U.S. Commodity Futures Trading Commission and European Commission Announce Common Approach for Transatlantic CCPs

On February 10, the U.S. Commodity Futures Trading Commission (the “CFTC”) and the European Commission announced a common approach relating to requirements for transatlantic central clearing parties (CCPs). The CFTC and the European Commission will work together to adopt (1) an equivalence decision that will allow US CCPs to continue to provide services in the EU whilst complying with CFTC requirements and (2) a determination of comparability that will allow EU CCPs to provide services to US clearing members whilst complying with EU requirements. These next steps will be put into place as soon as practicable.

ESMA Opinion Highlights Differences with the European Commission on the Main Indices and Recognized Exchanges Under CRR

On 19 December 2014, the European Securities and Markets Authority (ESMA) submitted to the European Commission draft implementing technical standards (ITS), pursuant to the Capital Requirements Regulation 575/2013, specifying a list of main indices and recognized exchanges. On 17 December 2015, the European Commission informed ESMA of its intention to amend the draft ITS by including two additional equity indices (the Russell 3000 Index and the Hang Send Composite Index). In an opinion (ESMA/2016/163), published on 29 January 2016, ESMA made recommendations in response to this intention.

ESMA argues that the Russell 3000 Index and the Hang Send Composite Index should not be included in the ITS on the grounds that these indices do not contain relatively liquid instruments in an EEA economy, given that they are mainly composed of US and Asian Stocks. Instead, ESMA suggests adding four other additional indices (Russell 1000 Index, Shanghai Shenzhen CSI 300, the S&P BSE 100 Index and FTSE Nasdaq Dubai UAE 20 Index), and replacing the Nikkei 225 with the Nikkei 300 and the NZSE 10 with the S&P NZX 15 Index. ESMA’s opinion recognizes the value of incorporating a large number of indices as this will cast a wider net of eligible collateral that European banks can use.

Finally, given the frequency with which updates to ITS are needed, ESMA suggests that the Commission reviews the regime to avoid each modification requiring a full legislative cycle.

EBA Publishes Reports, Guidelines and Draft RTS in Relation to the CRR

The European Banking Authority (“EBA”) has published the following documents in connection with the Capital Requirements Regulation (Regulation 575/2013) (“CRR”):

  1. Final guidelines on limits on exposures to shadow banking entities that carry out banking activities outside a regulated framework under Article 395. The guidelines introduce an approach that will allow EU institutions to set limits for their exposures to shadow banking entities as part of their internal processes. They are informed by a report on the exposures of a sample of EU institutions to shadow banking entities and the impact of setting limits. The guidelines will apply from 1 January 2017. Together with the report, they will assist the European Commission in its work on its upcoming report on the appropriateness and impact of imposing limits on exposures to shadow banking entities;
  2. consultation paper on draft regulatory technical standards (“RTS”) specifying the assessment methodology on the use of internal models for market risk, under Article 363(4)(c) of the CRR;
  3. legislative proposal to extend certain exemptions for commodity dealers (COM(2015) 648);
  4. report on the impact assessment and calibration of the net stable funding ratio (“NSFR”) required under the CRR. The EBA recommends the introduction of an NSFR in the EU to ensure an appropriate stable funding structure relating to the degree of asset illiquidity, as the way of properly mitigating funding risk in banks.

Meanwhile, the text of the European Commission Implementing Regulation ((EU) 2015/2344) laying down implementing technical standards with regard to currencies with constraints on the availability of liquid assets in accordance with the CRR was published in the Official Journal of the EU.

European Commission Adopts Delegated Regulation on Obligations of Depositaries Required by UCITS V

The European Commission has adopted a Delegated Regulation (C(2015) 9160) supplementing the UCITS IV Directive (2009/65/EC) on the obligations of depositaries.

The Delegated Regulation sets out provisions relating to issues including:

  1. Minimum requirements for the contract between the management company or the investment company and the depositary (Article 2);
  2. Obligations on the depositary relating to oversight, due diligence, segregation and insolvency protection (Articles 3 to 17);
  3. The conditions and circumstances in which financial instruments held in custody are considered to be lost (Articles 18 and 19); and
  4. Independence requirements for management companies, investment companies, depositaries and third parties to whom the safekeeping function has been delegated (Articles 20 to 24).

