Activities of Elena BĂSESCU related to 2010/0250(COD)
Plenary speeches (11)
Explanations of vote
Explanations of vote
Explanations of vote
Explanations of vote
Explanations of vote
Explanations of vote
Explanations of vote
Explanations of vote
Explanations of vote
Explanations of vote
Explanations of vote
Amendments (36)
Amendment 179 #
Proposal for a regulation
Recital 21
Recital 21
(21) In order to identify the relevant classes of OTC derivatives that should be subject to the clearing obligation, the thresholds and systemically relevant non-financial counterparties, reliable data is needed. Therefore, for regulatory purposes, it is important that a uniform OTC derivatives data reporting requirement is established at Union level. Moreover, a retrospective reporting obligation is needed, to the largest possible extent, for both financial counterparties and non-financial counterparties over the threshold, in order to provide ESMA with comparative data. If such retrospective reporting is not feasible for any classes of OTC derivatives an appropriate justification must be provided to the respective trade repository.
Amendment 184 #
Proposal for a regulation
Recital 22
Recital 22
(22) It is important that market participants report all details regarding OTC derivative contracts they have entered into to trade repositories. As a result, information on the risks inherent in OTC derivatives markets will be centrally stored and easily accessible to ESMA, the relevant competent authorities and the relevant central banks of the ESCB. The Commission and ESMA should consider extending the applicability of the reporting obligation to embedded derivatives.
Amendment 195 #
Proposal for a regulation
Recital 32
Recital 32
(32) In view of the global nature of financial markets, ESMA should be directly responsible for recognising CCPs established in third countries and thus allowing them to provide clearing services within the Union, provided that the Union has agreements in place with those third countries, the Commission has recognised the legal and supervisory framework of that third country as equivalent to the Union framework and that certain other conditions are met. In this context, agreements with the Union's major international partners will be of particular importance in order to ensure a global level playing field and ensure financial stability.
Amendment 196 #
Proposal for a regulation
Recital 33
Recital 33
(33) CCPs should have robust governance arrangements, senior management of good repute and independent members on its board, irrespective of its ownership structure. At least one third, but not less than two members of the board must be formed of independent members. These members cannot act as independent members in more than one other CCP. Their remuneration shall not be linked in any way with the performance of the CCP. However, different governance arrangements and ownership structures of a CCP may influence a CCP's willingness or ability to clear certain products. It is thus appropriate that the independent members of the board and the risk committee to be established by the CCP should address any potential conflict of interests within a CCP. Clearing members and clients need to be adequately represented as they may be impacted by decisions taken by the CCP. Outsourced functions should be approved by the risk committee.
Amendment 197 #
Proposal for a regulation
Recital 34
Recital 34
(34) A CCP may outsource functions other than its risk management functions, but only where those outsourced functions do not impact on the proper operation of the CCP and on its ability to manage risks. Outsourcing of functions should be approved by the risk committee of the CCP.
Amendment 198 #
Proposal for a regulation
Recital 36
Recital 36
(36) Clients of clearing members that clear their OTC derivatives with CCPs should be granted a high level of protection. The actual level of protection depends on the level of segregation that those clients choose. Intermediaries should segregate their assets from those of their clients. For this reason, CCPs should keep updated and easily identifiable records. In addition, the members´ accounts, in case of their default, have to be transferable to other members.
Amendment 208 #
Proposal for a regulation
Recital 41
Recital 41
(41) The "European Code of Conduct for Clearing and Settlement" of 7 November 200628 established a voluntary framework for establishingsetting up links between CCPs and trade repositories. However, the post-trade sector remains fragmented along national lines, making cross-border trades more costly and hindering harmonisation. It is therefore necessary to lay down the conditions for the establishment of interoperable arrangements between CCPs to the extent these do not expose the relevant CCPs to risks that are not appropriately managed.
Amendment 214 #
Proposal for a regulation
Recital 45
Recital 45
(45) Transparency of prices and fees associated with the services provided by CCPs, their members and trade repositories is necessary to enable market participants to make an informed choice.
Amendment 216 #
Proposal for a regulation
Recital 46
Recital 46
(46) ESMA should be able to propose to the Commission to impose periodic penalty payments. The purpose of those periodic penalty payments should be to achieve that an infringement established by ESMA is put to an end, that complete and correct information which ESMA has requested is supplied and that trade repositories, CCPs, their members and other persons submit to an investigation. Moreover, for deterrence purposes and to compel trade repositories, CCPs and their members to comply with the Regulation, the Commission should also be able to impose fines, following a request of ESMA, where intentionally or negligently, specific provisions of the Regulation have been breached. The fine shall be dissuasive and proportionate to the nature and seriousness of the breach, the duration of the breach and the economic capacity of the trade repository, CCP or member concerned.
Amendment 217 #
Proposal for a regulation
Recital 47
Recital 47
(47) In order to effectively survey trade repositories, CCPs and their members, ESMA should have the right to conduct investigations and on-site- inspections.
