Activities of Danuta Maria HÜBNER related to 2016/0365(COD)
Shadow reports (1)
RECOMMENDATION FOR SECOND READING on the Council position at first reading with a view to the adoption of a regulation of the European Parliament and of the Council on a framework for the recovery and resolution of central counterparties and amending Regulations (EU) No 1095/2010, (EU) No 648/2012, (EU) No 600/2014, (EU) No 806/2014 and (EU) 2015/2365 and Directives 2002/47/EC, 2004/25/EC, 2007/36/EC, 2014/59/EU and (EU) 2017/1132
Amendments (116)
Amendment 229 #
Proposal for a regulation
Recital 19
Recital 19
(19) In order to deal in an efficient manner with failing CCPs, authorities should have the power to impose preparatory measures on CCPs. A minimum standard should be established as regards the contents and information to be included in recovery plans to ensure that all CCPs in the Union have sufficiently detailed plans for recovery should they face financial distress. Such plans should be based on realistic assumptions applicable in a range of robust and severe scenarios, including deteriorations arising from a default event or from a non- default eventcontemplate an appropriate range of scenarios envisaging both systemic stress and stress specific to the CCP. The scenarios should contemplate situations of stress that would be more extreme than those used for the purposes of regular stress testing under Article 21 of EMIR, while remaining plausible, such as the failure of more than the two clearing members to which the CCP has the largest exposures. The recovery plan should form part of the operating rules of the CCP agreed contractually with clearing members. Those operating rules should further contain provisions to ensure the enforceability of recovery measures outlined in the plan in all scenarios. Recovery plans should not assume access to extraordinary public financial support or expose taxpayers to the risk of loss.
Amendment 232 #
Proposal for a regulation
Recital 22
Recital 22
(22) Recovery plans should comprehensively set out the actions that the CCP would take to address any unmatched outstanding obligations, uncovered loss, liquidity shortfall, or capital inadequacy, as well as the actions to replenish any depleted pre-funded financial resources and liquidity arrangements in order to restore the CCP’s viability and its continuing ability to meet its requirements for authorisation. The tools envisaged should be comprehensive. Each tool should be reliable, timely, and underpinned by a sound legal basis. Recovery tools should be designed so as to allow those affected clients and members which might bear losses and liquidity shortfalls in recovery to measure, manage and control their potential losses and liquidity shortfalls as well as to minimise the negative impact of their use on members, clients and the wider financial system. They should create appropriate incentives for the CCP's shareholders, members and their clients to control the risk they bring to or incur in the system, monitor the risk-taking and risk- management activities of the CCP, and participate in the default management process.
Amendment 234 #
Proposal for a regulation
Recital 23
Recital 23
(23) CCPs should ensure that the plans are non-discriminatory and balanced in terms of their impacts and the incentives they create. They should not disadvantage clearing members or clients in a disproportionate way. In particular, in accordance with Regulation (EU) No 648/2012 CCPs should ensure that their clearing members have limited exposures toward the CCP. CCPs should ensure that all relevant stakeholders are consultedinvolved in the drawing-up onf the recovery plan through their involvement in the CCP's risk committee, and by being involved in the development of the recovery plans the case may be, and by being appropriately consulted. Since opinions may be expected to differ among stakeholders, CCPs should establish clear processes to manage the diversity of stakeholders' views as well as any conflict of interest between those stakeholders and the CCP.
Amendment 235 #
Proposal for a regulation
Recital 23 a (new)
Recital 23 a (new)
(23a) In order to ensure an appropriate alignment of incentives and to align the financial liability with the ability to control risk, it is appropriate to require CCPs to use an additional dedicated amount of own resources in addition to the contribution to the default waterfall provided for under Article 45 of Regulation (EU) No 648/2012. Such amount should be, to the extent feasible and practicable without creating a disproportionate burden, calibrated depending on the ability of the CCP to control the risk in the recovery scenario envisaged. It should by default, in a default scenario, be equal to the contribution to the default waterfall provided for under Article 45 of Regulation (EU) No 648/2012. In a non- default scenario, the CCP shall bear the first losses up to all of the amount of its own resources exceeding the minimum capital requirements, unless the recovery scenario contemplated foresees that the non-default loss occurs in a situation where the control of risk is spread between the CCP and its members, such as in the case of an investment loss resulting from a policy jointly agreed on by the CCP and its members.
Amendment 238 #
Proposal for a regulation
Recital 24
Recital 24
(24) TIn view of the global nature of the markets served by CCPs, it is necessary to ensure the ability of a CCP to apply the recovery options, where necessary, to contracts or assets governed by the law of a third country or to entities based in third countries, t. The CCP’s operating rules should therefore include contractual provisions for that purposeensuring this ability.
Amendment 249 #
Proposal for a regulation
Recital 38
Recital 38
(38) The critical functions of a failing CCP should be maintained, albeit re- structured with changes to the management where appropriate, through the use of resolution tools as a going concern with the use, to the largest extent possible, of private funds. Thatis objective could be achieved either through salethe sale of the CCP to or its merger with a solvent third party, or after havingby restructureding or writtening down the contracts and liabilities of the CCP via the allocation of losses and positions, or after having writtenthe transfer of positions from the defaulting member to non-defaulting members, or by effecting a recapitalisation of the CCP through writing down its shares or writtening down and converteding its debt to equity, in order to effect a recapitalisation. In line with this objective,. In line with the objective of maintaining the critical functions of the CCP and prior to thesaking the actions described above, the resolution authority should consider enforcing any existing and outstanding contractual obligations of the CCP, in line with howcluding in particular any contractual obligations by clearing members to meet cash calls or to take on positions of defaulting clearing members, whether through an auction or other agreed means in the CCP's operating rules, as well as any existing and outstanding contractual obligation committing parties other than clearing members to any forms of financial support. Contractual obligations should be enforced by the resolution authority in line with the way in which they would be called in under normal insolvency proceedings.
Amendment 254 #
Proposal for a regulation
Recital 43
Recital 43
(43) For the purpose of protecting the right of shareholders, counterparties and creditors, clear obligations should be laid down concerning the valuation of the assets and liabilities of the CCP and the valuation of the treatment that shareholders and creditors would have received if the resolution authority would not have taken resolution action. It should be possible to commence a valuation already during the recovery phase. Before any resolution action is taken, a fair and realistic valuation of the assets and liabilities of the CCP , including the price at which any termination of contracts in the CCP would take place, which should take into account market volatility and liquidity at the time of the resolution, should be carried out. Such a valuation should be subject to a right of appeal only together with the resolution decision. In addition, in certain cases, an ex-post comparison between the treatment that shareholders and creditors have actually been afforded and the treatment they would have received ifhad the resolution authority would not havenot taken resolution action in relation to the CCP and they woulhad instead have been subject to possible outstanding obligations pursuant to the CCP's recovery plan or other arrangements in its operating rules or under normal insolvency proceedings, should be carried out after resolution tools have been used. Where shareholders and creditors have received, in payment of, or compensation for, their claims, less than the amount that they would have received if the resolution authority would not have taken resolution action in relation to the CCP and they would instead have been subject to possible outstanding obligations pursuant to the CCP's recovery plan or other arrangements in its operating rules or under normal insolvency proceedings, they should in certain cases be entitled to the payment of the difference. As opposed to the valuation prior to the resolution action, it should be possible to challenge that comparison separately from the resolution decision. Member States should be free to decide on the procedure as to how to pay any difference of treatment that has been determined to shareholders and creditors.
