Changes from report parliamentary committee draft to plenary report

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

Added"Article 31

AddedInformation to ESMA and competent authorities

Added1. 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.

AddedWhere 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.

Added2. 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).

AddedAny 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.

AddedESMA 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.

AddedWithin 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.

Added3. 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.

AddedThe 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.

Added4. 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:

Added(a) situated or regulated outside the Union;

Added(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.

Added5. 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.

Added6. Where ESMA does not oppose the proposed acquisition within the assessment period, it shall be deemed to be approved.

Added7. ESMA may fix a maximum period for concluding the proposed acquisition and extend it where appropriate.”

Added▌

Added▌

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

Added‘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.’;

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

Added‘Article 32

AddedAssessment

Added"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:

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

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

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

Added(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.

AddedWhere 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.

AddedWhere 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.

AddedThe 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.

Added2. 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.

Added3. Member States shall not impose any prior conditions in respect of the level of holding that shall be acquired.

Added4. 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.

Added5. 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.

Added6. 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:

Added(a) another CCP, a credit institution, assurance undertaking, insurance undertaking, reinsurance undertaking, investment firm, market operator, an operator of a securities settlement system, a UCITS management company or an AIFM authorised in another Member State;

Added(b) the parent undertaking of another CCP, a credit institution, assurance undertaking, insurance undertaking, reinsurance undertaking, investment firm, market operator, an operator of a securities settlement system, a UCITS management company or an AIFM authorised in another Member State;

Added(c) a natural or legal person controlling another CCP, a credit institution, assurance undertaking, insurance undertaking, reinsurance undertaking, investment firm, market operator, an operator of a securities settlement system, a UCITS management company or an AIFM authorised in another Member State.

Added7. ESMA and the competent authorities shall, without undue delay, provide each other with any information which is essential or relevant for the assessment. ESMA and the competent authorities shall, upon request, communicate all relevant information to each other and shall communicate all essential information at their own initiative. A decision of ESMA to authorise the CCP in which the acquisition is proposed shall indicate any views or reservations expressed by ESMA or the competent authority responsible for the proposed acquirer.

Added(28) Article 35 is amended as follows:

Added(a) in paragraph 1, the second subparagraph is replaced by the following:

Added‘A CCP shall not outsource major activities linked to risk management unless such outsourcing is approved by ESMA. The decision of ESMA shall be subject to an opinion of the college pursuant to Article 19 ▌in accordance with the procedure set out in Article 17b.’;

Added(aa) paragraph 2 is replaced by the following:

Added‘2. ESMA shall require the CCP to allocate and set out clearly its rights and obligations, and those of the service provider, in a written agreement”

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

Added‘3. A CCP shall make all information necessary to enable the competent authority, ESMA and the college to assess the compliance of the performance of the outsourced activities with this Regulation available on request.’;

Added(ba) the following paragraphs are added:

Added‘4. In order to ensure the consistent application of this Article, ESMA shall develop draft regulatory technical standards specifying the concrete requirements of the outsourcing arrangements and the criteria determining major activities linked to the risk management and to other critical functions of the CCP in accordance with paragraph 1 of this Article. ESMA shall submit those draft regulatory technical standards to the Commission by ... [12 months from the entry into force of this 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.

Added5. In order to ensure uniform conditions of application of this Article, ESMA shall develop draft implementing technical standards specifying:

Added(a) the minimum information to be included in the written agreements in accordance with paragraph 2;

Added(b) the type of information to be submitted to the competent authority and ESMA in accordance with paragraph 3;

AddedESMA shall submit those draft implementing technical standards to the Commission by ... [12 months from the date of entry into force of this amedning 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) No1095/2010.’

Added(29) Article 37 is amended as follows:

Added(a) paragraph 1 is replaced by the following:

Added‘1. A CCP shall establish, where relevant per type of product cleared, the categories of admissible clearing members and the admission criteria, upon the advice of the risk committee pursuant to Article 28(3). Such criteria shall be non-discriminatory, transparent and objective so as to ensure fair and open access to the CCP and shall ensure that clearing members have sufficient financial resources and operational capacity to meet the obligations arising from participation in a CCP. Criteria that restrict access shall be permitted only to the extent that their objective is to control the risk for the CCP. Without prejudice to interoperability arrangements or investment activities for the purposes of Article 47 the criteria shall ensure that CCPs or clearing houses cannot be clearing members, directly or indirectly, of the CCP.’;

Added(b) the following paragraph 1a is inserted: