44 Amendments of Sylvie GOULARD related to 2012/0029(COD)
Amendment 136 #
Proposal for a regulation
Recital 6
Recital 6
(6) The Financial Stability Board (FSB) called, on 20 October 2010, for more robust core market infrastructures and asked for the revision and enhancement of the existing standards. TIn April 2012, the Committee on Payments and Settlement Systems (CPSS) of the Bank of International Settlements (BIS) and the International Organisation of Securities Commissions (IOSCO) are finalising draft global standards. These are topublished principles for financial market infrastructures. These principles replace the BISCPSS-IOSCO recommendations from 2001, which were adapted through non-binding guidelines at European level inor securities settlement systems from November 2001, which were implemented at Union level through the recommendations for securities settlement systems and for central counterparties jointly adopted in May 2009 by the European System of Central Banks (ESCB) and the Committee of European Securities Regulators (CESR).
Amendment 139 #
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 beingand be consulted in the authorisation and supervision of CSDs, recognition of third country CSDs and the approval of CSD links. To prevent the emergence of parallel sets of rules, they should also be closely involved by beingand be consulted in the setting of regulatory and implementing technical standards as well as of guidelines and recommendations. The provisions of this Regulation should bare 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. Access to information by the members of the ESCB is crucial for the adequate performance of their oversight of financial market infrastructures as well as to the function of a central bank of issue.
Amendment 159 #
Proposal for a regulation
Recital 25
Recital 25
(25) Considering the global nature of financial markets and the systemic importance of the CSDs, it is necessary to ensure international convergence of the prudential requirements to which they are subject. The provisions of this Regulation should follow the existing recommendations developed by CPSS- IOSCO and ESCB-CESRCPSS-IOSCO principles for financial market infrastructures and the ESCB-CESR recommendations for securities settlement systems and recommendations for central counterparties in the European Union. ESMA should consider the existing standards and their future developments when drawing up or proposing to revise theproposing the draft regulatory technical and implementing standards as well as the guidelines and recommendations requiredferred to in this Regulation.
Amendment 183 #
Proposal for a regulation
Recital 35
Recital 35
(35) The safety of the link arrangements set up between CSDs should be subject to specific requirements to enable the access of their respective participants to other securities settlement systems. The requirement to provide banking type of ancillary services in separate legal entity should not prevent CSDs from receiving such services, in particular when they are participants in a securities settlement system operated by another CSD. It is particularly important that any potential risks resulting from the link arrangements such as credit, liquidity, organisational or any other relevant risks for CSDs are fully mitigated. For interoperability links, it is important that linked securities settlement systems have identicalthe Directive 98/26/EC requires systems, to the extent possible, to ensure that their rules are coordinated concerning the moments of entry of transfer orders into the system, irrevocability of transfer orders and finality of transfers of securities and cash. The same principles should apply to CSDs that use a common settlement information technology (IT) infrastructure.
Amendment 200 #
Proposal for a regulation
Article 1 – paragraph 4
Article 1 – paragraph 4
4. Articles 9 to 18 and 20 as well as the provisions of Title IV doThis Regulation shall not apply to the members of the European System of Central Banks (ESCB), other Member States‘ national bodies performing similar functions or Member States’' public bodies charged with or intervening in the management of the public debt.
Amendment 203 #
Proposal for a regulation
Article 1 – paragraph 4 a (new)
Article 1 – paragraph 4 a (new)
4 a. Notwithstanding paragraph 4, this Regulation, with the exception of Article 7(1) and Articles 9 to 18, 20, 25 and 44 as well as the provisions of Title IV, applies to the members of the ESCB when operating a securities settlement system and performing the core services listed in Section A of the Annex.
Amendment 206 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
(1) ‘central securities depository’ (‘CSD’) means a legal person that operates a securities settlement system listed in point 3 of Section A of the Annex and performs at least one of ther core services listed in Section A of the Annex;
Amendment 245 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Any companlegal entity that issues transferable securities which are admitted to trading on regulated markets shall arrange for such securities to be represented in book-entry form as immobilisation through the issuance of a global note, which represents the whole issue, or subsequent to a direct issuance of the securities into a dematerialised form.
Amendment 279 #
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 consult, in close cooperation with the members of the European System of Central Banks (ESCB), shall develop 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 281 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. For each securities settlement system it operates, a CSD shall establish a system that monitors settlement fails of transactions in financial instruments referred to in Article 5(1). It shall provide regular reports to the competent authority, to the authorities referred to in Article 11 and to any person with a legitimate interest as to the number and details of settlement fails and any other relevant information. The competent authorities shall share with ESMA any relevant information on settlement fails.
