70 Amendments of Philippe LAMBERTS related to 2017/0090(COD)
Amendment 34 #
Proposal for a regulation
Recital 2
Recital 2
(2) A simplification of certain areas covered by Regulation (EU) No 648/2012, and a more proportionate approach to those areas, is in line with the Commission's Regulatory Fitness and Performance (REFIT) programme which emphasises the need for cost reduction and simplification so that Union policies achieve their objectives in the most efficient way, and aims in particular at reducing regulatory and administrative burdens without prejudice to the overarching objective of preserving financial stability and reducing systemic risks.
Amendment 35 #
Proposal for a regulation
Recital 5
Recital 5
(5) Regulation (EU) No 648/2012 should cover all financial counterparties that may present and importantcarry systemic risks for the financial system. The definition of financial counterparties should therefore be amended.
Amendment 37 #
Proposal for a regulation
Recital 6
Recital 6
(6) FSmall 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 ismay be 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.
Amendment 41 #
Proposal for a regulation
Recital 8
Recital 8
Amendment 43 #
Proposal for a regulation
Recital 9
Recital 9
(9) Counterparties with a limited volume of activity in the OTC derivatives markets face difficulties in accessing central clearing, be it as a client of a clearing member or through indirect clearing arrangements. The requirement for clearing members to facilitate indirect clearing services on reasonable commercial terms is therefore not efficient. Clearing members and clients of clearing members that provide clearing services directly to other counterparties or indirectly by allowing their own clients to provide those services to other counterparties should therefore be explicitly required to do so under fair, reasonable, transparent and non- discriminatory commercial terms.
Amendment 44 #
Proposal for a regulation
Recital 10
Recital 10
(10) It should be possible to suspend the clearing obligation in certain situations. First, that suspension should be possible where the criteria on the basis of which a specific class of OTC derivative has been made subject to the clearing obligation are no longer met. That could be the case where a class of OTC derivative becomes unsuitable for mandatory central clearing or where there has been a material change to one of those criteria in respect of a particular class of OTC derivative. A suspension of the clearing obligation should also be possible where a CCP ceases to offer a clearing service for a specific class of OTC derivative or for a specific type of counterparty and other CCPs cannot step in fast enough to take over those clearing services. Finally, the suspension of a clearing obligation should also be possible where that is deemed necessary to avoid a serious threat to financial stability in the Unionfor new transactions related to a specific class of OTC derivative whenever relevant competent authorities and ESMA are notified that all CCPs will cease to clear such specific class within a year.
Amendment 46 #
Proposal for a regulation
Recital 12
Recital 12
Amendment 55 #
Proposal for a regulation
Recital 13
Recital 13
(13) The requirement to report exchange-traded derivative contracts (‘ETDs’) imposes a significant burden on counterparties because of the high volume of ETDs that are concluded on a daily basis. Moreover, since Regulation (EU) No 600/2014 of the European Parliament and of the Council22 requires every ETD to be cleared by a CCP, CCPs already hold the vast majority of the details of those contracts. To reduce the burden of reporting ETDs, the responsibility, including any legal liability, for reporting ETDs on behalf of both counterparties should fall on the CCP as well as for ensuring the accuracy of the details reported. To ensure that the CCP has the data needed to fulfil its reporting obligation, the financial counterparty should provide and update as appropriate the details relating to ETDs transactions that the CCP cannot be reasonably expected to possess. _________________ 22 Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 (OJ L 173 12.6.2014, p. 84).
Amendment 60 #
Proposal for a regulation
Recital 14
Recital 14
(14) To reduce the burden of reporting for small non-financial counterparties, the financial counterparty should be 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 entered into by that non-financial counterparty as well as for ensuring the accuracy of the details reported. To ensure that the financial counterparty has the data needed to fulfil its reporting obligation, the non-financial counterparty should provide and update as appropriate the details relating to the OTC derivative transactions that the financial counterparty cannot be reasonably expected to possess.
Amendment 61 #
Proposal for a regulation
Recital 16
Recital 16
(16) To avoid inconsistencies across the Union in the application of the risk mitigation techniques, supervisors should approve risk-management procedures requiring the timely, accurate and appropriately segregated exchange of collateral of counterparties, or any significant change to those procedures, before they are applied. A notification procedure and a methodological framework should also be established in order to avoid regulatory arbitrage and to ensure an effective and consistent monitoring of whether the non-cleared OTC contracts do not achieve an economically equivalent effect to contracts or a portfolio of contracts subject to the clearing obligation.
