44 Amendments of Sylvie GOULARD related to 2010/0250(COD)
Amendment 128 #
Proposal for a regulation
Title
Title
Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on OTC derivatives, central counterparties and trade repositories(Text with EEA relevance)
Amendment 136 #
Proposal for a regulation
Recital 9
Recital 9
(9) Incentives to promote the use of CCPs have not proven to be sufficient to ensure that standardised OTC derivatives are actually cleared. Mandatory CCP clearing requirements for those OTC derivatives that can be cleared are therefore necessary. In addition, new incentives should be implemented to clear derivatives contracts through CCPs meeting strong prudential requirements. In this respect, exposures vis-a-vis CCPs having access to central bank facilities should be therefore granted a more favourable prudential treatment.
Amendment 144 #
Proposal for a regulation
Recital 11
Recital 11
(11) Ensuring that the clearing obligation reduces systemic risk requires a process of identification of eligible classes of derivatives that should be subject to that obligation. That process should take into account that not all CCP-cleared OTC derivatives can be considered suitable for mandatory CCP-clearing. Therefore exceptions need to be considered if the systemic risk can be reduced by other means; financial counterparties must be able to explain the rationale for these exclusions and the volume of eligible transactions that would be non centrally cleared should remain at a residual level, as specified by the European supervisory authorities.
Amendment 187 #
Proposal for a regulation
Recital 23 a (new)
Recital 23 a (new)
(23 a) ESMA and EBA shall be provided with adequate resources in order to effectively perform the tasks it is allocated in this Regulation.
Amendment 206 #
Proposal for a regulation
Recital 40 a (new)
Recital 40 a (new)
(40 a) In extreme circumstances, access to central bank liquidity facilities can be the only fully reliable tool for CCPs to properly address financial stress, whereas commercial banks credit lines will be then be far more uncertain. Where feasible and available pursuant to the rules laid down by the relevant central bank of issue, access to central bank liquidity facilities provides for the most adequate and reliable arrangement to manage the liquidity risk of the CCP.
Amendment 290 #
Proposal for a regulation
Article 3 – paragraph 1 – subparagraph 1
Article 3 – paragraph 1 – subparagraph 1
A financial counterparty shall clear all OTC derivative contracts which are considered eligible pursuant to Article 4 and are concluded with other financial counterparties in the relevant CCPs listed in the register as referred to in Article 4(4).
Amendment 300 #
Proposal for a regulation
Article 3 – paragraph 1 – subparagraph 2
Article 3 – paragraph 1 – subparagraph 2
That clearing obligation shall also apply to financial counterparties and to the non- financial counterparties referred to in Article 7(2) which enter into eligible OTC derivative contracts with third country entities.
Amendment 317 #
Proposal for a regulation
Article 3 – paragraph 2 – subparagraph 1 (new)
Article 3 – paragraph 2 – subparagraph 1 (new)
A financial counterparty shall clear all eligible derivative contracts pursuant to Article 4 in listed CCPs: resulting exposures shall be subject to differentiated prudential treatment whereas the listed CCP has access to central bank facilities in accordance with the rules laid down by the central bank of issue. EBA shall, in consultation with ESMA and ESCB develop draft standards implementing the differentiated prudential treatment as referred to in paragraph 3 for submission to the Commission by 30 June 2012.
Amendment 342 #
Proposal for a regulation
Article 4 – paragraph 3 – subparagraph 1 – point a
Article 4 – paragraph 3 – subparagraph 1 – point a
(a) reduction of systemic risk in the financial systemthe degree of standardisation of a product’s contractual terms and operational processes;
Amendment 346 #
Proposal for a regulation
Article 4 – paragraph 3 – subparagraph 1 – point b
Article 4 – paragraph 3 – subparagraph 1 – point b
(b) the depth and liquidity of contracts;the market for the product in question; and
Amendment 351 #
Proposal for a regulation
Article 4 – paragraph 3 – subparagraph 1 – point c
Article 4 – paragraph 3 – subparagraph 1 – point c
(c) the availability of pricing information;fair, reliable and generally accepted pricing sources.
