Activities of Jakob von WEIZSÄCKER related to 2017/0090(COD)
Plenary speeches (1)
Clearing obligation, reporting requirements, risk-mitigation techniques and trade repositories (debate)
Shadow reports (1)
REPORT on the proposal for a regulation of the European Parliament and of the Council amending Regulation (EU) No 648/2012 as regards the clearing obligation, the suspension of the clearing obligation, the reporting requirements, the risk-mitigation techniques for OTC derivatives contracts not cleared by a central counterparty, the registration and supervision of trade repositories and the requirements for trade repositories PDF (671 KB) DOC (97 KB)
Amendments (32)
Amendment 36 #
Proposal for a regulation
Recital 6
Recital 6
(6) Financial counterparties with a volume of activity in OTC derivatives markets that is too low to present an important systemic risk for the financial system and is too low for central clearing to be economically viable should be exempted from the clearing obligation while remaining subject to the requirement to exchange collateral to mitigate any systemic risk. The excess of the clearing threshold for at least one class of OTC derivative by a financial counterparty should however trigger the clearing obligation for all classes of OTC derivatives given the interconnectedness of financial counterparties and the possible systemic risk to the financial system that may arise if those derivative contracts are not centrally cleared. Financial counterparties that do not exceed the threshold should remain subject to all risk-mitigation techniques for derivative contracts not cleared by a CCP.
Amendment 40 #
Proposal for a regulation
Recital 7
Recital 7
(7) Non-financial counterparties are less interconnected than financial counterparties. They are also often active in only one class of OTC derivative. Their activity could therefore poses less of a systemic risk to the financial system than the activity of financial counterparties. The scope of the clearing obligation for non- financial counterparties should therefore be narrowed, so that those non-financial counterparties are subject to the clearing obligation only with regard to the asset class or asset classes that exceed the clearing threshold, while retaining their requirement to exchange collateral when any of the clearing thresholds is exceeded.
Amendment 47 #
Proposal for a regulation
Recital 12
Recital 12
(12) Intragroup transactions involving non-financial counterparties represent a relatively small fraction of all OTC derivative transactions and are used primarily for internal hedging within groups. Those transactions therefore do not significantly contribute to systemic risk and interconnectedness, yet the obligation to report those transactions imposes important costs and burdens on non- financial counterparties. Intragroup transactions where at least oneboth of the counterparties is aare non-financial counterpartyies should therefore be exempted from the reporting obligation.
Amendment 52 #
Proposal for a regulation
Recital 13
Recital 13
Amendment 66 #
Proposal for a regulation
Recital 19
Recital 19
(19) The fines ESMA can impose on trade repositories under its direct supervision should be effective, proportionate and dissuasive enough to ensure the effectiveness of ESMA’s supervisory powers and to increase the transparency of OTC derivatives positions and exposures. The amounts of fines initially provided for in Regulation (EU) No 648/2012 have revealed insufficiently dissuasive in view of the current turnover of the trade repositories, which could potentially limit the effectiveness of ESMA's supervisory powers under that Regulation vis-à-vis trade repositories. The upper limit of the basic amounts of fines should therefore be increased. Furthermore, the timespans for taking into account aggravating and mitigating factors have been ineffective and need to be changed.
Amendment 69 #
Proposal for a regulation
Recital 24
Recital 24
(24) Regulation (EU) No 648/2012 establishes that the clearing obligation should not apply to pension scheme arrangements (PSAs) until a suitable technical solution is developed by CCPs for the transfer of non-cash collateral as variation margins. As no viable solution facilitating PSAs to centrally clear has been developed so far, that temporary derogation should be extended to apply for a further three years. Central clearing should however remain the ultimate aimWithin that timeframe, the introduction of central clearing is reasonably possible considering that current regulatory and market developments enable market participants to develop suitable technical solutions within that time perio. No further extensions are to be foreseen since the financial stability benefits of central clearing for PSAs are well documented and any adverse incentive to further delay implementation should be avoided. With the assistance of ESMA, EBA, the European Insurance and Occupational Pensions Authority (‘EIOPA’), ECB and ESRB, the Commission should monitor and promote the progress made by CCPs, clearing members and PSAs towards viable solutions facilitating the participation of PSAs in central clearing and prepare a report on that progress. That report should also cover the solutions every 6 months until the clearing exemption expires. That report should also cover the solutions, possibly including liquidity transformation of secure collateral via the ECB and the related costs and benefits for PSAs, thereby taking into account regulatory and market developments such as changes to the type of financial counterparty that is subject to the clearing obligation. In order to cater for developments not foreseen at the time of adoption of this regulation, the Commission should be empowered to extend that derogation for additional two years, after having carefully assessed the need for such an extension.