Amendment 65 #
Proposal for a regulation
Recital 17
Recital 17
(17) To increase transparency and predictability of the initial margins and to restrain CCPs from modifying their initial margin models in ways that could appear procyclical, CCPs should provide their clearing members with tools to simulate their initial margin requirements and with a detailed overview of the initial margin models they use. In the same perspective, provisions aiming at avoiding procyclicality should be reinforced. This is consistent with the international standards published by the Committee on Payments and Market Infrastructures and the Board of the International Organization of Securities Commissions, and in particular with the disclosure framework published in December 201223 and the public quantitative disclosure standards for central counterparties published in 201524 , relevant for fostering an accurate understanding of the risks and costs involved in any participation in a CCP by clearing members and enhancing transparency of CCPs towards market participants. _________________ 23 24http://www.bis.org/cpmi/publ/d106.pdf http://www.bis.org/cpmi/publ/d106.pdf 24 http://www.bis.org/cpmi/publ/d125.pdf http://www.bis.org/cpmi/publ/d125.pdf
Amendment 68 #
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 aim considering that current regulatory and market developments enable market participants to develop suitable technical solutions within that time period. With the assistance of ESMA, EBA, the European Insurance and Occupational Pensions Authority (‘EIOPA’) and ESRB, the Commission should monitor 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 and the related costs 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 72 #
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, transparent, and non-discriminatory.
Amendment 75 #
Proposal for a regulation
Recital 29
Recital 29
(29) Since the objectives of this Regulation, namely to ensure the proportionality of rules that lead to unnecessary administrative burdens and compliance costs without puttrejudice to the overarching objective of preserving financial stability atnd reducing systemic risks and to increase the transparency of OTC derivatives positions and exposures, cannot be sufficiently achieved by the Member States but can rather, by reason of their scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.
Amendment 88 #
Proposal for a regulation
Article 1 – paragraph 1 – point 2 – point b
Article 1 – paragraph 1 – point 2 – point b
Regulation (EU) No 648/2012
Article 4 – paragraph 1 – point b
Article 4 – paragraph 1 – point b
Amendment 92 #
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 term, non-discriminatory and transparent commercial terms. Clearing members and clients which provide clearing services shall maintain and operate effective organisational and administrative arrangements with a view to taking all reasonable steps designed to prevent conflicts of interest from adversely affecting the interests of its clients.
Amendment 95 #
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 and transparent commercial terms.
Amendment 98 #
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 2
Article 4 – paragraph 3a – subparagraph 2
The Commission shall be empowered to adopt a delegated act in accordance with Article 82 to specify the conditions under which commercial terms referred to in the first subparagraph are considered to be fair, reasonable and non-discriminatory.;, non-discriminatory and transparent, and to specify the steps that clearing members and clients providing clearing services shall take to identify and prevent, conflicts of interest when providing clearing services and establish appropriate criteria for determining the types of conflict of interest whose existence may damage the interests of the clients or potential clients of the clearing members.
Amendment 102 #
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 shallmay calculate, annually, its aggregatethe average of the three highest month-end averages position for the months March, April and Mays within the precedent 12 months in accordance with paragraph 3.
Amendment 107 #
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 does not exceeds the clearing thresholds specified pursuant to Article 10(4)(b), the financial counterparty shall:
Amendment 109 #
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 – point b
Article 4a – paragraph 1 – subparagraph 2 – point b
(b) not be subject to the clearing obligation referred to in Article 4 for future OTC derivative contracts, irrespective of the asset class or asset classes for which the clearing threshold has been exceeded ;
Amendment 111 #
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 – point c
Article 4a – paragraph 1 – subparagraph 2 – point c
Amendment 114 #
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 fFinancial 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 year no longer exceeds the clearing threshold referred to in paragraph 1, shall no longer be subject to the clearing obligation seies which do not proceed to the calculation referred to in paragraph 1 or which exceed the threshold referred to therein shall be subject to the clearing obligation referred to in Article 4 for future OTC derivatives irrespective of the asset class or asset classes for which the clearing threshold has been exceeded and shall immediately notify ESMA and the relevant competent oaut in Article 4hority.
