substituted the words, "shall make public"; and

(f) immediately after sub-regulation (6) thereof, as

amended, there shall be inserted the following new sub-

regulation (7)

"(7) The provisions of this regulation shall also

apply, mutatis mutandis, to credit institutions authorised in

Malta wishing to provide investment services as well as

ancillary services through tied agents, in accordance with

Article 34 (1) of MiFID, and accordingly references in this

regulation to a "Maltese investment firm" shall be deemed

to include reference to a "Maltese credit institution".".

Malta Government Gazette — Legal Notice 2017 397 · Gazzetta tal-Gvern ta’ Malta Nru. 19,925 – 22.12.2017 — Regulations, 2017

Regulation 12 thereof, shall be substituted by the

following

"12. (1) Where the competent authority has clear and

demonstrable grounds for believing

(a) that a European investment firm providing

services in Malta, in exercise of a European right, infringes

the obligations arising from the provisions of the Act or any

regulations issued thereunder or of any Investment Services

Rules or Conduct of Business Rules issued by the

competent authority, transposing the requirements of

MIFID; or

(b)

that a European investment firm that has

established a branch in Malta, in exercise of a European

right, infringes the obligations arising from the provisions

of the Act or regulations issued thereunder or of any

Investment Services Rules or Conduct of Business Rules

issued by the competent authority transposing the

requirements of MIFID which do not confer powers on the

competent authority, it shall refer those findings to the

European regulatory authority.

(2) If, despite the measures taken by the European

regulatory authority or because such measures prove inadequate,

the European investment firm persists in acting in a manner that

is clearly prejudicial to the interests of Maltese investors or the

orderly functioning of the markets, the following shall apply

(a) after informing the European regulatory

authority, the competent authority shall take all the

appropriate measures needed in order to protect investors

and the proper functioning of the markets, which shall

include the possibility of preventing offending European

investment firms from initiating any further transactions in

Malta. The competent authority shall also inform the

European Commission and ESMA of such measures

without undue delay; and

(b) the competent authority may refer the matter to

ESMA which may act in accordance with the powers

conferred on it under Article 19 of the Regulation (EU) No.

1095/2010.

(3) Where the competent authority ascertains that a

European investment firm that has a branch in Malta infringes

the provisions of the Act or regulations issued thereunder or of

any Investment Services Rules or Conduct of Business Rules

issued by the competent authority and which confer powers on

the competent authority, it shall require the European investment

firm concerned to put an end to its irregular situation.

(4) If the European investment firm concerned fails to

take the necessary steps, the competent authority shall take all

appropriate measures to ensure that the European investment

firm concerned puts an end to its irregular situation. The nature

of those measures shall be communicated to the European

regulatory authority.

(5) Where, despite the measures taken by the competent

authority, the European investment firm persists in breaching the

provisions of the Act or regulations issued thereunder or any of

Investment Services Rules or Conduct of Business Rules issued

by the competent authority, the competent authority shall, after

informing the European regulatory authority take all the

appropriate measures needed to protect investors and the proper

functioning of the markets. The competent authority shall inform

the European Commission and ESMA of such measures without

undue delay. In addition, the competent authority may refer the

matter to ESMA, which may act in accordance with the powers

conferred on it under Article 19 of the Regulation (EU) No 1095/

2010. (6) Any measure adopted pursuant to this regulation shall

be communicated to the European investment firm concerned in

writing, together with reasons justifying such measures and shall

be subject to a right of appeal to the Tribunal and the provisions

of article 19 of the Act shall apply mutatis mutandis.".

Malta Government Gazette — Legal Notice 2017 397 · Gazzetta tal-Gvern ta’ Malta Nru. 19,925 – 22.12.2017 — Regulations, 2017

Immediately following regulation 13 thereof, there shall be

inserted the following

"Part V

Administrative Penalties, other administrative measures and

Appeals

(1) Where a person falling within the scope of these

regulations fails to comply with any provisions of such

regulations or of any Investment Services Rules or Conduct of

Business Rules issued by the competent authority further

implementing such regulations, the competent authority may, by

notice in writing and without recourse to a court hearing, impose

on such person an administrative penalty and any administrative

measure in accordance with the provisions of the Investment

Services Act and Banking Act (MiFID and MiFIR

Administrative Penalties, Measures and Investigatory Powers)

Regulations, 2017.

(2)

A right of appeal to the Financial Services Tribunal

shall lie from the decisions which the competent authority shall

take under these regulations and the provisions of article 19 of

the Act shall apply mutatis mutandis.".

Malta Government Gazette — Legal Notice 2017 397 · Gazzetta tal-Gvern ta’ Malta Nru. 19,925 – 22.12.2017 — Regulations, 2017

Schedule 1 thereof shall be amended as follows

Amends

Schedule 1 of

the principal

(a) in paragraph (1) of Section B thereof, for the words,

regulations.

"cash/collateral management;", there shall be substituted the

words, "cash/collateral management and excluding maintaining

securities accounts at the top tier level;"; and

(b)

Section C thereof shall be amended as follows

(i) in paragraph (4) thereof, immediately after the

words, "interest rates and yields,", there shall be inserted

the words, "emission allowances,";

(ii) in paragraph (5) thereof, for the words,

"forward rate agreements", there shall be substituted the

word, "forwards";

(iii) in paragraph (6) thereof, for the words, "and, or

Multilateral Trading Facility;" there shall be substituted the

words, "an MTF, or an OTF except for wholesale energy

products traded on an OTF that must be physically

settled;";

(iv) in paragraph (7) thereof, the words "having

regard to whether, inter alia, they are cleared and settled

through recognised clearing houses or are subject to regular

margin calls" shall be deleted; and

(v)

in paragraph (10) thereof

a.

the words "emission allowances or" shall

be deleted; and

b. for the words "or a Multilateral Trading

Facility, are cleared and settled through recognised

clearing houses or are subject to regular margin

calls.", there shall be substituted the words, "or on an

OTF or an MTF.".