Amendment 73 #
Proposal for a regulation
Recital 25
Recital 25
(25) The power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of specifying the conditions under which commercial terms relating to the provision of clearing services are considered to be fair, reasonable and non- discriminatory, and in respect of the extension of the period in which the clearing obligation should not apply to PSAs.
Amendment 103 #
Proposal for a regulation
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Regulation (EU) No 648/2012
Article 4a – paragraph 1 – subparagraph 1
Article 4a – paragraph 1 – subparagraph 1
A financial counterparty taking positions in OTC derivative contracts shall calculate, annuallyon an annual basis, its aggregate month- end average position for the months March, April and Mayprevious 12 months in accordance with paragraph 3.
Amendment 105 #
Proposal for a regulation
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Regulation (EU) No 648/2012
Article 4a – paragraph 1– subparagraph 2 – introductory part
Article 4a – paragraph 1– subparagraph 2 – introductory part
Where the result of that calculation exceeds the clearing thresholds or where a financial counterparty can reasonably expect it to exceed the clearing thresholds specified pursuant to Article 10(4)(b)paragraph 3a, the financial counterparty shall:
Amendment 116 #
Proposal for a regulation
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Regulation (EU) No 648/2012
Article 4a – paragraph 2
Article 4a – paragraph 2
2. A financial counterparty that has become subject to the clearing obligation in accordance with paragraph 1 and subsequently demonstrates to the relevant competent authority that its aggregate month-end average position for the months March, April and May of a given yearprevious 12 months no longer exceeds the clearing threshold referred to in paragraph 1, shall no longer be subject to the clearing obligation set out in Article 4.
Amendment 119 #
Proposal for a regulation
Article 1 – paragraph 1 – point 3
Article 1 – paragraph 1 – point 3
Regulation (EU) No 648/2012
Article 4a – paragraph 3 a (new)
Article 4a – paragraph 3 a (new)
3a. In order to ensure consistent application of this Article, ESMA shall develop draft regulatory technical standards, after consulting the ESRB and other relevant authorities, specifying the values of the clearing thresholds, in order to ensure broad participation in central clearing. After conducting an open public consultation, ESMA shall submit those draft regulatory technical standards to the Commission by ... [six months following the date of entry into force of this amending Regulation]. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010. After consulting the ESRB and other relevant authorities, ESMA shall periodically review the thresholds, and, where necessary, propose regulatory technical standards to amend them. Each Member State shall designate an authority responsible for ensuring that the obligation under paragraph 1 is met.
Amendment 147 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Regulation (EU) No 648/2012
Article 6b – paragraph 5
Article 6b – paragraph 5
5. A suspension of the clearing obligation pursuant to this Article shall be valid for a period of threnot exceeding one months from the date of the publication of that suspension in the Official Journal of the European Union.
Amendment 148 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Regulation (EU) No 648/2012
Article 6b – paragraph 6 – subparagraph 1
Article 6b – paragraph 6 – subparagraph 1
The Commission, after consulting ESMA and the ESRB, may extend the suspension referred to in paragraph 5 for additionalone or more periods of three months, with the total period of the suspension not exceeding twelve monthsone month not cumulatively exceeding six months from the end of the initial suspension period where the grounds for the suspension continue to apply. An extension of the suspension shall be published in accordance with Article 4.
Amendment 152 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Regulation (EU) No 648/2012
Article 6b – paragraph 6 a (new)
Article 6b – paragraph 6 a (new)
6a. Where the suspension is not renewed by the end of the initial period or by the end of any subsequent renewal period it shall automatically expire.
Amendment 154 #
Proposal for a regulation
Article 1 – paragraph 1 – point 7 – point a
Article 1 – paragraph 1 – point 7 – point a
Regulation (EU) No 648/2012
Article 9 – paragraph 1 – subparagraph 1
Article 9 – paragraph 1 – subparagraph 1
Counterparties and CCPs shall ensure that the details of any derivative contract they have concluded and of any modification or termination of the contract are reported in accordance with paragraph 1a to a trade repository registered in accordance with Article 55 or recognised in accordance with Article 77. The details shall be reported no later than the working day following the conclusion, modification or termination of the contract. In reporting the designation of counterparties and other entities, the reporting counterparties shall use a legal entity identifier established to identify counterparties and other entities that are legal persons. The legal entity identifier used shall comply with international standards, in particular those established by the Financial Stability Board.
Amendment 158 #
Proposal for a regulation
Article 1 – paragraph 1 – point 7 – point a
Article 1 – paragraph 1 – point 7 – point a
Regulation (EU) No 648/2012
Article 9 – paragraph 1 – subparagraph 3
Article 9 – paragraph 1 – subparagraph 3
The reporting obligation shall not apply to intragroup transactions referred to in Article 3 where oneboth of the counterparties is aare non-financial counterpartyies.;
Amendment 165 #
Proposal for a regulation
Article 1 – paragraph 1 – point 7 – point b
Article 1 – paragraph 1 – point 7 – point b
Regulation (EU) No 648/2012
Article 9 – paragraph 1a – subparagraph 1 – point a
Article 9 – paragraph 1a – subparagraph 1 – point a
Amendment 170 #
Proposal for a regulation
Article 1 – paragraph 1 – point 7 – point b
Article 1 – paragraph 1 – point 7 – point b
Regulation (EU) No 648/2012
Article 9 – paragraph 1a – subparagraph 1 – point b
Article 9 – paragraph 1a – subparagraph 1 – point b
(b) Where a financial counterpartiesy or CCP concludes a derivative contract with a non-financial counterparty which on its balance sheet dates does not exceed the limits of at least two of the three criteria defined in Article 3(3) of Directive 2013/34/EU, the financial counterparty or CCP shall be responsible for reporting on behalf of both counterparties. Counterparties not required to report the details of OTCtheir derivative contracts concluded with a non- financial counterparty that is not subject to the conditions referred to in the second subparagraph of Article 10(1) as well as for ensuring the accuracy of the details reported;shall ensure that the CCP or reporting counterparties receive all details necessary for them to comply with the reporting obligation and which the CCP or reporting counterparties cannot reasonably be expected to possess.
Amendment 179 #
Proposal for a regulation
Article 1 – paragraph 1 – point 8
Article 1 – paragraph 1 – point 8
Regulation (EU) No 648/2012
Article 10 – paragraph 1 – subparagraph 1
Article 10 – paragraph 1 – subparagraph 1
A non-financial counterparty taking positions in OTC derivative contracts shall calculate, annuallyon an annual basis, its aggregate month- end average position for the months March, April and Mayprevious 12 months in accordance with paragraph 3.
Amendment 181 #
Proposal for a regulation
Article 1 – paragraph 1 – point 8
Article 1 – paragraph 1 – point 8
Regulation (EU) No 648/2012
Article 10 – paragraph 1 – subparagraph 2 – introductory part
Article 10 – paragraph 1 – subparagraph 2 – introductory part
Where the result of that calculation exceeds the clearing thresholds or where a non-financial counterparty can reasonably expect it to exceed the clearing thresholds specified pursuant to paragraph 4(b), that non- financial counterparty shall:
Amendment 185 #
Proposal for a regulation
Article 1 – paragraph 1 – point 8
Article 1 – paragraph 1 – point 8
Regulation (EU) No 648/2012
Article 10 – paragraph 2
Article 10 – paragraph 2
2. A non-financial counterparty that has become subject to the clearing obligation in accordance with the second subparagraph of paragraph 1 and subsequently demonstrates to the authority designated in accordance with paragraph 5 that its aggregate month-end average position for the months March, April and May of a given yearprevious 12 months no longer exceeds the clearing threshold referred to in paragraph 1 shall no longer be subject to the clearing obligation set out in Article 4.;
Amendment 201 #
Proposal for a regulation
Article 1 – paragraph 1 – point 9 a (new)
Article 1 – paragraph 1 – point 9 a (new)
Regulation (EU) No 648/2012
Article 16 – paragraph 1 a (new)
Article 16 – paragraph 1 a (new)
(9a) In Article 16, the following paragraph 1a is inserted: 1a. Where deemed necessary by the resolution authority of the CCP, in order to remove impediments to resolvability in accordance with Article 17 of Regulation (EU) [on CCP recovery and resolution], the resolution authority may require higher capital requirements.
Amendment 208 #
Proposal for a regulation
Article 1 – paragraph 1 – point 11
Article 1 – paragraph 1 – point 11
Regulation (EU) No 648/2012
Article 39 – paragraph 11
Article 39 – paragraph 11
11. Where the requiMember States’ national insolvency laws shall not premvent referred to in paragraph 9 is satisfied,a CCP from acting in accordance with Article 48 (5) to (7) with regard to the assets and positions recorded in those accounts shall not be considered part of the insolvency estate of the CCP or the clearing member.;referred to in paragraphs 2, 3, 4 and 5 of this Article.
