21 Amendments of Philippe DE BACKER related to 2012/0029(COD)
Amendment 165 #
Proposal for a regulation
Recital 31
Recital 31
(31) In order to avoid settlementminimise risks due to the insolvency of the settlement agent, a CSD participant should settle, whenever practical and available, the cash leg of theits securities transactions through accounts opened with a central bank. If this option is not practical and available, a CSD should be able for the CSD participant, a CSD may offer to settle through commercial bank accounts opened with a credit institution established under the conditions provided in 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 institutions and subject to a specific authorisation procedure and prudential requirements provided in Title IV of this Regulation. The latter, when acting as settlement agent, should be ableis only allowed to provide to the CSD's participants the services set out in this Regulation, which are covered by the authorisation, and may otherwise provide other services not covered by this Regulation.
Amendment 171 #
Proposal for a regulation
Recital 32
Recital 32
(32) Considering that Directive 2006/48/EC does not address specifically intraday credit and liquidity risks resulting from the provision of banking services ancillary to settlement, credit institutions providing such services should also be subject to specific enhanced credit and liquidity risk mitigation requirements that should apply to each securities settlement system in respect of which they act as settlement agents. In order to ensure full compliance with specific measures aimed at mitigating credit and liquidity risks, the competent authorities should be able to require CSDs to designate more than one credit institution whenever they can demonstrate, based on the available evidence, that the exposures of one credit institution to the concentration of credit and liquidity risks is not fully mitigateda CSD authorised as credit institution, or a designated credit institution providing such services should also be subject to specific enhanced credit and liquidity risk mitigation requirements.
Amendment 174 #
Proposal for a regulation
Recital 33
Recital 33
(33) The requirement that the settlement ofA CSD that intends to settle the cash leg of the securities transaction be carried out by a separate legal entity acting as settlement agent is an important measure to incres in commercial bank cash accounts hase the safety and resilience of CSDs. Such a separation between core services of CSDs and banking services ancillary to settlement appears indeed indispensible for eliminating any danger of transmission of the risks from the banking services, such as credit and liquidity risks, to the provision of core services of CSDs. There are no less intrusive measures available for eliminating those credit and liquidity risks in order to ensure the envisaged level of safety and resilience of CSDs. However, in order to secure the efficiencies resulting from the provision of both CSD and banking services within the same group of undertakings, the requirement that banking services be carried out by a separate credit institution should not prevent that credit institution from belonging to the same group of undertakings as the CSD. If both CSD option to either designate a separate credit institution as settlement agent, or to act as settlement agent itself. The settlement agent should be authorised as a credit institution and follow all relevandt banking services are provided within the same group of undertakings, in order to increase the safety and efficiency of the services provided, the activities of the credit institution providing banking services should be limited to the provision of banking services ancillary to settlement. Furthermore, a derogation to the obligation to separate banking services ancillary to settlement from core CSD services should be available in the absence of any danger of transmission of credit and liquidity risks from the banking services to the provision of core services of CSDs. In order to ensure a consistent application of the possibility to derogate from the obligation on CSDs not to provide any banking type of ancillary services, the Commission should be empowered to decide, at the request of a national competent authority, whether any such derogation is permitted in view of the absence of systemic risk incurred by the provision of both CSD core and banking services by the same legal entity. In any case, the activities of a CSD benefiting from any such derogation and authorised as a credit institution should be limited exclusively to the provision of banking services ancillary to settlementlaws and regulations. To ensure that the related credit and liquidity risk are limited, the settlement agent is only authorised to perform those banking services that support the provision of CSD core and ancillary services. The settlement agent should also comply with additional rules on management of its credit and liquidity risk (that come on top of the regular banking laws and rules). As market infrastructure, the CSD shall establish recovery plans that ensure continuity of its critical operations including its banking services. It should also provide more transparency on its intraday credit and liquidity risk.
Amendment 332 #
Proposal for a regulation
Article 16 – paragraph 3
Article 16 – paragraph 3
3. An authorised CSD shall notonly be exposed to any risks related to the provision of banking type of ancillary services by the credit institution designated to provide such services in accordance with Title IV.