Amendment 256 #
Proposal for a regulation
Recital 45
Recital 45
(45) Upon entry into resolution, any outstanding contractual obligations set out in the operating rules of the CCP, including outstanding recovery measures, should be honoured except where the exercise of another resolution power or tool is more appropriate to avoid adverse effects for financial stability or to secure the critical functions of the CCP in a timely manner. Losses should thenIn order to address a non-default event, the resolution authority should restore the CCP to a matched book and allocate outstanding losses through the use of position and loss allocation tools. Losses from a non-default event should be absorbed by regulatory capital instruments and should be allocated to shareholders up to their capacity either through the cancellation or transfer of instruments of ownership or through severe dilution. Where those instruments are not sufficient, resolution authorities should have the power to write down subordinated unsecured debt and senior unsecured liabilities, to the extent necessary, without jeopardising broader financial stability, in accordance with their ranking under applicable national insolvency law.
Amendment 264 #
Proposal for a regulation
Recital 60
Recital 60
(60) Should all other options be practically unavailable or be demonstrably insufficient to safeguard financial stability, government participation in the shape of equity support or temporary public ownership should be possible, in accordance with applicable rules on State aid, including a restructuring of the operations of the CCP, and enable the deployed funds to be recouped from the CCP over time. The use of government stabilisation tools is notwithstanding the role of central banks in providing liquidity to the financial system even in times of stress. It should be temporary in nature. Therefore, comprehensive and credible arrangements enabling the recoupment over an appropriate period of time of the public funds provided should be established.
Amendment 267 #
Proposal for a regulation
Recital 70
Recital 70
(70) It is in the interest of an efficient resolution, and in order to avoid conflicts of jurisdiction, that no normal insolvency proceedings for the failing CCP be opened or continued whilst the resolution authority is exercising its resolution powers or using the resolution tools, except at the initiative of, or with the consent of, the resolution authority. It is useful and necessary to suspend, for a limited period, certain contractual obligations so that the resolution authority has time to put into practice the resolution tools. This should not, however, apply to obligations of a failing CCP towards systems designated under Directive 98/26/EC of the European Parliament and of the Council23 , including other central counterparties and central banks. Directive 98/26/EC reduces the risk associated with participation in payment and securities settlement systems, in particular by reducing disruption in the event of the insolvency of a participant in such a system. To ensure that those protections apply appropriately in crisis situations, whilst maintaining appropriate certainty for operators of payment and securities systems and other market participants, a crisis prevention measure or a resolution action should not be deemed to be insolvency proceedings within the meaning of Directive 98/26/EC, provided that the substantive obligations under the contract continue to be performed. However, the operation of a system designated under or the right to collateral security guaranteed by Directive 98/26/EC should not be undermined. __________________ 23 Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems (OJ L 166, 11. 6. 1998, p. 45).
Amendment 270 #
Proposal for a regulation
Article 2 – paragraph 1 – point 7 a (new)
Article 2 – paragraph 1 – point 7 a (new)
(7a) "default event" means a scenario whereby one or more clearing members fail to honour their financial obligations towards the CCP;
Amendment 272 #
Proposal for a regulation
Article 2 – paragraph 1 – point 7 b (new)
Article 2 – paragraph 1 – point 7 b (new)
(7b) ‘non-default event’ means a scenario whereby a loss is incurred by a CCP for any reason other than the default of a clearing member, such as losses on investments or losses from operational failures or fraud;
Amendment 274 #
Proposal for a regulation
Article 2 – paragraph 1 – point 15 a (new)
Article 2 – paragraph 1 – point 15 a (new)
(15a) ‘O-SII’ means an Other Systemically Important Institution as referred to in Directive 2013/36/EU Article 131(3);
Amendment 281 #
Proposal for a regulation
Article 3 – paragraph 3
Article 3 – paragraph 3
3. Where a resolution authority designated pursuant to paragraph 1 is entrusted with other functions, the Member State shall ensure the operational independence of that resolution authority and shall put in placebe ensured and all necessary arrangements shall be established in order to avoid conflicts of interest between the functions entrusted to the resolution authority pursuant to this Regulation and all other functions entrusted to that authority.
Amendment 285 #
Proposal for a regulation
Article 3 – paragraph 4 a (new)
Article 3 – paragraph 4 a (new)
4a. By way of derogation from paragraph 3 and 4, the requirements on independence and structural separation shall not apply where all of the following conditions are met: (a) no CCP is established in the Member State concerned; (b) the resolution authority designated under this article is the same authority as the resolution authority designated under Article 3 of Directive 2014/59; (c) adequate policies and procedures to mitigate conflicts of interests within the resolution authority are established.
Amendment 297 #
Proposal for a regulation
Article 4 – paragraph 2 – point h
Article 4 – paragraph 2 – point h
(h) the central banks of issue referred to in point (h) of Article 18(2) of Regulation (EU) No 648/2012;
Amendment 298 #
Proposal for a regulation
Article 4 – paragraph 2 – point i a (new)
Article 4 – paragraph 2 – point i a (new)
(ia) the competent authorities tasked with the supervision of O-SIIs referred to in Article 131 (3) of Directive 2013/36/EU;
Amendment 300 #
Proposal for a regulation
Article 4 – paragraph 3
Article 4 – paragraph 3
3. ESMA and EBA, EBA and the competent authorities tasked with the supervision of O-SIIs shall not have voting rights in resolution colleges.
Amendment 304 #
Proposal for a regulation
Article 5 – paragraph 1 – subparagraph 2
Article 5 – paragraph 1 – subparagraph 2
The resolution committee shall also promote the development and coordination of resolution plans and develop methodsign strategies for the resolution of failing CCPs.
Amendment 305 #
Proposal for a regulation
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
2a. ESMA shall assess CCP recovery and resolution arrangements across the Union in terms of their aggregate effect on Union financial stability through regular stress-testing and crisis simulation exercises with respect to potential system-wide stress events. In exercising this role, ESMA shall ensure consistency with the assessments of the resilience of individual CCPs carried out pursuant to Article 21(6) of Regulation (EU) No 648/2012 with regard to the frequency and design of the tests and shall cooperate closely with the ESRB and competent authorities designated under Article 4 of Directive 2013/36/EU, including the ECB in carrying out its tasks within a single supervisory mechanism under Regulation (EU) No 1024/2013, and any national competent authorities tasked with the supervision of CCPs. In areas where these arrangements are found to be wanting as a result of these comprehensive stress tests, the responsible institution or institutions will have to address the shortcomings and resubmit their arrangements for another round of stress tests within 6 months of the previous stress tests.
Amendment 308 #
Proposal for a regulation
Article 6 – paragraph 2 – subparagraph 2 a (new)
Article 6 – paragraph 2 – subparagraph 2 a (new)
Resolution authorities shall cooperate with resolution authorities designated in accordance with Article 3 of Directive 2014/59/EU for the purposes of this Regulation.
