12 Amendments of Burkhard BALZ related to 2010/0250(COD)
Amendment 148 #
Proposal for a regulation
Recital 12
Recital 12
(12) This Regulation sets out the criteria for determining the eligibility to the clearing obligation. In view of its pivotal role, the ESA (ESMA) should decide, after consulting the Commission and the European Systemic Risk Board (ESRB) set up by Directive (EU) No 1092/2010 of the European Parliament and the Council, whether a class of derivatives meets the eligibility criteria, whether the clearing obligation should be applied and from when the clearing obligation takes effect. Bilateral clearing should continue to be authorised if the requirements for clearing are not met for certain categories of derivatives within a class of derivatives, as is sometimes the case for covered bonds.
Amendment 163 #
Proposal for a regulation
Recital 16
Recital 16
(16) Where appropriate, rules applicable to financial counterparties, should also apply to non-financial counterparties. It is recognised that non-financial counterparties use OTC-contracts in order to cover themselves against commercial risks directly linked to their commercial activities. Consequently, in determining whether a non-financial counterparty should be subject to the clearing obligation, consideration should be given to the purpose for which that non- financial counterparty uses OTC derivatives and to the size of the exposures that it has in those instruments. Non-financial counterparties should explain the use of derivatives through their annual report or other appropriate means and the results of year- end audits should be used to determine whether the non-financial counterparty mainly uses OTC derivatives in a way which can be shown on an objectively measurable basis to be directly linked to the undertaking’s business activity and funding arrangements. When establishing the threshold for the clearing obligation, ESA (ESMA) should consult all relevant authorities, as for example regulators responsible for commodity markets, and the non-financial counterparties in order to ensure that the particularities of these sectors are fully taken into account. Moreover, by 31 December 2013, the Commission shall assess the systemic importance of the transactions of non- financial firms in OTC derivatives in different sectors, including the energy sector. Should a comparable set of EU rules tailored to individual sectors come into force, the Commission should immediately consider whether the sector should be removed from the scope of this Regulation and put forward corresponding legislative proposals.
Amendment 174 #
Proposal for a regulation
Recital 18
Recital 18
(18) Central banks and other national bodies performing similar functions, other public bodies charged with or intervening in the management of the public debt, and multilateral development banks listed in Section 4.2 of Part 1 of Annex VI of 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 institutions26 , the Bank for International Settlements and certain of the public sector entities defined in Article 4 point 18 of 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 should be excluded from the scope of this Regulation in order to avoid limiting their powers to intervene to stabilise the market, if and when required.
Amendment 238 #
Proposal for a regulation
Article 1 – paragraph 4 – point b a (new)
Article 1 – paragraph 4 – point b a (new)
(b a) public sector entities as defined in Article 4 point 18 of Directive 2006/48/EC owned by central governments that have explicit guarantee arrangements provided by central governments.
Amendment 264 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) ’financial counterparty'’ means an undertaking established in the Union which is an authorised investment firms as set out in Directive 2004/39/EC, an authorised credit institutions as defined in Directive 2006/48/EC, an authorised insurance undertakings as defined in Directive 73/239/EEC, an authorised assurance undertakings as defined in Directive 2002/83/EC, an authorised reinsurance undertakings as defined in Directive 2005/68/EC, an authorised undertakings for collective investments in transferable securities (UCITS) as defined in Directive 2009/65/EC, an authorised institutions for occupational retirement provision as defined in Directive 2003/41/EC or and alternative investment funds managers as defined in Directive 2010/.../EU other than such an alternative investment fund whose sole investment policy is to develop or invest in physical real estate (directly or indirectly through subsidiary entities, co-ownership or joint venture participations);
Amendment 277 #
Proposal for a regulation
Article 2 – paragraph 1 – point 21
Article 2 – paragraph 1 – point 21
(21) ’‘independent member of the board' means a member of the board that has no business, family or other relationship that raises a conflict of interest with the CCP, its controlling shareholder(s) or management or its clearing members or management;. A board member who is a director or employee of a clearing member, exchange, clearing house, multilateral trading facility, systematic internaliser, broking crossing network, client of a clearing member, service provider or other entity shall not thereby be disqualified from being an independent board member unless the entity of which he is a director or employee has a direct conflict of interest with the CCP.
Amendment 280 #
Proposal for a regulation
Article 2 – paragraph 1 – point 22 a (new)
Article 2 – paragraph 1 – point 22 a (new)
(22 a) 'third-country clearing counterparties' means undertakings established in third countries that are considered as equivalent to financial counterparties or to the non-financial counterparties referred to in Article 7(2); such equivalence shall be deemed to apply where an undertaking established in a third country would, were it established within the Union, be classified as a financial counterparty or a non-financial counterparty referred to in Article 7(2) and where it is subject to equivalent clearing requirements in that third country. Power shall be conferred on the Commission to adopt technical regulatory standards specifying in grater detail the criteria to be used in the classification on undertakings from third countries as third-country clearing counterparties. The technical regulatory standards shall be adopted pursuant to Articles 10 to 14 of Regulation (EU) No 1095/2010. ESA (ESMA) shall submit draft versions of these technical regulatory standards to the Commission by 30 June 2012.
Amendment 303 #
Proposal for a regulation
Article 3 – paragraph 1 – subparagraph 2 a (new)
Article 3 – paragraph 1 – subparagraph 2 a (new)
The clearing obligation shall not apply to subsidiaries of the same parent undertaking or between a parent undertaking and a subsidiary. For the purposes of this provision, ‘parent undertaking’ and ‘subsidiary’ mean undertakings defined as such under the relevant EU legislation. The obligations with regard to risk mitigation techniques pursuant to Article 8 shall not be affected by this exemption.
Amendment 330 #
Proposal for a regulation
Article 4 – paragraph 2 – point a
Article 4 – paragraph 2 – point a
(a) whether that class of derivatives is eligible for the clearing obligation pursuant to Article 3; and (b) if it is eligible, the date from which the clearing obligation takes effect, which shall be no earlier than the date falling [twelve months] after the date of the publication of the decision by ESMA under paragraph 4.
Amendment 334 #
Proposal for a regulation
Article 4 – paragraph 2 – point b
Article 4 – paragraph 2 – point b
Amendment 689 #
Proposal for a regulation
Article 26 – paragraph 1
Article 26 – paragraph 1
1. A CCP shall establish a risk committee, the majority of which shall be composed of representatives of its clearing members and independent members of the boarda minority of which shall be representatives of clients of clearing members and independent experts. The ratio of majority to minority members shall be at the discretion of the CCP. 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 852 #
Proposal for a regulation
Article 43 – paragraph 1
Article 43 – paragraph 1
1. A CCP shall only accept highly liquid collateral cash and highly liquid financial instruments with minimal credit and market risk to cover its exposure to its clearing members. It shall apply adequate haircuts to asset values that reflect the potential for their value to decline over the interval between their last revaluation and the time by which they can reasonably be assumed to be liquidated. It shall take into account the liquidity risk following the default of a market participant and the concentration risk on certain assets that may result in establishing the acceptable collateral and the relevant haircuts.