Activities of Kay SWINBURNE related to 2012/0029(COD)
Reports (1)
REPORT on the proposal for a regulation of the European Parliament and of the Council on improving securities settlement in the European Union and on central securities depositories (CSDs) and amending Directive 98/26/EC PDF (681 KB) DOC (494 KB)
Amendments (46)
Amendment 140 #
Proposal for a regulation
Recital 8
Recital 8
(8) One of the basic tasks of the ESCB is to promote the smooth operation of payment systems. In this respect, the members of the ESCB execute oversight by ensuring efficient and sound clearing and payment systems. The members of the ESCB often act as settlement agents for the cash leg of the securities transactions. They are also important clients of CSDs, which often manage the collateralisation of monetary policy operations. The members of the ESCB should be closely involved by being consulted in the authorisation and supervision of CSDs, recognition of third country CSDs and the approval of CSD links. They should also be closely involved by being consulted in the setting of regulatory and implementing technical standards as well as of guidelines and recommendations. The provisions of this Regulation should be without prejudice to the responsibilities of the European Central Bank (ECB) and the National Central Banks (NCBs) to ensure efficient and sound clearing and payment systems within the Union and other countries and should not include designated payment institutions as referred to in Directive 98/26/EC that have been set up at their mutual agreement.
Amendment 151 #
Proposal for a regulation
Recital 19
Recital 19
(19) Any legal person falling within the definition of a CSD needs to be authorised by the competent national authorities before starting its activities. In view of taking into account different business models, a CSD should be defined by reference to certain core services, which consist of settlement, implying the operation of a securities settlement system, notary and central securities accounts maintenance services. A CSD should at least operate a securities settlement system and provide one other core service. This definition should exclude, therefore, entities which do not operate securities settlement systems such as registrars, depositaries, funds transfer agents or public authorities and bodies in charge of a registry system established under Directive 2003/87/EC. This combination is essential for CSDs to play their role in the securities settlement and in ensuring the integrity of a securities issue.
Amendment 155 #
Proposal for a regulation
Recital 23
Recital 23
(23) A CSD intending to outsource a core service to a third party or to provide a new core or certain ancillary services, to operate another securities settlement system, to use another central bank as settlement agent or to set up a CSD linkeither an interoperable link or a customised CSD link that cause a transfer of risk between CSDs should apply for authorisation following the same procedure as that required for initial authorisation, with the exception that the competent authority should inform the applicant CSD within three months whether authorisation has been granted or refused.
Amendment 161 #
Proposal for a regulation
Recital 28 a (new)
Recital 28 a (new)
(28 a) Account operators, as defined in some direct holding systems, record entries into securities accounts maintained by the CSD without necessarily being account providers themselves. In view of the need for legal certainty on the entries made into accounts at the CSD level, the specific role played by account operators should be recognised by this Regulation. It should therefore be possible, under specific circumstances and subject to strict rules laid down by law, to share the responsibility for maintaining securities accounts at the top tier level with another person that is subject to appropriate regulation and supervision.
Amendment 163 #
Proposal for a regulation
Recital 31
Recital 31
(31) In order to avoid settlement risks due to the insolvency of the settlement agent, a CSD should settle, whenever practical and available, the cash leg of the securities transaction through accounts opened with a central bank. If this option is not practical and available, a CSD should be able to settle through accounts opened with a credit institution established under the conditions provided in Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions and subject to a specific authorisation procedure and prudential requirements provided in Title IV of this Regulation. The latterCredit institutions, when acting as settlement agent, should be able to provide to thea CSD's participants the services set out in this Regulation, which are covered by the authorisation, and may otherwisebut in order to limit the risks to the market infrastructure should not be able to provide other services not covered by this Regulation through the same legal entity.