Amendment 310 #
Proposal for a regulation
Article 7 – paragraph 1 – point a – point i
Article 7 – paragraph 1 – point a – point i
Amendment 311 #
Proposal for a regulation
Article 7 – paragraph 1 – point a – point i a (new)
Article 7 – paragraph 1 – point a – point i a (new)
(ia) the ownership, legal and organisational structure of the CCP, including whether it is part of a larger group of FMIs or other financial institutions;
Amendment 312 #
Proposal for a regulation
Article 7 – paragraph 1 – point a – point iii
Article 7 – paragraph 1 – point a – point iii
(iii) the CCP's clearing membership structurenature and diversity of the CCP's clearing membership, as well as the nature and diversity of the network of indirect users of the CCPs, including clients of members and other counterparties to which those clearing members and their clients provide clearing services under that CCP, where those can be easily identified;
Amendment 317 #
Proposal for a regulation
Article 7 – paragraph 1 – point g a (new)
Article 7 – paragraph 1 – point g a (new)
(ga) that public financial support is avoided to the greatest extent possible and used only as a last resort and under the conditions set out in Article 45, and that no expectation of public financial support is created;
Amendment 319 #
Proposal for a regulation
Article 7 – paragraph 1 – point j
Article 7 – paragraph 1 – point j
(j) that transparency is ensured, wherever a proposed decision or action is likely to have implications on the financial stability or fiscal resources of any relevant Member State or any other jurisdiction, transparency is ensured towards the relevant authorities in that Member State or jurisdiction;
Amendment 321 #
Proposal for a regulation
Article 7 – paragraph 1 – point k
Article 7 – paragraph 1 – point k
(k) that they coordinate and cooperate as closely as possible, also with the goal towith a view to, among others, lowering the overall cost of resolution;
Amendment 328 #
Proposal for a regulation
Article 9 – paragraph 1 – subparagraph 1 a (new)
Article 9 – paragraph 1 – subparagraph 1 a (new)
Such recovery plan shall clearly distinguish, in particular wherever practicable by way of separate sections, between scenarios based on: (a) default events; (b) non-default events; (c) a combination of both.
Amendment 331 #
Proposal for a regulation
Article 9 – paragraph 2 – subparagraph 2 a (new)
Article 9 – paragraph 2 – subparagraph 2 a (new)
ESMA shall, by ... [one year after the entry into force of this Regulation], issue guidelines in accordance with Article 16 of Regulation (EU) No 1095/2010 to specify the minimum list of qualitative and quantitative indicators referred to in the first subparagraph.
Amendment 344 #
Proposal for a regulation
Article 9 – paragraph 7 a (new)
Article 9 – paragraph 7 a (new)
7a. Recovery plans shall: (a) consider the interests of all stakeholders that are likely to be affected by that plan, specifically in relation to clearing members and their clients, both direct and indirect; and (b) ensure that clearing members do not have unlimited exposures toward the CCP.
Amendment 345 #
Proposal for a regulation
Article 9 – paragraph 7 b (new)
Article 9 – paragraph 7 b (new)
Amendment 346 #
Proposal for a regulation
Article 9 – paragraph 7 c (new)
Article 9 – paragraph 7 c (new)
7c. The recovery tools contemplated in recovery plans shall: (a) be comprehensive; (b) be effective; (c) be as transparent as possible towards affected members and clients; (d) create appropriate incentives for the CCP shareholders, members, their clients, and other relevant stakeholders to control the amount of risk that they bring to or incur in the system, monitor the risk- taking and risk-management of the CCP and participate in its default management process; and (e) be designed so as to minimise the negative impact of their use on members, their clients and the wider financial system.
Amendment 347 #
Proposal for a regulation
Article 9 – paragraph 7 d (new)
Article 9 – paragraph 7 d (new)
7d. Recovery tools shall allow to: (a) address losses from non-default events; (b) address losses from default events; (c) re-establish a matched book following a default event; (d) address uncovered liquidity shortfalls; and (e) replenish the financial resources of the CCP, including its own funds, to a level sufficient in order for the CCP to meet its obligations under Regulation (EU) No 648/2012 and to support the continued and timely operation of the critical functions of the CCP.
Amendment 348 #
Proposal for a regulation
Article 9 – paragraph 7 e (new)
Article 9 – paragraph 7 e (new)
7e. Recovery plans shall contemplate a range of extreme but plausible scenarios relevant to the CCP’s specific conditions, including its product mix, business model and liquidity and risk governance framework. That range of scenarios shall include both system wide events and stress specific to the CCP, taking into account the potential impact of domestic and cross-border contagion in crises, as well as simultaneous crises in several significant markets.
Amendment 349 #
Proposal for a regulation
Article 9 – paragraph 7 f (new)
Article 9 – paragraph 7 f (new)
7f. ESMA shall, by ... [12 months after the date of entry into force of this Regulation] issue guidelines in accordance with Article 16 of Regulation (EU) No 1095/2010 further specifying the range of scenarios to be considered for the purposes of paragraph 1. In issuing such guidelines, ESMA shall have regard, where appropriate, to the relevant international work carried out in the area of CCP supervisory stress testing and of CCP recovery. It shall seek to take advantage, where achievable, of synergies between supervisory stress testing and recovery scenarios modelling.
Amendment 350 #
Proposal for a regulation
Article 9 – paragraph 7 g (new)
Article 9 – paragraph 7 g (new)
7g. Following a default event and prior to the use of any recovery tool, a CCP shall use an additional share of those own resources that exceed the minimum capital requirements set in Article 16 of Regulation (EU) No 648/2012. Such amount shall, to the greatest extent possible and practicable, be calibrated based on the ability of the CCP to control risk in the scenario contemplated. It shall not be higher than the amount required to be used under Article 45(4) of Regulation (EU) No 648/2012, as further specified by delegated Regulation 153/2013. Following a non-default event and prior to the use of any recovery tool, the CCP shall use up to all of its own resources in excess of the minimum capital requirements set in Article 16 of Regulation (EU) No 648/2012 in order to cover the losses incurred. By way of derogation from the second subparagraph, the amount contributed to by the CCP pursuant to the second subparagraph may be lower where a non- default loss arises in a scenario where the control of risk is spread between the CCP and its members.
Amendment 352 #
Proposal for a regulation
Article 9 – paragraph 8 a (new)
Article 9 – paragraph 8 a (new)
8a. Where the Board of the CCP decides not to follow the advice of the risk committee, this decision shall be duly justified.
Amendment 359 #
Proposal for a regulation
Article 10 – paragraph 3
Article 10 – paragraph 3
3. When assessing the recovery plan, the competent authority shall take into consideration the CCP's capital structure, its default waterfall, the level of complexity of the organisational structure and the risk profile of the CCP, the availability of other CCPs that could credibly and feasibly act as a substitute for the critical functions of the CCP and the impact that the implementation of the recovery plan would have on clearing members, their clients, financial markets served by the CCP and on the financial system as a whole.