Amendment 378 #
Proposal for a regulation
Article 4 – paragraph 5
Article 4 – paragraph 5
5. ESMA shall, on its own initiative and in consultation with the European Systemic Risk Board (ESRB), identify and notify to the Commission the classes of derivatives contracts that should be included in its public register, but for which no CCP has yet received authorisation, together with the reason no CCP has received authorisation.
Amendment 505 #
Proposal for a regulation
Article 7 – paragraph 4
Article 7 – paragraph 4
4. In calculating the positions referred to in paragraph 2, OTC derivative contracts entered into by a non-financial counterparty that are objectively measurable as directly linked to the commercial activity of that counterparty shall not be taken into account. ESMA shall establish the precise criteria regarding what represents objectively measurable in the sense of this paragraph.
Amendment 543 #
Proposal for a regulation
Article 9 – paragraph 2 – subparagraph 1
Article 9 – paragraph 2 – subparagraph 1
Member States shall ensure that the competent authorities responsible for the supervision of financial, and where, appropriate, non-financial counterparties disclose every penalty that has been imposed for infringements of Articles 3 to 8 to the public, unless such disclosure would seriously jeopardise the financial markets or cause disproportionate damage to the parties involved.
Amendment 554 #
Proposal for a regulation
Article 10 – paragraph 4 – subparagraph 1
Article 10 – paragraph 4 – subparagraph 1
A CCP shall comply at all times with the conditions necessary for the initial authorisation. The competent authority shall, without undue delay, notify ESMA.
Amendment 612 #
Proposal for a regulation
Article 16 – paragraph 1 – point c
Article 16 – paragraph 1 – point c
(c) where the CCP is no longer in compliance with the conditions under which authorisation was granted;, but only after notifying ESMA and after all other possibilities that the CCP becomes in compliance again have been exhausted.
Amendment 619 #
Proposal for a regulation
Article 17 – paragraph 2
Article 17 – paragraph 2
The review and evaluation shall have regard to the size, systemic importance, nature, scale and complexity of the activities of the CCP. The findings of such reviews shall be reported timely to ESMA.
Amendment 626 #
Proposal for a regulation
Article 18 – paragraph 2
Article 18 – paragraph 2
2. Each Member State shall ensure that the competent authorities have the supervisory and investigatory powers and the independence necessary for the exercise of their functions.
Amendment 635 #
Proposal for a regulation
Article 20 – paragraph 4 – subparagraph 2
Article 20 – paragraph 4 – subparagraph 2
However, those conditions shall not prevent ESMA, the competent authorities and the relevant central banks from exchanging or transmitting confidential information in accordance with this Regulation and with other legislation applicable to investment firms, credit institutions, pension funds, undertakings for collective investment in transferable securities("UCITS"), alternative investment funds, alternative investment fund managers ("AIFM"), insurance and reinsurance intermediaries, insurance undertakings, regulated markets or market operators or otherwise with the consent of the competent authority or other authority or body or natural or legal person that communicated the information.
Amendment 666 #
Proposal for a regulation
Article 23 – paragraph 4 – point a
Article 23 – paragraph 4 – point a
(a) the mechanism for the exchange of information on a continuous basis and the type of information to be exchanged between ESMA and the competent authorities of third countries concerned;. Such information should include, but not be limited to, changing in conditions for the initial authorisation and the findings of reviews, evaluations and audits.
Amendment 669 #
Proposal for a regulation
Article 24 – paragraph 1
Article 24 – paragraph 1
1. A CCP shall have robust governance arrangements, which include a clear organisational structure with well-defined, transparent and consistent lines of responsibility, effective processes to identify, manage, monitor and report the risks to which it is or might be exposed, and adequate internal control mechanisms, including sound administrative and accounting procedures. The internal controls and systems should be evaluated by an independent entity (such as an independent audit company), and such evaluation should result in an annual report which would be made available to the competent authority and ESMA, upon request.
Amendment 676 #
Proposal for a regulation
Article 25 – paragraph 2 – subparagraph 1
Article 25 – paragraph 2 – subparagraph 1
A CCP shall have a board of which at least one third, but no less than two, of its members are independent. The compensation of the independent and other non-executive members of the board shall not be linked to the businessin any way to the performance of the CCP.
Amendment 685 #
Proposal for a regulation
Article 25 – paragraph 3
Article 25 – paragraph 3
3. A CCP shall clearly determine the roles and responsibilities of the board and shall make the minutes of the board meetings available to the competent authority and auditors.
Amendment 686 #
Proposal for a regulation
Article 26 – paragraph 1
Article 26 – paragraph 1
1. A CCP shall establish a risk committee, which shall be composed of representatives of its clearing members and independent members of the board. The representatives of the clearing members cannot be more than one third of the risk committee´s members. They may be elected on a rotational basis to ensure all clearing members are represented in the risk committee within a specified period of time. The risk committee may invite employees of the CCP to attend risk committee meetings in a non-voting capacity. The advice of the risk committee shall be independent from any direct influence by the management of the CCP.
