Commission Delegated Regulation (EU) 2016/1904 of 14 July 2016 supplementing Regulation (EU) No 1286/2014 of the European Parliament and of the Council with regard to product intervention (Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) No 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (PRIIPs) (1) and in particular Article 16(8) and Article 17(7) thereof,

Whereas:

(1) This Regulation specifies certain aspects of the intervention powers granted to competent authorities and, in exceptional circumstances, the European Insurance and Occupational Pensions Authority (EIOPA) established and exercising its powers in accordance with Regulation (EU) No 1094/2010 of the European Parliament and of the Council (2), as regards the criteria and factors to be taken into account for determining the existence of a significant investor protection concern or threat to the orderly functioning and integrity of financial markets or to the stability of the whole or part of the financial system of at least one Member State or respectively of the Union.

(2) A list of criteria and factors to be taken into account by competent authorities and EIOPA when determining such a concern or threat should be established to ensure a consistent approach while permitting appropriate action to be taken where unforeseen adverse events or developments occur. The existence of a ‘threat’, one of the prerequisites of the intervention in the perspective of the orderly functioning and integrity of financial or commodity markets or stability of the financial system, requires a higher threshold than the existence of a ‘significant concern’, which is the prerequisite of the intervention for investor protection. The need to assess all criteria and factors that could be present in a specific situation should not, however, prevent the temporary intervention power from being used by competent authorities and EIOPA where only one of the factors or criteria leads to such a concern or threat.

(3) The provisions in this Regulation are closely linked, since they deal with the product intervention powers vested in both the national competent authorities and EIOPA. To ensure coherence between those provisions which should enter into force at the same time, and in order to facilitate a comprehensive view for stakeholders and, in particular, for EIOPA and competent authorities exercising the intervention powers, it is necessary to include these provisions in a single Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

Criteria and factors for the purposes of EIOPA temporary product intervention powers

(Article 16(2) of Regulation (EU) No 1286/2014)

For the purpose of the first subparagraph, EIOPA may determine the existence of a significant investor protection concern or a threat to the orderly functioning and integrity of financial markets or to the stability of whole or part of the financial system of the Union based on one or more of those factors or criteria.

(l) whether the underlying assets of the insurance-based investment product or financial activities or financial practice pose a high risk to the performance of transactions entered into by participants or investors in the relevant market;

(n) whether the financial activity or financial practice poses a particularly high risk to the resilience or smooth operation of markets;

(o) whether an insurance-based investment product, financial activity or financial practice could lead to a significant and artificial disparity between prices of a derivative and those in the underlying market;

(p) whether an insurance-based investment product, financial practice or financial activity poses a high risk to the market or payment systems infrastructure, including trading, clearing and settlement systems;

(q) whether an insurance-based investment product, financial activity or financial practice may threaten investors' confidence in the financial system; or

(r) whether the insurance-based investment product, financial practice or financial activity poses a high risk of disruption to financial institutions deemed to be important to the financial system of the Union.

Article 2

Criteria and factors to be taken into account by competent authorities for the purposes of insurance-based investment product intervention powers

(Article 17(2) of Regulation (EU) No 1286/2014)

For the purposes of the first subparagraph, competent authorities may determine the existence of a significant investor protection concern or a threat to the orderly functioning and integrity of financial markets or to the stability of whole or part of the financial system within at least one Member State based on one or more of those factors and criteria.

(l) whether the underlying assets of the insurance-based investment product or financial activities or financial practice pose a high risk to the performance of transactions entered into by participants or investors in the relevant market;

(n) whether the financial activity or financial practice poses a particularly high risk to the resilience or smooth operation of markets;

(o) whether an insurance-based investment product, financial activity or financial practice could lead to a significant and artificial disparity between prices of a derivative and those in the underlying market;

(p) whether an insurance-based investment product, financial practice or financial activity poses a risk to the market or payment systems infrastructure, including trading, clearing and settlement systems;

(q) whether an insurance-based investment product, financial activity or financial practice may threaten investors' confidence in the financial system; or

(r) whether the insurance-based investment product, financial practice or financial activity poses a high risk of disruption to financial institutions deemed to be important to the financial system of the Member State of the relevant competent authority.

Article 3

Entry into force

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

It shall apply from 31 December 2016.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 14 July 2016.

For the Commission The President Jean-Claude JUNCKER

(1) OJ L 352, 9.12.2014, p. 1.

(2) Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC (OJ L 331, 15.12.2010, p. 48).

(3) 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 (OJ L 173, 12.6.2014, p. 349).