Changes from report parliamentary committee draft to plenary report

Added1.5.1. Requirement(s) to be met in the short or long term including a detailed timeline for roll-out of the implementation of the initiative

AddedThe requirements this proposal aims to meet are to have modern and competitive CCPs in the EU that can attract business while at the same time having safe and resilient EU CCPs and enhance the EU’s open strategic autonomy.

AddedWith the implementation of this proposal including its intended further development in level 2, the requirements are expected – subject to the agreement by the co-legislators – to be absorbed by both the supervisory community as well as the market at the latest by June 2025.

Added1.5.2. Added value of Union involvement (it may result from different factors, e.g. coordination gains, legal certainty, greater effectiveness or complementarities). For the purposes of this point 'added value of Union involvement' is the value resulting from Union intervention which is additional to the value that would have been otherwise created by Member States alone.

AddedReasons for action at European level (ex-ante)

AddedThe EU clearing market is an inseparable part of the EU financial market. As such, EU action should ensure that EU financial market participants do not face too high risks due to the excessive reliance on systemic third-country CCPs where in case of distress, decisions would be taken by third-country authorities prevent the EU from the option to intervene in emergency situations.

AddedExpected generated Union added value (ex-post)

AddedThe objectives of EMIR, namely to regulate derivatives transactions, promote financial stability and to make markets more transparent, more standardised, and thus safer, are an essential building block for a successful EU financial internal market, especially regarding the cross – border component. Member States and national supervisors cannot solve on their own or address cross-border risks related to central clearing within the EU or the framework for third-country CCPs.

Added1.5.3. Lessons learned from similar experiences in the past

AddedThis proposal takes into account experiences gained with previous versions of EMIR.

AddedEMIR regulates derivatives transactions, including measures to limit their risks through CCPs. It was adopted in the wake of the 2008/2009 financial crisis to promote financial stability and to make markets more transparent, more standardised, and thus safer. Similar reforms were implemented in most G20 countries. EMIR requires that derivatives transactions are reported to ensure market transparency for regulators and supervisors; and that their risks are appropriately mitigated through centrally clearing at a CCP or exchanging collateral, known as ‘margin’, in bilateral transactions. CCPs and the risks they manage have grown considerably since the adoption of EMIR.

AddedIn 2017, the Commission published two legislative proposals amending EMIR, both adopted by the co-legislators in 2019. EMIR REFIT recalibrated some of the rules to ensure their proportionality, while ensuring financial stability. Acknowledging the emerging issues related to the increasing concentration of risks in CCPs, in particular third-country CCPs, EMIR 2.2 revised the supervisory framework and set out a process for assessing the systemic nature of third-country CCPs by ESMA in cooperation with the European Systemic Risk Board (ESRB) and the central banks of issue. EMIR was complemented by the CCP Recovery and Resolution Regulation, adopted in 2020, to prepare for the unlikely – though massively impactful - event that an EU CCP faces severe distress. Financial stability is at the core of these pieces of EU legislation. Since 2017, concerns have been repeatedly expressed about the ongoing risks to the EU financial stability arising from the excessive concentration of clearing in some third-country CCPs, notably the potential risks in a stress scenario. Furthermore, high-risk but low-probability events can happen and the EU must be prepared to face them. While EU CCPs have generally proven resilient throughout these developments, experience has shown that the EU clearing ecosystem can be made stronger, to the benefit of financial stability. However, in order to ensure open strategic autonomy the EU needs to safeguard itself against the risks which can arise when EU market participants are excessively reliant on third-country entities, as this can be a source of vulnerabilities.

AddedThe experiences gained with EMIR as outlined above, are taken into account in the design of the new proposed requirements.

Added1.5.4. Compatibility with the Multiannual Financial Framework and possible synergies with other appropriate instruments

AddedThis proposal and its specific requirements are in line with the current arrangements for financial services within the Multiannual Financial Framework (MFF) and aligned with standard practices of putting the EU budget to work and in line with current the Commission services’ practices in planning and budgeting for new proposals.

AddedIn addition, the objectives of the initiative are consistent with other EU policies and ongoing initiatives that aim to: (i) develop the CMU, and (ii) enhance the efficiency and effectiveness of EU-level supervision, both within and outside the EU.