Amendment 120 #
Proposal for a regulation
Article 1 – paragraph 1 – point 3 a (new)
Article 1 – paragraph 1 – point 3 a (new)
Regulation (EU) No 648/2012
Article 5 – paragraph 1 – subparagraph 1
Article 5 – paragraph 1 – subparagraph 1
(3a) In Article 5 (1), subparagraph 1 is amended as follows: "Where a competent authority authorises a CCP to clear a class of OTC derivatives under Article 14 or 15, it shall immediately notify ESMA of that authorisation. (http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32012R0648&from=EN)or where a class of derivatives which a CCP intends to clear falls under an existing authorisation granted in accordance with Article 14 or 15, it shall immediately notify ESMA of that authorisation or of the additional class which the CCP intends to clear." Or. en
Amendment 121 #
Proposal for a regulation
Article 1 – paragraph 1 – point 3 b (new) Regulation (EU) No 648/2012
Article 1 – paragraph 1 – point 3 b (new) Regulation (EU) No 648/2012
(3b) In Article 5 (2), point b is amended as follows: "(b) the date or dates from which the clearing obligation takes effect, including any phase in which shall not exceed two years and the categories of counterparties to which the obligation applies; and (http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32012R0648&from=EN)" Or. en
Amendment 122 #
Proposal for a regulation
Article 1 – paragraph 1 – point 4
Article 1 – paragraph 1 – point 4
Regulation (EU) No 648/2012
Article 5 – paragraph 2 – point c
Article 5 – paragraph 2 – point c
Amendment 125 #
Proposal for a regulation
Article 1 – paragraph 1 – point 4 a (new)
Article 1 – paragraph 1 – point 4 a (new)
Regulation (EU) No 648/2012
Article 5 – paragraph 4 – subparagraph 1 – introductory part
Article 5 – paragraph 4 – subparagraph 1 – introductory part
(4 a) In Article 5 (4), subparagraph 1, introductory part is amended as follows: "4. With the overarching aim of reducing systemic risk at both the Union and national levels, the draft regulatory technical standards for the part referred to in paragraph 2(a) shall take into consideration the following criteria: (http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32012R0648&from=EN)" Or. en
Amendment 127 #
Proposal for a regulation
Article 1 – paragraph 1 – point 5 Regulation (EU) No 648/2012
Article 1 – paragraph 1 – point 5 Regulation (EU) No 648/2012
Amendment 128 #
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
Amendment 131 #
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 – point a
Article 6b – paragraph 1 – point a
Amendment 132 #
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 – point b
Article 6b – paragraph 1 – point b
(b) a CCP is likely tonotifies to the relevant competent authority and ESMA that within a year it will cease clearing that specific class of OTC derivative and no other CCP is able to clear that specific class of OTC derivative without interruption;
Amendment 134 #
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 – point c
Article 6b – paragraph 1 – point c
Amendment 149 #
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 the European Parliament, the Council and ESMA, may extend the suspension referred to in paragraph 5 for additional periods of three 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 157 #
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
Amendment 175 #
Proposal for a regulation
Article 1 – paragraph 1 – point 7 – point c
Article 1 – paragraph 1 – point 7 – point c
To ensure uniform conditions of application of paragraphs 1 and 3, ESMA shall, in close cooperation with the ESCB, develop draft implementing technical standards specifying:
Amendment 177 #
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 shallmay calculate, annually, its aggregateverage of the three highest month- end averages position for the months March, April and Mays within the precedent 12 months in accordance with paragraph 3.
Amendment 180 #
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 does not exceeds the clearing thresholds specified pursuant to paragraph 4(b), that non- financial counterparty shall:
Amendment 182 #
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 – point b
Article 10 – paragraph 1 – subparagraph 2 – point b
(b) not be subject to the clearing obligation referred to in Article 4 for future OTC derivative contracts in the asset class or asset classes for which the clearing threshold has been exceeded;
Amendment 183 #
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 – point c
Article 10 – paragraph 1 – subparagraph 2 – point c
Amendment 184 #
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 nNon-financial counterparty that has become subject to the clearing obligation in accordance with the second subies which do not proceed to the calculation referred to in paragraph1 of paragraph 1 and subsequently demonstrates to the authority desr which exceed the threshold referred to therein shall be subject to the clearing oblignated in accordance with paragraph 5 that its aggregate month-end average position for the months March, April and Mayion referred to in Article 4 for future OTC derivatives for the asset class ofr a given year no longer exceeds the clearing threshold referred to in paragraph 1 shall no longer be subject to the clearing obligation sesset classes for which the clearing threshold has been exceeded or for which the calculation has not been made and shall immediately notify ESMA and the relevant competent oaut in Article 4.;hority.
