Article 5(2) of Regulation (EU) No 648/2012 (EMIR) requires the European Securities and Markets Authority (ESMA) to develop draft regulatory technical standards specifying, inter alia, the class of OTC derivatives that should be subject to the clearing obligation, the date or dates from which the clearing obligation takes effect, including any phase in and the categories of counterparties to which the obligation applies.
In October 2014, ESMA submitted a draft regulatory technical standard (RTS) on the clearing obligation in respect of interest rate swaps to the European Commission. On 18 December 2014, the Commission submitted to ESMA a modified version of the RTS (the “modified RTS”) introducing, among others, (1) amendments to the date on which the frontloading obligation starts to apply and (2) a new provision on the treatment of non-EU intragroup transactions. In the modified RTS, the Commission proposed that for a period of maximum three years, any third country shall be deemed equivalent within the meaning of Article 13(2) of EMIR. The effect would be to allow, for a period of three years, financial counterparties to apply for the intra-group exemption in respect of their transactions with any third-country entity in the absence of decisions on equivalence.
On January 29, ESMA published an opinion on the modified RTS stating that ESMA considers that the Commission’s proposal in relation to non-EU intra group transactions is not appropriate from a legal perspective. ESMA noted that (i) the adoption by the Commission of implementing acts on equivalence under Article 13 is the only procedure envisaged under EMIR to establish whether third-countries can be considered as having legal, supervisory and enforcement frameworks equivalent to EMIR; and (ii)any provision that has an effect equivalent to that of an implementing act on equivalence under Article 13, although limited in time and scope, but without the examination procedure referred to in Article 13(2), may have unintended consequences and therefore requires a very careful review. ESMA will explore, in coordination with the Commission, a different manner to incorporate that provision. Opinion.
On December 19, 2014, the European Securities and Markets Authority (ESMA) published final technical advice (ESMA/2014/1569) to the European Commission and a consultation paper (ESMA/2014/1570) on the MiFID II Directive (2014/65/EU) and MiFIR (the Markets in Financial Instruments Regulation (Regulation 600/2014).
The consultation paper includes draft regulatory technical standards (RTS) and implementing technical standards (ITS) under the MiFID II Directive and MiFIR. The consultation paper invites responses to the draft RTS and ITS by March 2, 2015, and responses will be used to finalise the draft RTS which will be sent to the Commission for endorsement by the middle of 2015. Technical Advice. Consultation Paper.
The European Securities and Markets Authority (“ESMA“) published final technical advice on December 19 to the European Commission, and a consultation paper on the MiFID II Directive and the Markets in Financial Instruments Regulation (“MiFIR“).
The consultation paper includes draft regulatory technical standards and implementing standards under the MiFID II Directive and MiFIR. Consultation closes on March 2. The accompanying press release is found at the following link: press release.
On November 7, the European Securities and Markets Authority (ESMA) published a call for evidence on the EU passport under the Alternative Investment Fund Managers Directive (AIFMD) and third country Alternative Investment Fund Managers (AIFMs).
Under the AIFMD, non-EU AIFMs and non-EU Alternative Investment Funds (AIFs) managed by EU AIFMs are subject to the national private placement regime of each of the member states where the AIFs are marketed or managed. However, the AIFMD makes provision for the passport to be potentially extended in the future.
Responses to the call for evidence from the EU and the non-EU stakeholders (as well as ongoing input ESMA is receiving from national competent authorities) will help ESMA develop the opinion and advice it is required to deliver to the European Commission.
The deadline for responses to the call for evidence is January 8, 2015. ESMA will consider the feedback it receives to the call for evidence in the first quarter of 2015. It is required to deliver the opinion and the advice to the Commission by July 22, 2015. Call for Evidence.
On October 24, the European Securities and Markets Authority (ESMA) published an updated version of its Questions and Answers on the European Market Infrastructures Regulation (EMIR). In particular, new questions and answers have been highlighted and give further guidance on trade repositories. Q&As.
On October 17, the European Securities and Markets Authority (ESMA) published responses that it received to consultations published in July 2014 relating to the Market Abuse Regulation (Regulation 596/2014) (MAR) on: (i) draft technical advice on possible delegated acts concerning MAR; and (ii) draft regulatory technical standards (RTS) and implementing technical standards (ITS) on MAR. Response.
On October 13, the Securities and Markets Stakeholder Group (SMSG) of the European Securities and Markets Authority (ESMA)published its response to the July consultations published by ESMA on draft technical standards and draft regulatory standards (RTS),implementing technical standards (ITS) on the Market Abuse Regulation (Regulation 596/2014) (MAR) and draft technical advice on possible delegated acts concerning MAR.
SMSG has provided, in its response, advice to ESMA on the nine topics covered in the ESMA consultations including identifying key issues in respect of market soundings, insider lists, investment recommendations and manager transactions. The SMSG also sets out general comments on ESMA’s approach to building a single rulebook on market abuse.
The closing date for responses on the ESMA consultations was October 15. SMSG Response.
On October 2, the European Securities and Markets Authority (ESMA) published a report containing final draft regulatory technical standards (RTS) for the central clearing of interest rate swaps (IRS) under EMIR. The four IRS classes that will be subject to central clearing are basis swaps, fixed-to-float swaps, forward rate agreements and overnight index swaps, each denominated in a range of currencies. Report.
On October 7, the European Securities and Markets Authority (ESMA) published a guidelines compliance table relating to its guidelines on remuneration policies and practices under the Markets in Financial Instruments Directive (MiFID).
The table lists the jurisdictions whose national competent authorities (NCAs) have informed ESMA whether they comply or intend to comply with the guidelines. The only jurisdiction in the table listed as not complying is Germany. There is a comment in the table that states that the German NCA (BaFin) does not entirely comply with the guidelines insofar as it excludes from their scope any remuneration agreed within the scope of application of collective agreements. Guidelines Compliance Table.
On September 4, ESMA published the translation of guidelines and recommendations on implementing the principles for financial market infrastructures in respect of central counterparties (i.e., clearing houses) published by the Committee on Payment and Settlement Systems (CPSS) and the International Organization of Securities Commissions (IOSCO) in April 2012.
The purpose of the guidelines and recommendations is to ensure that EMIR and the regulatory technical standards made under it are fully harmonized and compliant with the CPSS and IOSCO principles. This will bring EU clearing houses into line with international standards. Guidelines.