Legal provisions of COM(2022)698 - Amendment of three directives regarding treatment of concentration risk towards central counterparties and counterparty risk on centrally cleared derivative transactions

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dossier COM(2022)698 - Amendment of three directives regarding treatment of concentration risk towards central counterparties and counterparty risk ...
document COM(2022)698 EN
date November 27, 2024


Article 1

Amendments to Directive 2009/65/EC

Directive 2009/65/EC is amended as follows:

(1)in Article 2(1), the following point is added:

‘(v)“central counterparty” or “CCP” means a CCP as defined in Article 2, point (1), of Regulation (EU) No 648/2012 of the European Parliament and of the Council (*1).

(*1)  Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ L 201, 27.7.2012, p. 1).’;"

(2)Article 52 is amended as follows:

(a)in paragraph 1, second subparagraph, the introductory wording is replaced by the following:

‘The risk exposure to a counterparty of the UCITS in a derivative transaction that is not centrally cleared through a CCP authorised in accordance with Article 14 of Regulation (EU) No 648/2012 or recognised in accordance with Article 25 of that Regulation, shall not exceed either:’

;

(b)paragraph 2 is amended as follows:

(i)the first subparagraph is replaced by the following:

‘Member States may raise the 5 % limit laid down in paragraph 1, first subparagraph, to a maximum of 10 %. If they do so, however, the total value of the transferable securities and the money market instruments held by the UCITS in the issuing bodies in each of which it invests more than 5 % of its assets shall not exceed 40 % of the value of its assets. That limitation shall not apply to deposits or derivative transactions made with financial institutions subject to prudential supervision.’

;

(ii)in the second subparagraph, point (c) is replaced by the following:

‘(c)exposures arising from derivative transactions undertaken with that body that are not centrally cleared through a CCP authorised in accordance with Article 14 of Regulation (EU) No 648/2012 or recognised in accordance with Article 25 of that Regulation.’

Article 2

Amendments to Directive 2013/36/EU

Directive 2013/36/EU is amended as follows:

(1)in Article 74(1), point (b) is replaced by the following:

‘(b)effective processes to identify, manage, monitor and report the risks they are or might be exposed to, including ESG risks in the short, medium and long term, as well as concentration risk arising from exposures towards central counterparties, taking into account the conditions set out in Article 7a of Regulation (EU) No 648/2012 of the European Parliament and of the Council (*2);

(*2)  Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ L 201, 27.7.2012, p. 1).’;"

(2)in Article 76(2), the following subparagraph is added:

‘Member States shall ensure that the management body develops specific plans and quantifiable targets in accordance with the requirements laid down in Article 7a of Regulation (EU) No 648/2012 to monitor and address the concentration risk arising from exposures towards central counterparties offering services of substantial systemic importance for the Union or one or more of its Member States.’

;

(3)in Article 81, the following paragraph is added:

‘Competent authorities shall assess and monitor developments in the practices of institutions concerning the management of their concentration risk arising from exposures towards central counterparties, including the plans developed in accordance with Article 76(2), fifth subparagraph of this Directive, as well as the progress made in adapting their business models to the requirements laid down in Article 7a of Regulation (EU) No 648/2012.’

;

(4)in Article 100, the following paragraph is added:

‘5.   EBA, in cooperation with ESMA, shall develop guidelines in accordance with Article 16 of Regulation (EU) No 1093/2010 to specify a consistent methodology for integrating the concentration risk arising from exposures towards central counterparties into supervisory stress testing.

EBA shall issue the guidelines referred to in the first subparagraph of this paragraph by 25 June 2026.’

;

(5)in Article 104(1) the following point is added:

‘(o)require institutions, where the competent authority considers that there is excessive concentration risk arising from exposures towards a central counterparty, to reduce exposures towards that central counterparty or to realign exposures across their clearing accounts in accordance with Article 7a of Regulation (EU) No 648/2012.’.

Article 3

Amendments to Directive (EU) 2019/2034

Directive (EU) 2019/2034 is amended as follows:

(1)in Article 3(1), the following points are added:

‘(34)“central counterparty” or “CCP” means a CCP as defined in Article 2, point (1), of Regulation (EU) No 648/2012 of the European Parliament and of the Council (*3);

(35)“qualifying central counterparty” or “QCCP” means a “qualifying central counterparty” or “QCCP” as defined in Article 4(1), point (88), of Regulation (EU) No 575/2013.

(*3)  Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ L 201, 27.7.2012, p. 1).’;"

(2)in Article 26(1), point (b) is replaced by the following:

‘(b)effective processes to identify, manage, monitor and report the risks that investment firms are or might be exposed to, or the risks that they pose or might pose to others, including concentration risk arising from exposures towards central counterparties, taking into account the conditions set out in Article 7a of Regulation (EU) No 648/2012;’

;

(3)Article 29(1) is amended as follows:

(a)the following point is added:

‘(e)material sources and effects of concentration risk arising from exposures towards central counterparties and any material impact on own funds.’

;

(b)the following subparagraph is inserted after the fifth subparagraph:

‘For the purpose of the first subparagraph, point (e), Member States shall ensure that the management body develops specific plans and quantifiable targets in accordance with the requirements laid down in Article 7a of Regulation (EU) No 648/2012 to monitor and address the concentration risk arising from exposures towards central counterparties offering services of substantial systemic importance for the Union or one or more of its Member States.’

;

(4)in Article 36(1), the following subparagraph is added:

‘For the purpose of the first subparagraph, point (a), competent authorities shall assess and monitor developments in the practices of investment firms concerning the management of their concentration risk arising from exposures towards central counterparties, including the plans developed in accordance with Article 29(1) of this Directive as well as the progress made in adapting their business models to the requirements laid down in Article 7a of Regulation (EU) No 648/2012.’

;

(5)Article 39(2) is amended as follows:

(a)the introductory wording is replaced by the following:

‘For the purposes of Article 29, Article 36, Article 37(3) and Article 38 of this Directive and of the application of Regulation (EU) 2019/2033, competent authorities shall have at least the following powers:’

;

(b)the following point is added:

‘(n)to require investment firms to reduce exposures towards a central counterparty or to realign exposures across their clearing accounts in accordance with Article 7a of Regulation (EU) No 648/2012, where the competent authority considers that there is excessive concentration risk arising from exposures towards that central counterparty.’.

Article 4

Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 25 June 2026. They shall immediately inform the Commission thereof.

When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive.

Article 5

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 6

Addressees

This Directive is addressed to Member States.