Amendment 186 #
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 10 – paragraph 3
Article 10 – paragraph 3
(8a) In Article 10, paragraph 3 is replaced by the following: "3. In calculating the positions referred to in paragraph 1, the non-financial counterparty shall include all the OTC derivative contracts entered into by the non-financial counterparty or by other non- financial entities within the group to which the non- financial counterparty belongs, which are not objectively measurable as reducing risks directly relating to the commercial activity or treasury financing activity of the non-financial counterparty or of that group. " Or. en (http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32012R0648)
Amendment 187 #
Proposal for a regulation
Article 1 – paragraph 1 – point 8 b (new)
Article 1 – paragraph 1 – point 8 b (new)
Regulation (EU) No 648/2012
Article 10 – paragraph 4
Article 10 – paragraph 4
Amendment 188 #
Proposal for a regulation
Article 1 – paragraph 1 – point 8 c (new)
Article 1 – paragraph 1 – point 8 c (new)
Regulation (EU) No 648/2012
Article 11 – paragraph 1 – introductory part
Article 11 – paragraph 1 – introductory part
(8c) In Article 11, the introductory part of paragraph 1 is replaced by the following: "1. Financial counterparties and non- financial counterparties that enter into an OTC derivative contract not cleared by a CCP, shall ensure, exercising due diligence, that appropriathe procedures and arrangements are in place to measure, monitor and mitigate operational risk and counterparty credit risk, are at least equivalent to those of a CCP and includinge at least: " Or. en (http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32012R0648)
Amendment 190 #
Proposal for a regulation
Article 1 – paragraph 1 – point 8 d (new)
Article 1 – paragraph 1 – point 8 d (new)
Regulation (EU) No 648/2012
Article 11 – paragraph 4 a (new)
Article 11 – paragraph 4 a (new)
(8d) In Article 11, after paragraph 4 the following paragraph is inserted following: 4a. Financial counterparties and non- financial counterparties shall establish clearly framed procedures for limiting the procyclicality effects that can arise from their bilateral clearing arrangements. Those counterparties shall ensure in particular that anti-procyclicality measures are included in their bilateral initial margin models.
Amendment 192 #
Proposal for a regulation
Article 1 – paragraph 1 – point 8 e (new)
Article 1 – paragraph 1 – point 8 e (new)
Regulation (EU) No 648/2012
Article 11 – paragraph 13
Article 11 – paragraph 13
Amendment 193 #
Proposal for a regulation
Article 1 – paragraph 1 – point 8 f (new)
Article 1 – paragraph 1 – point 8 f (new)
Regulation (EU) No 648/2012
Article 11 – paragraph 13 a (new)
Article 11 – paragraph 13 a (new)
(8f) In Article 11, after paragraph 13 the following paragraph is inserted following: 13a. Relevant competent authorities and ESMA shall regularly monitor bilateral initial margin models, in order to verify that they include measures to limit procyclicality. Whenever the relevant competent authorities and ESMA assess that an initial margin model is not properly set in a way that specifically limits procyclical effects, they shall request the relevant counterparties to make the required adjustments.
