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DRAFT REPORT (COM(2022)0697 – C90412/2022 – 2022/0403(COD))

On the proposal for a regulation of the European Parliament and of the Council amending Regulations (EU) No 648/2012, (EU) No 575/2013 and (EU) 2017/1131 as regards measures to mitigate excessive exposures to third-country central counterparties and improve the efficiency of Union clearing markets

ECON-PR-749908

Committee on Economic and Monetary Affairs · Rapporteur: Danuta Maria Hübner

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This is the rapporteur's draft report on the Commission proposal to amend EMIR, the Capital Requirements Regulation and the Money Market Funds Regulation on third-country central counterparty (CCP) exposures and Union clearing efficiency. It amends the proposal to phase in an active account requirement at Union CCPs, exempt post-trade risk reduction transactions from clearing, and give ESMA direct supervision of Union CCPs. It also simplifies CCP authorisation and model-change procedures, adds reporting on CCP risk management, and sets transparency duties on margin and clearing costs. It keeps the equivalence regime for bilateral margins, exempts single-stock and equity index options temporarily, and extends the use of uncollateralised bank guarantees.

Committee position. The rapporteur proposes to amend the Commission proposal to phase in the active account requirement, exempt post-trade risk reduction transactions, give ESMA direct supervision of Union CCPs, simplify authorisation and model-change procedures, and add reporting and transparency duties.

Key points

  1. Financial and non-financial counterparties subject to the clearing obligation must clear proportions of interest rate derivatives in euro and Polish zloty, and short-term interest rate derivatives in euro, at active accounts at Union CCPs.
  2. An account is active if it meets initial and daily margin requirements and new positions are entered into regularly; ESMA is to specify how often, and the obligation applies only to contracts entered into after entry into force.
  3. The obligation covers the whole group, and counterparties must calculate their activity at Union and recognised third-country CCPs separately; ESMA is to calculate and monitor activity levels and report to the Joint Monitoring Mechanism.
  4. ESMA is to report 18 months after entry into force on the number of accounts, activity, clearing frequency and effectiveness, and may develop standards on proportions if risks are not sufficiently mitigated.
  5. OTC derivative contracts resulting from post-trade risk reduction exercises are exempt from the clearing obligation if the exercise is independent, market risk neutral, does not contribute to price formation, and is accepted or rejected in full.
  6. Clearing members and clients clearing at recognised third-country CCPs must report their clearing activity annually to ESMA, disclose costs of clearing at different CCPs, and report values, volumes, margin posted and total liquid resources committed.
  7. Union CCPs must report monthly to ESMA on cleared values and volumes, investments, capital, margin and default fund contributions, liquidity resources and stress-test results, and ESMA is to pass this to the college.
  8. ESMA becomes responsible for authorising and supervising Union CCPs, including extensions of authorisation, non-objection procedures, withdrawals, annual reviews and on-site inspections.
  9. A new 'business as usual' category lets CCPs directly implement changes that are neither material nor non-material, with ESMA reviewing their appropriateness and reporting to the college.
  10. CCPs and clearing houses may not be clearing members of other CCPs, but this does not affect interoperability arrangements, cross-margining, sponsored memberships or sponsored access.
  11. Single-stock options and equity index options not cleared by a CCP are temporarily exempt from margin requirements; ESMA is to monitor other jurisdictions and the Commission may remove the exemption after an adaptation period.
  12. The equivalence regime for bilateral margins is kept, and the temporary use of uncollateralised bank guarantees continues until entry into force of the regulation.

Who is affected

  • Financial and non-financial counterparties subject to the clearing obligation, which must clear proportions of certain derivatives at active accounts at Union CCPs.
  • Clearing members and clients clearing at recognised third-country CCPs, which must report activity to ESMA and disclose clearing costs to clients.
  • Union CCPs, which face ESMA as direct supervisor, new reporting duties and simplified authorisation procedures.
  • Money market funds, whose uncleared exposure to the same counterparty from derivatives or repurchase agreements is capped at 5% of assets.

Figures and deadlines

  • 5% of the assets of the MMF: cap on aggregate risk exposure to the same counterparty from uncleared derivative or repurchase transactions.
  • 18 months from entry into force: deadline for ESMA's report on the active account requirement.
  • 6 months after entry into force: deadline for ESMA to submit draft regulatory technical standards on how often new positions must be entered into an active account.
  • 12 months after entry into force: deadline for ESMA's report on removing intragroup reporting requirements.
  • 60 working days prior to usage: notification to EBA and competent authorities about initial margin models.
  • 10 working days: period for ESMA to decide whether an application goes to the non-objection procedure or the full procedure.
  • 30 working days: period for ESMA and the college to assess a CCP's compliance in the opinion procedure.
  • 10 years: period for which a CCP must keep records on services and activity.

Legal basis: Article 294(2) and Article 114 of the Treaty on the Functioning of the European Union.