Amendment 361 #
Proposal for a regulation
Article 10 – paragraph 4
Article 10 – paragraph 4
4. The resolution authority shall examine the recovery plan in order to identify any measures which may adversely impact the resolvability of the CCP. The resolution authority shallWhere any such measures are identified, the resolution authority shall bring them to the attention of the competent authority and make recommendations to the competent authority with regard to those mattersing the ways to address their potential adverse effect.
Amendment 363 #
Proposal for a regulation
Article 10 – paragraph 10
Article 10 – paragraph 10
10. The request referred to in the second subparagraph of paragraph 9 shall be reasoned and be, notified in writing to the CCP and subject to a right of appeal.
Amendment 364 #
Proposal for a regulation
Article 10 – paragraph 10 a (new)
Article 10 – paragraph 10 a (new)
10a. ESMA shall develop draft regulatory technical standards specifying the minimum criteria that the competent authority is to assess for the purposes of the assessment of paragraph 2 of this Article and of Article 11(1). ESMA shall submit those draft regulatory technical standards to the Commission by ... [12 months after the entry into force of this 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.
Amendment 369 #
Proposal for a regulation
Article 12 – paragraph 3 – subparagraph 1
Article 12 – paragraph 3 – subparagraph 1
Where, after four months from the date of transmission of the recovery plan, the college has failed to reach a joint decision on the issues referred to in points (a) and (b) ofaragraph 1, and without prejudice to paragraph 14, the competent authority of the CCP shall make its own decisionllege shall adopt a majority decision within the same period.
Amendment 370 #
Proposal for a regulation
Article 12 – paragraph 3 – subparagraph 2
Article 12 – paragraph 3 – subparagraph 2
The competent authority of the CCP shall make the decision referred to in the first subparagraph taking into account the views of the other college members expressed during the four-month period. The competent authority of the CCP shall notify in writing that decision to the CCP,notify in writing the decision of the supervisory college to the CCP and to its parent undertaking, where relevant, and to the other members of the college.
Amendment 371 #
Proposal for a regulation
Article 12 – paragraph 3 a (new)
Article 12 – paragraph 3 a (new)
3a. A majority decision of the supervisory college shall be adopted on the basis of a simple majority of its members. For colleges of up to and including 12 members, a maximum of two college members from the same Member State shall have one vote and each voting member shall have one vote. For colleges with more than 12 members, a maximum of three members from the same Member State shall have one vote and each voting member shall have one vote. ESMA shall have no voting rights regarding the decisions of the college.
Amendment 372 #
Proposal for a regulation
Article 12 – paragraph 4
Article 12 – paragraph 4
4. Where, by the end of that four- month period, any joint decision as referred to in paragraph 1 has not been reached, any group of members of the college has referredsupervision college representing two-thirds of the members of this college, may, within 30 calendar days of the adoption of the decision of the college, refer to ESMA, in accordance with Article 19 of Regulation (EU) No 1095/2010, a matter in relation to the assessment of recovery plans and implementation of the measures pursuant to points (a), (b) and (d) of Article 10(9) of this Regulation, the competent authority of the CCP. The referral decision shall state in writing the full and detailed reasons why the concerned members of the supervisory college consider that the decision taken by the college does not meet the requirements laid down by this Regulation or by any other Union law. The supervisory college shall await the decision taken by ESMA in accordance with Article 19(3) of Regulation (EU) No 1095/2010 and decide in accordance with the decision of ESMA.
Amendment 373 #
Proposal for a regulation
Article 12 – paragraph 5
Article 12 – paragraph 5
5. The four-month period30 calendar days shall be deemed to be the conciliation phase within the meaning of Regulation (EU) No 1095/2010. ESMA shall take its decision within one month from the referral of the matter to it. The matter shall not be referred to ESMA after the end of the four month time period30 calendar days or after a joint decision has been reached. In the absence of an ESMA decision within one month, the decision of the competent authority of the CCPsupervisory college shall apply.
Amendment 377 #
Proposal for a regulation
Article 13 – paragraph 3 – point a – point i
Article 13 – paragraph 3 – point a – point i
(i) the default of one or more of its memberevents;
Amendment 378 #
Proposal for a regulation
Article 13 – paragraph 3 – point a – point ii
Article 13 – paragraph 3 – point a – point ii
(ii) other reasons including losses from its investment activities or operational problemnon-default events, distinguishing where relevant between different types of non-default events;
Amendment 379 #
Proposal for a regulation
Article 13 – paragraph 3 – point c
Article 13 – paragraph 3 – point c
(c) the manner and the circumstances under which a CCP may apply, under standard collateralisation, tenor and interest rate terms, for the use of central bank facilities and the identification of the assets that would be expected to qualify as collateral. in such circumstances.
Amendment 382 #
Proposal for a regulation
Article 13 – paragraph 4 a (new)
Article 13 – paragraph 4 a (new)
4a. Resolution authorities shall not use the default fund, the default waterfall and position allocation tools, cash calls or loss allocation tools in non-default scenarios.
Amendment 383 #
Proposal for a regulation
Article 13 – paragraph 5 a (new)
Article 13 – paragraph 5 a (new)
5a. The resolution plan shall clearly distinguish, in particular wherever practicable by way of separate sections, between scenarios based on the circumstances referred to in, respectively, points i), ii) and iii) of point a) of paragraph 3.
Amendment 384 #
Proposal for a regulation
Article 13 – paragraph 6 – subparagraph 1 – point a
Article 13 – paragraph 6 – subparagraph 1 – point a
(a) a summary of the key elements of the plan distinguishing between scenarios based on the circumstances referred to in, respectively, points i), ii) and iii) of point a) of paragraph 3;
Amendment 386 #
Proposal for a regulation
Article 13 – paragraph 6 – subparagraph 1 – point d
Article 13 – paragraph 6 – subparagraph 1 – point d
(d) an estimation of the timeframe for executingcarrying out each material aspect of the plan, including for replenishing the CCP’s financial resources;
Amendment 387 #
Proposal for a regulation
Article 13 – paragraph 6 – subparagraph 1 – point k
Article 13 – paragraph 6 – subparagraph 1 – point k
(k) a description of critical interdependencies between the CCP and other market participants, including intra- group interdependencies, interoperability arrangements and links with other FMIs, together with the ways of addressing such interdependencies;
Amendment 390 #
Proposal for a regulation
Article 13 – paragraph 6 – subparagraph 1 – point l – point v
Article 13 – paragraph 6 – subparagraph 1 – point l – point v
(v) the portability of the positions of clearing participaients and indirect clients;
Amendment 391 #
Proposal for a regulation
Article 13 – paragraph 6 – subparagraph 1 – point l a (new)
Article 13 – paragraph 6 – subparagraph 1 – point l a (new)
(la) a description of the approach that the resolution authority plans to follow in order to determine the scope and value of any contracts to be terminated in accordance with Article 29;
Amendment 392 #
Proposal for a regulation
Article 13 – paragraph 6 – subparagraph 1 – point n
Article 13 – paragraph 6 – subparagraph 1 – point n
(n) a plan for communicating with the media and the public providing for the highest possible degree of transparency;
Amendment 394 #
Proposal for a regulation
Article 13 – paragraph 6 – subparagraph 1 – point o a (new)
Article 13 – paragraph 6 – subparagraph 1 – point o a (new)
(oa) a description of the arrangements for exchanging information within the resolution college prior to and during resolution, in line with the written arrangements and procedures set out in the regulatory technical standards referred to in Article 4(6).