Amendment 353 #
Proposal for a regulation
Article 4 – paragraph 3 – subparagraph 1 – point d
Article 4 – paragraph 3 – subparagraph 1 – point d
Amendment 360 #
Proposal for a regulation
Article 4 – paragraph 3 – subparagraph 1 – point e
Article 4 – paragraph 3 – subparagraph 1 – point e
Amendment 370 #
Proposal for a regulation
Article 4 – paragraph 3 – subparagraph 2
Article 4 – paragraph 3 – subparagraph 2
Before taking a decision, ESMA shallmay, where appropriate, conduct a public consultation and, where appropriate, consult with consult with the ESCB, the ESRB, the EBA and the competent authorities of third countries.
Amendment 379 #
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, and eligible for the obligation to clear, but for which no CCP has yet received authoriszation. Having identified such a category of class of derivatives, ESMA shall publish a call for the development of proposals by CCPs to clear them and publish a list for which such a call has been made.
Amendment 381 #
Proposal for a regulation
Article 4 – paragraph 5 – subparagraph 1 (new)
Article 4 – paragraph 5 – subparagraph 1 (new)
Once a CCP has decided to come forward with a proposal to clear a contract identified by ESMA, it should approach its competent authority for authorisation as outlined above. Once a competent authority has approved the clearing of a contract identified by ESMA in coordination with the ESCB and the ESRB, it shall inform ESMA as specified in paragraph 1. As ESMA has already preformed its analysis of the class of derivatives and identified the need to submit it to the obligation to clear, it will notify promptly the Commission.
Amendment 385 #
Proposal for a regulation
Article 4 – paragraph 6 – subparagraph 1 – introductory part
Article 4 – paragraph 6 – subparagraph 1 – introductory part
Powers are delegated to the CommissionESMA, in coordination with ESRB, to adopt regulatory technical standards specifying the following:
Amendment 398 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
A CCP that has been authorised to clear eligible OTC derivative contracts shall accept for clearing such contracts on a non- discriminatory basis, regardless of the venue of execution. With regards to listed derivatives, venue of execution offering trading in derivatives contracts shall provide trade feeds to any CCP that has been authorised to clear eligible derivative contracts upon request by the CCP. With regards to listed derivatives and without prejudice to approval by competent authorities of the venue of execution and the CCP, access shall be made possible by the venue of execution within three months of a positive response to a request for access.
Amendment 420 #
Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 1
Article 6 – paragraph 1 – subparagraph 1
Financial counterparties shall report to a trade repository registered in accordance with Article 51 the details of any OTC derivative contract they have entered into and any modification or termination. The details shall be reported no later than the working day following the execution, clearing, or modification of the contract.
Amendment 425 #
Proposal for a regulation
Article 6 – paragraph 1 – subparagraph 2
Article 6 – paragraph 1 – subparagraph 2
Amendment 434 #
Proposal for a regulation
Article 6 – paragraph 2 – subparagraph 1
Article 6 – paragraph 2 – subparagraph 1
Where a trade repository is not able to record the details of an OTC derivative contract, in exceptional circumstances and on a transitory basis until a trade repository is able to record the information, financial counterparties shall report the details of their positions in those contracts to the competent authority designated in accordance with Article 48 of Directive 2004/39/EC.
Amendment 438 #
Proposal for a regulation
Article 6 – paragraph 2 – subparagraph 2
Article 6 – paragraph 2 – subparagraph 2
The details to be reported to the competent authority shall be at least those that would be reported to the trade repository. In these circumstances, data protection and confidentiality restrictions may impact the ability of the competent authority to share the details in the same manner as a trade repository. Details collected and maintained in this way may prove less useful for its intended purpose than if it were reported to a trade repository.
Amendment 448 #
Proposal for a regulation
Article 6 – paragraph 4 – subparagraph 1
Article 6 – paragraph 4 – subparagraph 1
Powers are delegated to the CommissionESMA in coordination with the EBA, the ESCB and the ESRB, to determine the details and type of the reports referred to in paragraphs 1 and 2 for the different classes of derivatives.
