What changed between the draft committee report and the plenary report

Removed:Article 1 – paragraph 1 – point 4, Article 7b – paragraph 2 – subparagraph 1 – point e a (new): (ea) the amount of total liquid financial resources committed to the CCP.

Added:‘The Commission shall be empowered to adopt delegated acts in accordance with Article 82 to specify certain technical elements of the definitions laid down in the first paragraph of this Article, to adjust them to market and technological developments.’;

Removed:Regulation (EU) No 648/2012

Added:(1) Article 3 is replaced by the following:

Removed:Article 1 – paragraph 1 – point 4, Article 7b – paragraph 2 – subparagraph 2: ESMA shall transmit that information to the Joint Monitoring Mechanism referred to in Article 23c.

Added:‘Article 3

Removed:Change to reflect the move to ESMA as the supervisor of EU CCPs. See explanatory statement for greater details.

Added:Intragroup transactions

Removed:Regulation (EU) No 648/2012

Added:1. In relation to a non-financial counterparty, an intragroup transaction shall be an OTC derivative contract entered into with another counterparty which is part of the same group provided that both counterparties are included in the same consolidation on a full basis and they are subject to an appropriate centralised risk evaluation, measurement and control procedures and that counterparty is established in the Union or, if it is established in a third country that third country is not listed pursuant to paragraphs 4 and 5.

Removed:Article 1 – paragraph 1 – point 4, Article 7b – paragraph 3 – subparagraph 1: ESMA shall, after consulting the ESRB and the ESCB, develop draft regulatory technical standards further specifying the content of the information to be reported in accordance with paragraph 2 of this Article, taking into account which information is already available to ESMA under the existing reporting framework, including under Article 9.

Added:2. In relation to a financial counterparty, an intragroup transaction shall be any of the following:

Removed:Proposal to simplify the consultation process and to standardise and align as much as possible the new reporting requirements with existing ones, to avoid duplications and unnecessary costs.

Added:(a) an OTC derivative contract entered into with another counterparty which is part of the same group, provided that all of the following conditions are met:

Removed:Regulation (EU) No 648/2012

Added:(a) the financial counterparty is established in the Union or, if it is established in a third country, that third country is not listed pursuant to paragraphs 4 and 5;

Removed:Article 1 – paragraph 1 – point 4, Article 7b – paragraph 4 – subparagraph 1 and 1 a (new): To ensure the uniform application of paragraph 2 of this Article, ESMA shall develop draft implementing technical standards, in close cooperation with the ESCB, specifying the data standards and formats for the information to be reported. / In developing those draft implementing technical standards, ESMA shall take into account international developments and standards agreed at international or Union level, and their consistency with the reporting requirements laid down in Article 9.

Added:(b) the other counterparty is a financial counterparty, a financial holding company, a financial institution or an ancillary services undertaking subject to appropriate prudential requirements;

Removed:See above.

Added:(c) both counterparties are included in the same consolidation on a full basis;

Removed:Regulation (EU) No 648/2012

Added:(d) both counterparties are subject to appropriate centralised risk evaluation, measurement and control procedures;

Removed:Article 1 – paragraph 1 – point 4 a (new), Article 7 c (new): (4a) the following article is inserted: / Article 7c / Information on CCPs established in the Union / 1. CCPs authorised under Article 14 shall report on a monthly basis to ESMA at least the following information: / (a) the values and volumes cleared per currency and per asset class, including the value of positions held by clearing participants; / (b) the CCP’s investments, capital, including dedicated own resources used in the waterfall or referred to in Article 45(4) of this Regulation and in Article 9(14) of Regulation (EU) 2021/23; / (c) the clearing members’ margin requirements, default fund contributions, and contractually committed resources in the default management or in the recovery plans referred to in Article 9 of Regulation (EU) 2021/23; / (d) the adequacy of the margin and default fund contributions and waterfall resources; / (e) the CCP’s available liquid resources and the results of the liquidity stress-testing; and / (f) the clearing members, clients holding individually segregated accounts, third parties providing major activities linked to the CCP’s risk management, material liquidity providers connected to the CCP, as well as interoperable and linked CCPs. / ESMA shall promptly provide the information referred to in the first subparagraph of this paragraph to the college of the CCP referred to in Article 18. / 2. ESMA shall, in close cooperation with the EBA and the ESCB, develop draft regulatory technical standards further specifying the details and cont…

Added:(b) an OTC derivative contract entered into with another counterparty where both counterparties are part of the same institutional protection scheme, referred to in Article 113(7) of Regulation (EU) No 575/2013, provided that the condition set out in point (a)(ii) of this paragraph is met;

Removed:Proposal to include a formal reporting requirement regarding CCP risk management data by EU CCPs to ESMA. This would cover similar data as the reports prepared by EU CCPs and shared with the college on a monthly basis and therefore not be additional burden for CCPs. However, it would help further strengthen the standardisation and comparability across data, and ensure it is delivered on time (as of today, the college sometimes receives the reports months later). The addition is necessary, as today ESMA receives transaction data under EMIR and SFTR which provides an EU-wide view on markets (OI/notional, volumes, margin collected), but not on CCPs' risk management, creating substantial issues for ESMA to fulfil its financial stability mandate. In addition to the possibility for ESMA to request data directly from CCPs, CMs and clients in market turmoil (Article 24(5) of EMIR 3), the data received in the monthly (voluntary) data reports via the college should be formalised to ensure higher standardisation, comparability and timely delivery.