Amendment 304 #
Proposal for a regulation
Article 8 – paragraph 1
Article 8 – paragraph 1
1. The relevant authority of the Member State whose law applies to the securities settlement system operated by a CSD shall be competenties referred to in Article 10 shall be responsible for ensuring that Articles 6 and 7 are applied and for monitoring theany penalties imposed, in close cooperation with the authorities competent for the supervision of the regulated markets, MTFs, OTFs, and CCPs referred to in Article 7, and the authorities referred to in Article 11(1). In particular, these authorities shall monitor the application of penalties referred to in Article 7 (2) and (4) and of the measures referred to in Article 7(6).
Amendment 305 #
Proposal for a regulation
Article 8 – paragraph 2
Article 8 – paragraph 2
2. In order to ensure consistent, efficient and effective supervisory practices within the Union in relation to Articles 6 and 7 of this Regulation, ESMA may issue, in close cooperation with the members of the ESCB, guidelines in accordance with Article 16 of Regulation (EU) No 1095/2010.
Amendment 312 #
Proposal for a regulation
Article 11 – paragraph 1 – point b
Article 11 – paragraph 1 – point b
(b) where applicable, the central bank in the Union in whose books the cash leg of a securities settlement system operated by the CSD is settled or, in case of settlement through a credit institution in accordance with Title IV, the central bank in the Union of issue of the relevant currencyssuing the currency in which settlement takes place.
Amendment 314 #
Proposal for a regulation
Article 11 – paragraph 1 – point b a (new)
Article 11 – paragraph 1 – point b a (new)
(b a) where relevant, the member of the ESCB in whose books the cash leg of a securities settlement system operated by the CSD is settled.
Amendment 318 #
Proposal for a regulation
Article 12 – paragraph 1 – subparagraph 2
Article 12 – paragraph 1 – subparagraph 2
In order to ensure consistent, efficient and effective supervisory practices within the Union, including cooperation between authorities referred to in Articles 9 and 11 in the different assessments necessary for the application of this Regulation, ESMA, in close cooperation with the members of the ESCB, may issue guidelines addressed to authorities referred to in Article 9 in accordance with Article 16 of Regulation (EU) No 1095/2010.
Amendment 320 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
Amendment 326 #
Proposal for a regulation
Article 15 – paragraph 5 – subparagraph 1 – introductory part
Article 15 – paragraph 5 – subparagraph 1 – introductory part
The competent authority shall, before granting authorisation to the applicant CSD, consult the competent authorities and the authorities referred to in Article 11 of the other Member State involved in the following cases:
Amendment 350 #
Proposal for a regulation
Article 19 – paragraph 2
Article 19 – paragraph 2
2. Central banks shall immediatelyMembers of the ESCB shall inform ESMA of any CSDsecurities settlement system that they operate.
Amendment 354 #
Proposal for a regulation
Article 20 – paragraph 1
Article 20 – paragraph 1
1. The competent authority shall, at least on an annual basis, review the arrangements, strategies, processes and mechanisms implemented by a CSD with respect to compliance with this Regulation and evaluate the risks to which the CSD is, or might be, exposed or associated with. The competent authority shall be entitled to collect all the relevant information necessary for its evaluation.
Amendment 360 #
Proposal for a regulation
Article 20 – paragraph 4
Article 20 – paragraph 4
4. When performing the review and evaluation referred to in paragraph 1, the competent authority shall consult at an early stagelosely cooperate with the relevant authorities referred to in Article 11 at an early stage concerning the functioning of the securities settlement systems operated by the CSD.
Amendment 362 #
Proposal for a regulation
Article 20 – paragraph 5
Article 20 – paragraph 5
5. The competent authority shall discuss regularly, and at least once a year, informin advance with the relevant authorities referred to in Article 11 of the results, including any remedial actions or penalties, of the review and evaluation referred to in paragraph 1.
