Activities of Jean-Paul GAUZÈS related to 2010/0250(COD)
Plenary speeches (1)
Derivatives, central counterparties and trade repositories (debate)
Amendments (39)
Amendment 152 #
Proposal for a regulation
Recital 12 a (new)
Recital 12 a (new)
(12 a) The characteristics of the foreign exchange market (daily volume of the transaction, currency pairs, important of third country transactions, settlement risk addressed through a robust existing mechanism) call for an appropriate regime that would rely notably on preliminary international convergence and mutual recognition of the relevant infrastructure. In this respect exemption on foreign exchange swaps and forwards should be considered by ESMA.
Amendment 158 #
Proposal for a regulation
Recital 14 a (new)
Recital 14 a (new)
(14a) The regulatory capital charge for financial counterparties dealing in OTC derivatives which are cleared bilaterally and not in a central clearing house should be able to be calculated in relation to the levels of potential loss associated with the risk of default, measured for each counterparty.
Amendment 190 #
Proposal for a regulation
Recital 27 a (new)
Recital 27 a (new)
(27 a) The relevant competent authority should satisfy itself that a CCP maintains sufficient available financial resources (which should include a minimum contribution of own funds of the CCP), in accordance with guidelines issued by ESMA.
Amendment 204 #
Proposal for a regulation
Recital 37 a (new)
Recital 37 a (new)
The FSB has identified CCPs as systemically important institutions. There is no common practice internationally or within the European Union regarding conditions under which CCPs may access central bank liquidity facilities or may need to be licensed as credit institutions. The implementation of the clearing obligation required by this Regulation may increase the systemic importance of CCPs and the need for liquidity. The Commission should therefore be invited to take into account any results of ongoing work between central banks, to assess, in cooperation with the ESCB, the possible need for measures to facilitate CCPs' access to central bank liquidity facilities in one or more currencies and to report to the European Parliament and the Council.
Amendment 304 #
Proposal for a regulation
Article 3 – paragraph 1 – subparagraph 2 a (new)
Article 3 – paragraph 1 – subparagraph 2 a (new)
OTC derivatives contracts entered into before the date from which the clearing obligation takes effect for that class of derivatives are exempted from the clearing obligation.
Amendment 393 #
Proposal for a regulation
Article 4 a (new)
Article 4 a (new)
Article 4a In order to promote effective and consistent global regulation of derivative contracts, the Commission, may submit proposals to the Council for an appropriate mandate for negotiation with a view to obtaining an agreement on the effective equivalent legislation applicable to transactions executed outside the European Union by financial counterparties and non-financial counterparties referred to in article 7.
Amendment 402 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
A CCP that has been authorised to clear eligible OTC derivative contracts shall accept clearing such contracts on a non- discriminatory basis, regardless of the venue of execution and based where possible on international open industry standards.
Amendment 413 #
Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 1
Article 6 – paragraph 1 – subparagraph 1
Financial counterparties and non-financial counterparties referred to in Article 7(1) shall report to a trade repository registered in accordance with Article 51 or recognised under Article 53 the details of any OTC derivative contract they have entered into and anyconcluded and any material modification, novation or termination of the contract. The details shall be reported no later than the working day following the execution, clearing, or modification of the contractconclusion, modification, novation or termination of the contract, except where provided in acts adopted under paragraph 5.
Amendment 424 #
Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 2
Article 6 – paragraph 1 – subparagraph 2
Amendment 429 #
Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 2 a (new)
Article 6 – paragraph 1 – subparagraph 2 a (new)
A counterparty that reports the full details of a contract to a trade repository shall not be considered in breach of any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision.
Amendment 442 #
Proposal for a regulation
Article 6 – paragraph 3 – subparagraph 1
Article 6 – paragraph 3 – subparagraph 1
A counterparty which is subject to the reporting obligation may delegate the reporting of the details of the OTC derivative contract to the other counterparty or a third party.
Amendment 443 #
Proposal for a regulation
Article 6 – paragraph 3 – subparagraph 2
Article 6 – paragraph 3 – subparagraph 2
A counterparty that reports the full details of a contract to a trade repository on behalf of another counterparr a competent authority shall not be considered in breach of any restriction on disclosure of information imposed by that any contract or by any legislative, regulatory or, administrative or other legal provision.
