Changes from plenary report to adopted text

Removed(25 a) in Article 26, paragraph 8 is replaced by the following:

Removed"8. The CCP shall be subject to frequent and independent audits. The results of those audits shall be communicated to the board and shall be made available to ESMA and to the CCP's competent authority."

Removed(25 b) Article 27 is amended as follows:

Removed(a) the following paragraph is inserted:

Removed“2a. The composition of the CCP’s Board shall duly take into account the principle of gender balance”;

Removed(b) paragraph 3 is replaced by the following:

Removed'3. A CCP shall clearly determine the roles and responsibilities of the board and shall make the minutes of the board meetings available to ESMA, the CCP's competent authority and auditors.';

Removed(25 c) Article 28 is replaced by the following:

Removed‘Article 28

RemovedRisk committee

Removed1. A CCP shall establish a risk committee, which shall be composed of representatives of its clearing members, independent members of the board and representatives of its clients. The risk committee may invite employees of the CCP and external independent experts to attend risk-committee meetings in a non-voting capacity. ESMA and competent authorities may request to attend risk-committee meetings in a non-voting capacity and to be duly informed of the activities and decisions of the risk committee. The advice of the risk committee shall be independent of any direct influence by the management of the CCP. None of the groups of representatives shall have a majority in the risk committee.

Removed2. A CCP shall clearly determine the mandate, the governance arrangements to ensure its independence, the operational procedures, the admission criteria and the election mechanism for risk-committee members. The governance arrangements shall be publicly available and shall, at least, determine that the risk committee is chaired by an independent member of the board, reports directly to the board and holds regular meetings.

Removed3. The risk committee shall advise the board on any arrangements that may impact the risk management of the CCP, such as a significant change in its risk model, the default procedures, the criteria for accepting clearing members, the clearing of new classes of instruments, or the outsourcing of functions. The risk committee shall inform the board in a timely manner of any new risk affecting the resilience of the CCP. The advice of the risk committee is not required for the daily operations of the CCP. Reasonable efforts shall be made to consult the risk committee on developments impacting the risk management of the CCP in emergency situations, including on developments relevant to clearing members’ exposures to the CCP and interdependencies with other CCPs.

Removed4. Without prejudice to the right of ESMA and of the competent authorities to be duly informed, the members of the risk committee shall be bound by confidentiality. Where the chairman of the risk committee determines that a member has an actual or potential conflict of interest on a particular matter, that member shall not be allowed to vote on that matter.

Removed5. A CCP shall promptly inform ESMA, the competent authority and the risk committee of any decision in which the board decides not to follow the advice of the risk committee and explain such decision. The risk committee or any member of the risk committee may inform the competent authority of any areas in which it considers that the advice of the risk committee has not been followed.”;

Removed(25 e) Article 30 is replaced by the following:

Removed"Article 30

RemovedShareholders and members with qualifying holding

Removed1. ESMA shall not authorise a CCP unless it has been informed of the identities of the shareholders or members, whether direct or indirect, natural or legal persons, that have qualifying holdings and of the amounts of those holdings.

Removed2. ESMA shall refuse to authorise a CCP where it is not satisfied as to the suitability of the shareholders or members that have qualifying holdings in the CCP, taking into account the need to ensure the sound and prudent management of a CCP.

Removed3. Where close links exist between the CCP and other natural or legal persons, ESMA shall grant authorisation only where those links do not prevent the effective exercise of the supervisory functions of the competent authority.

Removed4. Where the persons referred to in paragraph 1 exercise an influence which is likely to be prejudicial to the sound and prudent management of the CCP, ESMA shall take appropriate measures to terminate that situation, which may include the withdrawal of the authorisation of the CCP.

Removed5. ESMA shall refuse authorisation where the laws, regulations or administrative provisions of a third country governing one or more natural or legal persons with which the CCP has close links, or difficulties involved in their enforcement, prevent the effective exercise of the supervisory functions of ESMA.”;

Removed(26) Article 31 is replaced by the following:

Removed"Article 31

RemovedInformation to ESMA and competent authorities

Removed1. A CCP shall notify ESMA and its competent authority of any changes to its management, and shall provide ESMA with all information necessary to assess compliance with Article 27(1) and Article 27(2), second subparagraph.

RemovedWhere the conduct of a member of the board is likely to be prejudicial to the sound and prudent management of the CCP, ESMA shall take appropriate measures, which may include removing that member from the board.

Removed2. Any natural or legal person or such persons acting in concert (the ‘proposed acquirer’), who have taken a decision either to acquire, directly or indirectly, a qualifying holding in a CCP or to further increase, directly or indirectly, such a qualifying holding in a CCP as a result of which the proportion of the voting rights or of the capital held would reach or exceed 10 %, 20 %, 30 % or 50 % or so that the CCP would become its subsidiary (the ‘proposed acquisition’), shall first notify in writing ESMA and the competent authority of the CCP in which they are seeking to acquire or increase a qualifying holding, indicating the size of the intended holding and relevant information, as referred to in Article 32(4).

RemovedAny natural or legal person who has taken a decision to dispose, directly or indirectly, of a qualifying holding in a CCP (the ‘proposed vendor’) shall first notify the competent authority in writing thereof, indicating the size of such holding. Such a person shall likewise notify ESMA and the competent authority where it has taken a decision to reduce a qualifying holding so that the proportion of the voting rights or of the capital held would fall below 10 %, 20 %, 30 % or 50 % or so that the CCP would cease to be that person’s subsidiary.

