The European Parliament decided to raise no
objections to the Commission delegated regulation of
22 September 2017 amending Commission Delegated Regulation
(EU) No 149/2013 with regard to regulatory technical standards on
indirect clearing arrangements.
As a reminder, Regulation
(EU) No 648/2012 of the European Parliament and of the Council
on OTC derivatives, central counterparties and trade repositories1
(EMIR) requires financial counterparties and some non-financial
counterparties to clear through central counterparties (CCPs)
over-the-counter (OTC) derivatives pertaining to a class that has
been declared subject to a clearing obligation pursuant to that
Regulation
EMIR mandates the European Securities and Markets
Authority (ESMA) to develop draft regulatory technical standards
that specify the types of indirect clearing arrangements that can
be used to fulfil the clearing obligation.
Those regulatory technical standards were adopted on
19 December 2012 by Commission delegated Regulation
(EU) No 149/2013, the current delegated act being an amendment
of that delegated Regulation in order to reflect recent
developments and experience gained in the area of
clearing.
Parliament recalled that the Commission only
endorsed the draft regulatory technical standard (RTS)
16 months after having received it from the European
Securities and Markets Authority (ESMA) on 26 May 2016. It did
not formally consult ESMA over this period concerning its
amendments to this draft RTS and did not inform the co-legislators
or the industry of the reasons for delay.
Parliament considered it unacceptable that the
Commission overran the deadline for adopting the draft RTS by more
than a year without informing the co-legislators.
Since the RTS adopted is not the same as
the draft RTS submitted by ESMA, Parliament considered that it
has three months to object to the RTS due to the amendments made by
the Commission.
The delegated regulation should apply from 3 January
2018, the application date of Directive
2014/65/EU (MiFID II) and Regulation (EU) No
600/2014 (MiFIR). However, full use of the three-month
scrutiny period available to Parliament would no longer allow
sufficient time for industry to implement the
changes.
Members believed, therefore, that swift publication
of the delegated regulation in the Official Journal would allow
timely implementation and legal certainty concerning the provisions
applicable to indirect clearing.