Amendment 399 #
Proposal for a regulation
Article 15 – paragraph 5
Article 15 – paragraph 5
5. Where, after four months from the date of transmission of the resolution plan, the resolution college has failed to reach a joint decision, the resolution authority shall make its own decision on the resolution plan. The resolution authority shall make and without prejudice to paragraph 6, the college shall adopt a majoritsy decision taking into account the views of the other college members expressed during the four-monthwithin the same period. The resolution authority shall notify in writing the decision of the resolution college to the CCP, and to its parent undertaking where relevant, and to the other members of the college.
Amendment 400 #
Proposal for a regulation
Article 15 – paragraph 5 a (new)
Article 15 – paragraph 5 a (new)
5a. A majority decision of the resolution college shall be adopted on the basis of a simple majority of its members. For resolution colleges of up to and including 12 members, a maximum of two college members from the same Member State shall have a vote and each voting member shall have one vote. For resolution colleges with more than 12 members, a maximum of three members from the same Member State shall have one vote and each voting member shall have one vote. ESMA shall have no voting rights regarding the decisions of the resolution college.
Amendment 401 #
Proposal for a regulation
Article 15 – paragraph 6 – subparagraph 1
Article 15 – paragraph 6 – subparagraph 1
Where, by the end of that four-month period, any joint decision as referred to in paragraph 1 has not been reached, any group of members of the resolution college has referred to ESMA in accordance with Article 19 of Regulation (EU) No 1095/2010 a matter in relation to the resolution plan, the resolution authority of the CCPrepresenting two-thirds of the members of this college, may, within 30 calendar days of the adoption of the decision of the college, refer to ESMA in accordance with Article 19 of Regulation (EU) No 1095/2010 a matter in relation to the resolution plan. The referral decision shall state in writing the full and detailed reasons why the concerned members of the resolution college consider that the decision taken by the resolution college does not meet the requirements laid down in this Regulation or any other Union law. The resolution college shall await any decision that ESMA may take in accordance with Article 19(3) of that Regulation and take(EU) No 1095/2010 and adopt its decision in accordance with the decision of ESMA.
Amendment 402 #
Proposal for a regulation
Article 15 – paragraph 6 – subparagraph 2
Article 15 – paragraph 6 – subparagraph 2
The four-month time period30 calendar days shall be deemed to be the conciliation phase within the meaning of Regulation (EU) No 1095/2010. ESMA shall take its decision within one month from the referral of the matter to it. The matter shall not be referred to ESMA after the end of the four month time period30 calendar days or after a joint decision has been reached. In the absence of an ESMA decision within one month, the decision of the resolution authoritycollege shall apply.
Amendment 407 #
Proposal for a regulation
Article 16 – paragraph 4 a (new)
Article 16 – paragraph 4 a (new)
4a. ESMA shall adopt guidelines to promote the convergence of supervisory and resolution practices regarding the application of section C of the Annex by ... [18 months after the entry into force of this Regulation].
Amendment 415 #
Proposal for a regulation
Article 17 – paragraph 7 – point f
Article 17 – paragraph 7 – point f
(f) require the CCP to divest itself of specific assets;
Amendment 417 #
Proposal for a regulation
Article 17 – paragraph 7 – point k
Article 17 – paragraph 7 – point k
Amendment 425 #
Proposal for a regulation
Article 17 – paragraph 7 – point n a (new)
Article 17 – paragraph 7 – point n a (new)
(na) restrict or suspend interoperability links of the CCP where such a restriction or suspension is necessary in order to prevent the adverse effects that the application of the resolution tools and the exercise of the resolution powers could have on interoperable CCPs.
Amendment 428 #
Proposal for a regulation
Article 18 – paragraph 3 – subparagraph 1
Article 18 – paragraph 3 – subparagraph 1
Where, after four months from the date of transmission of the report provided for in Article 17(1), the resolution college has failed to adopt a joint decision, the resolution authority shall take its own decision on the appropriate measures to be taken in accordance with Article 17(5). The resolution authority shall take nd without prejudice to paragraph 4, the resolution college shall adopt a majoritsy decision havwithing taken into account the views of the other college members expressed during the four-month periodhe same period on the appropriate measures to be taken in accordance with Article 17(5).
Amendment 429 #
Proposal for a regulation
Article 18 – paragraph 3 – subparagraph 2
Article 18 – paragraph 3 – subparagraph 2
The resolution authority shall notify the decision of the resolution college in writing to the CCP, and to its parent undertaking where relevant, and to the other members of the college in writing.
Amendment 430 #
Proposal for a regulation
Article 18 – paragraph 4 – subparagraph 1
Article 18 – paragraph 4 – subparagraph 1
Where, by the end of that four-month period, any joint decision as referred to in paragraph 1 has not been reached, any group of members of the resolution college has referred to ESMA in accordance with Article 19 of Regulation (EU) No 1095/2010 a matter referred to in points (j), (k) or (n) of Article 17(7), the resolution authority of the CCP shall defer its decision andrepresenting two-thirds of the members of this college, may, within 30 calendar days of the adoption of the decision of the college, refer to ESMA in accordance with Article 19 of Regulation (EU) No 1095/2010 a matter referred to in points (j), (k) or (n) of Article 17(7) of this Regulation. The referral decision shall state in writing the full and detailed reasons why the concerned members of the resolution college consider that the decision taken by the resolution college does not meet the requirements laid down in this Regulation or any other Union law. The resolution college shall await any decision that ESMA may take in accordance with Article 19(3) of that Regulation (EU) No 1095/2010. In that case, the resolution authoritycollege shall takeadopt its decision in accordance with the decision of ESMA.
Amendment 431 #
Proposal for a regulation
Article 18 – paragraph 4 – subparagraph 2
Article 18 – paragraph 4 – subparagraph 2
The four-month time period30 calendar days shall be deemed to be the conciliation phase within the meaning of Regulation (EU) No 1095/2010. ESMA shall take its decision within one month from the referral of the matter to it. The matter shall not be referred to ESMA after the end of the four month time period30 calendar days or after a joint decision has been reached. In the absence of an ESMA decision within one month, the decision of the resolution authoritycollege shall apply.
Amendment 442 #
Proposal for a regulation
Article 19 – paragraph 7
Article 19 – paragraph 7
7. The resolution authority, following the notification of the first subparagraph of paragraph 6, may require the CCP to contact potential purchasers in order to prepare for its resolution, subject to the conditions laid down in Article 41 and the confidentiality provisions laid down in Article 71 as well as to the framework on market soundings laid down in Article 11 of Regulation (EU) No 596/2014 and in relevant delegated and implementing legislation.
Amendment 445 #
Proposal for a regulation
Article 21 – paragraph 1 – point b
Article 21 – paragraph 1 – point b
(b) to ensure the continuity of the links with other FMIs which, if disrupted, would have a material negative impact on financial stability or the timely completion of payment, clearing, settlement and recordkeeping functions;
Amendment 446 #
Proposal for a regulation
Article 21 – paragraph 1 – point c
Article 21 – paragraph 1 – point c
(c) to avoid a significant adverse effect on the financial system, in particular by preventing contagion of financial distress between financial institutionto the CCP’s clearing members, their clients or to the wider financial system, including other FMIs and by maintaining market disciplinand public confidence;
Amendment 451 #
Proposal for a regulation
Article 21 – paragraph 1 – point d
Article 21 – paragraph 1 – point d
(d) to protect public funds by minimising reliance on extraordinary public financial support and potential losses for taxpayers;
Amendment 456 #
Proposal for a regulation
Article 22 – paragraph 1 – subparagraph 2
Article 22 – paragraph 1 – subparagraph 2
For the purposes of point (a)(ii), the competent authority shall provide without delay any relevthe resolution authority without delay with any information that may give ant information thatdication that the CCP is failing or likely to fail. The competent authority shall also promptly provide the resolution authority, upon requests, with any other information needed in order to perform its assessment.
Amendment 463 #
Proposal for a regulation
Article 22 – paragraph 2 – subparagraph 2 – introductory part
Article 22 – paragraph 2 – subparagraph 2 – introductory part
For the purposes of point (e) extraordinary public financial support shall not includeshall not be considered to be extraordinary public financial support that meetswhere all of the following conditions are met:
Amendment 464 #
Proposal for a regulation
Article 22 – paragraph 2 – subparagraph 2 – point i a (new)
Article 22 – paragraph 2 – subparagraph 2 – point i a (new)
(ia) none of the circumstances referred to in point (a), (b), (c) or (d) of this paragraph is present at the time the public financial support is granted;
Amendment 465 #
Proposal for a regulation
Article 22 – paragraph 2 – subparagraph 2 – point i b (new)
Article 22 – paragraph 2 – subparagraph 2 – point i b (new)
(ib) the State guarantees referred to in point (i) are required to remedy a serious disturbance in the economy of a Member State and preserve financial stability;
Amendment 466 #
Proposal for a regulation
Article 22 – paragraph 2 – subparagraph 2 – point ii
Article 22 – paragraph 2 – subparagraph 2 – point ii
(ii) the State guarantees referred to in point (i) are confined to solvent CCPs, conditional on final approval under the Union State aid framework, are of a precautionary and temporary nature, proportionate to remedy the consequences of the serious disturbance referred to in paragraph 1 and are not used to offset losses that the CCP has incurred or is likely to incur in the futuresince the end of the last financial reporting period or is likely to incur before the end of the current financial reporting period;
Amendment 467 #
Proposal for a regulation
Article 22 – paragraph 2 – subparagraph 2 – point iii
Article 22 – paragraph 2 – subparagraph 2 – point iii
Amendment 482 #
Proposal for a regulation
Article 27 – paragraph 2
Article 27 – paragraph 2
2. In the event of a systemic crisis, the resolution authority may also provide extraordinary public financial support by using government stabilisation tools in accordance with Articles 45, 46 and 47 on the condition of prior and final approval under the Union State aid framework and of the design of comprehensive and credible arrangements for the recovery of the funds provided over an appropriate period of time.
Amendment 486 #
Proposal for a regulation
Article 27 – paragraph 5 – subparagraph 1
Article 27 – paragraph 5 – subparagraph 1
The resolution authority shallmay require the CCP to issue instruments of ownership to be subscribed by all non-defaulting clearing membersrecompense non-defaulting clearing members for their loss, either through cash payments or, where appropriate, through the issuance of instruments of ownership in future profits of the CCP, where those non- defaulting clearing members have been subject to loss and position allocation tools in deviation from the CCP's operating rules which have resulted in the non-defaulting clearing member suffering a financial loss. The numberand have incurred a financial loss as a result. The value of instruments of ownership in future profits of the CCP issued to each affected non- defaulting clearing member shall be proportionate to its loss and shall, which must be passed on to clients in a suitable form, shall be proportionate to its loss, based on the valuation conducted in accordance with Article 24(3) and take account of any outstanding contractual obligations of the clearing members toward the CCP. Any recompense received pursuant to this paragraph shall be deducted from any payment of the difference in treatment to which members and clients may, as the case may be, be entitled under Article 62.
Amendment 491 #
Proposal for a regulation
Article 27 – paragraph 5 – subparagraph 2
Article 27 – paragraph 5 – subparagraph 2
Amendment 495 #
Proposal for a regulation
Article 27 – paragraph 9 – introductory part
Article 27 – paragraph 9 – introductory part
9. The resolution authority mayshall recover over an appropriate period of time any reasonable expenses incurred in connection with the use of the resolution tools or powers or in connection with the use of the government financial stabilisation tools in any of the following ways:
Amendment 500 #
Proposal for a regulation
Article 27 – paragraph 9 – point c a (new)
Article 27 – paragraph 9 – point c a (new)
(ca) from any revenues from the use of the government stabilisation tools, including the proceeds from the sale of the instruments of ownership referred to in Article 46 and from the sale of a CCP subject to temporary public ownership as referred to in Article 47.
Amendment 501 #
Proposal for a regulation
Article 27 – paragraph 9 a (new)
Article 27 – paragraph 9 a (new)
9a. In determining the amounts to be recouped pursuant to the previous paragraph, the resolution authority shall take into account the amount that the clients and members of the CCP would otherwise have been required to contribute, both under the CCP rules and arrangements and in resolution, had public support not been granted by the authorities.
Amendment 502 #
Proposal for a regulation
Article 27 – paragraph 10
Article 27 – paragraph 10
10. When using the resolution tools, resolution authorities shall ensure, on the basis of a valuation that complies with Article 25, the full allocation of losses, the restoration of matched book, the replenishment of the prefunded resources of the CCP or the bridge CCP, and the recapitalisation of the CCP or the bridge CCP.
Amendment 506 #
Proposal for a regulation
Article 29 – paragraph 1 – introductory part
Article 29 – paragraph 1 – introductory part
1. TOnly for the purpose of returning the CCP to a matched book, the resolution authority may terminate certain or all of the following contracts :
Amendment 513 #
Proposal for a regulation
Article 29 – paragraph 2 a (new)
Article 29 – paragraph 2 a (new)
2a. The resolution authority may only fully terminate all of the contracts referred to in point b) or c) of paragraph 1 where it considers that: (a) the clearing service or the CCP is not critical and the termination of the contracts will not have systemic consequences for the financial market or participants; or (b) no other option would likely result in a better outcome for financial stability.
Amendment 514 #
Proposal for a regulation
Article 29 – paragraph 4 a (new)
Article 29 – paragraph 4 a (new)
4a. The price of any termination of contracts by the resolution authority under this Article shall be based upon a fair market price determined on the basis of the CCP’s rules and arrangements, or, should the use of such alternative method be deemed necessary by the resolution authority, determined using any other appropriate price discovery method.
Amendment 517 #
Proposal for a regulation
Article 30 – paragraph 2
Article 30 – paragraph 2
2. The resolution authority shall calculate any reduction in payment obligations referred to in paragraph 1 using an equitable allocation mechanism determined in the valuation conducted in accordance with Article 24(3) and communicated to the clearing members as soon as the resolution tool is used. The total net gains to be reduced for each clearing member shall be proportional to the amounts due from the CCP. Clearing members shall inform their clients without delay about the use of the resolution tool and the way in which such use affects them.