Amendment 335 #
Proposal for a regulation
Article 16 – paragraph 4
Article 16 – paragraph 4
4. An authorised CSD may only have a participation in a legal person whose activities are limited to the provision of services set out in Sections A, B and BC of the Annex, unless the competent authority is satisfied that such participation does not put the continuity of the CSD's operations at risk.
Amendment 525 #
Proposal for a regulation
Article 52 – paragraph 1
Article 52 – paragraph 1
1. A CSD shall not provide itself any banking type of ancillary services set out in Section C of the Annexthat intends to settle the cash leg of all or part of its securities settlement system in accordance with Article 37(2) of this Regulation shall either : (i) designate for this purpose an authorised credit institution as provided in Title II of Directive 2006/48/EC in accordance with paragraphs 3 to 5a, or (ii) undertake directly those banking services in accordance with paragraphs 2a to 5a.
Amendment 535 #
Proposal for a regulation
Article 52 – paragraph 2
Article 52 – paragraph 2
Amendment 551 #
Proposal for a regulation
Article 52 – paragraph 2 a (new)
Article 52 – paragraph 2 a (new)
2 a. A CSD shall be able to obtain authorisation to undertake limited banking services. It should therefore – in addition to its authorisation as CSD: (i) be authorised as a credit institution as provided in Title II of Directive 2006/48/EC. It shall comply with all laws and regulations applicable to credit institutions; (ii) have in place adequate recovery plans aiming at continuity of its critical operations including the activity authorised under its banking licence; (iii) publicly report in its annual Pillar 3 disclosure, as required under Directive 2006/48/EC, an overview of its intraday credit and liquidity risks and how these risks are managed.
Amendment 560 #
Proposal for a regulation
Article 52 – paragraph 3
Article 52 – paragraph 3
3. A CSD which has not requested or obtained an authorisation in accordance with paragraph 2a and that intends to settle the cash leg of all or part of its securities settlement system in accordance with Article 37(2) of this Regulation shall obtain authorisation to designate for this purpose an authorised credit institution as provided in Title II of Directive 2006/48/EC, unless the competent authority referred to in Article 53(1) of this Regulation demonstrates, based on the available evidence, that the exposure of one credit institution to the concentration of risks under Article 57(3) and (4) of this Regulation is not sufficiently mitigated. In the latter case, the competent authority referred to in Article 53(1) may require the CSD to designate more than one credit institution. The designated credit institutions shall be considered as settlement agents. The designated credit institution is subject to the requirements in paragraphs 5 and 5a.
Amendment 565 #
Proposal for a regulation
Article 52 – paragraph 4
Article 52 – paragraph 4
Amendment 577 #
Proposal for a regulation
Article 52 – paragraph 5
Article 52 – paragraph 5
5. Whenever the CSD and the designated credit institution belong to a group of undertakings ultimately controlled by the same parent undertaking, the authorisation as provided in Title II of Directive 2006/48/EC of such designated credit institution shall be limited exclusively to the provision of the banking type of ancillary services that it is authorised to provide in accordance with paragraph 3 of this Article. The same requirement applies in respect of a CSD that has been granted a derogation under paragraph 2 of this ArticleThe authorisation granted in accordance with Title II of Directive 2006/48/EC of a CSD authorised according to paragraph 2a or of a credit institution designated in accordance with paragraph 3 shall be limited exclusively to the provision of the banking type of ancillary services supporting core and ancillary CSD services as included in Sections A and B of the Annex. Therefore, for purposes of the previous paragraph, the activities listed in Annex 1 of Directive 2006/48/EC, Sections 1, 2, 4, 6, 7 (b) and 7(e), may only be performed within the limits set out under Section C of the Annex. The activities listed in Annex 1 of Directive 2006/48/EC in Sections 3, 5, 7 (except (b) and (e)), 9, 10, 11, 13 and 15 may not be performed unless indicated in Section C of the Annex.
