BETA

18 Amendments of Markus FERBER related to 2017/0136(COD)

Proposal for a regulation
Recital 1

(1) Regulation (EU) No 648/2012 of the European Parliament and of the Council46 requires standardised OTC derivatives contracts to be cleared through a Central Counterparty (CCP) in line with similar requirements in other G20 countries. That Regulation also introduced strict prudential, organisational and business conduct requirements for CCPs and established arrangements for their prudential supervision in order to minimise risks to users of a CCP and underpin financial stability. The G20 objectives set at the 2009 Pittsburgh summit should continue to be implemented in full in order to take full advantage of the benefits to financial stability. __________________ 46 Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories. OJ L 201, 27.7.2012, p. 1.

2018/04/13
Committee: ECON

Proposal for a regulation
Recital 16

(16) To provide for an appropriate level of expertise and accountability, the ~~Head and the two Directors of the CCP Executive Session~~Chair of the CCP Supervisory Committee should be appointed on the basis of merit, skills, knowledge of clearing, post-trading and financial matters, as well as experience relevant to the supervision and regulation of CCPs. They Chair of the CCP Supervisory Committee should be chosen on the basis of an open selection procedure. The Commission should, in consultation with the national supervisory authorities, submit a proposal for the appointment of candidates to the European Parliament for approval. Following the European Parliament’s approval of that proposal, the Council should adopt an implementing decision.

2018/04/13
Committee: ECON

Proposal for a regulation
Recital 24

(24) A significant amount of financial instruments denominated in the currencies of the Member States are cleared by recognised third-country CCPs. This will increase substantially when the United Kingdom withdraws from the Union and the CCPs established there will no longer be governed by the requirements of this Regulation. Cooperation arrangements agreed in the supervisory colleges will no longer be subject to the safeguards and procedures of this Regulation, including the Court of Justice of the European Union. This implies significant challenges for Union and Member State authorities in safeguarding financial stability. Derivatives in EU currencies should thus be cleared within the EU, whilst derivatives in euros should be cleared in the Eurozone.

2018/04/13
Committee: ECON

Proposal for a regulation
Recital 33

(33) The degree of risk posed by a systemically-important CCP to the financial system and stability of the Union varies. The requirements for systemically- important CCPs should therefore be applied in a manner proportionate to the risks that the CCP may present to the Union. WIf there is no effective cooperation agreement between the EU supervisory authorities and the supervisory authorities of the third country, and between the European Central Bank and the central bank of the third country, or where ESMA and the relevant central bank(s) of issue conclude that a third-country CCP is of such systemic importance that additional requirements will not ensure the financial stability of the Union, ESMA should be able to recommend to the Commission that that CCP should not be recognised. The Commission should be able to adopt an implementing act declaring that the third- country CCP, or a clearing service thereof, should be established in the Union and authorised as such to provide clearing services in the Union.

2018/04/13
Committee: ECON

Proposal for a regulation
Recital 52 a (new)

(52a) For the sake of financial stability and to ensure the principle of liability is enforced, derivatives in EU currencies should be cleared within the European Union. Deviation from this basic rule is only permitted if there are no effective agreements between the competent supervisory authority and the central bank of the third country in question that ensure European standards are enforced on the supervision of the CCP in question, and which ensure the competent European supervisory authority is given full rights of access in times of crisis.

2018/04/13
Committee: ECON

Proposal for a regulation
Recital 52 b (new)

(52b) If there is no effective agreement between the EU supervisory authority and the competent supervisory authority, and between the European Central Bank and the central bank of the third country in question that guarantees effective supervision for the clearing of derivatives in EU currencies, the European Commission is authorised, after consultation with ESMA, to adopt an implementing act in which it states that a third-country CCP or a clearing service thereof must set up a branch within the Union.

2018/04/13
Committee: ECON

Proposal for a regulation
Recital 52 c (new)

(52c) To ensure the existing cooperation agreements are effective and to ensure European legislation is enforced on the supervision of CCPs, the third country in question must accept the jurisdiction of the European Court of Justice in matters of CCP supervision.

2018/04/13
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point -1 (new)

Regulation (EU) No 648/2012
Article 4 a (new)

(-1) a new Article 4a is inserted: Article 4a Clearing obligation for derivatives in EU currencies Derivatives in an EU currency shall be cleared within the European Union. CCPs clearing derivatives in an EU currency that are not based in the EU shall be deleted from the public register in accordance with Article 6 (2) b of this Regulation. By way of derogation from paragraph 1, an exception is only permitted if all of the following conditions are met: (a) There is an effective agreement between the EU supervisory authority and the competent supervisory authority of the third country that ensures European standards are enforced on the supervision of the CCP in question, and which ensures the competent European supervisory authority is given full rights of access in times of crisis. (b) There is an effective agreement between the European Central Bank and the central bank of the third country that regulates the provision of emergency liquidity and all the obligations involved.

2018/04/13
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point 7

Regulation (EU) No 648/2012
Article 21 a – paragraph 2 –subparagraph 1

Competent authorities shall prepare and submit draft decisions to the central banks of issue referred to in Article 18(2)(h) before adopting any decision pursuant to Articles 14, 15, 20, 44, 46, 47, 50 and 54.

2018/04/13
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point 7 a (new)

Regulation (EU) No 648/2012
Article 22 a (new)

7a. the following Article 22a is inserted: Article 22a ESMA CCP Supervisory Committee (1) ESMA shall establish a permanent internal committee pursuant to Article 41 of Regulation (EU) No 1095/2010 for the purposes of preparing decisions and carrying out the tasks relating to the supervision of Union and third country CCPs. The CCP Supervisory Committee established pursuant to the first subparagraph shall submit to the Board of Supervisors complete draft decisions for adoption in accordance with Article 22c. (2) The CCP Supervisory Committee shall be composed of: (a) the following permanent members: (i) a Chair, appointed in accordance with Article 22b, who shall be voting; (ii) a representative of the Commission, who shall be non-voting; and (iii) a representative of the ECB, who shall be non-voting: (b) the following non-permanent members specific to each CCP in relation to which the CCP Supervisory Committee is convened: (i) a representative of the competent authority for each CCP established in the Union in relation to which the CCP is convened, who shall be voting; and (ii) a representative of each of the relevant central banks of issue referred to in point (h) of Article 18(2) of Regulation (EU) No 648/2012 for each CCP established in the Union in relation to which the CCP Supervisory Committee is convened, who shall be non-voting. The Chair may invite as observers to the meetings of the CCP Supervisory Committee, where and as appropriate and necessary, other members referred to in Article 18(2) of Regulation (EU) No 648/2012 of the college of the relevant CCP to the meetings of the CCP Supervisory Committee. Where the CCP Supervisory Committee is exercising any of the tasks referred to in point (b) of paragraph 3, authorities of third country CCPs recognised by ESMA pursuant to Article 25 of Regulation (EU) No 648/2012 may be invited, where and as appropriate and necessary, as observers. Where discussing decisions pertaining to Article 25(2a) and (2c), Article 25b and Articles 41, 44 and 46, central banks of issue of the financial instruments cleared or to be cleared by the third country CCP in relation to which the CCP Supervisory Committee convenes may be invited to participate in the CCP Supervisory Committee as observers. Meetings of the CCP Supervisory Committee shall be convened by its Chair at its own initiative or at the request of any of its members. The CCP Supervisory Committee shall meet at least five times a year. Where a task of the CCP Supervisory Committee does not relate to a specific CCP established in the Union, the Committee shall be composed only of the permanent members referred in point (a) of this paragraph and, where relevant, the central banks of issue referred to in point (b)(ii) of this paragraph. (3) The CCP Supervisory Committee shall be responsible for all of the following: (a) providing the consent referred to in Article 21a(1) of Regulation (EU) No 648/2012; (b) the recognition and supervision of third-country CCPs in accordance with Article 25 of Regulation (EU) No 648/2012, the monitoring of regulatory and supervisory developments in third countries under Chapter 2 of Title II of Regulation (EU) No 648/2012; and (c) the tasks referred to in the first subparagraph of Article 5(1), the first subparagraph of Article 9(3), Articles 9(4), 13(1) and (4), 17(2) and (3), 18(1), 20(2) and (6), Articles 21c, 23 and 24, Articles 29(3), 38(5), 48(3), 49(1) and 54(3) of Regulation (EU) No 648/2012. (4) The Chair of the CCP Supervisory Committee shall be a full-time, independent professional. The Chair shall be appointed on the basis of merit, skills, knowledge of clearing, post-trading and financial matters, and of experience relevant to CCP supervision and regulation. They shall be chosen on the basis of an open selection procedure organised by the Commission in collaboration with national supervisory authorities, and it shall respect the principles of gender balance, experience and qualification. The Chair shall not hold any other office at national, Union, or international level. The Commission shall, in consultation with national supervisory authorities, provide the European Parliament and Council with a shortlist of candidates for the position of Chair of the CCP Supervisory Committee. The Commission shall, in consultation with national supervisory authorities, provide the European Parliament and Council with a proposal for appointing the Chair of the CCP Supervisory Committee. Following the approval of that proposal, the Council shall adopt an implementing decision to appoint the Chair of the CCP Supervisory Committee. The Council shall act by qualified majority. Where the Chair of the CCP Supervisory Committee no longer fulfils the conditions required for the performance of his or her duties or has been found guilty of serious misconduct, once it has consulted the National Supervisory Bodies the Council may, on a proposal from the Commission which has been approved by the European Parliament, adopt an implementing decision to remove him or her from office. The Council shall act by qualified majority. The European Parliament or the Council may inform the Commission and the National Supervisory Authorities that they consider the conditions for the removal of the Chair of the CCP Supervisory Committee to be fulfilled, to which the Commission shall respond. (5) The CCP Supervisory Committee shall be supported by a dedicated staff possessing sufficient knowledge, skills and experience and shall be granted adequate resources by ESMA to carry out its tasks. (6) The CCP Supervisory Committee shall inform the relevant supervisory college of the complete draft decisions it submits to the Board of Supervisors pursuant to paragraph 1. (7) The CCP Supervisory Committee shall ensure that members of the college referred to in Article 18(2), the authorities referred to in Article 25(3) of Regulation (EU) No 648/2012 and the ESRB, in accordance with Article 15 of Regulation (EU) No 1092/2010, have access to all information necessary for the purpose of carrying out their tasks. (8) For the purposes of this Regulation, ESMA shall ensure structural separation between the CCP Supervisory Committee and other functions referred to in Regulation (EU) No 1095/2010.

2018/04/13
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point 9 – point b

Regulation (EU) No 648/2012
Article 25 – paragraph 2 a – subparagraph 1 – point b

(b) the effect that the failure of or a disruption to the CCP would have on financial markets, financial institutions, or the broader financial system, or on the financial stability of the Union or for one or more of its Member States, in addition to the potential for other CCPs to provide the same services;

2018/04/13
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point 9 – point b

Regulation (EU) No 648/2012
Article 25 – paragraph 2 a – subparagraph 1 – point c

(c) the CCP's direct and indirect clearing membership structure;

2018/04/13
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point 9 – point b

Regulation (EU) No 648/2012
Article 25 – paragraph 2 b – point a

(a) the CCP complies, at the moment of recognition and thereafter on an ongoing basis, with the requirements set out in Article 16 and in Titles IV and V. ESMA shall take into account, in accordance with Article 25a(2), the extent to which an CCP's compliance with those requirements is satisfied by the CCP's compliance with the comparable requirements applicable in the third country;

2018/04/13
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point 9 – point b

Regulation (EU) No 648/2012
Article 25 – paragraph 2 c – subparagraph 1

If there are no effective agreements between the EU supervisory authority and the competent supervisory authority of the third country concerned or between the European Central Bank and the central bank of the third country concerned that guarantee effective supervision over the clearing of derivatives in EU currencies, or if ESMA, in agreement with the relevant central banks of issue and commensurate with the degree of systemic importance of the CCP in accordance with paragraph 2a, ~~may~~ concludes that a CCP is of such substantial systemic importance that compliance with the conditions set out in paragraph 2b does not sufficiently ensure the financial stability of the Union or of one or more of its Member States and should not therefore be recognised. In such a case, ESMA shall recommend that the Commission adopt an implementing act confirming that that CCP should not be recognised in accordance with paragraph 2b and requiring the CCP to apply for authorisation pursuant to Article 14 to provide the clearing services in question within the Union.

2018/04/13
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point 9 – point d

Regulation (EU) No 648/2012
Article 25 – paragraph 6 – subparagraph 2

The Commission ~~may~~shall subject the application of the implementing act referred to in the first subparagraph to the effective fulfilment of any requirement set out therein by a third country on an ongoing basis and to the ability by ESMA to effectively exercise its responsibilities in relation to third-country CCPs recognised under paragraphs 2 and 2b or in relation to monitoring referred to in paragraph 6b, ~~including~~ by way of agreeing and applying the cooperation arrangements referred to in paragraph 7.

2018/04/13
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point 9 – point f

Regulation (EU) No 648/2012
Article 25 – paragraph 7 – first sentence

(7) ESMA shall establish effective cooperation arrangements with the relevant competent authorities of third countries whose legal and supervisory frameworks have been recognised as equivalent to this Regulation in accordance with paragraph 6. These cooperation agreements contain in particular effective requirements that clearly regulate the rights and obligations of the supervisory authorities in the event that a CCP finds itself in crisis, and they guarantee the European supervisory authority the necessary rights of access.

2018/04/13
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point 9 – point g a (new)

Regulation (EU) No 648/2012
Article 25 – paragraph 7 a (new)

(ga) in Article 25, paragraph 7a is inserted: : 7a. To ensure the existing cooperation agreements are effective and that European legislation is enforced on the supervision of CCPs, the cooperation agreements contain a clause that requires the third country in question to accept the jurisdiction of the European Court of Justice in matters of CCP supervision.

2018/04/13
Committee: ECON

Proposal for a regulation
Article 2 – paragraph 1 – point 10

Regulation (EU) No 648/2012
Article 25 m – paragraph 4 (new)

(4a) If a CCP loses authorisation within the EU solely because the Member State it is based in is leaving the EU, this CCP may, notwithstanding Article 25(1), continue clearing activities until an equivalence decision is met, provided they submit an equivalence application within four weeks of the home Member State leaving the EU. ESMA shall assess the equivalence application within three months of receipt.

2018/04/13
Committee: ECON