28 Amendments of Danuta Maria HÜBNER related to 2017/0090(COD)
Amendment 53 #
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. In order for CCPs to be able to perform their new reporting tasks and since all information required under this Regulation might not be automatically available to CCPs, CCPs, their members and their clients should establish adequate arrangements in order to ensure timely and accurate transmission of the relevant information from the counterparties subject to the reporting obligation to the CCPs. Where and as long as such arrangements are non- existent or not operational, the responsibility, including legal liability, for reporting ETDs should remain with the counterparty itself. _________________ 22 Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 201 on markets in financial instruments and amending Regulation (EU) No 648/2012 (OJ L 173 12.6.2014, p. 84).
Amendment 56 #
Proposal for a regulation
Recital 13 a (new)
Recital 13 a (new)
(13a) Shifting the responsibility for reporting details of derivatives which are not OTC derivatives from counterparties to CCPs implies that counterparties might enjoy less freedom of choice concerning the trade repository to which they have to report. It is therefore appropriate to require CCPs, members and clients to consult each other regarding the choice of trade repositories to which reporting should be made.
Amendment 91 #
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 shall take all reasonable steps designed to identify, prevent, manage and monitor conflicts of interest, in particular between different units or services of the same entity, in order to prevent those conflicts from adversely affecting the fair, reasonable, non-discriminatory and transparent provision of clearing services.
Amendment 96 #
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 a (new)
Article 4 – paragraph 3a – subparagraph 1 a (new)
Clearing members or clients shall be permitted to control the risks connected to the clearing services offered.
Amendment 97 #
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
Amendment 126 #
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 6 – paragraph 2 – point d a (new)
Article 6 – paragraph 2 – point d a (new)
(4a) In Article 6, paragraph 2, after point d the following point is inserted: (da) within each class of OTC derivatives referred to in point (d), the details of the contract types for which relevant CCPs have been authorised to clear and the date at which those CCPs have become authorized to clear those contracts;
Amendment 160 #
Proposal for a regulation
Article 1 – paragraph 1 – point 7 – point a
Article 1 – paragraph 1 – point 7 – point a
Regulation (EU) No 648/2012
article 9 – paragraph 1 – subparagraph 3
article 9 – paragraph 1 – subparagraph 3
The reporting obligation shall not apply to intragroup transactions referred to in Article 3 where: (a) one of the counterparties is a non- financial counterparty.; or (b) one of the counterparties is established in a third country and would be a non- financial counterparty if it were established in the Union.
Amendment 167 #
Proposal for a regulation
Article 1 – paragraph 1 – point 7 – point b
Article 1 – paragraph 1 – point 7 – point b
Regulation (EU) No 648/2012
Article 9 – paragraph 1a – subparagraph 1 – point a
Article 9 – paragraph 1a – subparagraph 1 – point a
(a) CCPs shall be responsible and legally liable for reporting on behalf of both counterparties the details of derivative contracts that are not OTC derivative contracts as well as for ensuring the accuracy of the details reported;reported. In establishing the relevant reporting arrangements for the purposes of point (a), CCPs shall consult their members and members shall consult their clients regarding the choice of the trade repository to which the reporting shall be made. For the purposes of point (a), CCPs, their members and their clients shall establish adequate arrangements in order to ensure the timely and accurate transmission of the information required under this Regulation from the counterparties subject to the reporting obligation to the CCPs. Where and as long as a counterparty has not become party to such an arrangement, this counterparty shall report by itself the details of derivative contracts that are not OTC derivative contracts that it has entered into. The responsibility and legal liability for reporting and for ensuring the accuracy of the details of the contracts shall in this case remain with the counterparty.
Amendment 174 #
Proposal for a regulation
Article 1 – paragraph 1 – point 7 – point b
Article 1 – paragraph 1 – point 7 – point b
Regulation (EU) No 648/2012
Article 9 – paragraph 1a – subparagraph 2 a (new)
Article 9 – paragraph 1a – subparagraph 2 a (new)
For the purpose of point (b), to ensure that the financial counterparty has all data needed to fulfil the reporting obligation set out in that point, the non- financial counterparty shall provide to the financial counterparty the details, which the financial counterparty cannot be reasonably expected to possess, relating to the OTC derivative contracts concluded between them.