Amendment 169 #
Proposal for a regulation
Recital 32
Recital 32
(32) Considering that Directive 2006/48/EC does not address specifically intraday credit and liquidity risks resulting from the provision of banking services ancillary to settlement, credit institutions providing such services should also be subject to specific enhanced credit and liquidity risk mitigation requirements that should apply to each securities settlement system in respect of which they act as settlement agents. In order to ensure full compliance with specific measures aimed at mitigating credit and liquidity risks, tCSDs should be able to designate more than one credit institution. The competent authorities should also be able to require CSDs to designate more than one credit institution whenever they can demonstrate, based on the available evidence, that the exposures of one credit institution to the concentration of credit and liquidity risks is not fully mitigated. Information relevant to the credit institution exposure and risk should be shared between the home competent authority of the CSD and the home competent authorities of the relevant credit institutions.
Amendment 177 #
Proposal for a regulation
Recital 33
Recital 33
(33) The requirement that the settlement of the cash leg of the securities transaction be carried out by a separate legal entity acting as settlement agent is an important measure to increase the safety and resilience of CSDs. Such a separation between core services of CSDs and banking services ancillary to settlement appears indeed indispensible for eliminating any danger of transmission of the risks from the banking services, such as credit and liquidity risks, to the provision of core services of CSDs, in particular, for rapid access to client securities in the event of a major liquidity crisis. There are no less intrusive measures available for eliminating those credit and liquidity risks in order to ensure the envisaged level of safety and resilience of CSDs. However, in order to secure the efficiencies resulting from the provision of both CSD and banking services within the same group of undertakings, the requirement that banking services be carried out by a separate credit institution should not prevent that credit institution from belonging to the same group of undertakings as the CSD. If both CSD and banking services are provided within the same group of undertakings, in order to increase the safety and efficiency of the services provided, the activities of the credit institution providing banking services should be limited to the provision of banking services ancillary to settlement. Furthermore, a derogation to the obligation to separate banking services ancillary to settlement from core CSD services should be available in the absence of any danger of transmission of credit and liquidity risks from the banking services to the provision of core services of CSDs. In order to ensure a consistent application of the possibility to derogate from the obligation on CSDs not to provide any banking type of ancillary services, the Commission should be empowered to decide, at the request of a national competent authority, whether any such derogation is permitted in view of the absence of systemic risk incurred by the provision of both CSD core and banking services by the same legal entity. In any case, the activities of a CSD benefiting from any such derogation and authorised as a credit institutionany credit institution providing banking services should be limited exclusively to the provision of banking services ancillary to settlement.
Amendment 180 #
Proposal for a regulation
Recital 33 a (new)
Recital 33 a (new)
(33 a) A settlement agent which is designated by the CSD to perform banking services ancillary to settlement should establish a separate legal entity authorised under Regulation (EU) No .../2012 of the European Parliament and of the Council of ... [CRR IV]. This should not prevent another separate legal entity within the same group being authorised as a credit institution under Regulation (EU) No .../2012 of the European Parliament and of the Council of ... [CRR IV] to carry out banking services other than those ancillary to settlement or from being authorised under Directive 2012/.../EU of the European Parliament and of the Council of ... [new MiFID] to provide investment services or carry out investment activities. However, in all activities as settlement agent it should follow the provisions outlined in this Regulation.
Amendment 228 #
Proposal for a regulation
Article 2 – paragraph 1 – point 31 a (new)
Article 2 – paragraph 1 – point 31 a (new)
(31 a) 'omnibus account' means a securities account which holds securities on behalf of multiple parties;
Amendment 231 #
Proposal for a regulation
Article 2 – paragraph 1 – point 31 b (new)
Article 2 – paragraph 1 – point 31 b (new)
(31 b) 'segregated securities account' means a securities account held on behalf of a single party;
Amendment 254 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Any participant to a securities settlement system buying or selsettling on its own account or on behalf of a third party transferable securities, money-market instruments, units in collective investment undertakings andor emission allowances shall settle its obligation in relation to the securities settlement system on the intended settlement date.
Amendment 256 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
2. As regards transactions in transferable securities referred to in paragraph 1 which are traded on regulated markets, MTFs or OTFs, the intended settlement date shall be no later than on the second business day after the trading takes placeexecuted on a trading venue within the meaning of Article 2(1)(25) of Regulation (EU) No .../... [MIFIR], the intended settlement date shall be no later than on the second business day after execution unless the securities concerned are subject to initial recording in book-entry form pursuant to Article 3(2).
