CELEX: 
Language: en
Date: 2020-07-14 00:00:00
Title: COMMISSION DELEGATED REGULATION (EU) …/... supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council with regard to the criteria that ESMA should take into account to determine whether a central counterparty established in a third-country is systemically important or likely to become systemically important for the financial stability of the Union or of one or more of its Member States

EUROPEAN
                            COMMISSION
                                                     Brussels, 14.7.2020
                                                     C(2020) 4892 final
                  COMMISSION DELEGATED REGULATION (EU) …/...
                                         of 14.7.2020
    supplementing Regulation (EU) No 648/2012 of the European Parliament and of the
    Council with regard to the criteria that ESMA should take into account to determine
   whether a central counterparty established in a third-country is systemically important
   or likely to become systemically important for the financial stability of the Union or of
                             one or more of its Member States
                                  (Text with EEA relevance)
EN                                                                                           EN
 ---pagebreak---                                      EXPLANATORY MEMORANDUM
   1.         CONTEXT OF THE DELEGATED ACT
   Article 25(2a) of Regulation (EU) No 648/2012 (EMIR) empowers the Commission to adopt
   a delegated act specifying further the criteria to be applied by the European Securities and
   Markets Authority (ESMA) when determining whether a third-country central counterparty
   (CCP) is systemically important or likely to become systemically important for the financial
   stability of the Union or of one or more of its Member States.
   This delegated act is adopted in accordance with Article 82 of EMIR which stipulates that the
   Commission shall endeavour to consult ESMA before adopting such an act.
   2.         CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT
   Procedural aspects
   On 3 May 2019, the Commission sent ESMA a provisional request for its views (‘technical
   advice’) on a Commission delegated act specifying the criteria set out in the second
   subparagraph of paragraph 2a of Article 25 of EMIR. ESMA conducted a public consultation
   on its draft technical advice from 29 May 2019 to 29 July 2019. The non-confidential
   responses to the consultation are published on ESMA’s website. ESMA sent its technical
   advice to the Commission on 11 November 2019. The technical advice received on the basis
   of this mandate does not prejudge the Commission's final decision, which is autonomous in
   this area.
   On 21 October 2019, the Commission consulted the Expert Group of the European Securities
   Committee (EGESC) on the provisional content of this delegated act. The EGESC comprises
   representatives of Member States, the European Central Bank, the Secretariat of the European
   Parliament’s Committee on Economic and Monetary Affairs, and ESMA.
   In accordance with the Better Regulation Guidelines, the draft delegated act was published on
   the Better Regulation Portal for a four-week public feedback period, running between 11 June
   and 9 July 2020. 10 responses were received. The responses are available on the Better
   Regulation Portal.1 In addition to the feedback received via the Better Regulation Portal, the
   Commission received several confidential replies. ESMA also provided further technical
   feedback.
   Stakeholder views
   During the consultation of the Expert Group of the European Securities Committee (EGESC)
   on the provisional content of this delegated act Member States supported the Commission’s
   approach and suggested a few amendments in order to better frame ESMA’s assessment and
   enhance the predictability of the tiering process.
   Responses to ESMA’s consultation as well as other ad hoc contributions gave the
   Commission a wide range of views on the content of the delegated act. The views received
   mainly referred to the lack of predictability, the lack of proportionality and the need to
   demonstrate the nexus to the Union.
   Need to provide a degree of predictability
   1
            https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12445-Systemic-importance-of-
            third-country-central-counterparties
EN                                                          1                                                       EN
 ---pagebreak---    Stakeholders underlined the importance of a streamlined set of indicators that could provide
   an appropriate degree of predictability in the outcome.
   First, stakeholders emphasised the need to focus on a limited set of indicators. Some
   stakeholders were concerned that a wide range of indicators would provide ESMA with too
   much flexibility and lead to a distortion of the number of third-country CCPs to be determined
   as Tier 2 CCPs. Several stakeholders also requested further details on how to determine
   whether “a CCP is systemically important or likely to become systemically important for the
   financial stability of the Union or of one or more of its Member States by taking into account
   all of the following criteria”. Some stakeholders believed that not all indicators were relevant
   to assess systemic importance and the information provided for some proposed indicators
   would be generic on the CCP and its business and thus less relevant.
   Second, stakeholders commented that the list of indicators should facilitate the determination
   of the systemic importance of a third-country CCP for the Union. The stakeholders further
   noted the inability for third-country CCPs to pre-assess the likelihood of being tiered as a Tier
   2 CCP and the lack of transparency of the process of determination. In this respect, some
   stakeholders raised concerns about ESMA’s potential flexibility in the assessment, e.g.
   references to ESMA “may” consider certain aspects of the indicators as well as the possibility
   for ESMA to consider further indicators not specified in the delegated act.