RemovedESMA shall, promptly and in any event within two working days of receipt of the notification referred to in this paragraph and of the information referred to in paragraph 3, acknowledge receipt in writing thereof to the proposed acquirer or vendor and share the information with the competent authority and the college.

RemovedWithin 60 working days as from the date of the written acknowledgement of receipt of the notification and all documents required to be attached to the notification on the basis of the list referred to in Article 32(4) and unless extended in accordance with this Article, (‘the assessment period’), ESMA shall carry out the assessment provided for in Article 32(1) (‘the assessment’). The college shall issue an opinion pursuant to Article 19 in accordance with the procedure under Article 17b during the assessment period.

Removed3. The competent authority, ESMA and the college may, during the assessment period, where necessary, but no later than on the 50th working day of the assessment period, request any further information that is necessary to complete the assessment. Such request shall be made in writing and shall specify the additional information needed.

RemovedThe assessment period shall be interrupted for the period between the date of request for information by ESMA and the receipt of a response thereto by the proposed acquirer. The interruption shall not exceed 20 working days. Any further requests by the competent authority for completion or clarification of the information shall be at its discretion but may not result in an interruption of the assessment period.

Removed4. ESMA may extend the interruption referred to in the second subparagraph of paragraph 3 up to 30 working days where the proposed acquirer or vendor is either:

Removed(a) situated or regulated outside the Union;

Removed(b) a natural or legal person not subject to supervision under this Regulation or Directive 73/239/EEC, Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance ( 17 ) or Directives 2002/83/EC, 2003/41/EC, 2004/39/EC, 2005/68/EC, 2006/48/EC, 2009/65/EC or 2011/61/EU.

Removed5. Where ESMA, upon completion of the assessment, decides to oppose the proposed acquisition, it shall, within two working days, and not exceeding the assessment period, inform the proposed acquirer in writing and provide the reasons for that decision. ESMA shall notify the comptent authority and the college referred to in Article 18 accordingly. Subject to national law, an appropriate statement of the reasons for the decision may be made accessible to the public at the request of the proposed acquirer. However, ESMA may make such disclosure in the absence of a request by the proposed acquirer.

Removed6. Where ESMA does not oppose the proposed acquisition within the assessment period, it shall be deemed to be approved.

Removed7. ESMA may fix a maximum period for concluding the proposed acquisition and extend it where appropriate.”

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Removed(27) in Article 32(1), the fourth subparagraph is replaced by the following:

Removed‘The assessment of the competent authority concerning the notification provided for in Article 31(2) and the information referred to in Article 31(3), shall be subject to an opinion of the college pursuant to Article 19 and an opinion by ESMA pursuant to Article 24a(7), first subparagraph, point (bc), issued in accordance with the procedure set out in Article 17b.’;

Removed(27 a) Article 32 is replaced by the following:

Removed‘Article 32

RemovedAssessment

Removed"1. Where assessing the notification provided for in Article 31(2) and the information referred to in Article 31(3), ESMA shall, in order to ensure the sound and prudent management of the CCP in which an acquisition is proposed, and having regard to the likely influence of the proposed acquirer on the CCP, appraise the suitability of the proposed acquirer and the financial soundness of the proposed acquisition against all of the following:

Removed(a) the reputation and financial soundness of the proposed acquirer;

Removed(b) the reputation and experience of any person who will direct the business of the CCP as a result of the proposed acquisition;

Removed(c) whether the CCP will be able to comply and continue to comply with this Regulation;

Removed(d) whether there are reasonable grounds to suspect that, in connection with the proposed acquisition, money laundering or terrorist financing within the meaning of Article 1 of Directive 2005/60/EC is being or has been committed or attempted, or that the proposed acquisition could increase the risk thereof.

RemovedWhere assessing the financial soundness of the proposed acquirer, ESMA shall pay particular attention to the type of business pursued and envisaged in the CCP in which the acquisition is proposed.

RemovedWhere assessing the CCP’s ability to comply with this Regulation, ESMA shall pay particular attention to whether the group of which it will become a part has a structure that makes it possible to exercise effective supervision, to effectively exchange information among the competent authorities and to determine the allocation of responsibilities among the competent authorities.

RemovedThe assessment of the competent authority concerning the notification provided for in Article 31(2) and the information referred to in Article 31(3), shall be subject to an opinion of the college pursuant to Article 19.

Removed2. ESMA may oppose the proposed acquisition only where there are reasonable grounds for doing so on the basis of the criteria set out in paragraph 1 or where the information provided by the proposed acquirer is incomplete.

Removed3. Member States shall not impose any prior conditions in respect of the level of holding that shall be acquired.

Removed4. ESMA shall make publicly available a list specifying the information that is necessary to carry out the assessment and that shall be provided to ESMA and the competent authorities at the time of notification referred to in Article 31(2). The information required shall be proportionate and shall be adapted to the nature of the proposed acquirer and the proposed acquisition. ESMA shall not require information that is not relevant for a prudential assessment.

Removed5. Notwithstanding Article 31(2), (3) and (4), where two or more proposals to acquire or increase qualifying holdings in the same CCP have been notified to ESMA and the competent authority, the latter shall treat the proposed acquirers in a non-discriminatory manner.

Removed6. ESMA and the relevant competent authorities shall cooperate closely with each other when carrying out the assessment where the proposed acquirer is one of the following: