Changes from report parliamentary committee draft to plenary report

Added(f) the periodic penalty payments provided for in Article 25k where the production of the required information is incomplete;

Added(g) the fine provided for in Article 25j in conjunction with point (a) of Section V of Annex III, for failing to provide the required information or where the answers to questions asked are incorrect or misleading.

Added4. The persons referred to in paragraph 1 or their representatives and, in the case of legal persons or associations having no legal personality, the persons authorised to represent them by law or by their constitution, shall supply the information requested. Lawyers duly authorised to act may supply the information on behalf of their clients. Those clients shall remain fully responsible if the information supplied is incomplete, incorrect or misleading.

Added5. ESMA shall, without delay, send a copy of the request to the relevant third-country competent authority where the persons referred to in paragraph 1 concerned by the request for information are domiciled or established.’

Added(22b) the following article is inserted:

Added’Article 25fa

AddedPeriodic reporting by third-country CCPs

Added1. Recognised CCPs shall report to ESMA the scope of their clearing activity on an annual basis, specifying at least all of the following:

Added(a) the type of financial instruments or non-financial contracts cleared;

Added(b) the values, volumes and margin posted over one year per currency and per asset class;

Added(c) its annual global turnover resulting from the clearing services provided;

Added(d) updated figures regarding the indicators of minimum exposure referred to in Article 6 Commission Delegated Regulation (EU) 2020/1303;

Added(e) per clearing member established in the Union or part of a group subject to consolidated supervision in the Union:

Added(i) the amount of margins collected;

Added(ii) the default fund contributions;

Added(iii) the largest payment obligation;

Added(iv) the amount of total liquid financial resources committed to the CCP. 2. ESMA shall transmit the information to the Joint Monitoring Mechanism referred to in Article 23c.

Added3. ESMA shall, after consulting the ESCB and the ESRB, develop draft regulatory technical standards further specifying the details and type of the reports as well as the methods and arrangements for reporting of the information to be provided in accordance with paragraph 1 of this Article, taking into account which information is already available to ESMA under the existing reporting framework, including under Article 9 of this Regulation.

AddedESMA shall submit those draft regulatory technical standards to the Commission by … [12 months from the date of entry into force of this amending Regulation].

AddedPower is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.

Added4. To ensure uniform conditions of application of paragraph 2, ESMA shall develop draft implementing technical standards, in close cooperation with the ESCB, specifying the data standards and formats for the information to be reported.

AddedIn developing those draft implementing technical standards, ESMA shall take into account international developments and standards agreed upon at Union or global level, and their consistency with the reporting requirements laid down in Article 9 of this Regulation.

AddedESMA shall submit those draft implementing technical standards to the Commission by … [12 months from the date of entry into force of this amending Regulation].

AddedPower is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.’;

Added(23) Article 25p(1) is amended as follows:

Added(a) point (c) is replaced by the following;

Added‘(c) the CCP concerned has seriously and systematically infringed any of the applicable requirements laid down in this Regulation or no longer complies with any of the conditions for recognition laid down in Article 25 and has not taken the remedial action requested by ESMA within an appropriate timeframe of up to a maximum of one year.’;

Added(b) the following point is added:

Added‘(f) the CCP concerned has not paid the applicable fees in accordance with Article 25d and has not remedied the situation within an appropriate timeframe set by ESMA.’;

Added(24) the following Article 25r is inserted:

Added‘Article 25r

AddedPublic notice

AddedWithout prejudice to Articles 25p and 25q, ESMA may issue a public notice where all of the following conditions have been fulfilled:

Added(a) a third-country CCP has not paid the fees due under Article 25d or it has not paid fines due under Article 25j or periodic penalty payments due under Article 25k;

Added(b) the CCP has not taken any remedial action requested by ESMA in any of the situations laid down in Article 25p(1), point (c) within an appropriately set timeframe of up to six months.’;

Added(25) in Article 26(1), the first subparagraph is replaced by the following:

Added‘1. A CCP shall have robust governance arrangements, which include a clear organisational structure with well-defined, transparent and consistent lines of responsibility, effective processes to identify, manage, monitor and report the risks to which it is or might be exposed, and adequate internal control mechanisms, including sound administrative and accounting procedures. Without prejudice to interoperability arrangements or investment activities for the purposes of Article 47, a CCP shall not be or become a clearing member, a client, or establish indirect clearing arrangements with a clearing member with the aim to undertake clearing activities at a CCP.’;

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

Added"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."

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

Added(a) the following paragraph is inserted:

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

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

Added'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.';

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

Added‘Article 28

AddedRisk committee

Added1. 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.

Added2. 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.

Added3. 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.

Added4. 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.

Added5. 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.”;

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

Added"Article 30

AddedShareholders and members with qualifying holding

Added1. 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.

Added2. 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.

Added3. 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.

Added4. 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.

Added5. 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.”;