18 Amendments of Markus FERBER related to 2017/0090(COD)
Amendment 39 #
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 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 42 #
Proposal for a regulation
Recital 8 a (new)
Recital 8 a (new)
(8a) Ensuring that the clearing obligation reduces systemic risk requires a process of identification of classes of derivatives that should be subject to that obligation. That process should take into account the fact that not all CCP-cleared OTC derivative contracts can be considered suitable for mandatory CCP clearing. OTC derivatives which are concluded as part of a risk reduction service, such as portfolio compression and other non price forming post - trade risk reduction services that reduce non-market risks in derivatives portfolios without changing the market risk of the portfolios in order to reduce the risk in OTC derivatives not cleared by a CCP, should not be subject to the clearing obligation.
Amendment 48 #
Proposal for a regulation
Recital 12
Recital 12
(12) IEvery intragroup transactions involving non-financial counterparties represents a relatively small fraction of all OTC derivative transactions and areis 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 importsignificant costs and burdens on non- financial counterparties. Intragroup transactions where at least one of the counterparties is a non-financial counterparty should therefore be exempted from the reporting obligation. This exemption should apply irrespective of the place of establishment of a non-financial counterparty.
Amendment 57 #
Proposal for a regulation
Recital 14
Recital 14
(14) To reduce the burden of reporting for small non-financial counterparties not subject to the clearing obligation, the financial counterparty should be solely responsible, and legally liable, for reporting on behalf of both itself and the non-financial counterparty that is not subject to the clearing obligation with regard to OTC derivative contracts entera single data set with regard to OTC derivative contracts entered into with a non-financial counterparty that is not subject to the clearing obligation as well as for ensuring the accuracy of the details reported. So as to enable financial counterparties to carry out the reporting obligation conferred on them with respect to transactions with non-financial counterparties, those non-financial counterparties are to provide that information related to the OTC derivative transaction to the financial counterparty that the latter cannot be expected into by that non-financial counterparty as well as for ensuring the accuracy of the details reportedpossess in reasonable terms. Notwithstanding the above, non-financial counterparties should be able to actively opt in favour of independently reporting their OTC derivatives contracts. Doing so would require appropriate notifications to be made to the financial counterparty. For such cases, the liability for reporting and for the content, accuracy, and timeliness of the data reported remains with the non-financial counterparty.
Amendment 76 #
Proposal for a regulation
Recital 32 a (new)
Recital 32 a (new)
(32a) The clearing obligation for derivatives under Regulation (EU) No 648/2012 and the trading obligation for derivatives under Regulation (EU) No 600/2014 should be closely aligned. Therefore, the changes made to the clearing obligation for derivatives in this regulation, in particular regarding the scope of entities subject to the clearing obligation as well as the suspension mechanism, should also be made to the trading obligation for derivatives as outlined in Regulation (EU) No 600/2014.
Amendment 86 #
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point -a (new)
Article 1 – paragraph 1 – point 2 – point -a (new)
Regulation (EU) No 648/2012
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
Amendment 90 #
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point b a (new)
Article 1 – paragraph 1 – point 2 – point b a (new)
Regulation (EU) No 648/2012
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
(ba) the following paragraph 1a is inserted: ‘1a. ESMA shall develop draft regulatory technical standards to specify the types of OTC derivatives contracts for each type of post-trade risk reduction service that should be exempt from the clearing obligation, taking into account in particular the extent to which they mitigate risks, in particular counter party credit risk and operational risk. ESMA shall submit those draft regulatory technical standards to the Commission by ... [12 months following entry into force of this amending Regulation]. The Commission is empowered to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) 1095/2010.’
Amendment 130 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Regulation (EU) No 648/2012
Article 6b – paragraph 1 – introductory part
Article 6b – paragraph 1 – introductory part
In circumstances other than those referred to in Article 6a(1), ESMA may request that the Commission temporarily suspend the clearing obligation referred to in Article 4(1) for a specific class of OTC derivative or for a specific type of counterparty where one of the following conditions is met:
Amendment 133 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Regulation (EU) No 648/2012
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) a CCP is likely to cease clearing that specific class of OTC derivative and no other CCP is able to clear that specific class of OTC derivative witat shourt interruptionnotice;
Amendment 136 #
Proposal for a regulation
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Regulation (EU) No 648/2012
Article 6b – paragraph 1 – subparagraph 3
Article 6b – paragraph 1 – subparagraph 3
Where ESMA requests that the Commission temporarily suspend the clearing obligation referred to in Article 4(1), it shall provide reasons and submit evidence that at least one of the conditions laid down in the first subparagraph is fulfilled. The Commission shall inform the European Parliament and the Council of its decision and provide detailed reasoning explaining it.
Amendment 150 #
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, may extend the suspension referred to in paragraph 5 for additional periods of threone months, with the total period of the suspension not exceeding twelvesix months. An extension of the suspension shall be published in accordance with Article 4.
Amendment 151 #
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. The implementing act suspending the clearing obligation for specific classes of OTC derivatives referred to in paragraph 3 shall also trigger a suspension of the trading obligation laid down in Article 28(1) and (2) of Regulation (EU) No 600/2014 for the same classes of OTC derivatives subject to this suspension of the clearing obligation. The suspension of that trading obligation shall be extended in line with any extension of the clearing obligation suspension under paragraph 6. When the clearing obligation suspension expires, this shall also trigger the expiry of the trading obligation suspension.
Amendment 162 #
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 one of the counterparties is a non-financial counterparty.; for OTC derivatives transactions shall not apply to transactions within the same group, as long as one of the counterparties is a non- financial counterparty, or would be qualified as such if it were legally resident within the EU, provided that: (a) both counterparties to the intragroup transaction are included in the same consolidation on a full basis; and (b) are subject to appropriate centralised risk evaluation, measurement and control procedures.
Amendment 168 #
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) financial counterparties shall be responsible for reporting on behalf of both counterpartiesthe details of OTC derivative contracts concluded between a financial counterparty and a non-financial counterparty that does not meet the conditions referred to in the second subparagraph of Article 10(1) shall as a rule be reported by financial counterparties who shall be solely responsible and legally liable for reporting a single data set. They shall also be responsible and legally liable for the accuracy of the submitted reports. Notwithstanding point (b), non-financial counterparties that do not meet the conditions of the second subparagraph of Article 10 (1) can opt out from this principle rule in favour of reporting the details of their OTC 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 ass transactions by themselves. Should non- financial counterparties opt out from the principle rule of point (b) they shall submit an ex-ante notification to the financial counterparty with which they are contracting. When non-financial counterparties opt out from the principle rule of point (b) the responsibility and legal liability for reporting and for ensuring the accuracycorrectness of the deatails reported; rests with such non-financial counterparties.
Amendment 189 #
Proposal for a regulation
Article 1 – paragraph 1 – point 8 a (new)
Article 1 – paragraph 1 – point 8 a (new)
Regulation (EU) No 648/2012
Article 11 – paragraph 1 – subparagraph 1 a (new)
Article 11 – paragraph 1 – subparagraph 1 a (new)
(8a) In Article 11, paragraph 1 subparagraph 1 a is inserted: These requirements shall not apply to intragroup transactions referred to in Article 3 where one of the counterparties is a non-financial counterparty which is not subject to the clearing obligation in accordance with the second subparagraph of Article 10(1).”
Amendment 258 #
Proposal for a regulation
Article 1 – paragraph 1 – point 19 – point c a (new)
Article 1 – paragraph 1 – point 19 – point c a (new)
Regulation (EU) No 648/2012
Article 85 – paragraph 5 a (new)
Article 85 – paragraph 5 a (new)
(ca) paragraph 5a is inserted: 5a. By 12 months after entry into force of this amending Regulation, the Commission shall, after consulting ESMA, submit a report to the European Parliament and to the Council assessing whether the alignment of the changes made to the clearing obligation for derivatives, in particular the scope of entities subject to the clearing obligation as well as the suspension mechanism, with the provisions for the trading obligation for derivatives in Regulation No 600/2014 is functioning.
Amendment 261 #
(ca) The following paragraph 5a is inserted: 5a. By ... [six months after entry into force of this amending Regulation] the Commission shall, after consulting ESMA, submit a report to the European Parliament and to the Council addressing the question if an alignment of the changes made to the clearing obligation for derivatives, in particular the scope of entities subject to the clearing obligation as well as the suspension mechanism, with the trading obligation for derivatives under Regulation No 600/2014 would be desirable. If such an alignment is deemed necessary and appropriate, the report shall be accompanied by a legislative proposal introducing the necessary changes.
Amendment 267 #
Proposal for a regulation
Article 1 a (new)
Article 1 a (new)
Regulation (EU) No 600/2014
Article 28 – paragraph 1
Article 28 – paragraph 1
Article 1a Article 28(1) of Regulation (EU)No 600/2014 is replaced by the following: 1. Financial counterparties as defined in Article 2(8) of Regulation (EU) No 648/2012 that are subject to the clearing obligation pursuant to Article 4a of that Regulation and non-financial counterparties that meet the conditions referred to in Article 10(1)(b) thereof shall conclude transactions which are neither intragroup transactions as defined in Article 3 of that Regulation nor transactions covered by the transitional provisions in Article 89 of that Regulation with other such financial counterparties or other such non-financial counterparties that meet the conditions referred to in Article 10(1)(b) of Regulation (EU) No 648/2012 in derivatives pertaining to a class of derivatives that has been declared subject to the trading obligation in accordance with the procedure set out in Article 32 and listed in the register referred to in Article 34 only on: (a) regulated markets; (b) MTFs; (c) OTFs; or (d) third-country trading venues, provided that the Commission has adopted a decision in accordance with paragraph 4 and provided that the third country provides for an effective equivalent system for the recognition of trading venues authorised under Directive 2014/65/EU to admit to trading or trade derivatives declared subject to a trading obligation in that third country on a non-exclusive basis. Non-financial counterparties that meet the conditions referred to in Article 10(1)(b) of Regulation (EU) No 648/2012 shall only be subject to the obligation to trade on regulated markets, MTFs or OTFs in relation to the transactions in asset classes to which they are subject to a clearing obligation under that Regulation.