   Consequently, the stakeholders requested more information on how the assessment of the
   indicators will be undertaken, if there will be thresholds, benchmarks or other indications as
   such aspects in order to ensure a fair and consistent application of the tiering criteria. Again,
   the concern is that it is difficult for a third-country CCP to obtain legal certainty. As such,
   stakeholders urged further clarity and thus certainty in this regard should be provided. During
   the EGESC, Member States gave their support for the use of quantitative indicators to provide
   more predictability for third-country CCPs as well as to focus ESMA’s resources on those
   third-country CCPs that were potentially of more systemic importance for the EU.
   Need to ensure proportionality by limiting unnecessary administrative burden
   Concerns were expressed in some responses about the amount of information to be provided
   to assess the indicators. Stakeholders argued that it was unclear how the collection of such a
   large amount of information would allow the assessment of the systemic importance of a
   third-country CCP to the Union. These stakeholders also considered that the amount of
   information to be provided was unnecessary as well as unduly burdensome on smaller third-
   country CCPs. One stakeholder noted that it could result in third-country CCPs providing
   more information to ESMA than EU-CCPs.
   The core concern raised by the stakeholders was that third-country CCPs may be discouraged
   from applying for recognition on the basis that it would be too onerous given the volume and
   granularity of information required to be provided. Stakeholders suggested various options to
   manage the information requirements for tiering, including:
            an assessment, focusing first on quantifiable indicators directly relevant to the impact
             of failure of the third-country CCP on the financial stability of the EU where, e.g. the
             exposure that EU members have to the third-country CCP and the amount of EU
             currencies are held by the third-country CCP, then, as a second step, where the
             potential for systemic risk is considered sufficiently large, the assessment concerning
             ownership structure and alternative clearing services could be viewed. This approach
             was tested with Member States during the EGESC, who supported it;
EN                                                  2                                                 EN
 ---pagebreak---             a de minimis exemption for smaller third-country CCPs where the assessment shall
             not be made applicable on those third-country CCPs which are not clearing in any of
             the currencies of the union or its Member States;
            ranking the indicators by order of importance to assess systemic importance, to
             identify those which are more important to the assessment;
            for already recognised third-country CCPs, the use of information ESMA already
             holds in respect of the third-country CCP, as some of the information would overlaps
             with information a recognised third-country CCP would already have provided in
             their recognition application;
            use, whenever possible, information publicly available to assess the criteria. This
             approach was tested with Member States during the EGESC, who supported it;
            draw on existing risk assessments and disclosures that follow the CPMI-IOSCO
             Principles for Financial Market Infrastructures (‘PFMIs’). This approach was tested
             with Member States during the EGESC, who supported it.
   Some stakeholders also stressed that the information to be provided by third-country CCPs is
   extensive and likely to include commercial and other sensitive information. As such, some
   stakeholders noted the need for confidentiality of the information provided.
   Need to clarify the nexus to the Union
   Some stakeholders emphasised that EMIR requires a third-country CCP’s nexus to the Union
   or one of its Member States to be established based on its clearing activities. One stakeholder
   stressed the need for all indicators to establish a clear nexus to the EU to determine the
   importance of that CCP for the EU clearly. Stakeholders underlined the risks associated with
   assessing indicators without a clear nexus to the Union in leading to a flawed result, where a
   third-country CCP with no systemic relevance to the Union could be designated as
   systemically important since captured by too general indicators.
   In relation to the assessment of the nexus to the Union, several stakeholders underlined that
   this nexus, for certain indicators, should be captured by a reference to Union currencies i.e.
   assessments should be limited to Union currencies for example where considering the
   currency of the cleared instruments, underlying assets, payments obligations etc. One
   stakeholder suggested that systemic risk should be defined clearly as being tied to exposures
   in Union currencies and to EU domiciled financial institutions. Another stakeholder though
   noted that whilst Union currencies are relevant to the Union, third-country currencies may
   also be relevant to assess a third-country CCPs systemically importance to the Union.
   3.        IMPACT ASSESSMENT
   The Commission must further specify the five qualitative tiering criteria set out in Article
   25(2a) of EMIR and which ESMA must take into account when determining the degree of
   systemic risk a third-country CCP presents to the EU or one or more of its Member States.
   These criteria include: (i) the nature, size and complexity of the CCP’s business; (ii) the effect
   of the failure of or disruption to the CCP; (iii) the CCP’s clearing membership structure; (iv)
   alternative clearing services provided by other CCPs; and (v) the CCP’s relationship,
   interdependencies, or other interactions. In determining the systemic importance of a third-
   country CCP, ESMA is required to assess all these criteria, none of them being
   determinative..
   ESMA’s technical advice
EN                                                   3                                                EN
 ---pagebreak---    In its technical advice, ESMA proposed a set of indicators further specifying the criteria to
   assess whether a third-country CCP is systemically important or likely to become
   systemically important for the financial stability of the Union or of one or more of its Member
   States.