Amendment 462 #
Proposal for a regulation
Article 6 – paragraph 5 – subparagraph 1
Article 6 – paragraph 5 – subparagraph 1
In order to ensure uniform conditions of application of paragraphs 1 and 2, powers are conferred upon the CommissionESMA in coordination with the EBA, the ESCB and the ESRB to determine format and frequency of the reports referred to in paragraphs 1 and 2 for the different classes of derivatives. The draft implementing standards referred to in the first subparagraph shall be adopted in accordance with [Article 7e] of Regulation …/… [ESMA Regulation].
Amendment 570 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The competent authority shall only grant authorisation where it is fully satisfied that the applicant CCP complies with all the requirements set out in this Regulation, the requirements adopted pursuant to Directive 98/26/EC, and following the joint positive opinion of the college referred to in Article 15 and the positive opinion of ESMA in consultation with the EBA and the ESCB.
Amendment 578 #
Proposal for a regulation
Article 14 – paragraph 1 – subparagraph 1
Article 14 – paragraph 1 – subparagraph 1
The competent authority of the Mmember State of establishment of a CCP shall establish, manage and chair a college to facilitate the exercise of the tasks referred to in Articles 10, .11, 46 and 48.
Amendment 580 #
Proposal for a regulation
Article 14 – paragraph 1 – subparagraph 2 – point a
Article 14 – paragraph 1 – subparagraph 2 – point a
(a) ESMA and EBA;
Amendment 583 #
Proposal for a regulation
Article 14 – paragraph 1 – subparagraph 2 – point c
Article 14 – paragraph 1 – subparagraph 2 – point c
(c) the competent authorities responsible for the supervision of the clearing members of the CCP established in the three Member States with the largest contributions to the default fund of the CCP over a period of a year referred to in Article 40 on an aggregate basis;
Amendment 588 #
Proposal for a regulation
Article 14 – paragraph 1 – subparagraph 2 – point f
Article 14 – paragraph 1 – subparagraph 2 – point f
(f) the authority responsible for the oversight of the CCP and the central banks of issue of the most relevant EU currencies of the financial instruments cleared and where relevant, the national central banks of the EU responsible for the oversight of the CCP.
Amendment 643 #
Proposal for a regulation
Article 23 – paragraph 1
Article 23 – paragraph 1
1. A CCP established in a third country may provide clearing services to entitieclearing members and their clients established in the Union only where that CCP is recognised by ESMA and, where appropriate, EBA.
Amendment 648 #
Proposal for a regulation
Article 23 – paragraph 2 – introductory part
Article 23 – paragraph 2 – introductory part
2. ESMA, in consultation with EBA and ESCB shall recognise a CCP from a third country, where the following conditions are met:
Amendment 655 #
Proposal for a regulation
Article 23 – paragraph 2 – point c a (new)
Article 23 – paragraph 2 – point c a (new)
(c a) the risk management standards of the CCP have been reviewed by ESMA and assessed as compliant with the standards set under Title IV.
Amendment 661 #
Proposal for a regulation
Article 23 – paragraph 3
Article 23 – paragraph 3
3. The Commission may adopt a Decision in accordance with the procedure referred to in Article 69(2) and on the basis of a joint opinion provided by ESMA, EBA, ESCB and the competent authorities responsible for the supervision of the three clearing members established in EU Member states with the largest contributions to the default fund of the CCP, determining that the legal and supervisory arrangements of a third country ensure that CCPs authorised in that third country comply with legally binding requirements which are equivalent to the requirements resulting from this Regulation and that these CCPs are subject to effective supervision and enforcement in that third country on an ongoing basis.
