(Under forberedelse) Delegert kommisjonsforordning om endring av delegert kommisjonsforordning (EU) 2015/2205, (EU) 2016/592 og (EU) 2016/1178 (EU) og om utfylling av europaparlaments- og rådsforordning (EU) nr. 648/2012 når det gjelder reguleringstekniske standarder for clearingplikt
(Draft) Commission Delegated Regulation amending Commission Delegated Regulation (EU) 2015/2205, (EU) 2016/592 and (EU) 2016/1178, and supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council with regard to regulatory technical standards on the clearing obligation
Utkast til delegert kommisjonsforordning vedtatt av ESMA og sendt til Kommisjonen 14.11.2016
BAKGRUNN (fra ESMAs utkast til kommisjonsforordning, engelsk utgave)
(1) To ensure a timely and orderly application of the clearing obligation, different phase-in periods apply to different categories of counterparties.
(2) The categories of counterparties are defined in Commission Delegated Regulation (EU) 2015/2205 of 6 August 2015 supplementing Regulation (EU) No 648/2012, Commission Delegated Regulation (EU) 2016/592 of 1 March 2016 supplementing Regulation (EU) No 648/2012 and Commission Delegated Regulation (EU) 2016/1178 supplementing Regulation (EU) No 648/2012 (the Delegated Regulations on the clearing obligation) for the purposes of the respective clearing obligations. In those categories, counterparties are grouped according to their levels of legal and operational capacity regarding OTC derivatives, which is related to their levels of activity in OTC derivatives.
(3) The date on which the clearing obligation takes effect for counterparties in Categories 2 and 3 takes into account the fact t hat most of them can only get access to a CCP by becoming a client or an indirect client of a clearing member.
(4) However, counterparties with the smallest level of activity in OTC derivatives (i.e. those in Category 3) are facing important difficulties in preparing the arrangements with clearing members that are necessary for clearing the contracts, due to complexities affecting both types of access, client clearing and indirect client clearing , which were not foreseen at the time the proposals related to the clearing obligation were developed.
(5) First, in relation to client clearing, recent evidence suggests that clearing members find little incentives to develop extensively their client clearing offering because of cost issues, and even more so for clients with a limited volume of activity in OTC derivatives. In addition, the final regulatory framework on the capital requirements applicable in relation to exposure from client clearing activity has not been finalised yet, and this creates uncertainties that act as an impediment to a broad development by clearing members of their client clearing offerings.
(6) Second, in relation to indirect clearing arrangements, counterparties are currently unable to access CCPs by becoming an indirect client of a clearing member, because of the scarcity of the offer. ESMA has reviewed the rules set out in Commission Delegated Regulation (EU) No
149/2013 and has submitted amending draft technical standards to the Commission on 26 May 2016. One objective of these new draft rules is to promote and simplify this type of access for counterparties, with the expectation that the indirect clearing offering could increase.
(7) To take those difficulties and regulatory developments into account, it is necessary to modify the dates on which the clearing obligation takes effect for counterparties in Category 3 in the Delegated Regulations on the clearing obligation and to provide those counterparties with an additional period of time to finalise the necessary clearing arrangements.
(8) The regulatory framework influencing the capacity of counterparties to access CCPs via client or indirect client clearing arrangements is still evolving and is not expected to be fully implemented in the short to medium term. The dates on which the clearing obligation takes effect for counterparties in Category 3 should therefore be set in accordance with this timing uncertainty.
(9) New evidence suggests that non-financial counterparties in Category 4 do not necessarily have a more limited experience and operational capacity with OTC derivatives and central clearing than financial counterparties in Category 3. Therefore, it is not necessary to amend the dates on which the clearing obligation takes effect for counterparties in Category 4, nor to align those dates for Category 3 and Category 4. Given that counterparties in Category 3 account for a relatively limited share of the global volume in OTC derivative market, the modification of the dates of application for this category does not compromise the overarching objective of the clearing obligation, which is the reduction of systemic risk.
(10) This Regulation is based on draft regulatory technical standards submitted by the European Securities and Markets Authority (ESMA) to the Commission.
(11) ESMA has conducted an open public consultation on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits, requested the opinion of the Securities and Markets Stakeholder Group established by Article 37 of Regulation (EU) No 1095/2010, and consulted the European Systemic Risk Board