   The Commission has fully considered all representations received, including ESMA’s
   technical advice and the responses to ESMA’s public consultation, the feedback received
   from the EGESC as well as other input provided to the Commission by stakeholders..
   This delegated nevertheless deviates from ESMA’s technical advice insofar as it streamlines
   and simplifies ESMA’s approach as described in more detail below. The objective of these
   deviations is to further improve the proportionality of the delegated act, provide greater
   predictability for third-country CCPs, and to clarify the nexus to the EU as required by EMIR,
   as well as reducing the administrative burden and costs for third-country CCPs.
   ESMA’s technical advice is accompanied by an impact assessment. Against this background
   and taking into account that the Commission’s deviations are intended to reduce further the
   administrative burden and costs for third-country CCPs compared to ESMA’s technical
   advice, the Commission has not prepared a separate impact assessment. Nevertheless, Section
   3 below assesses the positive and negative impacts of the changes introduced by the
   Commission and analyses the costs and benefits of the measures proposed.
   Quantitative data reflected on the costs and benefits section is however limited for several
   reasons. First, the majority of the data available to the Commission is confidential and cannot
   be reproduced. Second, ESMA asked for quantitative data as part of its public consultation
   but received very limited feedback. Third, the differences in third-country CCPs are such that
   the costs (and benefits) of the changes will vary considerably, e.g. depending on how much
   information is already publicly available or has already been provided to ESMA or depending
   on the size and complexity of a third-country CCP.
   In its technical advice, ESMA listed three policy options, namely:
   Policy option 1           To further specify the criteria by establishing a complete set of
                             indicators each containing a granular list of aspects to be covered by
                             each indicator.
   Policy option 2           To further specify the criteria by establishing fewer indicators
                             covering a more limited set of aspects.
   Policy option 3           To further specify the criteria by establishing a complete set of
                             “principle based” indicators each aimed to establish a relevant data
                             collection from the CCP at hand in order to achieve the objective of
                             the indicator.
   ESMA considered that option 1 would risk a disproportionately high application of indicators
   to all third-country CCPs and that option 2 would not enable ESMA to capture all relevant
   data and thus could result in a limited assessment of a CCP’s systemic importance for the EU
   or one of its Member States. ESMA therefore recommends Option 3.
   The Commission believes that the approach proposed by ESMA must be refined, and the
   indicators specified, so as to provide more clarity on the information that third-country CCPs
   are expected to provide and that ESMA should assess.
   When specifying the criteria to be assessed by ESMA in the tiering process, the Commission
   kept in mind the overarching principles of predictability and proportionality, while
EN                                                  4                                               EN
 ---pagebreak---    minimising to the extent possible the administrative burden on CCPs that, by nature, do not
   pose a systemic risk to the Union.
   Proportionality
   Taking into account the feedback received from all stakeholders, the Commission has sought
   to introduce a proportionate approach to the tiering of third-country CCPs.
   The Commission believes that there is a need to prioritise some of the elements to be assessed
   without going against the explicit requirement that all criteria should be assessed and that
   none of the criteria should be determinative in itself.
   As such, the Commission proposes to refine further the approach suggested by ESMA in its
   technical advice by streamlining the proposed indicators and clearly separating the basic
   information elements from those elements that are only relevant to CCPs that are more likely,
   in principle, to pose systemic risk to the EU or one of its Member States. As such, under this
   approach, all third-country CCPs will be required to provide certain basic information to
   enable the tiering. Those third-country CCPs that meet certain quantitative indicators, and
   which are therefore closer to a blurred boundary around Tier 1/Tier 2, would automatically
   have to provide additional information to enable a more rigorous assessment for tiering.
   ESMA would therefore need to assess these quantitative indicators first in order to determine
   the set of information required from a third-country CCP.
   In addition, the Commission notes that a lot of the basic information, and indeed some of the
   more detailed information to be provided, is already publicly available. As such, ESMA is
   expected – as much as possible – rely on data that is publicly available, e.g. through the
   CPMI-IOSCO disclosure framework, or, for already recognised third-country CCPs, data that
   ESMA already has in its possession.
   In this way, ESMA should have access to all relevant information for the tiering process, but
   the administrative burden on third-country CCPs will be substantially reduced.
   Predictability
   In line with the feedback received from stakeholders calling for more predictability, the
   Commission introduces three objective indicators in order to allow for a simpler and more
   proportionate approach to the tiering process. Each criteria is split into a set of basic elements
   and a more advanced set of further information that ESMA should only assess where and only
   where one of the objective indicators are met. These objective indicators are:
   (i)    whether a CCP clears or intends to clear financial instruments denominated in Union
          currencies;
   (ii)   the aggregated resources collected by a CCP provided by clearing members established
          in the Union/a Member State or subsidiaries of entities established in the Union/a
          Member State;
   (iii) the largest payment obligation that would be caused by the default of any one or two
          largest clearing members in extreme but plausible market conditions2.
   The first indicator would be split in order to differentiate between classes of financial
   instruments that are not easily comparable: securities transactions (including securities
   financing transactions) and transactions in derivatives the execution of which takes place on a
   regulated market or a third-country market considered to be equivalent to a regulated market
   on the one hand, and OTC derivatives on the other hand.
   2
            As commonly understood under the CPMI-IOSCO Principles for Financial Market Infrastructures.
EN                                                   5                                                   EN
 ---pagebreak---    Quantitative thresholds, determined on the basis of data available to the Commission, have
   been set for these indicators. These thresholds do not prevent ESMA from doing the tiering
   assessment and are in line with EMIR, as the thresholds would not be determinative in
   themselves. Rather the thresholds would provide an indication that third-country CCPs that
   meet those thresholds are unlikely to be, but could still be, determined Tier 1 CCPs after
   further analysis,
   These changes improve the predictability of the tiering exercise, thus improving its efficiency.
   Nexus to the EU
   The Commission has sought to clarify the EU nexus of different indicators as well as their
   relevance for the assessment of a third-country CCP’s systematic importance for the EU. In
   particular, the quantitative indicators used to enhance the predictability of the tiering process
   all refer to either the activity of EU clearing members and clients in the CCP or the activity
   the CCP conducts in instruments denominated in EU currencies. Furthermore, the elements
   specifying the criteria are generally meant to be assessed in a way that clearly illustrates the
   impact of the CCP on the financial stability of the Union.
   .
   3.1       Analysis of costs and benefits
   By introducing a two-step approach to the tiering process and ensuring that ESMA may rely
   as much as possible either on publicly available data or on data already in its possession, the
   policy option retained by the Commission limits the costs for ESMA and for the third-country
   CCPs being assessed for recognition or for which the recognition is being reviewed.
   The costs for ESMA should be lower than under the approach proposed by ESMA as ESMA
   will only need to assess a limited set of data for those CCPs that are not captured by the
   quantitative indicators introduced in this Regulation.
   On the one hand, costs may increase as ESMA needs to rely on publicly available data or
   information that they already have rather than relying solely on new information from a third-
   country CCP. This means that ESMA may need to check what information is available
   already which could require more resources.
   On the other hand, the amount of information to be collected and analysed is substantially
   streamlined. This should reduce the resources required by ESMA to conduct the tiering
   assessment and focus its resources on those third-country CCPs that are, in principle, more
   likely to be Tier 2 CCPs. Resources could also be reduced by relying on publicly available or
   existing information since that information is assumed to be already provided in a relatively
   standardised and comparable format. Questions on the information or the quality of data
   provided may be less likely to arise.
   The costs for third-country CCPs should also be lower. First, the amount of information
   provided is substantially streamlined. Certain additional information would only be needed in
   respect of potentially more systemically relevant CCPs. This means that the costs for those
   CCPs that are less systemically relevant will be substantially reduced. Second, ESMA is
   expected to use already available data, be it publicly or otherwise. This should theoretically
   reduce further the costs for all third-country CCPs. The modalities for collecting this
   information should however be further specified in ESMA’s Regulatory Technical Standard
EN                                                  6                                                EN
 ---pagebreak---    on information to be provided to ESMA for the recognition of a CCP 3. Third, given that
   ESMA is expected to require less resources to assess tiering (e.g. due to more proportionate
   approach), there should also be a reduction in the level of fees required for the initial
   recognition of a third-country CCP, as this fee includes the tiering of third-country CCPs.
   3.2       Proportionality
   This Regulation further specifies the criteria that ESMA needs to take into account when
   assessing a third-country CCP, whether in the process of an initial recognition or in reviewing
   an existing recognition decision as mandated under EMIR. This Regulation both limit the
   burden on non-systemic CCPs by limiting the information they are required to provide to that
   which is strictly necessary and allows ESMA to prioritise resources and reach a rapid
   decisions on tiering through a streamlined process.
   In view of the above, this Regulation ensures the proportionate application of the rules set out
   in EMIR, thus taking into account the principle of proportionality.
   3.3       Subsidiarity
   EMIR is a Regulation which is binding in its entirety and directly applicable in all Member
   States. The legal basis for EMIR is Article 114 of the Treaty on Functioning of the European
   Union and any changes to it would have the same legal basis.
   EMIR sets out the supervisory framework applying to third-country CCPs that provide
   clearing services to clearing members or trading venues established in the EU. Member States
   and national supervisors cannot solve on their own the systemic risks posed by highly
   integrated and interconnected CCPs, which operate on a cross-border basis beyond the scope
   of national jurisdictions. In addition, Member States and national authorities cannot address
   on their own the systemic risks that third-country CCPs can pose to the financial stability of
   the EU as a whole,
   As such, the objectives of EMIR to increase the safety and efficiency of CCPs by laying down
   uniform requirements for the performance their activities cannot be sufficiently achieved by
   the Member States and can therefore, by reason of the scale of actions, be better achieved at
   EU level in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty
   on EU.