Amendment 693 #
Proposal for a regulation
Article 26 – paragraph 3
Article 26 – paragraph 3
3. The risk committee shall advise the board on any arrangements that may impact the risk management of the CCP, such as, but not limited to, a significant change in its risk model, the default procedures, the criteria for accepting clearing members or, the clearing of new classes of instruments or outsourcing of functions. The advice of the risk committee is not required for the daily operations of the CCP or in emergency situations.
Amendment 707 #
Proposal for a regulation
Article 28 – paragraph 1
Article 28 – paragraph 1
1. The competent authority shall not authorise a CCP until it has been informed of the identities of the shareholders or members, whether direct or indirect, natural or legal persons, that have qualifying holdings and the amounts of those holdings. The competent authority shall conduct a rigorous due diligence on shareholders and members, as a prerequisite of the authorisation. The due diligence shall be aimed at revealing, amongst others, whether the shareholders or members have or had filed for bankruptcy, are or were in litigations or convicted or fined for serious offences.
Amendment 716 #
Proposal for a regulation
Article 30 – paragraph 6 – point a
Article 30 – paragraph 6 – point a
(a) a credit institution, assurance undertaking, insurance undertaking, reinsurance undertaking, investment firm, market operator, an operator of a security settlement system, a UCITS management company, an alternative investment fund or an AIFM authorised in another Member State;
Amendment 718 #
Proposal for a regulation
Article 30 – paragraph 6 – point b
Article 30 – paragraph 6 – point b
(b) the parent undertaking of a credit institution, assurance undertaking, insurance undertaking, reinsurance undertaking, investment firm, market operator, an operator of a security settlement system, a UCITS management company, an alternative investment fund or an AIFM authorised in another Member State;
Amendment 720 #
Proposal for a regulation
Article 30 – paragraph 6 – point c
Article 30 – paragraph 6 – point c
(c) a natural or legal person controlling a credit institution, assurance undertaking, insurance undertaking, reinsurance undertaking, investment firm, market operator, an operator of a security settlement system, a UCITS management company, an alternative investment fund or an AIFM authorised in another Member State.
Amendment 724 #
Proposal for a regulation
Article 31 – paragraph 2
Article 31 – paragraph 2
2. Where the organisational or administrative arrangements of a CCP to manage conflicts of interest are not sufficient to ensure, with reasonable confidence, that risks of damage to the interests of a clearing member or client will be prevented, it shall clearly disclose the general nature or sources of conflicts of interest to the clearing member and request the resolution of the conflict before accepting new transactions from that clearing member. Where the client is not known to the CCP, the CCP shall inform the clearing member whose client is concerned.
Amendment 745 #
Proposal for a regulation
Article 35 – paragraph 1
Article 35 – paragraph 1
1. A CCP shall establish the categories of admissible clearing members and the admission criteria. Such criteria shall be non-discriminatory, transparent and objective so as to ensure fair and open access to the CCP and shall ensure that clearing members have sufficient financial resources and operational capacity to meet the obligations arising from participation in a CCP. Criteria that restrict access shall only be permitted to the extent that their objective is to control the risk for the CCP. The admission criteria have to be approved by the competent authority.
Amendment 747 #
Proposal for a regulation
Article 35 – paragraph 3
Article 35 – paragraph 3
3. Clearing members that clear transactions on behalf of their clients shall have the necessary additional financial resources and operational capacity to perform this activity. Clearing members shall, upon request, inform the CCP about the criteria and arrangements they adopt to allow their clients to access the services of the CCP. These criteria should be non- discriminatory.
Amendment 857 #
Proposal for a regulation
Article 43 – paragraph 2
Article 43 – paragraph 2
Amendment 865 #
Proposal for a regulation
Article 44 – paragraph 2
Article 44 – paragraph 2
2. Financial instruments posted as margins shall be formed of cash or cash equivalents and be deposited with operators of securities settlement systems that ensure non-discriminatory access to CCPs and the full protection of those instruments. A CCP shall have prompt access to the financial instruments when required.
Amendment 921 #
Proposal for a regulation
Article 60 – paragraph 1 – point c
Article 60 – paragraph 1 – point c
(c) the trade repository no longer meets the conditions under which it was registered;, and all other possibilities that the trade repository comes again to compliance have been exhausted.
Amendment 933 #
Proposal for a regulation
Article 64 – paragraph 1
Article 64 – paragraph 1
1. A trade repository shall have robust governance arrangements, which include a clear organisational structure with well defined, transparent and consistent lines of responsibility and adequate internal control mechanisms, including sound administrative and accounting procedures, which prevent the disclosure of confidential information. The internal controls and systems shall be evaluated by an independent entity (such as an independent audit company) and should result in an annual report.
Amendment 937 #
Proposal for a regulation
Article 64 – paragraph 4
Article 64 – paragraph 4
4. The senior management and members of the board of a trade repository shall be of sufficiently good repute and experience so as to ensure the sound and prudent management of the trade repository. At least one third of the members of the board, but not less than two, shall be independent and their remuneration not linked in any way to the performance of the trade repository.