24 Amendments of Pervenche BERÈS related to 2016/0365(COD)
Amendment 241 #
Proposal for a regulation
Recital 32
Recital 32
(32) In order to preserve financial stability, it is necessary that competent authorities are able to remedy the deterioration of a CCP's financial and economic situation before that CCP reaches a point at which authorities have no other alternative but to resolve it or to direct the CCP to change course where its actions could be detrimental for overall financial stability. Therefore, competent authorities should be granted early intervention powers to avoid or minimise adverse effects on financial stability that could result from the CCP’s implementation of certain measures. The early intervention powers should be conferred on competent authorities in addition to their powers provided for in the national law of Member States or under Regulation (EU) No 648/2012 for circumstances other than those considered to be early intervention. Early intervention rights should include the power to restrict or prohibit any remuneration of equity and instruments treated as equity to the fullest extent possible without triggering outright default, including dividend payments and buybacks by the CCP, and it should be able to restrict, prohibit or freeze any payments of variable remuneration under Directive 2013/36/EU and EBA Guidelines EBA/GL/2015/22, of discretionary pension benefits and of severance packages to management.
Amendment 252 #
Proposal for a regulation
Recital 42
Recital 42
(42) Affected shareholders, clearing participantmembers and creditors should not incur losses greater than those which they would have incurred if the resolution authority would not have taken resolution action in relation to the CCP and they would instead have been subject to possible outstanding obligations pursuant to the CCP's recovery plan or other arrangements in its operating rules or the CCP had been wound up in normal insolvency proceedings. In the event of a partial transfer of assets of a CCP under resolution to a private purchaser or to a bridge CCP, the residual part of the CCP under resolution should be wound up under normal insolvency proceedings.
Amendment 305 #
Proposal for a regulation
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
2a. ESMA shall assess CCP recovery and resolution arrangements across the Union in terms of their aggregate effect on Union financial stability through regular stress-testing and crisis simulation exercises with respect to potential system-wide stress events. In exercising this role, ESMA shall ensure consistency with the assessments of the resilience of individual CCPs carried out pursuant to Article 21(6) of Regulation (EU) No 648/2012 with regard to the frequency and design of the tests and shall cooperate closely with the ESRB and competent authorities designated under Article 4 of Directive 2013/36/EU, including the ECB in carrying out its tasks within a single supervisory mechanism under Regulation (EU) No 1024/2013, and any national competent authorities tasked with the supervision of CCPs. In areas where these arrangements are found to be wanting as a result of these comprehensive stress tests, the responsible institution or institutions will have to address the shortcomings and resubmit their arrangements for another round of stress tests within 6 months of the previous stress tests.
Amendment 324 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
1. CCPs shall draw up and maintain a recovery plan providing for measures to be taken in order to restore their financial position following a significant deterioration of their financial situation or a risk of breaching their prudential requirements under Regulation (EU) No 648/2012. This plan shall include a set of recovery tools that is comprehensive and effective, allowing the CCP to allocate any uncovered losses and cover liquidity shortfalls, addressing unbalanced positions and replenishing financial resources, including the CCP’s own capital, which are necessary for the CCP to maintain its viability as a going concern and to continue providing its critical services in accordance with Article 1(2) of Commission Delegated Regulation (EU) No 152/2013 and Article 32(2) and (3) of Commission Delegated Regulation (EU) No 153/2013.
Amendment 335 #
Proposal for a regulation
Article 9 – paragraph 4 – subparagraph 2
Article 9 – paragraph 4 – subparagraph 2
Where the competent authority considers that a recovery measure that the CCP intends to take may cause significant adverse effects to the financial system, is unlikely to be effective, or could unduly affect the clients of the clearing members compared with clearing members, it may require the CCP to refrain from taking that measure.
Amendment 339 #
Proposal for a regulation
Article 9 – paragraph 7
Article 9 – paragraph 7
7. Recovery plans shall be drafted in accordance with Section A of the Annex. Competent authorities may require CCPs to include additional information in their recovery plans: (a) not assume any access to or receipt of public financial support, central bank emergency liquidity assistance or central bank emergency liquidity assistance provided under non-standard collateralisation, tenor and interest rate terms; (b) consider the interests of all stakeholders that are likely to be affected by that plan; and (c) ensure that clearing members do not have unlimited exposures toward the CCP.