The next step is for the Council of the EU and the European Parliament to consider the Delegated Regulation. If neither the Council nor the Parliament object to the Regulation, it will be published in the Official Journal of the EU and enter into force on the 20th day following its publication.

European Commission Extends Transitional Period for Capital Requirements for Banks’ Exposures to CCPs

On June 4, 2015, the European Commission published the provisional text of the Implementing Regulation it has adopted to extend the transitional period for capital requirements for EU banking groups’ exposures to central counterparties (CCPs) under the Capital Requirements Regulation (Regulation 575/2013) (CRR).

The current transitional period, which was introduced by an earlier Implementing Regulation, expires on June 15, 2015. The new Implementing Regulation will extend the transitional period by six months to December 15, 2015.

In an accompanying press release, the Commission explains that capital charges for exposures to CCPs are higher if the CCP is not authorized or recognized under EMIR (that is, for a CCP not considered as “qualifying”). Since the authorization and recognition processes take time, the CRR provides a transitional period during which the higher capital requirements will not be applied, to ensure a level playing field. As the authorization and recognition processes for existing CCPs serving EU markets will not be fully completed by June 15, 2015, the Commission has extended the transitional phase to December 15, 2015.

European Commission Requests 11 Member States to Implement Bank Recovery and Resolution Directive (BRRD)

On May 28, 2015, the European Commission published a press release announcing that it has requested 11 member states (Bulgaria, the Czech Republic, France, Italy, Lithuania, Luxembourg, the Netherlands, Malta, Poland, Romania, and Sweden) to fully implement the BRRD.

The member states in question have failed to meet the deadline of December 31, 2014 for incorporating the BRRD into their national law. If any of the countries fail to comply within two months, the Commission may decide to refer them to the European Court of Justice.

ESMA Responds to Prospective Directive and Securitization Consultations

ESMA has responded to the European Commission’s consultations on the Prospective Directive and Securitization, recommending, in relation to prospectuses, an approach that would facilitate access to capital, while stressing the need for maintaining a robust level of investor protection.  It argues that the prospectus should be more comprehensible, focusing on the actual purpose of the prospectus while reducing the burden on issuers where possible. On securitization, ESMA emphasized the need to assess the full impact of ongoing reforms, and to provide investors with incentives to conduct adequate risk surveillance, monitor ongoing risks and perform thorough due diligence of their securitization investments.

ESMA Publishes Consultation Paper on Clearing Obligation Under EMIR

On May 11, 2015, the European Securities and Markets Authority (ESMA) published a fourth consultation paper (ESMA/2015/807) on the clearing obligation under EMIR (the Regulation on OTC derivative transactions, central counterparties and trade repositories (Regulation 648/2012)). The consultation paper provides clarifications on various aspects of the draft regulatory training standards that ESMA is required to draft and submit to the European Commission. Stakeholders are invited to provide comments on the consultation paper before July 15, 2015.

Fourth Money Laundering Directive and Wire Transfer Regulation

The European Commission has published two communications to the European Parliament concerning the position of the Council of the EU on the adoption of the proposed Fourth Money Laundering Directive (MLD4), and the proposed Wire Transfer Regulation (WTR). Both MLD4 and the WTR were adopted by the Council of the EU at first reading on April 20, 2015. In each case the Commission confirms that the Council’s position reflects the political agreement reached on December 16, 2014, between the Parliament and the Council, including elements proposed by both institutions, and states its support for this agreement.

European Commission’s CCP Recovery and Resolution Roadmap

The European Commission has published a roadmap for non-bank recovery and resolution to provide a high-level public description of the planned initiative. Roadmaps give a first description of planned Commission initiatives – they describe the problem and set out possible policy options. They also provide an overview of the different planned stages in the development of the initiative, including consultation of stakeholders and impact assessment work. This roadmap identifies central counterparties as the sector for which a recovery and resolution framework may be necessary. An impact assessment is currently under preparation, with a legislative proposal on central counterparties expected in the third quarter of 2015.