Amendment 270 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
1. Any regulated market, MTF or OTF shall establish procedures that enable the confirmation of relevant details of transactions in financial instruments referred to in Article 5 (1) on the date when the orders have been sent to it. ESMA shall develop guidelines regarding these procedures.
Amendment 271 #
Proposal for a regulation
Article 6 – paragraph 1 a (new)
Article 6 – paragraph 1 a (new)
Amendment 274 #
Proposal for a regulation
Article 6 – paragraph 3
Article 6 – paragraph 3
3. For each securities settlement system it operates, a CSD shall establish monitoring tools that allow it to identify in advance settlements ofs participants to identify transactions in financial instruments referred to in Article 5(1) that are most likely to fail and it shall require its participants have in place procedures to ensure they or their clients are able to settle such transactions on the intended settlement date.
Amendment 278 #
Proposal for a regulation
Article 6 – paragraph 4 – subparagraph 1
Article 6 – paragraph 4 – subparagraph 1
The European Securities and Markets Authority (ESMA) shall develop in consultation with the members of the European System of Central Banks (ESCB) draft regulatory technical standards to specify the details of the procedures enabling confirmation of relevant details of transactions and facilitating settlement referred to in paragraphs 1 and 2 and the details of the monitoring tools identifying likely settlement fails referred to in paragraph 3.
Amendment 293 #
Proposal for a regulation
Article 7 – paragraph 7 – subparagraph 2
Article 7 – paragraph 7 – subparagraph 2
For transactions cleared by a CCP before being settled within a securities settlement system, a) the measures referred to in paragraph 3 to 5 shall be executed by the CCP b) the CCP shall be deemed to be a receiving party for the purposes of paragraph 3 and shall always request that the buy-in arrangements specified in paragraph 3 apply.
Amendment 301 #
Proposal for a regulation
Title 2 – chapter 3 a (new)
Title 2 – chapter 3 a (new)
Chapter IIIa Internalised settlement Article 8a Settlement internalisers 1. Settlement internalisers shall report to the competent authorities the aggregated volume and value of all transactions settled outside a securities settlement system on an annual basis. 2. ESMA shall, after consulting the members of the ESCB, develop draft regulatory technical standards further specifying the content and scope of application of such reporting. ESMA shall submit those draft regulatory technical standards to the Commission by [six months from the date of 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 the procedure laid down in Articles 10 to 14 of Regulation (EU) No 1095/2010. 3. ESMA shall develop draft implementing technical standards to determine format and timing of the communications and the publication referred to in paragraph 1 reflecting the regulatory technical standards referred to in paragraph 2. ESMA shall submit those draft implementing technical standards to the Commission by [6 months from the entry into force of the regulatory technical standards]. Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.
Amendment 341 #
Proposal for a regulation
Article 17 – paragraph 1 – point d
Article 17 – paragraph 1 – point d
(d) setting up any CSD linkinteroperable link or any customised CSD link which involves the transfer of risk between CSDs.
Amendment 346 #
Proposal for a regulation
Article 17 – paragraph 2 a (new)
Article 17 – paragraph 2 a (new)
2 a. ESMA shall develop draft regulatory technical standards to specify the criteria for determining when a customised CSD link implies a transfer of risk between CSDs. ESMA shall submit those draft regulatory technical standards to the Commission by [...]*. 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. * OJ please insert date: 12 months after the date of entry into force of this Directive.
Amendment 358 #
Proposal for a regulation
Article 20 – paragraph 3
Article 20 – paragraph 3
3. The competent authority mayshall subject the CSD to on-site inspections.
Amendment 368 #
Proposal for a regulation
Article 21 – paragraph 1
Article 21 – paragraph 1
1. An authorised CSD may carry out its activities within the territory of the Union, either byincluding through the establishment of a branch or by way of direct provision of services, provided that the types of activities concerned are covered by the authorisation or notification procedure set out in Article 17.