Amendment 194 #
Proposal for a regulation
Article 1 – paragraph 1 – point 8 g (new)
Article 1 – paragraph 1 – point 8 g (new)
Regulation (EU) No 648/2012
Article 11 – paragraph 14 – point e
Article 11 – paragraph 14 – point e
Amendment 195 #
Proposal for a regulation
Article 1 – paragraph 1 – point 9 – point a
Article 1 – paragraph 1 – point 9 – point a
Regulation (EU) No 648/2012
Article 11 – paragraph 15 – point a
Article 11 – paragraph 15 – point a
(a) the risk-management procedures, including the levels and type of collateral and segregation arrangements referred to in paragraph 3, as well as related supervisory procedures to ensure initial and ongoing validation of those risk-management procedures; and the methodology for assessing whether cleared and non- cleared OTC contracts achieve an economically equivalent effect;
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 202 #
Proposal for a regulation
Article 1 – paragraph 1 – point 10
Article 1 – paragraph 1 – point 10
Regulation (EU) No 648/2012
Article 38 – paragraph 7
Article 38 – paragraph 7
7. A CCP shall provide its clearing members with information on the initial margin models it uses. That information shall meet all of the following conditions: (a) it clearly explains the design of the initial marginublicly disclose the parameters and information on the models used in the calculation of its margin requirements, including: (a) the confidence interval; (b) the look-back period; (c) the liquidation period; (ca) the key assumptions and limitations of its models and the circumstances under which those assumptions are no longer valid; (cb) information on the models used for margin calculation, including the quantitative methodology, the approach for any adjustments or add-ons made to these models and how it operates; (b) it clearly describes the key assumptiontheir formulae; (cc) the parameters and methodology used in the computation of margin offsets aund limitations of the initial margin model and the circumstances under which those assumptions are no longer valid (c) it is documented.;er Article 27 of the regulatory technical standards No 153/2013; The parameters and information to be disclosed shall be sufficiently detailed to allow the replication of margin calculations and anticipation of big- stepped margin revisions.
Amendment 203 #
Proposal for a regulation
Article 1 – paragraph 1 – point 10 a (new)
Article 1 – paragraph 1 – point 10 a (new)
Regulation (EU) No 648/2012
Article 38 – paragraph 7 a (new)
Article 38 – paragraph 7 a (new)
Amendment 204 #
Proposal for a regulation
Article 1 – paragraph 1 – point 10 b (new)
Article 1 – paragraph 1 – point 10 b (new)
Regulation (EU) No 648/2012
Article 38 – paragraph 7 b (new)
Article 38 – paragraph 7 b (new)
(10b) In Article 38, the following paragraph 7b is inserted: 7b. Taking into account the experience acquired in the application of guidelines, ESMA shall develop draft regulatory technical standards for further specifying the requirements referred to in paragraphs 7 and 7 a. ESMA shall submit those draft regulatory technical standards to the Commission by 1 December 2020. Power is conferred on the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with the procedure laid down in Articles 10 to 14 of Regulation (EU) No 1095/2010.
Amendment 205 #
Proposal for a regulation
Article 1 – paragraph 1 – point 10 c (new)
Article 1 – paragraph 1 – point 10 c (new)
Regulation (EU) No 648/2012
Article 38 – paragraph 7 c (new)
Article 38 – paragraph 7 c (new)
(10c) In Article 38, the following paragraph 7c is inserted: 7c. Taking into account international developments and standards agreed upon at Union or global level, ESMA shall develop draft regulatory technical standards for further specifying quantitative and qualitative information to be publically disclosed by a CCP, including on transaction volumes and values, on its financial conditions, on its financial resources to withstand potential losses and on its performance. ESMA shall submit those draft regulatory technical standards to the Commission by 1 December 2020. Power is conferred on the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with the procedure laid down in Articles 10 to 14 of Regulation (EU) No 1095/2010.
Amendment 209 #
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 211 #
Proposal for a regulation
Article 1 – paragraph 1 – point 11 a (new)
Article 1 – paragraph 1 – point 11 a (new)
Regulation (EU) No 648/2012
Article 41 – paragraph 4 a (new)
Article 41 – paragraph 4 a (new)
(11a) In Article 41, the following paragraph 4a is inserted: 4a. Taking into account the experience acquired in the application of the guidelines on anti-procyclicality margin measures for central counterparties, ESMA shall develop draft regulatory technical standards for specifying requirements for a CCP to: (a) develop a policy for the review of its anti-procyclicality measures; (b) implement anti-procyclicality margin measures in a manner that a procyclical adjustment addresses all the risk factors used in the calculation of margin requirements, including price shifts, fx shifts, implied volatility shifts, maturity spreads and portfolio margin offsets, as applicable; (c) develop and maintain documented policies and procedures setting out the circumstances under which the buffer can be exhausted as well as the conditions for its replenishment, when a CCP chooses to apply a margin buffer at least equal to 25% of the calculated margin; (d) apply standard methodologies for the selection of historical stressed observations as well as for the application of the weighting schemes that can be used in the margin calculation, when a CCP chooses to assign at least 25% weight to stressed observations in the look back period; (e) avoid using modelling procedures to vary the effectiveness of using a 10 year historical look back period, when a CCP chooses to apply a margin floor; (f) review the length or composition of the historical look back period if the number of stressed observations falls below a pre- specified level, when a CCP chooses to apply a margin floor; ESMA shall submit those draft regulatory technical standards to the Commission by 1 December 2020. Power is conferred on the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with the procedure laid down in Articles 10 to 14 of Regulation (EU) No 1095/2010.