   4.        LEGAL ELEMENTS OF THE DELEGATED ACT
   This delegated regulation lays down rules to further specify the criteria that ESMA should
   take into account to determine whether a third-country CCP is systemically important or
   likely to become systemically important for the financial stability of the Union or of one or
   more of its Member States.
            Article 1 defines a core set of elements to be assessed by ESMA when taking into the
             nature, size and complexity of the CCP's business in accordance with Article
             25(2a)(a). It also defines a set of additional elements to be assessed for CCPs
             crossing one or more of the quantitative indicators listed under Article 6.
            Article 2 defines a core set of elements to be assessed by ESMA when taking into the
             effect of failure of or a disruption to a CCP in accordance with Article 25(2a)(b). It
   3
           Commission Delegated Regulation (EU) No 153/2013 of 19 December 2012 supplementing Regulation
           (EU) No 648/2012 of the European Parliament and of the Council with regard to regulatory technical
           standards on requirements for central counterparties.
EN                                                       7                                                    EN
 ---pagebreak---      also defines a set of additional elements to be assessed for CCPs crossing one or
     more of the quantitative indicators listed under Article 6.
    Article 3 defines a core set of elements to be assessed by ESMA when taking into the
     CCP's clearing membership structure in accordance with Article 25(2a)(c). It also
     defines a set of additional elements to be assessed for CCPs crossing one or more of
     the quantitative indicators listed under Article 6.
    Article 4 defines a core set of elements to be assessed by ESMA when taking into
     alternative clearing services provided by other CCPs in accordance with Article
     25(2a)(d). It also defines a set of additional elements to be assessed for CCPs
     crossing one or more of the quantitative indicators listed under Article 6.
    Article 5 defines a core set of elements to be assessed by ESMA when taking into the
     CCP's relationship, interdependencies, or other interactions in accordance with
     Article 25(2a)(e). It also defines a set of additional elements to be assessed for CCPs
     crossing one or more of the quantitative indicators listed under Article 6.
    Article 6 defines quantitative indicators allowing ESMA to estimate the exposure of
     clearing members and clients established in the Union to third-country CCPs.
    Article 7 provides the date of the entry into force of the Act.
EN                                           8                                               EN
 ---pagebreak---                      COMMISSION DELEGATED REGULATION (EU) …/...
                                              of 14.7.2020
      supplementing Regulation (EU) No 648/2012 of the European Parliament and of the
      Council with regard to the criteria that ESMA should take into account to determine
    whether a central counterparty established in a third-country is systemically important
     or likely to become systemically important for the financial stability of the Union or of
                                   one or more of its Member States
                                       (Text with EEA relevance)
   THE EUROPEAN COMMISSION,
   Having regard to the Treaty on the Functioning of the European Union,
   Having regard to 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, and
   in particular the second subparagraph of Article 25(2a) thereof,
   Whereas:
   (1)     When assessing the degree of systemic risk that a third-country CCP presents to the
           financial stability of the Union or of one or more of its Member States, ESMA should
           consider a range of objective quantitative and qualitative considerations that justify its
           decision to recognise a third-country CCP as a Tier 1 or a Tier 2 CCP. It should also
           take into account any conditions under which the Commission may have adopted its
           equivalence decision. In particular, when assessing the risk profile of a third-country
           CCP, ESMA must consider objective and transparent quantitative activity indicators
           with regard to the business conducted with respect to clearing participants established
           in the Union or denominated in Union currencies , at the time of the assessment. While
           ESMA must consider the business conducted by the CCP in a holistic manner, its
           assessment should reflect the risk that a particular CCP could bring to the financial
           stability of the Union.
   (2)     In specifying the criteria that ESMA is to take into account when determining the tier
           of a third-country CCP, the nature of the transactions cleared by the CCP, including
           their complexity, risk profile and average maturity, as well as the transparency and
           liquidity of the markets concerned and the degree to which the CCP’s clearing
           activities are denominated in Euro or other Union currencies should be considered. In
           this regard, specific features concerning certain products, such as agricultural products,
           listed and executed on regulated markets in third countries, which relate to markets
           that largely serve domestic non-financial counterparties in that third country who
           manage their commercial risks through those contracts, may pose a negligible risk to
           clearing members and trading venues in the Union as they have a low degree of
           systemic interconnectedness with the rest of the financial system.