Amendment 372 #
Proposal for a regulation
Article 21 – paragraph 2 – introductory part
Article 21 – paragraph 2 – introductory part
2. Any CSD wishing to provide its servicesestablish a branch within the territory of another Member State for the first time, or to change the range of services provided by that branch, shall communicate the following information to the competent authority of the Member State where it is established:
Amendment 377 #
Proposal for a regulation
Article 21 – paragraph 2 – point c
Article 21 – paragraph 2 – point c
(c) in case of a branch, the organisational structure of the branch and the names of those responsible for the management of the branch.
Amendment 381 #
Proposal for a regulation
Article 21 – paragraph 5 – introductory part
Article 21 – paragraph 5 – introductory part
5. The CSD may estart providing its servicesblish a branch in the host Member State under the following conditions:
Amendment 384 #
Proposal for a regulation
Article 21 – paragraph 5 a (new)
Article 21 – paragraph 5 a (new)
5 a. Where a CSD wishes to provide services within the territory of another Member State for the first time without establishing a branch, or to change the range of services provided, it shall communicate the information in paragraphs 2(a) and (b) to the competent authority of the Member State where it is established. The competent authority shall, within one month of receiving the information, forward it to the competent authority of the host Member State. The CSD may then start to provide the investment service or services concerned in the host Member State.
Amendment 389 #
Proposal for a regulation
Article 22 – paragraph 2
Article 22 – paragraph 2
2. The competent authorities from the host Member States may require CSDs which provide services in accordance with Article 21 to report to them periodically on their activities in those host Member States, in particular for the purpose of collecting statistics. The competent authorities of the host Member State shall, on request from the competent authorities of the home Member State, provide those periodic reports to the home Member State competent authorities.
Amendment 400 #
Proposal for a regulation
Article 23 – paragraph 1 a (new)
Article 23 – paragraph 1 a (new)
1 a. A CSD established and authorised in the Union may maintain or establish a link with a CSD in a third country in accordance with the procedures in Article 45.
Amendment 413 #
Proposal for a regulation
Article 25 – paragraph 2
Article 25 – paragraph 2
2. A CSD shall have a board of which at least one third, but no less than two, of its members are independent. The user committee referred to in Article 26 shall designate at least one of its user members as a member of the board.
Amendment 424 #
Proposal for a regulation
Article 28 a (new)
Article 28 a (new)
Article 28a Shared services 1. Member States may provide for a person other than the CSD to be responsible for recording entries into securities accounts at the level of the CSD. Where Member States provide for such shared services, , the requirements of this Regulation shall apply, where relevant, also to that other person. 2. Where Member States provide for shared services pursuant to paragraph 1,they shall specify the applicable requirements, including requirements pursuant to this Regulation, in their national law. 3. Where Member States provide for shared services pursuant to paragraph 1, they shall notify the Commission and ESMA accordingly. ESMA shall include information on shared services in the CSD register referred to in Article 19.
Amendment 433 #
Proposal for a regulation
Article 31 – paragraph 6
Article 31 – paragraph 6
6. A CSD shall account separately for costs and revenues of the services provided and shall disclose that information to the competent authority, as well as to its users in order to avoid cross-subsidisation and to ensure no undue revenue generation from the settlement discipline process.
Amendment 490 #
Proposal for a regulation
Article 45 – paragraph 7
Article 45 – paragraph 7
7. Links between CSDs shall permit DVP settlement of transactions between participants in linked CSDs, wherever practical and feasible. TheDetailed reasons for any non-CSD link not allowing for DVP settlement shall be notified to the competent authorities.
Amendment 555 #
Proposal for a regulation
Article 52 – paragraph 3
Article 52 – paragraph 3
3. A CSD that intends to settle the cash leg of all or part of its securities settlement system in accordance with Article 37(2) of this Regulation shall obtain authorisation to designate for this purpose ant least one authorised credit institution as provided in Title II of Directive 2006/48/EC, unless the competent authority referred to in Article 53(1) of this Regulation demonstrates, based on the available evidence, that the exposure of one credit institution to the concentration of risks under Article 57(3) and (4) of this Regulation is not sufficiently mitigated. In the latter case, the competent authority referred to in Article 53(1) may require the CSD to designate more than one credit institution. The designated credit institutions shall be considered as settlement agents.