Amendment 213 #
Proposal for a regulation
Article 1 – paragraph 1 – point 11 b (new)
Article 1 – paragraph 1 – point 11 b (new)
Regulation (EU) No 648/2012
Article 55 – paragraph 4
Article 55 – paragraph 4
(11b) In Article 55, paragraph 4 is replaced by the following: "4. A registered trade repository shall comply at all times with the conditions for registration. A trade repository shall, without undue delay, notify ESMA of periodic information and of any material changes to the conditions for registration. as stipulated on the basis of regulatory technical standards referred to in paragraph 3 of Article 56. ESMA shall have the right to oppose a material change to the conditions of registration which is notified by the trade repository" Or. en (http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32012R0648)
Amendment 221 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12 a (new)
Article 1 – paragraph 1 – point 12 a (new)
Regulation (EU) No 648/2012
Article 63 – paragraph 8
Article 63 – paragraph 8
Amendment 222 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12 b (new)
Article 1 – paragraph 1 – point 12 b (new)
Regulation (EU) No 648/2012
Article 63 – paragraph 9
Article 63 – paragraph 9
(12b) Article 63, paragraph 9 is replaced by the following: "9. Where authorisation as referred to in paragraph 8 is applied for, the national judicial authority shall verify that ESMA’s decision is authentic and that the coercive measures envisaged are neither arbitrary nor excessive having regard to the subject matter of the inspection. In its control of the proportionality of the coercive measures, the national judicial authority may ask ESMA for detailed explanations. Such a request for detailed explanations may in particular relate to the grounds ESMA has for suspecting that an infringement of this Regulation has taken place, as well as to the seriousness of the suspected infringement and the nature of the involvement of the person who is subjected to the coercive measures. However, the national judicial authority may not review the necessity for the inspection or demand to be provided with the information on ESMA’s file. The lawfulness of ESMA’s decision shall be subject to review only by the Court of Justice following the procedure set out in Regulation (EU) No 1095/2010. (http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32012R0648)" Or. en
Amendment 227 #
Proposal for a regulation
Article 1 – paragraph 1 – point 13 a (new)
Article 1 – paragraph 1 – point 13 a (new)
Regulation (EU) No 648/2012
Article 67 – paragraph 1 – subparagraph 1 a (new)
Article 67 – paragraph 1 – subparagraph 1 a (new)
Amendment 229 #
Proposal for a regulation
Article 1 – paragraph 1 – point 14 a (new)
Article 1 – paragraph 1 – point 14 a (new)
Regulation (EU) No 648/2012
Article 73 – paragraph 1
Article 73 – paragraph 1
(14a) Article 73, paragraph 1 is replaced by the following: "1. Where, in accordance with Article 64(5), ESMA finds that a trade repository has committed one of the infringements listed in Annex I, it shall take one or more of the following decisions: (a) requiring the trade repository to bring the infringement to an end; (b) imposing fines under Article 65; (c) issuing public notices; (d) as a last resort, withdrawing the registration of the trade repository. ; (da) requiring the temporary cessation of any practice that is contrary to this Regulation; (db) adopting any measures to ensure that a trade repository continues to comply with legal requirements under this Regulation; (dc) imposing a temporary prohibition on the acceptance of new reporting counterparties or the extension of the services that the trade repository offers, when these would compromise the stability or the accuracy of data; (dd) requiring the removal of a natural person from the governing bodies of a trade repository." Or. en (http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32012R0648)
Amendment 231 #
Proposal for a regulation
Article 1 – paragraph 1 – point 16
Article 1 – paragraph 1 – point 16
Regulation (EU) No 648/2012
Article 78 – paragraph 10 – introductory part
Article 78 – paragraph 10 – introductory part
To ensure a consistent application of this Article, ESMA in close cooperation with the ESCB shall develop draft regulatory technical standards specifying:
Amendment 240 #
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]... [one year following the entry into force of this amending Regulation], and every year until three years following the date of entry into force of this amending Regulation, 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 245 #