   (3)     The countries where the CCP operates, the extent of the services it provides, the
           characteristics of the financial instruments it clears as well as the volumes cleared are
           objective indicators of the complexity of the CCP’s business. When taking into
           account the criterion set out in point (a) of Article 25(2a) of Regulation (EU) No
EN                                                  9                                                 EN
 ---pagebreak---        648/2012, ESMA should therefore consider the ownership, business and corporate
       structure of the CCP, as well as the range, nature and complexity of clearing services
       offered by the CCP and the extent to which those services are of importance to
       clearing members and clients (‘clearing participants’)established in the Union. While
       the systemic importance of a CCP should be assessed in a holistic way, ESMA should
       take specific account of the proportion of the business of the CCP conducted in Union
       currencies, as well as the proportion of the business of the CCP originated from
       clearing participants established in the Union. For a CCP more likely to be of systemic
       importance to the Union it is important that ESMA assesses the structure and
       ownership of the group of which the CCP might be part in order to determine whether
       the interests of the Union are at risk. Additionally, the depth, liquidity and
       transparency of the markets served by such a CCP should also be assessed so that
       ESMA can better grasp the risk to clearing members established in the Union in the
       conduct of a default management auction.
   (4) The capital of the CCP and the financial resources committed by clearing participants
       as well as the type and nature of the collateral that they provide, are essential elements
       to be considered when assessing the capacity of a CCP to withstand any adverse
       development. When taking into account the criterion set out in point (b) of Article
       25(2a) of Regulation (EU) No 648/2012, ESMA should therefore have an overview of
       the financial resources available to the CCP in case of a default or a non-default event.
       ESMA should also consider the secured, unsecured, committed, uncommitted, funded
       or unfunded nature of these resources as well as the means used by the CCP to provide
       legal certainty and confidence as to the settlement of the payments it effects and the
       collateral it has to deal with. Finally, ESMA should consider the existence, nature and
       effect of a recovery and resolution framework for CCPs in the jurisdiction the CCP
       applying for recognition operates. Such recovery and resolution frameworks should be
       assessed against internationally agreed guidance and key attributes. When looking at
       settlement and liquidity risk, ESMA should pay particular attention for those CCPs
       that are likely to be systemic on how securely those CCP access liquidity as well as the
       liquidity strains on Union currencies. While the safety of payments and settlements
       might be reinforced through the use of distributed ledger technology or other recent
       technologies, ESMA should pay attention to the additional risk it may bring to the
       CCP, in particular cyber risk.
   (5) The nature of the conditions imposed by a CCP in order for clearing participants to
       access its services and the interlinkages between those clearing participants have
       repercussions on the way a CCP may be affected by an adverse event in relation to
       those participants. Therefore, when taking into account the criterion set out in point (c)
       of Article 25(2a) of Regulation (EU) No 648/2012, ESMA should determine to the
       extent possible the identity of clearing participants to the CCP, in particular where that
       CCP provides services to clearing participants established in the Union. ESMA should
       also determine the relevant market share or relative importance of clearing participants
       or groups of clearing participants in that CCP. Insofar as necessary to assess the
       impact it might have on the clearing membership structure, ESMA should assess the
       conditions and options under which the CCP provides access to its clearing services.
       With respect to a CCP that is likely to be systemic to the Union, ESMA should assess
       whether the legal and prudential requirements that a CCP imposes on its clearing
       members are sufficiently stringent.
   (6) In the event of a disruption to a CCP, clearing participants may have to rely, whether
       directly or indirectly, on the provision by other CCPs of similar or identical services.
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 ---pagebreak---         In order to assess the relative importance of the CCP applying for recognition, ESMA
        should therefore, when taking into account the criterion set out in point (d) of Article
        25(2a) of Regulation (EU) No 648/2012, determine whether clearing participants may
        substitute some or all of the clearing services provided by that CCP with services
        provided by other CCPs, in particular where those alternative CCPs are authorised or
        recognised in the Union. Where clearing members and clients established in the Union
        can only clear certain products subject to a clearing obligation in one third-country
        CCP, the systemic importance of that CCP should be considered with acute attention
        by ESMA.
   (7)  CCPs may be connected in many ways to other financial infrastructures such as other
        CCPs or central securities depositaries. A disruption those connections may adversely
        affect the good functioning of the CCP. Therefore, when taking into account the
        criterion set out in point (e) of Article 25(2a) of Regulation (EU) No 648/2012, ESMA
        should assess the extent to which the CCP is connected with other financial market
        infrastructures or financial institutions in a way that could impact the financial stability
        of the Union or of one or more of its Member States. In doing this ESMA should give
        particular attention to those connections and interdependencies with entities located in
        the Union. Finally, ESMA should identify and assess the nature of the services
        outsourced by the CCP and the risk such arrangements might pose to the CCP in case
        they were to be interrupted or impaired in any way.
   (8)  Where, as determined using objective quantitative indicators, the exposure of clearing
        members and clients established in the Union to a CCP is significant, ESMA should
        assess additional elements for each criterion. The more of those indicators are met by a
        CCP, the greater the likelihood that ESMA concludes that that CCP is of systemic
        importance for the financial stability of the Union or of one or more of its Member
        States.
   (9)  This Delegated Regulation should enter into force as a matter of urgency to ensure the
        fastest operationalisation of Regulation (EU) No 2019/2099.