Amendment 365 #
Proposal for a regulation
Article 20 a (new)
Article 20 a (new)
Article 20 a Professional secrecy 1. The obligation of professional secrecy shall apply to all persons who work or who have worked for the authorities referred to in Articles [10 and 11] and ESMA, and auditors and experts instructed by the competent authorities, ESMA or the ESRB. Confidential information they may receive in the course of their duties shall not be divulged to any other person or authority whatsoever, except in summary or aggregate form such that an individual CSD or any other person cannot be identified, without prejudice to cases covered by criminal law or taxation or the other provisions of this Regulation. 2. Where a CSD has been declared bankrupt or is being compulsorily wound up, confidential information which does not concern third parties may be divulged in civil or commercial proceedings where necessary for carrying out the proceeding. 3. Without prejudice to cases covered by criminal and tax law, the authorities referred to in Articles 10 and 11, ESMA, bodies or natural or legal persons other than competent authorities which receive confidential information pursuant to this Regulation may use it only in the performance of their duties and for the exercise of their functions including the disclosure of information to a superior body, in the case of the competent authorities, within the scope of this Regulation or, in the case of other authorities, bodies or natural or legal persons, for the purpose for which such information was provided to them or in the context of administrative or judicial proceedings specifically related to the exercise of those functions, or both. Where ESMA, the competent authority or another authority, body or person communicating information consents thereto, the authority receiving the information may use it for other non- commercial purposes. 4. Any confidential information received, exchanged or transmitted pursuant to this Regulation shall be subject to the conditions of professional secrecy laid down in paragraphs 1, 2 and 3. However, those conditions shall not prevent ESMA, or the authorities referred to in Articles 10 and 11, from exchanging or transmitting confidential information in accordance with their statutory tasks and with other legislation applicable to investment firms, credit institutions, pension funds, undertakings for collective investment in transferable securities (UCITS), alternative investment fund managers (AIFMs), 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. 5. Paragraphs 1, 2 and 3 shall not prevent the authorities referred to in Articles 10 and 11 from exchanging or transmitting confidential information, in accordance with national law, that has not been received from a competent authority of another Member State.
Amendment 366 #
Proposal for a regulation
Article 20 b (new)
Article 20 b (new)
Article 20 b Exchange of information 1. ESMA, the authorities referred to in Articles 10 and 11 and other relevant authorities shall without undue delay provide one another with the information required for the purposes of carrying out their duties. 2. The authorities referred to in Articles 10 and 11, other relevant authorities, ESMA and other bodies or natural and legal persons receiving confidential information in the exercise of their duties under this Regulation shall only use it in the course of their duties. 3. Competent authorities shall communicate information to the ESRB and to the relevant members of the ESCB where such information is relevant for the exercise of their duties.
Amendment 374 #
Proposal for a regulation
Article 21 – paragraph 2 – point b
Article 21 – paragraph 2 – point b
(b) a programme of operations stating in particular the services which it intends to provide, including the currency or currencies it processes;
Amendment 378 #
Proposal for a regulation
Article 21 – paragraph 3
Article 21 – paragraph 3
3. Within three months from the receipt of the information referred to in paragraph 2, the competent authority shall communicate that information to the authorities referred to in Article 11 and the competent authority of the host Member State unless, by taking into account the provision of services envisaged, it has reasons to doubt the adequacy of the administrative structure or the financial situation of the CSD wishing to provide its services in the host Member State.
Amendment 397 #
Proposal for a regulation
Article 22 – paragraph 7 – subparagraph 1
Article 22 – paragraph 7 – subparagraph 1
ESMA, in close cooperation with the members of the ESCB, shall develop draft implementing technical standards to establish standard forms, templates and procedures for the cooperation arrangements referred to in paragraphs 1, 3 and 5.
Amendment 402 #
Proposal for a regulation
Article 23 – paragraph 2 – point b
Article 23 – paragraph 2 – point b
(b) the CSD is subject to effective authorisation and supervision, supervision and oversight or, if the securities settlement system is operated by a central bank, oversight, ensuring a full compliance with the prudential requirements applicable in that third country;
Amendment 403 #
Proposal for a regulation
Article 23 – paragraph 2 – point c
Article 23 – paragraph 2 – point c
(c) co-operation arrangements between ESMA and the competerelevant authorities in that third country have been established pursuant to paragraph 7.
Amendment 404 #
Proposal for a regulation
Article 23 – paragraph 3 – point c
Article 23 – paragraph 3 – point c
(c) the authorities referred to in point (a) of Article 11(1);
Amendment 415 #
Proposal for a regulation
Article 25 – paragraph 5
Article 25 – paragraph 5
5. A CSD 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 the auditor.
Amendment 423 #
Proposal for a regulation
Article 28 – paragraph 5
Article 28 – paragraph 5
5. Paragraphs 1 to 4 shall not apply where a CSD outsources some of its services or activities to a public entity and where that outsourcing is governed by a dedicated legal, regulatory and operational framework which has been jointly agreed and formalised by the public entity and the relevant CSD and agreendorsed by the competent authorities on the basis of the requirements established in this Regulationf the relevant CSD.
