Key Benefits:
The Prime Minister,
On the report of the Minister of Economy, Finance and Industry,
Given the currency and financial code;
In view of Order No. 2007-544 dated April 12, 2007, on financial instrument markets;
In the opinion of the Advisory Committee on Financial Legislation and Regulations April 27, 2007,
Clipping:
In Section 1 of Chapter I of Title I of Book II of the Monetary and Financial Code (Regulatory Party), it shall be inserted before Article R. 211-1, Article D. 211-1 To read:
" Art. D. 211-1 A.-I.-The term financial instruments referred to in 4 of I of Article L. 211-1 are:
" 1. Option contracts, firm-term contracts, exchange contracts, future rate agreements and all other futures contracts relating to financial instruments, currencies, interest rates, yields, financial indices or measures Financial that can be resolved by physical or cash delivery;
" 2. Option contracts, firm term contracts, exchange contracts, future rate agreements and all other futures contracts relating to goods that are to be settled in cash or may be settled in cash at the request of one of the parties Other than in the event of failure or other incident leading to termination;
" 3. Option contracts, firm futures contracts, exchange contracts and all other futures contracts for goods that can be settled by physical delivery, provided that they are traded on a regulated market or a system Multilateral negotiation;
" 4. Options contracts, firm futures contracts, exchange contracts and all other futures contracts relating to goods which may be settled by physical delivery, not otherwise specified in 3, and not intended for commercial purposes, which Have the characteristics of other financial instruments in the long term, taking into account that, in particular, they are compensated and settled through a recognised clearing house or are subject to periodic covers ;
" 5. Futures contracts for credit risk transfer;
" 6. Financial contracts with differential payment;
" 7. Options contracts, firm futures contracts, exchange contracts, future rate agreements and all other futures contracts relating to climate variables, freight rates, emission permits or inflation rates or other Official economic statistics which are to be settled in cash or may be settled in cash at the request of one of the parties other than in the event of a default or other incident leading to the termination;
" 8. Any other futures contract relating to assets, rights, obligations, indices and measures, not otherwise mentioned in 1 to 7 above, which presents the characteristics of other financial instruments in the long term, taking into account this That, in particular, it is negotiated on a regulated market or a multilateral trading system, is compensated and settled through a recognized clearing house or is subject to periodic covers.
" II. -For the purposes of Article L. 431-7, they are also financial instruments, in the long term, option contracts, firm futures contracts, exchange contracts and all other futures contracts on goods or emission permits other than Those referred to in the I, provided that they are the subject, as a result of negotiation, of a registration by a recognised clearing house or periodic call for covers. "
In Title II of Book III of the same code are inserted articles D. 321-1 and D. 321-2 thus written:
" Art. D. 321-1. -The investment services referred to in Article L. 321-1 shall be defined
follows: 1. It is the service of reception and transmission of orders on behalf of third parties the fact of receiving and transmitting to an investment service provider or an entity within a non-member state of the European Community and not a party To the Agreement on the European Economic Area having equivalent status, on behalf of a third party, of orders relating to financial instruments;
' 2. Set up the order execution service on behalf of third parties to enter into purchase or sale agreements for one or more financial instruments on behalf of a third party. However, the execution of orders resulting from investment decisions made by investment service providers in the framework of the service referred to in 4 or in the management of a collective investment fund or A collective investment fund is, as the case may be, the said service referred to in the 4 or the management activity of collective investment undertakings in securities or real estate investment undertakings; and
" 3. Constitutes the proper account negotiation service for the conclusion of transactions involving one or more financial instruments by committing its own capital;
" 4. Constitutes the portfolio management service on behalf of third parties to manage, in a discretionary and individualized manner, portfolios including one or more financial instruments within a third-party mandate;
" 5. Provides the investment counselling service with the provision of personalized recommendations to a third party, either at the request of the consulting firm or at the initiative of the company providing the advice, in respect of one or more transactions involving Financial instruments. The general regulation of the Autorité des marchés financiers specifies the concept of a personalised recommendation within the meaning of this provision;
" 6-1. It is the firm takeover service to subscribe or acquire directly from the issuer or the transferor of the financial instruments, for sale;
" 6-2. It is the guaranteed investment service to seek policyholders or purchasers on behalf of an issuer or assignor of financial instruments and to guarantee a minimum amount of subscriptions or purchases by committing to Subscribe or acquire the non-placed financial instruments;
" 7. It is the unsecured investment service to search for policyholders or purchasers on behalf of a financial instrument issuer or assignor without guaranteeing an amount of subscription or acquisition;
" 8. It is the operating service of a multilateral trading system to manage one or more systems referred to in L. 424-1.
