11 Amendments of Jonás FERNÁNDEZ related to 2017/0090(COD)
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 94 #
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point c
Article 1 – paragraph 1 – point 2 – point c
Regulation (EU) No 648/2012
Article 4 – paragraph 3a – subparagraph 1
Article 4 – paragraph 3a – subparagraph 1
Clearing members and clients which provide clearing services, whether directly or indirectly, shall provide those services under fair, reasonable and non- discriminatory commercial terms. In doing so, clearing members shall take all reasonable steps to prevent conflict of interests, namely, prohibiting any trading business from directly or indirectly interfering with, or attempting to influence, decisions of the clearing unit personnel with respect to its clearing offering, including whether to provide clearing services to a particular customer and the associated commercial terms.
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 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 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 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 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;