Amendment 519 #
Proposal for a regulation
Article 30 – paragraph 5 a (new)
Article 30 – paragraph 5 a (new)
5a. The CCP shall include in its operating rules reference to the power to reduce payment obligations referred to in paragraph 1 in addition to any similar arrangements provided for in those operating rules at the recovery stage. The CCP shall ensure that contractual arrangements are concluded to allow the Resolution Authority to exercise its powers under this article.
Amendment 530 #
Proposal for a regulation
Article 37 – paragraph 3 a (new)
Article 37 – paragraph 3 a (new)
3a. ESMA shall by ... [18 months after the entry into force of this Regulation] issue guidelines in accordance with Article 16 of Regulation (EU) No 1095/2010 to specify further the minimum elements that should be included in a business reorganisation plan pursuant to paragraph 2.
Amendment 532 #
Proposal for a regulation
Article 38 – paragraph 3 a (new)
Article 38 – paragraph 3 a (new)
3a. ESMA shall by ... [18 months after the entry into force of this Regulation] issue guidelines in accordance with Article 16 of Regulation (EU) No 1095/2010 to specify further the minimum criteria that a business reorganisation plan is to fulfil for approval by the resolution authority pursuant to paragraph 1.
Amendment 545 #
Proposal for a regulation
Article 45 – paragraph 1 – point c a (new)
Article 45 – paragraph 1 – point c a (new)
(ca) the financial support is used for a limited period of time;
Amendment 546 #
Proposal for a regulation
Article 45 – paragraph 1 – point c b (new)
Article 45 – paragraph 1 – point c b (new)
(cb) the resolution authority has defined comprehensive and credible arrangements for recovering over a suitable period of time the financial support provided, unless such support has been already recovered through the sale to a private purchaser pursuant to either Article 46(3) or Article 47(2);
Amendment 558 #
Proposal for a regulation
Article 60
Article 60
Amendment 569 #
Proposal for a regulation
Article 60 a (new)
Article 60 a (new)
Article 60a Where the resolution authority uses one or more resolution tools, it shall ensure that shareholders, creditors, clearing members and their clients do not incur greater losses than they would have incurred had the resolution authority not taken resolution action in relation to the CCP at the time the resolution authority considered that the conditions for resolution pursuant to Article 22(1) were met and had the CCP instead been wound up under normal insolvency proceedings, assuming in such proceedings the enforcement of all possible outstanding obligations pursuant to the CCP's recovery plan, including the termination of all outstanding contracts, and of all other contractual arrangements in the CCP's operating rules relevant to the case considered, be it a default or a non- default event.
Amendment 572 #
Proposal for a regulation
Article 61 – paragraph 2 – point a
Article 61 – paragraph 2 – point a
(a) the treatment that shareholders, creditors and clearing participants would have received had the resolution authority not taken resolution action in relation to the CCP at the time the resolution authority considered that the conditions for resolution pursuant to Article 22(1) were met, and they had instead been subject to possible outstanding obligations pursuant to the CCP's recovery plan or other arrangements in its operating rules or the CCP had been wound up under normal insolvency proceedingsnormal insolvency proceedings assuming in such proceedings the enforcement of all possible outstanding obligations pursuant to the CCP's recovery plan, including the termination of all outstanding contracts, and of other arrangements in its operating rules relevant to the case considered, be it a default or a non-default event;
Amendment 592 #
Proposal for a regulation
Article 78 a (new)
Article 78 a (new)
Article 78a Administrative penalties and other administrative measures 1. Without prejudice to the right of Member States to provide for and impose criminal penalties, Member States shall lay down rules on administrative penalties and other administrative measures applicable where the provisions of this Regulation have not been complied with, and shall take all measures necessary to ensure that they are implemented. Where Member States decide not to lay down rules for administrative penalties for infringements which are subject to national criminal law they shall communicate to the Commission the relevant criminal law provisions. The administrative penalties and other administrative measures shall be effective, proportionate and dissuasive. 2. Member States shall ensure that, where obligations referred to in the first paragraph apply to CCPs, clearing members of CCPs or parent undertakings, in the event of an infringement, administrative penalties can be applied, subject to the conditions laid down in national law, to the members of the board of the CCP and to other natural persons who under national law are responsible for the infringement. 3. The powers to impose administrative penalties provided for in this Regulation shall be attributed to resolution authorities or, where different, to competent authorities, depending on the type of infringement. Resolution authorities and competent authorities shall have all information-gathering and investigatory powers that are necessary for the exercise of their respective functions. In the exercise of their powers to impose penalties, resolution authorities and competent authorities shall cooperate closely to ensure that administrative penalties or other administrative measures produce the desired results and coordinate their action when dealing with cross-border cases. 4. Resolution authorities and competent authorities shall exercise their administrative powers to impose penalties in accordance with this Regulation and national law in any of the following ways: (a) directly; (b) in collaboration with other authorities; (c) under their responsibility by delegation to such authorities; (d) by application to the competent judicial authorities.
Amendment 593 #
Proposal for a regulation
Article 78 b (new)
Article 78 b (new)
Article 78b Specific provisions 1. Member States shall ensure that their laws, regulations and administrative provisions provide for penalties and other administrative measures at least in respect of the following situations: (a) failure to draw up, maintain and update recovery plans infringing Article 9; (b) failure to provide all the information necessary for the development of resolution plans, infringing Article 14; (c) failure of the board of the CCP to notify the competent authority when the CCP is failing or likely to fail, infringing Article 68(1). 2. Member States shall ensure that, in the cases referred to in paragraph 1, the administrative penalties and other administrative measures that can be applied include at least the following: (a) a public statement which indicates the natural person, institution, Union parent undertaking, CCP, or other legal person responsible and the nature of the infringement; (b) an order requiring the natural or legal person responsible to cease the conduct and to desist from a repetition of that conduct; (c) a temporary ban against the members of the senior management of the CCP or any other natural person, who is held responsible, to exercise functions in CCPs; (d) in the case of a legal person, administrative fines of up to 10 % of the total annual net turnover of that legal person in the preceding business year. Where the legal person is a subsidiary of a parent undertaking, the relevant turnover shall be the turnover resulting from the consolidated accounts of the ultimate parent undertaking in the preceding business year; (e) in the case of a natural person, administrative fines of up to EUR 5 000 000, or in the Member States where the Euro is not the official currency, the corresponding value in the national currency on [date of entry into force of the Regulation]; (f) administrative fines of up to twice the amount of the benefit derived from the infringement where that benefit can be determined.