AddedFirst, it is consistent with the Commission's ongoing efforts to further develop the Capital Markets Union ('CMU'). The issues addressed by this proposal affect EU financial stability as they obstruct the reduction of excessive exposures to systemic CCPs and constitute a significant impediment to developing an efficient and attractive EU clearing market, a foundation stone for a deep and liquid CMU. The urgency of further developing and integrating EU capital markets was stressed in the Action Plan on CMU of September 2020.

AddedSecond, it is consistent with the Commission services’ experience with the implementation and enforcement of third-country provisions in EU financial legislation and implements practical experience gained by the Commission services when approaching these tasks in practice.

AddedThird, it is consistent with the EU open strategic autonomy objective.

Added1.5.5. Assessment of the different available financing options, including scope for redeployment

AddedN/A

Added1.6. Duration and financial impact of the proposal/initiative

Addedlimited duration

Addedin effect from [DD/MM]YYYY to [DD/MM]YYYY

AddedFinancial impact from YYYY to YYYY for commitment appropriations and from YYYY to YYYY for payment appropriations.

Addedunlimited duration

AddedImplementation with a start-up period from YYYY to YYYY,

Addedfollowed by full-scale operation.

Added1.7. Management mode(s) planned

AddedDirect management by the Commission

Addedby its departments, including by its staff in the Union delegations;

Addedby the executive agencies

AddedShared management with the Member States

AddedIndirect management by entrusting budget implementation tasks to:

Addedthird countries or the bodies they have designated;

Addedinternational organisations and their agencies (to be specified);

Addedthe EIB and the European Investment Fund;

Addedbodies referred to in Articles 70 and 71 of the Financial Regulation;

Addedpublic law bodies;

Addedbodies governed by private law with a public service mission to the extent that they are provided with adequate financial guarantees;

Addedbodies governed by the private law of a Member State that are entrusted with the implementation of a public-private partnership and that are provided with adequate financial guarantees;

Addedpersons entrusted with the implementation of specific actions in the CFSP pursuant to Title V of the TEU, and identified in the relevant basic act.

AddedIf more than one management mode is indicated, please provide details in the ‘Comments’ section.

AddedComments

AddedN/A

Added2. MANAGEMENT MEASURES

Added2.1. Monitoring and reporting rules

AddedSpecify frequency and conditions.

AddedIn line with already existing arrangements ESMA prepares regular reports on its activity (including internal reporting to Senior Management, Management Board reporting, six month activity reporting to the Board of Supervisors and the production of the annual report), and undergoes audits by the Court of Auditors and the Internal Audit Service on its use of resources. In addition the proposal provides some further monitoring and reporting obligations on ESMA in relation to the new features of the Regulation, including the active account. The Commission shall provide a report 5 years after the Regulation enter into force.

Added2.2. Management and control system(s)

Added2.2.1. Justification of the management mode(s), the funding implementation mechanism(s), the payment modalities and the control strategy proposed

AddedIn relation to the legal, economic, efficient and effective use of appropriations resulting from the proposal, it is expected that the proposal would not bring about new risks that would not be currently covered by an existing internal control framework.

Added2.2.2. Information concerning the risks identified and the internal control system(s) set up to mitigate them

AddedManagement and control systems as provided for in the ESMA Regulation are already implemented. ESMA works closely together with the Internal Audit Service of the Commission to ensure that the appropriate standards are met in all internal controls areas. These arrangements will apply also with regard to the role of ESMA according to the present proposal. Annual internal audit reports are sent to the Commission, Parliament and Council.

Added2.2.3. Estimation and justification of the cost-effectiveness of the controls (ratio of "control costs ÷ value of the related funds managed"), and assessment of the expected levels of risk of error (at payment & at closure)

AddedN/A

Added2.3. Measures to prevent fraud and irregularities

AddedSpecify existing or envisaged prevention and protection measures, e.g. from the Anti-Fraud Strategy.

AddedFor the purposes of combating fraud, corruption and any other illegal activity, the provisions of Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999 apply to ESMA without any restrictions.

AddedESMA has acceded to the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council of the European Union and the Commission of the European Communities concerning internal investigations by the European Anti-Fraud Office (OLAF) and adopt appropriate provisions for all ESMA staff.