Amendment 665 #
Proposal for a regulation
Article 23 – paragraph 4 – introductory part
Article 23 – paragraph 4 – introductory part
4. ESMA, EBA, ESCB and the competent authorities responsible for the supervision of the three clearing members established in EU Member states with the largest contributions to the default fund of the CCP shall establish cooperation arrangements with the relevant competent authorities of third countries whose legal and supervisory frameworks have been recogniszed as equivalent to this Regulation in accordance with paragraph 3. Such arrangements shall specify at least:
Amendment 732 #
Proposal for a regulation
Article 33 – paragraph 1 – point d
Article 33 – paragraph 1 – point d
(d) outsourcing does not prevent the exercise of supervisory and oversight functions, including on-site access to related information within the service provider ;
Amendment 733 #
Proposal for a regulation
Article 33 – paragraph 1 – point e a (new)
Article 33 – paragraph 1 – point e a (new)
(e a) the service provider implements equivalent business continuity requirements to those that would have to be fulfilled by the CCP under its domestic supervisory framework.
Amendment 734 #
Proposal for a regulation
Article 33 – paragraph 1 – point f
Article 33 – paragraph 1 – point f
(f) the CCP retains the necessary expertise and resources to evaluate the quality of the services provided, the organisational and capital adequacy of the service provider; and to supervise the outsourced functions effectively and manage the risks associated with the outsourcing and must constantly supervise those functions and manage those risks;
Amendment 738 #
Proposal for a regulation
Article 33 – paragraph 1 – point i a (new)
Article 33 – paragraph 1 – point i a (new)
(i a) outsourcing does not increase operational risks;
Amendment 739 #
Proposal for a regulation
Article 33 – paragraph 1 – point i b (new)
Article 33 – paragraph 1 – point i b (new)
(i b) the business provider is subject in its country to the same legal regime as the CCP in terms of business continuity and data protection;
Amendment 740 #
Proposal for a regulation
Article 33 – paragraph 1 – point i c (new)
Article 33 – paragraph 1 – point i c (new)
Amendment 896 #
Proposal for a regulation
Article 49 a (new)
Article 49 a (new)
Article 49a User demand and transparency 1. CCPs that enter into interoperability arrangements shall demonstrate a significant user demand for the interoperability arrangement. 2. The clearing members who requested from their CCP the entry into an interoperability arrangement with another CCP shall bear the cost of the link creation. The CCPs to an interoperability arrangement shall communicate the terms and conditions of the interoperability arrangement to their clearing members.
Amendment 897 #
Proposal for a regulation
Article 50 – paragraph 2
Article 50 – paragraph 2
2. The competent authorities shall only grant approval of the interoperability arrangement, where: (a) the requirements set out in Article 49 are met and the technical conditions for clearing transactions under the terms of the arrangement allow for a smooth and orderly functioning of financial markets and that the arrangement does not undermine the effectiveness of supervision; (b) the CCP requesting the arrangement can demonstrate, to the satisfaction of the competent authorities that there is significant end-user demand for the arrangement and that the costs of the arrangement shall be borne by those users; and (c) the CCP has the financial capacity, resources and profitability (current and future) to support the interoperability arrangement.
Amendment 899 #
Proposal for a regulation
Article 50 – paragraph 3
Article 50 – paragraph 3
3. Where a competent authority considers that the requirements set out in paragraph 2 are not met, it shall provide explanations in writing regarding its risk considerations to the other competent authorities and the CCPs involved. It shall also notify ESMA, which shall issue an opinion, in consultation with the EBA and the ESCB, on the effective validity of the risk considerations as grounds for denial of an interoperability arrangement. ESMA's opinion shall be made available to all the CCPs involved. Where ESMA's assessment differs from the assessment of the relevant competent authority, this authority shall reconsider its position, taking into account the opinion of ESMA.
Amendment 900 #
Proposal for a regulation
Article 50 – paragraph 4
Article 50 – paragraph 4
4. By 30 June 2012, ESMA, after consultation with the EBA and the ESCB, shall issue guidelines or recommendations with a view to establishing consistent, efficient and effective assessments of interoperability arrangements, in accordance with the procedure laid down in Article 8 of Regulation …/… [ESMA Regulation]