" Art. D. 321-2. -The term financial instruments referred to in Article L. 321-2 are those cited in Articles 2, 3, 4, 7 and 8 of the I of Article D. 211-1 A. "
Book IV of the same code is thus modified:
1 ° I of Article D. 411-1 is replaced by the following provisions:
" I.-The quality of qualified investors within the meaning of Article L. 411-2 when acting on its own
: 1 ° The credit institutions referred to in Article L. 511-9;
" 2 ° The State, the Public Debt Fund, the Social Debt Fund, the Banque de France, the Institute for the issuance of the overseas departments, the Overseas Institute and the Caisse des depots et consignations;
" 3 ° The investment undertakings referred to in Article L. 531-4;
" 4 ° The investment companies referred to in Article 6 of the Order of 2 November 1945;
" 5 ° The collective investment undertakings referred to in Article L. 214-1 and the collective investment undertakings referred to in Article L. 543-1;
" 6 ° The insurance and reinsurance undertakings referred to in the first subparagraph of Article L. 310-1 and in Article L. 310-1-1 of the Insurance Code, the insurance group companies referred to in Article L. 322-1-2 of the same Code, Mutual societies and mutual unions under Book II of the code of mutuality other than those mentioned in Article L. 510-2 of the Code, as well as the provident institutions governed by Book IX of the Code of Social Security;
" 7 ° The reserve fund for pensions referred to in Article L. 135-6 of the Social Security Code, the occupational pension institutions referred to in Article L. 370-1 of the Insurance Code for their operations referred to in Article L. L. 370-2 of the same code, as well as legal persons administering a professional retirement institution referred to in Article 5 of Ordinance No. 2006-344 of 23 March 2006 on supplementary occupational pensions;
" 8 ° Other registered or regulated financial institutions;
" 9 ° The member states of the Organisation for Economic Co-operation and Development;
" 10 ° The European Central Bank and the central banks of the Member States of the Organisation for Economic Co-operation and Development;
11 ° International financial bodies to which France or any other Member State of the Organisation for Economic Cooperation and Development adheres;
" 12 ° The venture capital companies referred to in Article 1 of the Act of 11 July 1985;
" 13 ° The innovation finance companies mentioned in III of Article 4 of the Law of 11 July 1972;
" 14 ° Commodity intermediaries;
" 15 ° Entities that meet at least two of the following three criteria:
" -average annual staff of more than 250 people;
-balance sheet total above EUR 43 million;
" -net revenue or net revenue of more than 50 million euros.
" These criteria are assessed in the light of the latest consolidated accounts or, failing that, the social accounts, as published and, where appropriate, certified by the auditors. "
2 ° A in section 1 of Chapter I of Title II, after Article R. 421-1, are inserted Articles D. 421-2 to D. 421-4 thus written:
" Art. D. 421-2. -Where the Autorité des marchés financiers considers that it is appropriate to appoint a representative in accordance with the provisions of Article L. 421-3, it shall bring to the knowledge of the market undertaking, by a registered letter with the request of Receipt addressed to its legal representative or by any other means of ensuring its receipt by the representative, the grounds on which it intends to make such a designation.
" Art. D. 421-3. -The representative of the market undertaking must send his observations to the Autorité des marchés financiers within a time limit fixed by the letter referred to in Article D. 421-2. This time limit cannot be less than three days.