   HAS ADOPTED THIS REGULATION:
                                               Article 1
                     The nature, size and complexity of the CCP's business
   1.     When taking into account the criterion set out in point (a) of Article 25(2a) of
          Regulation (EU) No 648/2012, ESMA shall assess the following elements:
          (a)   the countries where the CCP provides or intends to provide services;
          (b)   the extent to which the CCP provides other services in addition to clearing
                services;
          (c)   the type of financial instruments cleared or to be cleared by the CCP;
          (d)   whether the financial instruments cleared or to be cleared by the CCP are
                subject to the clearing obligation under Article 4 of Regulation (EU) No
                648/2012;
          (e)   the average values cleared by the CCP over one year, at the following levels:
                (i)    the level of the CCP;
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 ---pagebreak---             (ii)   the level of each clearing member that is an entity established in the
                   Union or an entity part of a group subject to consolidated supervision in
                   the Union;
            (iii) the level of clearing members established outside of the Union or that are
                   not part of a group subject to consolidated supervision in the Union
                   where they clear on behalf of clients and indirect clients established in
                   the Union, in aggregate.
      (f)   whether the CCP has completed an assessment of its risk profile based on
            internationally agreed standards or otherwise, the methodology used and the
            result of the assessment.
   2. For the purposes of point (e) of paragraph 1, ESMA shall assess the following values
      separately:
      (a)   for securities transactions (including securities financing transactions according
            to Regulation (EU) 2015/2365), the value of open positions or open interest;
      (b)   for derivative transactions traded on a regulated market within the meaning of
            Directive 2014/65/EU, the value of open interest or turnover;
      (c)   for over-the-counter (OTC) derivatives transactions, the gross and net notional
            outstanding amount.
      Those values shall be assessed per currency and per asset class.
   3. Where any of the indicators referred to in Article 6 applies, ESMA, in addition to the
      elements listed in paragraph 1 of this Article, shall also assess the following
      elements:
      (a)   the ownership structure of the CCP;
      (b)   where the CCP belongs to the same group as another financial market
            infrastructure, such as another CCP or central securities depository, the
            corporate structure of the group to which the CCP belongs;
      (c)   whether the CCP provides clearing services to clients or indirect clients
            established in the Union through clearing members established outside of the
            Union;
      (d)   the nature, depth and liquidity of the markets served and the level of available
            information on the adequate pricing data to market participants and any
            generally accepted and reliable pricing sources;
      (e)   whether quotes, pre-trade bid and offer prices and depths of trading interests
            are made public;
      (f)   whether post-trade price, volume and time of the transactions executed or
            concluded, on and off the markets served by the CCP are made public.
                                          Article 2
                     The effect of failure of or a disruption to a CCP
   1. When taking into account the criterion set out in point (b) of Article 25(2a) of
      Regulation (EU) No 648/2012, ESMA shall assess the following elements:
      (a)   the capital, including retained earnings and reserves, of the CCP;
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 ---pagebreak---       (b)  the type and amount of collateral accepted and held by the CCP, the haircuts
           applied, the corresponding haircut methodology, the currencies in which the
           collateral is denominated and the extent to which the collateral is provided by
           entities established in the Union or that are part of a group subject to
           consolidated supervision in the Union;
      (c)  the maximum amount of margins collected by the CCP on a single day during a
           period of 365 days preceding ESMA’s assessment;
      (d)  the maximum amount of margins collected by the CCP on a single day during a
           period of 365 days preceding ESMA’s assessment from each clearing member
           that is an entity established in the Union or an entity part of a group subject to
           consolidated supervision in the Union, per asset class or segregated default
           fund where applicable;
      (e)  where applicable for each default fund of the CCP, the maximum default fund
           contributions required and held by the CCP on a single day during a period of
           365 days preceding ESMA’s assessment;
      (f)  where applicable for each default fund of the CCP, the maximum default fund
           contributions required and held by the CCP on a single day during a period of
           365 days preceding ESMA’s assessment from each clearing member that is an
           entity established in the Union or an entity part of a group subject to
           consolidated supervision in the Union;
      (g)  the estimated largest payment obligation on a single day in total and in each
           Union currency that would be caused by the default of any one or two largest
           single clearing members (and their affiliates) in extreme but plausible market
           conditions;
      (h)  the total amount and for each Union currency of liquid financial resources to
           the CCP’s benefit separated by type of resources, including cash deposits,
           committed or uncommitted resources;
      (i)  the amount of total liquid financial resources committed to the CCP by entities
           established in the Union or that are part of a group subject to consolidated
           supervision in the Union.