Amendment 594 #
Proposal for a regulation
Article 78 c (new)
Article 78 c (new)
Amendment 595 #
Proposal for a regulation
Article 78 d (new)
Article 78 d (new)
Article 78d Maintenance of central database by ESMA 1. Subject to the professional secrecy requirements referred to in Article 71, resolution authorities and competent authorities shall inform ESMA of all administrative penalties imposed by them under Article 78a for infringements of the provisions laid down in this Article and of the status of that appeal and outcome thereof. 2. ESMA shall maintain a central database of penalties reported to it solely for the purpose of exchange of information between resolution authorities which shall be accessible to resolution authorities only and shall be updated on the basis of the information provided by resolution authorities. 3. ESMA shall maintain a central database of penalties reported to it solely for the purpose of exchange of information between competent authorities which shall be accessible to competent authorities only and shall be updated on the basis of the information provided by competent authorities. 4. ESMA shall maintain a webpage with links to each resolution authority’s publication of penalties and each competent authority’s publication of penalties under Article 78c and indicate the period for which each Member State publishes penalties.
Amendment 596 #
Proposal for a regulation
Article 78 e (new)
Article 78 e (new)
Amendment 598 #
Proposal for a regulation
Article 80 – paragraph 1 – point 1
Article 80 – paragraph 1 – point 1
Regulation (EU) No 648/2012
Article 6a – paragraph 1 – introductory part
Article 6a – paragraph 1 – introductory part
1. Where a CCP meets the conditions under Article 22 of Regulation (EU) [on CCP recovery and resolution], the resolution authority of the CCP designated under Article 3(1) of that Regulation or the competent authority of a clearing member of the CCP in resolution may request the Commission to temporarily suspend the clearing obligation laid down in Article 4(1) for specific classes of OTC derivatives where all of the following conditions are met:
Amendment 599 #
Proposal for a regulation
Article 80 – paragraph 1 – point 1
Article 80 – paragraph 1 – point 1
Regulation (EU) No 648/2012
Article 6a – paragraph 1 – point b – introductory part
Article 6a – paragraph 1 – point b – introductory part
(b) the suspension of the clearing obligation laid down in Article 4 for those specific classes of OTC derivatives is necessary to avoid a serious threat to financial stability in the Union in connection with the resolution of the CCP, in particular where bothall of the following criteria are met:
Amendment 603 #
Proposal for a regulation
Article 80 – paragraph 1 – point 1
Article 80 – paragraph 1 – point 1
Regulation (EU) No 648/2012
Article 6a – paragraph 1 – point b – indent ii a (new)
Article 6a – paragraph 1 – point b – indent ii a (new)
(iia) the measure is applied in such a manner as to minimise its procyclical effects, stemming in particular from the impact of such a measure on market confidence;
Amendment 604 #
Proposal for a regulation
Article 80 – paragraph 1 – point 1
Article 80 – paragraph 1 – point 1
Regulation 648/2012
Article 6a – paragraph 1 – point b – indent ii b (new)
Article 6a – paragraph 1 – point b – indent ii b (new)
(iib) the measure is applied in such a manner as to ensure that its impact will be equally spread among market participants and no participant will be put at a competitive disadvantage.
Amendment 606 #
Proposal for a regulation
Article 80 – paragraph 1 – point 1
Article 80 – paragraph 1 – point 1
Regulation (EU) No 648/2012
Article 6a – paragraph 1 – subparagraph 2
Article 6a – paragraph 1 – subparagraph 2
The request referred to in the first subparagraph shall be accompanied by evidence that the conditions laid down in points (a) and in point i) and ii) of point (b) of the first subparagraph are fulfilled.
Amendment 607 #
Proposal for a regulation
Article 80 – paragraph 1 – point 1
Article 80 – paragraph 1 – point 1
Regulation (EU) No 648/2012
Article 6a – paragraph 1 – subparagraph 3
Article 6a – paragraph 1 – subparagraph 3
The resolution authority referred to in the first subparagraph shall notify its reasoned request to ESMA and the ESRB at the same time that the request is notified to the Commission.
Amendment 609 #
Proposal for a regulation
Article 80 – paragraph 1 – point 1
Article 80 – paragraph 1 – point 1
Regulation (EU) No 648/2012
Article 6a – paragraph 6
Article 6a – paragraph 6
6. The Commission may decide to temporarily suspend the clearing obligation referred to in paragraph 1 for the specific class of OTC derivatives provided that the conditions in point (a) and in point i) and ii) of point (b) of paragraph 1 are fulfilled. In adopting such a decision, the Commission shall take into account the opinion issued by ESMA referred to in paragraph 2, the resolution objectives referred to in Article 21 of Regulation (EU) [on CCP recovery and resolution], the criteria set out in paragraphs 4 and 5 of Article 5 regarding those OTC derivative classes and the necessity of the suspension to avoid a serious threat to financial stability.
Amendment 610 #
Proposal for a regulation
Article 80 – paragraph 1 – point 1
Article 80 – paragraph 1 – point 1
Regulation (EU) No 648/2012
Article 6a – paragraph 7
Article 6a – paragraph 7
7. The suspension of a clearing obligation pursuant to paragraph 4 shall be valid for an initial period not exceeding threone months from the date of its publication in the Official Journal of the European Union.
Amendment 612 #
Proposal for a regulation
Article 80 – paragraph 1 – point 1
Article 80 – paragraph 1 – point 1
Regulation (EU) No 648/2012
Article 6a – paragraph 8
Article 6a – paragraph 8
8. The Commission, with the approval of the resolution authority, may renew the suspension referred to in paragraph 7 for one or more periods not cumulatively exceeding three months from the end of the initial suspension period where the grounds for the suspensionan additional one-month period from the end of the initial suspension period where it is assessed and proven that the grounds for the suspension referred to in points a) and b) of paragraph 1 continue to apply.
Amendment 614 #
Proposal for a regulation
Article 80 – paragraph 1 – point 1
Article 80 – paragraph 1 – point 1
Regulation (EU) No 648/2012
Article 6a –paragraph 10
Article 6a –paragraph 10
10. The Commission shall notify ESMA and the ESRB of its intention to renew the suspension of the clearing obligation.
Amendment 617 #
Proposal for a regulation
Article 82 – paragraph 1
Article 82 – paragraph 1
By […], the Commission shall review the implementation of this Regulation, also having regard to the progress in international efforts on recovery and resolution of CCPs, and shall submit a report thereon to the European Parliament and to the Council. Where appropriate, that report shall be accompanied by a legislative proposal.
Amendment 618 #
Proposal for a regulation
Article 82 – paragraph 1 a (new)
Article 82 – paragraph 1 a (new)
By ... [three years after the entry into force of this Regulation], the Commission shall assess the effectiveness of the governance arrangements for the recovery and resolution of CCPs in the Union and submit a report thereon to the European Parliament and to the Council. This report shall in particular: (a) assess whether establishing a single resolution authority for Union CCPs would be beneficial, timely and consistent with the developments regarding the supervisory architecture for CCPs in the Union and with the state of integration of such supervisory architecture; and (b) review the Union institutions, bodies and agencies that could take up the duties of a single resolution authority for Union CCPs and assess their suitability. Should by the time of this report a single supervisor for Union CCPs have been established or should the report conclude that the supervisory architecture for Union CCPs is sufficiently integrated for a single resolution authority for CCPs to be consistent with it, the Commission shall present a proposal to amend this Regulation in order to create a single resolution authority for CCPs or, as the case may be, in order to entrust the resolution of Union CCPs to any suitable Union institution, body or agency.