" The representative of the market undertaking shall be convened to be heard by the College of the Autorité des marchés financiers. Such convocation must be sent to it at least three days before the date of the meeting of the
. It can be attended by a lawyer.
" Art. D. 421-4. -The decision to appoint a representative shall specify the foreseeable duration of the mission entrusted to it and the conditions of its remuneration by the market undertaking, which shall take into account, in particular, the nature and volume of the activity as well as the Situation of the relevant market company.
" The agent shall be appointed for a mission of up to one year renewable, if the circumstances justify it, by decision of the College of the Financial Markets Authority taken by a majority of its members. "
3 ° After item D. 421-4, sections 2 to 6 are inserted as follows:
" Section 2
" Discovering, reviewing, and removing
from the market quality Regulated
" Art. D. 421-5. Article L. 421-4 shall be published in the Official Journal of the French
. Art. D. 421-6. -The Autorité des marchés financiers establishes and maintains the list of regulated markets in France. It shall communicate this list to the other Member States of the European Community and to the other States Parties to the Agreement on the European Economic Area and to the European Commission.
" Section 3
"Operating Conditions for Regulated Markets
and Market Companies
" Subsection 1
" Obligations of executives and shareholders
of market companies
" Art. D. 421-7. -The threshold crossing declarations provided for in the second subparagraph of Article L. 421-9 shall indicate, separately, the number of shares and the number of voting rights held in the market undertaking, calculated in accordance with the conditions set out in the Section D. 421-8.
" Art. D. 421-8. -The registrants, subject to the obligation provided for in the second paragraph of Article L. 421-9, are the persons acting alone or in concert with the market undertaking:
" 1 ° Who comes to own directly more than one tenth, fifth, third, half or two thirds of the shares or voting rights of the market enterprise;
" 2 ° Or which control, within the meaning of Article L. 233-3 of the Commercial Code, one or more companies which come together to own more than one tenth, the fifth, the third, half or two-thirds of the shares or voting rights of the undertaking Market;
" 3 ° Or who have come to control, within the meaning of Article L. 233-3 of the Commercial Code, one or more companies having together more than one tenth, the fifth, the third, half or two-thirds of the shares or voting rights of the undertaking Market;
" 4 ° Or who directly own more than one-tenth, fifth, third, half or two-thirds of the shares or voting rights of a company which controls, within the meaning of Article L. 233-3 of the trade code, the market undertaking ;
" 5 ° Or that directly own more than one-tenth of the fifth, third party, half or two-thirds of the shares or voting rights of a company which has control, within the meaning of Article L. 233-3 of the trade code, the market undertaking ;
" 6 ° Or who reach, by accumulating the shares or voting rights possessed under the conditions of 1 ° to 5 °, one of the thresholds of the tenth, the fifth, the third, half or two thirds.
" The declarations provided for in the second subparagraph of Article L. 421-9 shall specify the number of shares and the number of voting rights of the market undertaking held directly or indirectly and their methods of
. Art. D. 421-9. -The declarations provided for in the second paragraph of Article L. 421-9 shall be made within seven days of the crossing of the threshold.
" Subsection 2
"Market Enterprise Bonds
" Art. D. 421-10. -The Autorité des marchés financiers shall make the communication provided for in the first paragraph of Article L. 421-13 within thirty days.
"Section 4
" Admission to Negotiation, suspending
and deleting financial instruments
" Art. D. 421-11. -The Financial Markets Authority shall inform the authorities of the other Member States of the European Community and of the other States Parties to the Agreement on the European Economic Area designated as the point of contact for any decision to suspend or Deregistration.
"Section 5
" Members of a Regulated Market
" This section does not include a regulatory provision.
"Section 6
" Transparency Obligations Before and After Negotiation
" This section does not include a regulatory provision. "
4 ° Chapter IV of Title II is replaced by Chapters IV, V and VI so drafted:
" Chapter IV
" Multilateral Trading Systems
" Art. D. 424-1. -The Financial Markets Authority shall make the communication provided for in the first subparagraph of Article L. 424-4 within 30 days.
"Chapter V
" Systematic internalizers
" This chapter does not include any regulatory provisions.