Malta Government Gazette — Legal Notice 2017 397 · Gazzetta tal-Gvern ta’ Malta Nru. 19,925 – 22.12.2017 — Regulations, 2017

Schedule 2 thereof shall be amended as follows

Schedule 2 of

the principal

(a) for the words "This Directive shall not apply to:", there

regulations.

shall be substituted the words "MiFID shall not apply to:";

(b) for paragraph (a) thereof, there shall be substituted

the following

"(a) insurance undertaking or undertakings carrying

out the reinsurance and retrocession activities referred to in

Directive 2009/138/EC when carrying out the activities

referred to in this Directive 2009/138/EC;";

(c) for paragraph (d) thereof, there shall be substituted

the following

"(d) persons dealing on own account in financial

instruments other than commodity derivatives or emission

allowances or derivatives thereof and not providing any

other investment services or performing any other

investment activities in financial instruments other than

commodity derivatives or emission allowances or

derivatives thereof unless such persons

(i)

are market makers;

(ii) are members of or participants in a regulated

market or an MTF or have direct electronic access to a

trading venue;

(iii)

apply

a

high-frequency

algorithmic

trading technique; or

(iv)

deal on own account when executing

client orders:"

Persons exempt under paragraphs (a), (i) or (j) are not

required to meet the conditions laid down in this paragraph

in order to be exempt.";

(d) paragraphs (e) to (n) thereof shall be renumbered as

paragraphs (f) to (o) respectively;

(e) immediately after paragraph (d) thereof there shall be

inserted the following new paragraph (e)

"(e) operators with compliance obligations under

Directive 2003/87/EC who, when dealing in emission

allowances, do not execute client orders and who do not

provide any investment services or perform any investment

activities other than dealing on own account, provided that

those persons do not apply a high-frequency algorithmic

trading technique;";

(f) for paragraph (h) thereof, as renumbered, there shall

be substituted the following

"(h) the members of the ESCB and other national

bodies performing similar functions in the Union, other

public bodies charged with or intervening in the

management of the public debt in the Union and

international financial institutions established by two or

more Member State which have the purpose of mobilizing

funding and providing financial assistance to the benefit of

their members that are experiencing or threatened by severe

financing problems;";

(g) in paragraph (i) thereof, as renumbered, for the

words, "at Community level", there shall be substituted the

words, "at Union level";

(h) for paragraph (j) thereof, as renumbered, there shall

be substituted the following

"(j) persons

(i) dealing on own account, including market

makers, in commodity derivatives or emission allowances

or derivatives thereof, excluding persons who deal on own

account when executing client orders; or

(ii) providing investment services, other than

dealing on own account, in commodity derivatives or

emission allowances or derivatives thereof to the customers

or suppliers of their main business;

provided that

- for each of those cases individually and on an

aggregate basis this is an ancillary activity to their

main business, when considered on a group basis, and

that main business is not the provision of investment

services within the meaning of MiFID or banking

activities under Directive 2013/36/EU, or acting as a

market-maker in relation to commodity derivatives,

- those persons do not apply a high-frequency

algorithmic trading technique; and

- those persons notify annually the relevant

competent authority that they make use of this

exemption and upon request report to the competent

authority the basis on which they consider that their

activity under points (i) and (ii) is ancillary to their

main business;";

(i) in paragraph (k) thereof, as renumbered, for the

words "this Directive", there shall be substituted the word, "

MiFID";

(j) for paragraph (l) as renumbered there shall be

substituted the following

"(l) associations set up by Danish and Finnish

pension funds with the sole aim of managing the assets of

pension funds that are members of those associations;";

(k) for paragraph (m) thereof, as renumbered, there shall

be substituted the following

"(m) ‘agenti di cambio’ whose activities and

functions are governed by Article 201 of Italian Legislative

Decree No 58 of 24 February 1998;";

(l) for paragraph (n) thereof, as renumbered, there shall

be substituted the following

"(n) transmission system operators as defined in

Article 2(4) of Directive 2009/72/EC or Article 2(4) of

Directive 2009/73/EC when carrying out their tasks under

these Directives, under Regulation (EC) No 714/2009,

under Regulation (EC) No 715/2009 or under network

codes or guidelines adopted pursuant to those Regulations,

any persons acting as service providers on their behalf to

carry out their task under those legislative acts or under

network codes or guidelines adopted pursuant to those

Regulations, and any operator or administrator of an energy

balancing mechanism, pipeline network or system to keep

in balance the supplies and uses of energy when carrying

out such tasks.

That exemption shall apply to persons engaged in the

activities set out in this point only where they perform

investment activities or provide investment services

relating to commodity derivatives in order to carry out

those activities. That exemption shall not apply with regard

to the operation of a secondary market, including a

platform for secondary trading in financial transmission

rights;"; and

(m) for paragraph (o) thereof, as renumbered, there shall

be substituted the following

"(o) CSDs that are regulated as such under Union

law to the extent that they are regulated under that Union

law.".

€0.81

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