Amendment 584 #
Proposal for a regulation
Article 52 – paragraph 5 a (new)
Article 52 – paragraph 5 a (new)
5 a. Any CSD that has been authorised as a credit institution according to paragraph 2a and any credit institution designated in accordance with paragraph 3 shall be subject to the fulfilment of the prudential and supervision requirements provided in Articles 42, 57 and, in case of a credit institution, 58.
Amendment 597 #
Proposal for a regulation
Article 54 – paragraph 1
Article 54 – paragraph 1
1. A CSD that intends to extend the banking type of ancillary services which it provides or for which it designates a credit institution shall submit a request for extension to the competent authority of the Member State where that CSD is established.
Amendment 611 #
Proposal for a regulation
Article 57 – paragraph 1
Article 57 – paragraph 1
1. A CSD authorised as a credit institution or a credit institution designated to provide banking type of ancillary services shall provide the services set out in Section C of the Annex that are covered by the authorisationbe limited in its banking functions in accordance with Article 52.
Amendment 617 #
Proposal for a regulation
Article 57 – paragraph 2
Article 57 – paragraph 2
2. A CSD authorised as a credit institution or a credit institution designated to provide banking type of ancillary services shall comply with any present or future legislation applicable to credit institutions.
Amendment 621 #
Proposal for a regulation
Article 57 – paragraph 3 – introductory part
Article 57 – paragraph 3 – introductory part
3. A CSD authorised as a credit institution or a credit institution designated to provide banking type of ancillary services shall comply with the following specific prudential requirements for the credit risks related to these services in respect of each securities settlement system:
Amendment 626 #
Proposal for a regulation
Article 57 – paragraph 4 – introductory part
Article 57 – paragraph 4 – introductory part
4. A CSD authorised as a credit institution or a credit institution designated to provide banking type of ancillary services shall comply with the following specific prudential requirements for the liquidity risks related to these services in respect of each securities settlement system:
Amendment 664 #
Proposal for a regulation
Annex 1 – section C – title
Annex 1 – section C – title
Amendment 666 #
Proposal for a regulation
Annex 1 – section C – point 1
Annex 1 – section C – point 1
Amendment 667 #
Proposal for a regulation
Annex 1 – section C – point 1
Annex 1 – section C – point 1
1. Banking type of services for the participants to a securities settlement system related to the settlement service, such asThe services involving credit and liquidity risk shall contribute to the CSDs’ role of enhancing safety, efficiency and transparency of securities markets. These services shall be provided only to support the provision of core and ancillary services as included under Sections A and B of this Annex, such as: (a) As defined in point 1 of the Annex I of the Directive replacing Directives 2006/48 and 2006/49, Acceptance of deposits and other repayable funds, - Acceptance of cash deposits from participants; (b) As defined in point 2 of the Annex I of the Directive replacing Directives 2006/48 and 2006/49, lending including, inter alia: consumer credit, credit agreements relating to immovable property, factoring, with or without recourse, financing of commercial transactions (including forfeiting), - Cash lending for intended reimbursement no later than the following business day; - Lending of securities; (c) As defined in point 4 of the Annex I of the Directive replacing Directives 2006/48 and 2006/49, payment services as defined in Article 4 (a3) Providof Directive 2007/64/EC, - Processing of cash accounts; transactions, including the cash leg of DVP settlements; - Processing of foreign exchange instructions from participants; (bd) Accepting cash deposits; (c) Providing cash credit; (d) Lending securitis defined in point 6 of the Annex I of the Directive replacing Directives 2006/48 and 2006/49, guarantees and commitments, - In particular related to the securities lending and borrowing services provided by the CSD (as per Section B paragraph 1 point (a) of this Annex); (e) As defined in point 7 of the Annex I of the Directive replacing Directives 2006/48 and 2006/49, trading for own account or for account of customers, - Treasury activities basically related to the management of the participants’ long balances.
Amendment 679 #
Proposal for a regulation
Annex 1 – section C – point 2
Annex 1 – section C – point 2