Amendment 176 #
Proposal for a regulation
Article 1 – paragraph 1 – point 7 – point c
Article 1 – paragraph 1 – point 7 – point c
Regulation (EU) No 648/2012
Article 9 – paragraph 6 – subparagraph 3
Article 9 – paragraph 6 – subparagraph 3
ESMA shall submit those draft implementing technical standards to the Commission by [PO please insert the date 912 months after the entry into force of this Regulation].
Amendment 178 #
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 aggregate month- end average position for the months March, April and May in accordance with paragraph 3.
Amendment 199 #
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 15 – paragraph 1 a (new)
Article 15 – paragraph 1 a (new)
Amendment 200 #
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 15 – paragraph 1 b (new)
Article 15 – paragraph 1 b (new)
(9a) In Article 15, the following paragraph 1b is inserted: 1b. In order to ensure uniform conditions of application of paragraph 1, ESMA, in close cooperation with the ESCB, shall develop draft regulatory technical standards establishing a list of indicators further defining the conditions referred to in paragraph 1a. ESMA shall submit those draft regulatory technical standards to the Commission by [PO please insert the date 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 207 #
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 212 #
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 49 – paragraph 4 a (new)
Article 49 – paragraph 4 a (new)
(11a) In Article 49, the following paragraph 4a is inserted: 4a. In order to ensure uniform conditions of application of this article, ESMA shall, in close cooperation with the ESCB, develop draft regulatory technical standards establishing a list of indicators to be considered by CCPs, ESMA and national competent authorities when assessing whether a change to the models and parameters referred to in paragraph 1 is significant and requires a validation from ESMA and the competent authority. ESMA shall submit those draft regulatory technical standards to the Commission by ... [12 months following the entry into force of this amending Regulation]. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
Amendment 216 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12 – point c
Article 1 – paragraph 1 – point 12 – point c
Regulation (EU) No 648/2012
Article 56 – paragraph 4 – subparagraph 3
Article 56 – paragraph 4 – subparagraph 3
ESMA shall submit those draft implementing technical standards to the Commission by [PO please insert the date 912 months after the entry into force of this Regulation].
Amendment 217 #
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 62 – paragraph 5
Article 62 – paragraph 5
(12a) In Article 62, paragraph 5 is deleted.
Amendment 218 #
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 1
Article 63 – paragraph 1
(12b) In Article 63, paragraph 1 is replaced by the following: 1. In order to carry out its duties under this Regulation, ESMA may conduct all necessary on-site inspections at any business premises or landproperty of the legal persons referred to in Article 61(1). Where the proper conduct and efficiency of the inspection so require, ESMA may carry out the on-site inspection without prior announcement.
Amendment 219 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12 c (new)
Article 1 – paragraph 1 – point 12 c (new)
Regulation (EU) No 648/2012
Article 63 – paragraph 2
Article 63 – paragraph 2
(12c) In Article 63, paragraph 2 is replaced by the following: 2. The officials and other persons authorised by ESMA to conduct an on-site inspection may enter any business premises or landproperty of the legal persons subject to an investigation decision adopted by ESMA and shall have all the powers stipulated in Article 62(1). They shall also have the power to seal any business premises and books or records for the period of, and to the extent necessary for, the inspection.
Amendment 220 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12 d (new)
Article 1 – paragraph 1 – point 12 d (new)
Regulation (EU) No 648/2012
Article 63 – paragraph 8
Article 63 – paragraph 8
(12d) In Article 63, paragraph 8 is deleted
Amendment 223 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12 e (new)
Article 1 – paragraph 1 – point 12 e (new)
Regulation (EU) No 648/2012
Article 64 – paragraph 4
Article 64 – paragraph 4
(12e) In Article 64, paragraph 4 is amended as follows: 4. When submitting the file with his findings to ESMA, the investigation officer shall notify that fact to the persons who are subject to the investigations. The persons subject to the investigations shall be entitled to have access to the file, subject to the legitimate interest of other persons in the protection of their business secrets. The right of access to the file shall not extend to confidential information affecting third partieor ESMA’s internal preparatory documents.