Amendment 356 #
Proposal for a regulation
Article 10 – paragraph 3
Article 10 – paragraph 3
3. When assessing the recovery plan, the competent authority shall take into consideration the CCP's capital structure, its default waterfall, the level of complexity of the organisational structure and the risk profile of the CCP, including the substitutability of its activities, and the impact that the implementation of the recovery plan would have on clearing members, their clients, financial markets served by the CCP and on the financial system as a whole. The competent authority shall take into due consideration whether the recovery plan ensures appropriate incentives for the CCP’s owners and clearing members and their clients to control the amount of risk that they bring to or incur in the system. The competent authority shall encourage monitoring of the CCP’s risk-taking and risk management activities, and encourage as full participation as possible in the CCP’s default management process.
Amendment 381 #
Proposal for a regulation
Article 13 – paragraph 4 a (new)
Article 13 – paragraph 4 a (new)
4a. The resolution plan shall make prudent assumptions, that would therefore still be valid in extreme scenarios including the default of several additional clearing members beyond the largest two compounded by the resulting troubles in other large CCPs, regarding the financial resources that may be required to achieve the resolution objectives and the resources that it expects to be available in accordance with the CCP’s rules and arrangements at the time of entering into resolution.
Amendment 389 #
Proposal for a regulation
Article 13 – paragraph 6 – subparagraph 1 – point l – point v
Article 13 – paragraph 6 – subparagraph 1 – point l – point v
(v) the portability of the assets and positions of the clearing participantsmembers and of their clients as referred to in Article 39 of Regulation (EU) No 648/2012;
Amendment 393 #
Proposal for a regulation
Article 13 – paragraph 6 – subparagraph 1 – point o a (new)
Article 13 – paragraph 6 – subparagraph 1 – point o a (new)
(oa) a description of the arrangements for exchanging information within the resolution college prior to and during resolution, in line with the written arrangements and procedures set out in the regulatory technical standards referred to in Article 4(6).
Amendment 426 #
Proposal for a regulation
Article 17 – paragraph 7 – point n a (new)
Article 17 – paragraph 7 – point n a (new)
(na) restrict or suspend interoperability links of the CCP where such a restriction or suspension is necessary to avoid the adverse effects that the use of the resolution tools and the exercise of the resolution powers could have on interoperating CCPs.
Amendment 432 #
Proposal for a regulation
Article 19 – paragraph 1 – introductory part
Article 19 – paragraph 1 – introductory part
1. Where a CCP infringes or is likely to infringe in the near future the prudential requirements of Regulation (EU) No 648/2012, or poses a risk to the financial stability of the Union financial system or parts thereof, or where the competent authority has determined that there are other indications of an emerging crisis situationdevelopments that could affect the operations of the CCP, in particular its ability to provide clearing services, the competent authorities may:
Amendment 444 #
Proposal for a regulation
Article 20 a (new)
Article 20 a (new)
Article 20a Issuance of instruments of ownerships in future profits to clearing members that have suffered losses Where a CCP in recovery has applied tools, set out in Articles 28, 30 and 31, which go beyond the default waterfall set out in Article 45 of Regulation (EU) No 648/2012 on non-defaulting clearing members, and has not entered into resolution as a result, the competent authority of the CCP may, once a matched book has been restored, either require the CCP to recompense the participants for their loss through cash payments or, where appropriate, require the CCP to issue instruments of ownership in future profits of the CCP. The value of instruments of ownership in future profits of the CCP issued to each affected non-defaulting clearing member, shall be proportionate to its loss and based on a valuation conducted in accordance with Article 24(3) of this Regulation. Those instruments of ownership shall entitle the possessor to receive payments from the CCP on an annual basis until the loss has been recouped in full up to a maximum of 15 years from the date of issuance. Up to 90% of the CCP’s annual profits shall be used towards payments relating to those instruments of ownership.
Amendment 457 #
Proposal for a regulation
Article 22 – paragraph 1 – subparagraph 2
Article 22 – paragraph 1 – subparagraph 2
For the purposes of point (a)(ii), the competent authority shall provide, without delay and on its own initiative, any information that may suggest that the CCP is failing or is likely to fail and, upon request, any relevant information that the resolution authority requests in order to perform its assessment.
Amendment 472 #
Proposal for a regulation
Article 23 – paragraph 1 – point a
Article 23 – paragraph 1 – point a
(a) all contractual obligations and other arrangements in the CCP's recovery plan are enforced either partially or in full, to the extent that they have not been exhausted before entry into resolution, unless the resolution authority determines that the use of resolution tools or the exercise of resolution powers is more appropriate to achieve the resolution objectives in a timely manner; and to avoid significant adverse effects on the financial system;
Amendment 480 #
Proposal for a regulation
Article 24 – paragraph 3 – subparagraph 1 a (new)
Article 24 – paragraph 3 – subparagraph 1 a (new)
The price of any termination of contracts by the resolution authority shall be based, insofar as possible, upon a fair market price determined on the basis of the CCP’s rules and arrangements, or other appropriate price discovery method used by the resolution authority.