"Chapter VI
" Intent, Commerce and Transportation of Gold
" This chapter does not include any regulatory provisions. "
5 ° Title IV is replaced by the following:
" TITLE IV
"COMPENSATION CHAMBERS
" This Title does not include any regulatory provisions. "
Book V of the same code is thus modified:
1 ° In Chapter I of Title III, it is inserted an article D. 531-1 thus written:
" Art. D. 531-1. -Commodity futures and other futures contracts referred to in the j of 2 ° of Article L. 531-2 are those cited in Articles 2, 3, 4, 7 and 8 of the I of Article D. 211-1 A. "
2 ° A la sous-section 1 of section 2 of Chapter III of Title III, Inserted after Article R. 533-2, an article D. 533-2-1 reads as follows:
" Art. D. 533-2-1. -The term financial instruments referred to in the second subparagraph of Article R. 533-2 shall be those cited in Articles 2, 3, 4, 7 and 8 of the I of Article D. 211-1 A. "
3 ° A Section 3 of Chapter III of Title III, before Article R. 533-9, shall be created Subsection 1 thus entitled:
"Subsection 1
" Terms and Conditions for
employees of investment firms "
4 ° After item R. 533-10, subsections 2 and 3 are inserted as follows:
"Subsection 2
" Professional Clients
" Art. D. 533-11. -The quality of professional customers within the meaning of Article L. 533-16, for all investment services and financial instruments:
" 1. (a) The credit institutions referred to in Article L. 511-9;
" (b) Investment firms referred to in Article L. 531-4;
" (c) Other registered or regulated financial institutions;
" (d) The insurance and reinsurance undertakings referred to in the first subparagraph of Article L. 310-1 and Article L. 310-1-1 of the Insurance Code, the insurance group companies referred to in Article L. 322-1-2 of the same Code, Mutual societies and mutual unions under Book II of the code of mutuality other than those mentioned in Article L. 510-2 of the Code, as well as the provident institutions governed by Book IX of the Code of Social Security;
" (e) The collective investment undertakings referred to in Article L. 214-1 and the collective investment undertakings referred to in Article L. 543-1;
" (f) The pension reserve fund referred to in Article L. 135-6 of the Social Security Code, the occupational pension institutions referred to in Article L. 370-1 of the Insurance Code for their operations referred to in Article L. L. 370-2 of the same code, as well as legal persons administering a professional retirement institution referred to in Article 5 of Ordinance No. 2006-344 of 23 March 2006 on supplementary occupational pensions;
" (g) Persons whose principal business is to negotiate for own account of goods or financial instruments on goods referred to in (m) of 2 ° of Article L. 531-2;
" (h) Enterprises referred to in item 2 ° of Article L. 531-2;
" (i) Deposits and Consignations and other registered or regulated institutional investors.
" 2. Entities that meet at least two of the following three criteria, based on individual accounting statements:
" -total balance sheet equal to or greater than 20 million euros;
" -net sales or net revenue equal to or greater than 40 million euros;
" -equity equal to or greater than 2 million euros;
" 3. The State, the Public Debt Fund, the Social Debt Fund, the Banque de France, the Institute for the issuance of the overseas departments, the Overseas Institute;
" 4. The other institutional investors primarily engaged in investing in financial instruments, and in particular the investment companies mentioned in Article 6 of the Order of 2 November 1945, Risk capital mentioned in Article 1 of Act No. 85-695 of 11 July 1985 and the innovation finance companies referred to in III of Article 4 of Law No. 72-650 of 11 July 1972;
" 5. Entities of foreign law which are equivalent to those mentioned in 1 to 4 or which have a professional client status in another Member State of the European Community or another State Party to the Agreement on the European Economic Area ;
" 6. International public financial bodies to which France or any other member State of the Organisation for Economic Cooperation and Development accedes.
" Art. D. 533-12. -Investment service providers may, on their own initiative or at the request of a customer, treat as a non-professional customer a customer considered to be a business customer under the provisions of Article D. 533-11.