Amendment 224 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12 f (new)
Article 1 – paragraph 1 – point 12 f (new)
Regulation (EU) No 648/2012
Article 64 – paragraph 8
Article 64 – paragraph 8
Amendment 225 #
Proposal for a regulation
Article 1 – paragraph 1 – point 12 g (new)
Article 1 – paragraph 1 – point 12 g (new)
Regulation (EU) No 648/2012
Article 65 – paragraph 1 – subparagraph 2
Article 65 – paragraph 1 – subparagraph 2
(12g) In Article 65(1), the second subparagraph is deleted.
Amendment 228 #
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 a (new)
Article 67 – paragraph 1 a (new)
(13a) In Article 67, the following paragraph 1a is added: 1a. The first paragraph shall not apply if urgent action is needed in order to prevent significant and imminent damage to the financial system. In such a case ESMA may adopt an interim decision and shall give the persons concerned the opportunity to be heard as soon as possible after taking its decision.
Amendment 234 #
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 – subparagraph 2
Article 78 – paragraph 10 – subparagraph 2
ESMA shall submit those draft regulatory technical standards to the Commission by [PO please insert the date 912 months after the entry into force of this Regulation].
Amendment 236 #
Proposal for a regulation
Article 1 – paragraph 1 – point 17 – point c
Article 1 – paragraph 1 – point 17 – point c
Regulation (EU) No 648/2012
Article 81 – paragraph 5 – subparagraph 2
Article 81 – paragraph 5 – subparagraph 2
ESMA shall submit those draft regulatory technical standards to the Commission by [PO please insert the date 912 months after the entry into force of this Regulation].
Amendment 238 #
Proposal for a regulation
Article 1 – paragraph 1 – point 19 – point a a (new)
Article 1 – paragraph 1 – point 19 – point a a (new)
Regulation (EU) No 648/2012
Article 85 – paragraph 1a (new)
Article 85 – paragraph 1a (new)
(aa) paragraph 1a is inserted : 1a. By [three years after the entry into force of this amending Regulation], ESMA shall submit a report to the European Parliament, to the Council and to the Commission analysing the impact on market participants of the changes introduced by this amending Regulation to the reporting regime. The report shall in particular assess the take up and implementation of the respective provisions allowing the delegation of reporting to financial counterparties and requiring reporting of contracts by CCPs and investigate whether those new provisions have had the intended effect of reducing the reporting burden for smaller counterparties. It shall also investigate how those new provisions have affected the competition between trade repositories and whether and to what extent they have resulted in a less competitive environment and less freedom of choice for clearing members and their clients.
Amendment 259 #
Proposal for a regulation
Article 1 – paragraph 1 – point 19 – point c a (new) Regulation (EU) No 648/2012
Article 1 – paragraph 1 – point 19 – point c a (new) Regulation (EU) No 648/2012
(ca) The following paragraph 5a is inserted: 5a. By [18months after the entry into force of this amending Regulation] the Commission shall prepare a report assessing whether trades directly resulting from post-trade risk reduction services, including portfolio compression, should be exempted from the clearing obligation referred to in Article 4(1). This report shall analyse in particular the extent to which those trades mitigate risks, in particular counterparty credit risk and operational risk, as well as the potential for circumvention of the clearing obligation through those trades. The Commission shall submit that report to the European Parliament and the Council, together with any appropriate proposals. For the purpose of informing the report referred to in the first subparagraph, by [ 12 months after the entry into force of this amending Regulation], ESMA shall, in cooperation with the ESRB, submit a report to the Commission assessing whether trades directly resulting from post-trade risk reduction services should be exempted from the clearing obligation. This report shall investigate portfolio compression and other available non- price forming post-trade risk reduction services which reduce non-market risks in derivatives portfolios without changing the market risk of the portfolios, such as rebalancing transactions. It shall explain the purposes and functioning of such post-trade risk reduction services, the extent to which they mitigate risks, in particular counterparty credit risk and operational risk, and assess the need to clear such trades, or to exempt them from clearing, in order to manage systemic risk. It shall also assess to what extent any exemption from the clearing obligation for such services may lead to counterparties circumventing the clearing obligation.