Amendment 496 #
Proposal for a regulation
Article 27 – paragraph 9 – introductory part
Article 27 – paragraph 9 – introductory part
9. The resolution authority may recover any reasonable expenses, including an appropriate risk premium, incurred in connection with the use of the resolution tools or powers or government financial stabilisation tools in any of the following ways:
Amendment 518 #
Proposal for a regulation
Article 30 – paragraph 2
Article 30 – paragraph 2
2. The resolution authority shall calculate any reduction in payment obligations referred to in paragraph 1 using an equitable allocation mechanism determined in the valuation conducted in accordance with Article 24(3) and communicated to the clearing members as soon as the resolution tool is used. The total net gains to be reduced for each clearing member shall be proportional to the amounts due from the CCP. The clearing members should inform their clients about the use of such a mechanism as swiftly as possible.
Amendment 522 #
Proposal for a regulation
Article 31 – paragraph 1 – subparagraph 1
Article 31 – paragraph 1 – subparagraph 1
The resolution authority may require non- defaulting clearing members to make a contributions in cash to the CCP up to an amount equivalent to. The amount of those cash contributions shall not exceed their contribution to the CCP'’s default fund.
Amendment 555 #
Proposal for a regulation
Article 48 – paragraph 1 – subparagraph 1 – point b a (new)
Article 48 – paragraph 1 – subparagraph 1 – point b a (new)
(ba) the power to refrain from enforcing certain contractual obligations under the CCP’s rules and arrangements or otherwise depart from the CCP’s rules and arrangements where necessary to achieve the resolution objectives and to avoid significant adverse effects on the financial system;
Amendment 562 #
Proposal for a regulation
Article 60 – paragraph 1
Article 60 – paragraph 1
Where the resolution authority uses one or more resolution tools, it shallould aim to ensure that shareholders, creditors and clearing participantmembers do not incur: (a) clearing member, greater losses than they would have incurred had the resolution authority not taken resolution action in relation to the CCP at the time the resolution authority considered that the conditions for resolution pursuant to Article 22(1) were met and had they instead been subject to all possible outstanding obligations pursuant to the CCP's recovery plan orand all other contractual arrangements in its operating rules; (b) of a clearing member, greater losses than they would have incurre for either a default or a non-default event and had the CCP been wound up under normal insolvency proceedings including b, properly taking into account of its contractual arrangements in its operating rules.any plausible adverse effects of systemic instability and market turmoil. in the event of the default of a in an event other than the default
Amendment 581 #
Proposal for a regulation
Article 62 – paragraph 1
Article 62 – paragraph 1
Where, in accordance with the valuation carried out under Article 61, any shareholder, creditor or clearing participantmember has incurred greater losses than it would have incurred if the resolution authority would not have taken resolution action in relation to the CCP and they would instead have been subject to possible outstanding obligations pursuant to the CCP's recovery plan or other arrangements in its operating rules or the CCP had been wound up under normal insolvency proceedings, that shareholder, creditor or clearing participant shall be entitled to the payment of the difference.
Amendment 615 #
Proposal for a regulation
Article 82 – paragraph 1
Article 82 – paragraph 1
By […], the Commission shall review the implementation of this Regulation and... [date to be inserted: two years after date of entry into force of this Regulation], the Commission shall review this Regulation and its implementation in the light of the shifting European institutional architecture for CCP supervision and resolution and in the light of the progress in international efforts on recovery and resolution of CCPs, notably assessing whether a CCP should use, prior to the use of the tools pertaining to arrangements and measures foreseen in the recovery plan: – following a default scenario, an additional amount of dedicated own resources equivalent to the amount specified in Article 45(4) of Regulation (EU) No 648/2012; – following a non-default scenario, dedicated own resources equivalent to three times the amount required to be used in accordance with Article 45(4) of Regulation (EU) No 648/2012. The Commission shall submit a report thereon to the European Parliament and to the Council. Where appropriate, that report shall be accompanied by a legislative proposal.
Amendment 616 #
Proposal for a regulation
Article 82 – paragraph 1
Article 82 – paragraph 1
By […], the Commission shall review the implementation of this Regulation... [date to be inserted: two years after date of entry into force of this Regulation] the Commission shall review this Regulation and its implementation in the light of the shifting European institutional architecture for CCP supervision and resolution and in the light of the progress in international efforts on recovery and resolution of CCPs and shall submit a report thereon to the European Parliament and to the Council. Where appropriate, that report shall be accompanied by a legislative proposal.