Amendment 445 #
Proposal for a regulation
Article 6 – paragraph 3 – subparagraph 3
Article 6 – paragraph 3 – subparagraph 3
No liability resulting from that disclosure shall lie withfall on the reporting entity or its directors or employees or others persons acting on its behalf.
Amendment 461 #
Proposal for a regulation
Article 6 – paragraph 5 – subparagraph 1
Article 6 – paragraph 5 – subparagraph 1
In order to ensure uniform conditions of application of paragraphs 1 and 2, powers are conferred upon the Commission to determine the timing format and frequency of the reports referred to in paragraphs 1 and 2 for the different classes of derivatives, including cases where it would be appropriate to allow a longer period for reporting than that specified in paragraph 1, and to determine protocols and processes for reporting to avoid duplication of reports or records of an OTC derivative contract. The draft implementing standards referred to in the first subparagraph shall be adopted in accordance with [Article 7e] of Regulation …/… [ESMA Regulation].
Amendment 525 #
Proposal for a regulation
Article 8 – paragraph 1 – subparagraph 2
Article 8 – paragraph 1 – subparagraph 2
For the purposes of point (b), the value of outstanding contracts shall be marked-to- market on a daily basis and risk management procedures shall require the timely, and accurate and appropriately segregated exchangeexchange of an appropriate amount of collateral ofr collateral or the appropriate and proportionate holding of capitalmpliance with proportionate regulatory capital requirements, in each case where appropriate and in respect of the net exposures between the parties. Financial counterparties and the non- financial counterparties referred to in Article 7(2) must offer counterparties the option of segregation of initial margin at the outset of the contract.
Amendment 548 #
Proposal for a regulation
Article 10 – paragraph 1 – subparagraph 1
Article 10 – paragraph 1 – subparagraph 1
Where a CCP that is a legal perscredit institution established in the Union and has access to adequate liquidity intends to perform its services and activities, it shall apply for authorisation to the competent authority of the Member State where it is established.
Amendment 551 #
Proposal for a regulation
Article 10 – paragraph 1 – subparagraph 2
Article 10 – paragraph 1 – subparagraph 2
Such liquidity could results from access to central bank liquidity or to creditworthy and reliable commercial bank liquidity, or a combination of both. Access to liquidity could result from an authorisation granted in accordance with Article 6 of Directive 2006/48/EC or other appropriate arrangements.
Amendment 632 #
Proposal for a regulation
Article 20 – paragraph 3
Article 20 – paragraph 3
3. Without prejudice to cases covered by criminal law, the competent authorities, ESMA, bodies or natural or legal persons other than competent authorities which receive confidential information pursuant to this Regulation may use it only in the performance of their duties and for the exercise of their functions, in the case of the competent authorities, within the scope of this Regulation or, in the case of other authorities, bodies or natural or legal persons, for the purpose for which such information was provided to them or in the context of administrative or judicial proceedings specifically related to the exercise of those functions, or both. Where ESMA, the competent authority or other authority, body or person communicating information consents thereto, the authority receiving the information may use it for other purposes.
Amendment 647 #
Proposal for a regulation
Article 23 – paragraph 2 – introductory part
Article 23 – paragraph 2 – introductory part
2. ESMA, in consultation with the competent authorities within the Union, shall recognise a CCP from a third country, where the following conditions are met:
Amendment 653 #
Proposal for a regulation
Article 23 – paragraph 2 – point c
Article 23 – paragraph 2 – point c
(c) co-operation arrangements have been established in accordance with paragraph 4.
Amendment 654 #
Proposal for a regulation
Article 23 – paragraph 2 – point c a (new)
Article 23 – paragraph 2 – point c a (new)
(c a) an equivalent mutual recognition regime has been implemented in that third country.
Amendment 751 #
Proposal for a regulation
Article 36 – paragraph 3
Article 36 – paragraph 3
3. A CCP shall publicly disclosedisclose to its clearing members and competent authority the price information used to calculate its end of day exposures with its clearing members and. A CCP shall publicly disclose the volumes of the cleared transactions for each class of instruments cleared by the CCP on an aggregated basis.
Amendment 761 #
Proposal for a regulation
Article 37 – paragraph 1
Article 37 – paragraph 1
1. A CCP shall keep records and accounts that shall enable it, at any time and without delay, to identify and segregate the assets and positions of one clearing member from the assets and positions of any other clearing member and from its own assets including, where relevant, the assets provided via a title transfer financial collateral arrangement.
Amendment 838 #
Proposal for a regulation
Article 41 – paragraph 1 a (new)
Article 41 – paragraph 1 a (new)
1 a. The amount of own funds of a CCP, as mentioned in paragraph 1, should be proportionate to the risks shared by the CCP and the others underwriting risk in the CCP.
Amendment 907 #
Proposal for a regulation
Article 55
Article 55
Amendment 913 #
Proposal for a regulation
Article 55 a (new)
Article 55 a (new)
Article 55a Supervisory fees 1. ESMA shall charge fees to the trade repositories in accordance with this Regulation and the Regulation on fees referred to in paragraph 2. Those fees shall fully cover ESMA's expenditure relating to the registration and supervision of trade repositories. 2. The Commission shall adopt a Regulation on fees. That Regulation shall determine in particular the type of fees and the matters for which fees are due, the amount of the fees and the way in which they are to be paid. 3. The amount of a fee charged to a trade repository shall cover all administrative costs incurred by ESMA for its registration and supervision activities and be proportionate to the turnover of the trade repository concerned. 4. The Commission shall adopt the Regulation on fees referred to in the first subparagraph by means of a delegated act.
Amendment 914 #
Proposal for a regulation
Article 55 b (new)
Article 55 b (new)
Article 55b Fines 1 Where ESMA's Board of Supervisors finds that a trade repository has committed an infringement it shall adopt a decision imposing a fine in accordance with paragraph 2. An infringement by a trade repository shall be considered to have been committed intentionally if ESMA has discovered objective elements which demonstrate that the trade repository or its senior management acted deliberately to commit the infringement. 2. The basic amounts of the fines referred to in paragraph 1 shall be included within EUR 2,500 and shall not exceed EUR 10,000. In order to decide whether the basic amount of the fines should be at the lower, the middle or the higher end of the limits set out in the first subparagraph, ESMA shall have regard to the annual turnover of the preceding business year of the trade repository concerned. The basic amount shall be at the lower end of the limit for trade repositories whose annual turnover is below EUR 1 million, the middle of the limit for the trade repository whose turnover is between EUR 1 and 5 million and the higher end of the limit for the trade repository whose annual turnover is higher than EUR 5 million. 4. Notwithstanding paragraphs 2, the amount of the fine shall not exceed 20 % of the annual turnover of the trade repository concerned in the preceding business year but, where the trade repository has directly or indirectly benefitted financially from the infringement, the amount of the fine shall be at least equal to that benefit
Amendment 915 #
Proposal for a regulation
Article 56
Article 56
Periodic penalty payments 1. At the request of ESMA, the Commission may,ESMA's Board of Supervisors shall by decision, impose periodic penalty payments oin any persons employed by or for a trade repository or related to it, in order to compel them:order to compel: (a) a trade repository to put an end to an infringement; (ab) to put an end to an infringement; (b)a person involved in trade repositories and related third parties to supply complete and correct information which ESMA has been requested; (c) puersuant to Article 61(2); (c)ons involved in trade repositories and related third parties to submit to an investigation and in particular to produce complete records, data, procedures or any other material required and to complete and correct other information provided in an investigation launched by ESMA pursuant to Article 61(2); (d) to submit to an on-site inspection ordered by ESMA pursuant to Article 61(2); (d) persons involved in trade repositories and related third parties to submit to an on-site inspection. 2. The periodic penalty payments provided for shall be effective and proportionate. The amount of the periodic penalty payments shall be imposed for each day of delay. It shall not exceed 53. Notwithstanding paragraph 2, the amount of the periodic penalty payments shall be 3 % of the average daily turnover in the preceding business year and. It shall be calculated from the date stipulated in the decision. imposing the periodic penalty payment. 4. A periodic penalty payment may be imposed for a period of no more than six months following the notification of ESMA's decision. After 6 months ESMA shall consider the measures set out in Article 58a (1)a.