Amendment 610 #
Proposal for a regulation
Article 57 – paragraph 1
Article 57 – paragraph 1
1. A credit institution designated to provide banking type of ancillary services shall provide only the services set out in Section C of the Annex that are covered by the authorisation and shall not be authorised to carry out other activities.
Amendment 615 #
Proposal for a regulation
Article 57 – paragraph 1 a (new)
Article 57 – paragraph 1 a (new)
1 a. The banking type of ancillary services set out in Section C of the Annex shall only be provided by a credit institution designated by a CSD in accordance with Article 56.
Amendment 623 #
Proposal for a regulation
Article 57 – paragraph 3 – point d
Article 57 – paragraph 3 – point d
(d) if collateral is required to manage its corresponding credit risk, it shall accept only collateral with low credit, liquidity and market riskhighly liquid collateral as defined in Article 46 of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories and the corresponding regulatory technical standards;
Amendment 630 #
Proposal for a regulation
Article 58 – paragraph 1
Article 58 – paragraph 1
1. The competent authority referred to in Directive 2006/48/EC is responsible for the authorisation and supervision under the conditions provided in that directive of the credit institutions designated to provide banking type of ancillary services and as regards their compliance with Article 57(3) and (4) of this Regulation and for ensuring that such credit institutions comply with Article 57 1a.
Amendment 632 #
Proposal for a regulation
Article 58 – paragraph 3
Article 58 – paragraph 3
3. In view of the protection of the participants to the securities settlement systems it operates, a CSD shall ensure that it has access from theany credit institution it designates to all necessary information for the purpose of this Regulation and it shall report any breaches thereof to the competent authorities referred to in paragraph 1 and in Article 9.
Amendment 636 #
Proposal for a regulation
Article 59 – paragraph 3 a (new)
Article 59 – paragraph 3 a (new)
3 a. A CSD shall be liable for the loss of a financial instrument caused by the CSD. Criteria for liability and restitution requirements for losses or damages attributable to CSDs, negligence or failure shall be transparent, risk-based, and consistent with applicable laws and subject to oversight by the competent authority. ESMA shall, after consulting the members of the ESCB, develop draft regulatory technical standards to specify such liability. ESMA shall submit those draft regulatory technical standards to the Commission by [six months after the date of 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 the procedure laid down in Articles 10 to 14 of Regulation (EU) No 1095/2010.
Amendment 646 #
Proposal for a regulation
Article 70 – paragraph 3 – subparagraph 1
Article 70 – paragraph 3 – subparagraph 1
Article 3(1) shall apply from 1 January 2020 to transferable securities issued after that date and from 1 January 2025 to all transferable securities.
Amendment 650 #
Proposal for a regulation
Annex 1 – section B – title
Annex 1 – section B – title
Non-banking type of ancillary services of central securities depositories not involving credit or liquidity risk
Amendment 651 #
Proposal for a regulation
Annex 1 – section B – paragraph 1 – point 1 – point c
Annex 1 – section B – paragraph 1 – point 1 – point c
(c) Settlement matching, orderinstruction routing, trade confirmation, trade verification.
Amendment 652 #
Proposal for a regulation
Annex 1 – section B – paragraph 1 – point 2 – point b
Annex 1 – section B – paragraph 1 – point 2 – point b
(b) Initiating the pProcessing of corporate actions, including tax, general meetings and information services;
Amendment 653 #
Proposal for a regulation
Annex 1 – section B – paragraph 1 – point 2 – point c
Annex 1 – section B – paragraph 1 – point 2 – point c
(c) New issue services, including issuance and admittance of securities into the securities settlement system, allocation and management of ISIN codes and similar codes;
Amendment 655 #
Proposal for a regulation
Annex 1 – section B – paragraph 1 – point 2 – point d
Annex 1 – section B – paragraph 1 – point 2 – point d
(d) OrderInstruction routing and processing, fee collection and processing and related reporting;
Amendment 661 #
Proposal for a regulation
Annex 1 – section B – paragraph 1 – point 4 – point c
Annex 1 – section B – paragraph 1 – point 4 – point c
(c) Providing information, data and statistics to market/census bureaus or other governmental or inter-governmental entities;