   2. Where any of the indicators referred to in Article 6 applies, ESMA, in addition to the
      elements listed in paragraph 1 of this Article, shall also assess the following
      elements:
      (a)  the identity of the liquidity providers established in the Union or which are part
           of a group subject to consolidated supervision in the Union;
      (b)  the average and peak aggregate daily values of incoming and outgoing Union
           currency payments;
      (c)  the extent to which central bank money is used for settlement and payment or
           whether other entities are used for settlement or payment;
      (d)  the extent to which the CCP applies technologies such as distributed ledger
           technology in its settlement/payment process;
      (e)  the recovery plan of the CCP;
      (f)  the resolution regime applicable to the CCP;
      (g)  whether a crisis management group has been established for that CCP.
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 ---pagebreak---                                           Article 3
                        The CCP's clearing membership structure
   1. When taking into account the criterion set out in point (c) of Article 25(2a) of
      Regulation (EU) No 648/2012 ESMA shall assess the following:
      (a)    the clearing membership and, where the information is available, whether and
             which clients or indirect clients, established in the Union or that are part of a
             group subject to consolidated supervision in the Union are using the clearing
             services of the CCP; and
      (b)    the different options available to access the clearing services of the CCP
             (including different membership and direct access models for clients), any
             conditions for granting, denying or terminating access.
   2. Where any of the indicators referred to in Article 6 applies, ESMA, in addition to the
      elements listed in paragraph 1 of this Article, shall specifically assess any legal or
      prudential requirements imposed by the CCP on clearing members to access its
      clearing services.
                                          Article 4
                   Alternative clearing services provided by other CCPs
   1. When taking into account the criterion set out in point (d) of Article 25(2a) of
      Regulation (EU) No 648/2012, ESMA shall assess whether clearing members and
      clients established in the Union may access some or all of the clearing services
      provided by a CCP through other CCPs and whether those CCPs are authorised or
      recognised under Articles 14 and 25 of that Regulation.
   2. Where any of the indicators referred to in Article 6 applies, ESMA, in addition to the
      elements listed in paragraph 1 of this Article, shall also assess whether the services
      provided by the CCP relate to a class of derivatives subject to the clearing obligation
      under Article 4 of Regulation (EU) No 648/2012.
                                          Article 5
            The CCP's relationship, interdependencies, or other interactions
   1. When taking into account the criterion set out in point (e) of Article 25(2a) of
      Regulation (EU) No 648/2012, ESMA shall assess the scope of functions, services or
      activities that have been outsourced by the CCP.
   2. Where any of the indicators referred to in Article 6 applies, ESMA, in addition to the
      elements listed in paragraph 1 of this Article, shall also assess the following
      elements:
      (a)    the possible effects that the inability of the provider of outsourced functions,
             services or activities to comply with its obligations under the outsourcing
             arrangements would have on the Union or one or more of its Members States;
      (b)    whether the CCP serves trading venues established in the Union;
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 ---pagebreak---              (c)   whether the CCP has interoperability arrangements or cross-margining
                   agreements with CCPs established in the Union, or links with or participation
                   in other financial market infrastructures located in the Union, such as Central
                   Securities Depositaries or payment systems.
                                                 Article 6
    Indicators of minimum exposure of clearing members and clients established in the Union
                                                to the CCP
   1.        The indicators for the purpose of Articles 1 to 5 are the following:
             (a)   the maximum open interest of securities transactions, including securities
                   financing transactions, or exchange traded derivatives denominated in Union
                   currencies cleared by the CCP over a period of one year prior to the assessment
                   or intended to be cleared by the CCP over a period of one year following the
                   assessment is more than EUR 1000 billion;
             (b)   the maximum notional outstanding of OTC derivatives transactions
                   denominated in Union currencies cleared by the CCP over a period of one year
                   prior to the assessment or intended to be cleared by the CCP over a period of
                   one year following the assessment is more than EUR 1000 billion;
             (c)   the average aggregated margin requirement and default fund contributions for
                   accounts held at the CCP by clearing members that are entities established in
                   the Union or part of a group subject to consolidated supervision in the Union,
                   calculated by the CCP on a net basis at clearing member account level over a
                   period of two years prior to the assessment is more than EUR 25 billion;
             (d)   the estimated largest payment obligation committed by entities established in
                   the Union or part of a group subject to consolidated supervision in the Union
                   and computed over a period of one year prior to the assessment, that would
                   result from the default of at least the two largest single clearing members and
                   their affiliates, in extreme but plausible market conditions is more than EUR 3
                   billion.
             For the purposes of point (d), the payment obligation shall aggregate the
             commitments in all currencies of the Union converted into EUR as necessary.
   2.        ESMA may only determine, based on the criteria specified in Articles 1 to 5, that a
             third-country CCP is a Tier 2 CCP where at least one of the indicators in paragraph 1
             is met.
                                                 Article 7
                                              Entry into force
   This Regulation shall enter into force on the day following that of its publication in the
   Official Journal of the European Union.
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 ---pagebreak---    This Regulation shall be binding in its entirety and directly applicable in all Member States.
   Done at Brussels, 14.7.2020
                                                 For the Commission
                                                 The President
                                                 Ursula VON DER LEYEN
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