Amendment 230 #
Proposal for a regulation
Article 1 – paragraph 1 – point 15 a (new)
Article 1 – paragraph 1 – point 15 a (new)
Regulation (EU) No 648/2012
Article 78 – paragraph 4 a (new)
Article 78 – paragraph 4 a (new)
(15a) In Article 78, the following paragraph is inserted: 4a. A trade repository shall identify and implement information security controls, to ensure confidentiality, integrity and availability of its processes and data. Those controls shall be identified within the context of a comprehensive information security risk management process, to ensure that the risks are appropriately identified and treated.
Amendment 239 #
Proposal for a regulation
Article 1 – paragraph 1 – point 19 – point b
Article 1 – paragraph 1 – point 19 – point b
Regulation (EU) No 648/2012
Article 85 – paragraph 2 – subparagraph 1
Article 85 – paragraph 2 – subparagraph 1
By [PO please add date of entry into force + 2 years]of this amending Regulation + 6 months] and every 6 months thereafter until the clearing exemption expires, the Commission shall prepare a report assessing whether viable technical solutions have been developed for the transfer by PSAs of cash and non-cash collateral as variation margins and the need for any measures to facilitate those technical solutions.
Amendment 244 #
Proposal for a regulation
Article 1 – paragraph 1 – point 19 – point b
Article 1 – paragraph 1 – point 19 – point b
Regulation (EU) No 648/2012
Article 85 – paragraph 2 – subparagraph 2 – introductory part
Article 85 – paragraph 2 – subparagraph 2 – introductory part
ESMA shall, by [PO please add date of entry into force + 18 months]of this amending Regulation + 6 months] and every 6 months thereafter until the clearing exemption expires, in cooperation with EIOPA, EBA and the ESRB, submit a report to the Commission, assessing the following:
Amendment 247 #
Proposal for a regulation
Article 1 – paragraph 1 – point 19 – point b
Article 1 – paragraph 1 – point 19 – point b
Regulation (EU) No 648/2012
Article 85 – paragraph 2 – subparagraph 2 – point a
Article 85 – paragraph 2 – subparagraph 2 – point a
(a) whether CCPs, clearing members and PSAs have undertaken an appropriate effort and developed viable technical solutions facilitating the participation of PSAs in central clearing by posting cash and non-cash collateral as variation margins, including the implications of those solutions on market liquidity and procyclicality and their potential legal and further implications;
Amendment 250 #
Proposal for a regulation
Article 1 – paragraph 1 – point 19 – point b
Article 1 – paragraph 1 – point 19 – point b
Regulation (EU) No 648/2012
Article 85 – paragraph 2 – subparagraph 3
Article 85 – paragraph 2 – subparagraph 3
Amendment 257 #
Proposal for a regulation
Article 1 – paragraph 1 – point 19 – point c
Article 1 – paragraph 1 – point 19 – point c
Regulation (EU) No 648/2012
Article 85 – paragraph 3 – point c
Article 85 – paragraph 3 – point c
(c) the impact of this Regulation on the level of clearing by financial counterparties other than those subject to Article 4a(2) and the distribution of clearing within that financial counterparty class, especially with regard to the appropriateness of the clearing thresholds referred to in Article 10(44 (3a);
Amendment 273 #
Proposal for a regulation
Annex 1 – paragraph 1 – point -1 Regulation (EU) No 648/2012
Annex 1 – paragraph 1 – point -1 Regulation (EU) No 648/2012
(-1) In Section I, the following point (da) is added: (da) a trade repository infringes Article 78(4a) by not identifying and implementing effective information security controls, to ensure confidentiality, integrity and availability of its processes and data;
Amendment 276 #
Proposal for a regulation
Annex 1 – paragraph 2 a (new)
Annex 1 – paragraph 2 a (new)
Regulation (EU) No 648/2012
Annex II – Section I – point b
Annex II – Section I – point b
Annex II, section I, point b is amended as follows: "(b) if the infringement has been committed for more than sixone months, a coefficient of 1,5 shall apply; " Or. en (http://eur-lex.europa.eu/legal- content/EN/TXT/HTML/?uri=CELEX:32012R0648&qid=1519747597556&from=DE)
Amendment 277 #
Proposal for a regulation
Annex 1 – paragraph 2 b (new)
Annex 1 – paragraph 2 b (new)
Regulation (EU) No 648/2012
Annex II – Section II – point (a)
Annex II – Section II – point (a)
Annex II, section II, point a is amended as follows: "(a) if the infringement has been committed for less than 10 working day24 hours, a coefficient of 0,9 shall apply; content/EN/TXT/HTML/?uri=CELEX:32012R0648&qid=1519747597556&from=DE)" Or. en (http://eur-lex.europa.eu/legal-