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 addsix months following the date of entry into force of this amending Regulation] and every year thereafter until ... [three years following the date of entry into force + 18 months],of this Regulation] in cooperation with EIOPA, EBA and the ESRB, submit a report to the Commission, assessing the following:
Amendment 249 #
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 256 #
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
Article 85 – paragraph 3
3. By [PO please add 6 months before the date referred to in paragraph 1] ESMA shall report to the Commission on the following: (a) have been developed that facilitate the participation of PSAs in central clearing and the impact of those solutions on the level of central clearing by PSAs, taking into account the report referred to in paragraph 2; (b) the level of clearing by non-financial counterparties and the distribution of clearing within the non-financial counterparty class, especially with regard to the appropriateness of the clearing thresholds referred to in Article 10(4); (c) 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(4); (d) the improvement of the quality of transaction data reported to trade repositories, the accessibility of those data and the quality of the information received from trade repositories in accordance with Article 81; (e) the accessibility of clearing by counterparties.;At the end of the three-year period referred to in Article 89(1) the Commission shall let the exemption lapse. whether viable technical solutions the impact of this Regulation on the impact of this Regulation on
Amendment 260 #
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)
5a. ESMA shall, by ... [18 months following the date of entry into force of this amending Regulation], in cooperation with EIOPA, EBA and the ESRB, submit a report to the Commission, assessing whether the FRAND principle referred to in paragraph 3a of Article 4has been effective in facilitating access to clearing. The Commission, by [insert date of entry into force + 2 years], shall present a report to the European Parliament and the Council assessing whether the FRAND principle has been effective in facilitating access to clearing and proposing, where necessary, improvements to that principle. That report shall consider the findings of the report referred to in the first subparagraph and be accompanied by a legislative proposal, where appropriate.
Amendment 265 #
Proposal for a regulation
Article 1 – paragraph 1 – point 20
Article 1 – paragraph 1 – point 20
Regulation (EU) No 648/2012
Article 89 – paragraph 1 – subparagraph 1
Article 89 – paragraph 1 – subparagraph 1
1. Until [PO please add date of entry into force + 3 years], the clearing obligation set out in Article 4 shall not apply to OTC derivative contracts that are objectively measurable as reducing investment risks directly relating to the financial solvency of PSAs, and to entities established to provide compensation to members of PSAs in case of a default of a PSA.; PSAs, CCPs and clearing members shall make their best efforts to contribute to the development of technical solutions that facilitate the clearing of such OTC derivative contracts by PSAs. The Commission shall set up an expert group made up of representatives of PSAs, CCPs, clearing members and other relevant parties to such technical solutions to monitor their efforts and assess the progress made in the development of technical solutions that facilitate the clearing of such OTC derivative contracts by PSAs. That expert group shall meet at least every six months. The Commission shall consider the efforts made by PSAs, CCPs and clearing members when drafting its reports pursuant to the first subparagraph of Article 85(2).
Amendment 266 #
Proposal for a regulation
Article 1 – paragraph 1 – point 20 a (new)
Article 1 – paragraph 1 – point 20 a (new)
Regulation (EU) No 648/2012
Article 89 – paragraph 9 a (new)
Article 89 – paragraph 9 a (new)
(20a) In Article 89, paragraph 9a is inserted: 9a. Whenever derivatives contracts are subject to the clearing obligation set out in Article 4, any phase-in period established in accordance with Article 5(2)(b) shall be completed by 1 July 2019.
Amendment 274 #
Proposal for a regulation
Annex 1 – paragraph 1 – point 2
Annex 1 – paragraph 1 – point 2
Regulation (EU) No 648/2012
Annex I – section IV – point d
Annex I – section IV – point d
(d) a trade repository infringes Article 55(4) by not notifying ESMA in due time of material changes to the conditions for its registration. or of periodic information relating to its financial information and risk and compliance reports.
Amendment 275 #
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/?uri=CELEX%3A32012R0648)