Amendment 917 #
Proposal for a regulation
Article 57
Article 57
Hearing of the persons concerned before supervisory measures, fines and/or penalty payments are imposed 1. Before taking any decision on a fine or periodic penalty payment as provided for in Articles 55 and 56, the Commprovided for in Article 58a(1), ESMA's Board of Supervisors shall give the persons subject to the proceedings the opportunity to be heard on the matters to which ESMA has taken objection. ESMA's Board of Supervisors shall base its decisions only on objections on which the parties concerned have been able to comment. The first subparagraph does not apply if urgent action is needed in order to prevent significant and imminent damage to the financial system. In such a case ESMA's Board of Supervisors may adopt an interim decission and shall give the persons concerned the opportunity to be heard on the matters to which the Commission has taken objection. The Commissionas soon as possible after having taken its decision. 2. Before taking any decision imposing a fine and/or periodic penalty payment as provided for in Article 55 and points (a) to (d) of Article 56 (1), ESMA's Board of Supervisors shall give the persons subject to the proceedings the opportunity to be heard on the matters to which ESMA has taken objection. ESMA's Board of Supervisors shall base its decisions only on objections on which the persons concerned have been able to comment. 23. The rights of defence of the persons concerned shall be fully respected in the proceedings. Those personsey shall be entitled to have access to the CommissionESMA's file, subject to the legitimate interest of other persons in the protection of their business secrets. The right of access to the file shall not extend to confidential information andincluding internal preparatory documents of the CommissionESMA.
Amendment 918 #
Proposal for a regulation
Article 58
Article 58
Amendment 919 #
Proposal for a regulation
Article 58 a (new)
Article 58 a (new)
Amendment 920 #
Proposal for a regulation
Article 59
Article 59
Review by the Court of Justice of the European Union The Court of Justice of the European Union shall have unlimited jurisdiction to review decisions whereby the CommissionESMA has imposed a fine or a periodic penalty payment. The Court of JusticeIt may annul, reduce or increase the fine or periodic penalty payment imposed.
Amendment 926 #
Proposal for a regulation
Article 63 – paragraph 2 – point d a (new)
Article 63 – paragraph 2 – point d a (new)
(d a) the relevant authorities of a third country that has entered into a international agreement with the Union as referred to in Article 62 provided that they agree to indemnify the trade repository and the EU authorities for any expenses arising from litigation relating to the information provided by the trade repository.
Amendment 949 #
Proposal for a regulation
Article 67 – paragraph 2 – introductory part
Article 67 – paragraph 2 – introductory part
2. A trade repository shall make the necessary information available to the following entities:, provided that access to such information is strictly necessary to enable them to fulfil their respective responsibilities and mandates.
Amendment 953 #
Proposal for a regulation
Article 67 – paragraph 3
Article 67 – paragraph 3
3. ESMA shall share the information necessary for the exercise of their duties with other relevant competent authorities.
Amendment 954 #
Proposal for a regulation
Article 67 – paragraph 4 – subparagraph 1
Article 67 – paragraph 4 – subparagraph 1
Powers are delegated to the Commission to adopt regulatory technical standards specifying the details of the information referred to in paragraphs (1) and (2). and when it is necessary for the authorities referred to in paragraph (2) to have access to that information. The regulatory technical standards shall ensure that the information published under paragraph (1) shall not be capable of identifying any party to any contract.
Amendment 959 #
Proposal for a regulation
Article 67 a (new)
Article 67 a (new)
Article 67a In order to ensure that they can fulfil their mission, trade repositories shall be adequately organized in order to be in a position to give to ESMA and relevant competent authorities direct and immediate access to the details of derivatives contracts as referred to in article 6.
Amendment 962 #
Proposal for a regulation
Article 68 – paragraph 1
Article 68 – paragraph 1
By 31 December 20134 at the latest, the Commission shall review and report on the institutional and supervisory arrangements undprepare a general report on this Regulation. The Commission shall submit the report to the European Parliament and the Council, together Twitle III and in particular the role and responsibilities of ESMA. The Commission shall submit the report to the European Parliament and the Council, together with any appropriate proposalsh any appropriate proposals. The Commission shall in particular: - assess the need for any measures to promote central clearing for those classes of derivative contracts that are subject to a clearing obligation but for which no CCP has yet received authorization; - assess in cooperation with the ESCB the need for any measure to facilitate the access of CCPs to central bank liquidity facilities, including the appropriateness of requiring a CCP to be subject to certain authorization requirements under Directive 2006/48/EC, and taking into account any results of ongoing work between central banks at the international level.
Amendment 963 #
Proposal for a regulation
Article 68 – paragraph 1 – subparagraph 2
Article 68 – paragraph 1 – subparagraph 2