Amendment 458 #
Proposal for a regulation
Article 36 – paragraph 6
Article 36 – paragraph 6
6. A CSD shall achieve settlement finality no later than by the end of the business day of the intended settlement date. Upon demand by its user committee, it shall install systemoperational procedures that allow for intraday or real-time settlement.
Amendment 463 #
Proposal for a regulation
Article 37 – paragraph 1
Article 37 – paragraph 1
1. For transactions denominated in the currency of the country where the settlement takes place, a CSD shall settle the cash payments of its respective securities settlement system through accounts opened with athe central bank operating in suchf issue of that currency whenever practical and available.
Amendment 473 #
Proposal for a regulation
Article 39 – paragraph 1
Article 39 – paragraph 1
A CSD shall adopt a sound risk- management framework for comprehensively managing legal, business, operational, systemic and other risks.
Amendment 488 #
Proposal for a regulation
Article 45 – paragraph 4
Article 45 – paragraph 4
4. In case of a provisional transfer of securities between linked CSDs, retransfer or onward transfer to a third CSD of securities prior to the first transfer becoming final shall be prohibited.
Amendment 491 #
Proposal for a regulation
Article 45 – paragraph 8 a (new)
Article 45 – paragraph 8 a (new)
8 a. A CSD shall provide appropriate account structures to enable participants, including other CSDs, to connect to its systems. The account structure shall be supported by the appropriate settlement, custody and fiscal arrangements.
Amendment 493 #
Proposal for a regulation
Article 45 – paragraph 9 – subparagraph 1
Article 45 – paragraph 9 – subparagraph 1
ESMA shall develop in consultlose cooperation with the members of the ESCB draft regulatory technical standards to specify the conditions as provided in paragraph 3 under which each type of link arrangement provides for adequate protection of the linked CSDs and of their participants, in particular when a CSD intends to participate in the securities settlement system operated by another CSD, the monitoring and managing of additional risks referred to in paragraph 5 arising from the use of intermediaries, the reconciliation methods referred to in paragraph 6, the cases where DVP settlement through links is practical and feasible as provided in paragraph 7, the provisions of paragraph [8a] on the appropriate account structures including the relevant arrangements and the methods of assessment thereof.
Amendment 497 #
Proposal for a regulation
Article 46 – paragraph 1
Article 46 – paragraph 1
1. AWithout prejudice to Articles 2(a), 9 and 10 of Directive 98/26/EC, any question with respect to proprietary aspects in relation to financial instruments held by a CSD shall be governed by the law of the country where the account is maintained. The account shall be presumed to be maintained at the place where the CSD has its habitual residence as determined by Article 19 of Regulation (EC) No 593/2008 of the European Parliament and the Council.
Amendment 499 #
Proposal for a regulation
Article 46 – paragraph 2
Article 46 – paragraph 2
2. Where the account is used for settlement in a securities settlement systemlaw of the Member State where the account is maintained differs from the law governing the securities settlement system, and the securities settlement system has been designated in accordance with Article 2 of Directive 98/26/EC, the applicable law shall be the one governing that securities settlement system.
Amendment 501 #
Proposal for a regulation
Article 46 – paragraph 3
Article 46 – paragraph 3
Amendment 521 #
Proposal for a regulation
Article –52 (new)
Article –52 (new)
Article –52 Assessment report By the end of 2014, the Commission shall, in close cooperation with the ECB, submit a report assessing the provision of ancillary banking services with an appropriate mitigation of risks, whilst safeguarding the efficiency of CSDs in providing their services. In accordance with the conclusions of that report, the Commission shall submit a legislative proposal to amend Title IV if appropriate.
Amendment 545 #
Proposal for a regulation
Article 52 – paragraph 2 – subparagraph 2
Article 52 – paragraph 2 – subparagraph 2
Following a detailed impact assessment, a consultation of the undertakingsCSD concerned and after taking into account the opinions of the EBA, the ESMA and the EC, the ECB and the supervisory authorities and the assessment of the ESRB, the Commission shall adopt an implementing decision in accordance with the procedure referred to in Article 66. The Commission shall give reasons for its implementing decision.
Amendment 558 #
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 an 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 as defined in point (d) of Article 2 of Directive 98/26/EC.
Amendment 596 #
Proposal for a regulation
Article 53 – paragraph 5 – subparagraph 1
Article 53 – paragraph 5 – subparagraph 1
ESMA shall develop in consultlose cooperation with the members of the ESCB and EBA draft regulatory technical standards to specify the information that the applicant CSD shall provide to the competent authority.