"Subsection 3
" Eligible counterparties
" Art. D. 533-13. -The quality of eligible counterparties within the meaning of Article L. 533-20:
" 1. (a) The credit institutions referred to in Article L. 511-9;
" (b) Investment firms referred to in Article L. 531-4;
" (c) Other registered or regulated financial institutions;
" (d) The insurance and reinsurance undertakings referred to in the first subparagraph of Article L. 310-1 and Article L. 310-1-1 of the Insurance Code, the insurance group companies referred to in Article L. 322-1-2 of the same Code, Mutual societies and mutual unions under Book II of the code of mutuality other than those mentioned in Article L. 510-2 of the Code, as well as the provident institutions governed by Book IX of the Code of Social Security;
" (e) The collective investment undertakings referred to in Article L. 214-1 and the collective investment undertakings referred to in Article L. 543-1;
" (f) The pension reserve fund referred to in Article L. 135-6 of the Social Security Code, the occupational pension institutions referred to in Article L. 370-1 of the Insurance Code for their operations referred to in Article L. L. 370-2 of the same code, as well as legal persons administering a professional retirement institution referred to in Article 5 of Ordinance No. 2006-344 of 23 March 2006 on supplementary occupational pensions;
" (g) Persons whose principal activity is to negotiate on their own account of goods or financial instruments on goods, referred to in the 2 ° of Article L. 531-2;
" (h) Enterprises referred to in item 2 ° of Article L. 531-2;
" 2. The State, the Public Debt Fund, the Social Debt Fund, the Banque de France, the Institute for the issuance of the overseas departments, the Overseas Institute;
" 3. International public financial bodies to which France or any other member State of the Organisation for Economic Cooperation and Development accedes.
" 4. Legal persons meeting at least two of the following three criteria, on the basis of individual accounting statements:
" -total balance sheet equal to or greater than 20 million euros;
" -net sales or net revenue equal to or greater than 40 million euros;
" -equity equal to or greater than 2 million euros.
" An investment service provider who enters into transactions in accordance with the provisions of Article L. 533-20 with a legal person referred to in the first paragraph of this 4 shall obtain from the latter the express confirmation that it Agrees to be treated as eligible consideration. The investment service provider can obtain this confirmation either as a general agreement or for each transaction.
" 5. The Caisse des Depots et Consignations and other registered or regulated institutional investors;
" 6. At their request, legal persons belonging to one of the categories of clients who may request to be treated as professionals in accordance with the provisions of the fifth paragraph of Article L. 533-16. In this case, the legal person concerned must be recognised as an eligible counterparty only for services or transactions for which it would be treated as a professional customer;
" 7. Foreign law entities equivalent to those mentioned in 1, 2 and 4.
" Where a legal person referred to in 4 has its head office or effective management outside metropolitan France and the overseas departments, the investment service provider shall take into account the status of that legal entity As defined by the provisions in force in the State in which it has its head office or effective direction.
" Art. D. 533-14. -Investment service providers may, on their own initiative or at the request of a customer, treat as a professional or non-professional customer a customer who could otherwise be classified as eligible counterparty In accordance with Article D. 533-13. "
Book VI of the same code is thus modified:
1 ° A la sous-section 2 de la section 1 of Chapter II of Title III, it is inserted an article D. 632-1-1, thus written:
" Art. D. 632-1-1. The agreements referred to in Article L. 632-7 shall be published in the Official Journal of the French Republic. "
2 ° A la sous-section 2 of Section 2 of Chapter II of Title III, it is inserted, after Article R. 632-2, an Article D. 632-3, thus written:
" Art. D. 632-3. -The agreements referred to in the fourth paragraph of Article L. 632-16 shall be published in the Official Journal of the French Republic. "
This Order comes into force on November 1, 2007.
The Minister of Economy, Finance and Industry is responsible for the execution of this Decree, which will be published in the Official Journal of the French Republic.
Done at Paris, May 15, 2007.
Dominique de Villepin
By the Prime Minister:
The Minister of the Economy,
Finance and Industry,
Thierry Breton
