The European Parliament decided to raise no
objections to the Commission delegated regulation of 22
September 2017 supplementing Regulation (EU) No 600/2014 of the
European Parliament and of the Council with regard to regulatory
technical standards on indirect clearing
arrangements
As a reminder, Regulation
(EU) No 600/2014 on markets in financial instruments and
amending Regulation
(EU) No 648/2012 (MiFIR) requires the operators of regulated
markets to ensure that all transactions in derivatives that are
concluded on the regulated markets operated by them are cleared by
a central counterparty (CCP), i.e. a clearing obligation for
exchange traded derivatives (ETDs).
EMIR mandates the European Securities and Markets
Authority (ESMA) to develop draft regulatory technical standards
(RTS) that specify the types of indirect clearing arrangements that
can be used to fulfil the clearing obligation set out in Article 4
of EMIR for over-the counter (OTC) derivatives pertaining to a
class that has been declared subject to that obligation, i.e. a
clearing obligation for OTC derivatives.
The current delegated act specifies the types of
indirect clearing arrangements which can be used for
ETDs.
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.
Over this period, the Commission did not formally
consult ESMA over this period concerning its amendments to this
draft RTS, nor did it inform the co-legislators or industry of the
reasons for delay.
Members 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, the full use of the
three-month scrutiny period available to Parliament would no
longer allow sufficient time for industry to implement the
changes.
Accordingly, Members stated 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.