Added:(c) an OTC derivative contract entered into between credit institutions affiliated to the same central body or between such credit institution and the central body, as referred to in Article 10(1) of Regulation (EU) No 575/2013;

Removed:Regulation (EU) No 648/2012

Added:(d) an OTC derivative contract entered into with a non-financial counterparty which is part of the same group, provided both the following conditions are met:

Removed:Article 1 – paragraph 1 – point 5 – point -a (new), Article 9 – paragraph 1 – subparagraph 1: (-a) in paragraph 1, the first subparagraph is replaced by the following: / "Counterparties, including those established outside the Union and belonging to a group subject to consolidated supervision in the Union, and CCPs shall ensure that the details of any derivative contract they have concluded and of any modification or termination of the contract are reported in accordance with paragraphs 1a to 1f of this Article to a trade repository registered in accordance with Article 55 or recognised in accordance with Article 77. The details shall be reported no later than the working day following the conclusion, modification or termination of the contract."

Added:(a) both counterparties to the derivative contract are included in the same consolidation on a full basis and are subject to an appropriate centralised risk evaluation, measurement and appropriate control procedures;

Removed:(https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02012R0648-20220812)

Added:(b) the non-financial counterparty is established in the Union or, if it is established in a third-country, that third country is not listed under paragraphs 4 and 5.

Removed:Seeking to capture offshore activity for the purpose of the article.

Added:3. For the purposes of this Article, counterparties shall be considered included in the same consolidation when they are both any of the following:

Removed:Regulation (EU) No 648/2012

Added:(a) included in a consolidation in accordance with Directive 2013/34/EU or International Financial Reporting Standards (IFRS) adopted pursuant to Regulation (EC) No 1606/2002 or, in relation to a group the parent undertaking of which has its head office in a third country, in accordance with generally accepted accounting principles of a third country determined to be equivalent to IFRS in accordance with Regulation (EC) No 1569/2007 or accounting standards of a third country the use of which is permitted in accordance with Article 4 of that Regulation;

Removed:Article 1 – paragraph 1 – point 5 – point a, Article 9 – paragraph 1 – subparagraph 3 and 4: deleted

Added:(b) covered by the same consolidated supervision in accordance with Directive 2013/36/EU or, in relation to a group the parent undertaking of which has its head office in a third country, the same consolidated supervision by a third-country competent authority verified as equivalent to that governed by the principles laid down in Article 127 of Directive 2013/36/EU.

Removed:The removal of the exemption from the reporting obligations for intragroup transactions may be premature, and it should be better assessed following a cost-benefit analysis or a proper impact assessmnet, given that it was only recently introduced and that it seems unclear whether the added benefits from a supervisory perspective would justify the costs for NFCs.

Added:4. For the purposes of this Article, transactions with counterparties established in any of the following third countries shall not benefit from any of the exemptions for intragroup transactions:

Removed:Regulation (EU) No 648/2012

Added:(a) where the third country is listed as a high-risk third country that has strategic deficiencies in its regime on anti-money laundering and counter terrorist financing, in accordance with Article 9 of Directive (EU) 2015/849 of the European Parliament and of the Council*1;

Removed:Article 1 – paragraph 1 – point 5 – point b a (new), Article 9 – paragraph 6 a (new): (ba) the following paragraph is added: / "6a. By … [12 months afte the entry into force of this amending Regulation] ESMA shall submit a report to the Commission on the possibility of removing the requirements laid down in paragraph 1, third and fourth subparagraph. The report shall be accompanied by a cost benefit analyis."

Added:(b) where the third country is listed in Annex I to the Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes*2 and their subsequent updates which are specifically approved twice a year, customarily in February and October, and published in series C of the Official Journal of the European Union.

Removed:See justification to AM 53.

Added:For the purposes of this paragraph, a third country that has been continuously mentioned in Annex II to the Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes for a period of at least three years shall be considered to be listed in Annex I to those conclusions.

Removed:Regulation (EU) No 648/2012

Added:5. Where appropriate in the light of the legal, supervisory and enforcement arrangements of a third country with regard to risks, including counterparty credit risk and legal risk, the Commission is empowered to adopt delegated acts in accordance with Article 82 to supplement this Regulation to identify the third countries whose entities may not benefit from any of the exemptions for intragroup transactions despite not being listed pursuant to paragraph 4.

Removed:Article 1 – paragraph 1 – point 6 – introductory part, Article 10: (6) Article 10 is amended as follows:

Added:___________________________________________________

Removed:Regulation (EU) No 648/2012

Added:*1 Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).’

Removed:Article 1 – paragraph 1 – point 6 – point a (new), Article 10 – paragraph 1 – subparagraph 2 a (new): a) in Article 10(1), the following subparagraph is added: / "In order to comply with the notification requirement referred to in point (a) of the second subparagraph, the non-financial counterparty shall use the same notification form, including all the relevant information for all the subsidiaries of the group established in the Union, to notify the different national competent authorities of the Member States where those subsidiaries are established and ESMA."

Added:*2 Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes and the Annexes thereto (OJ C 413 I, 12.10.2021, p. 1).;

Removed:(https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:02012R0648-20220812)

Added:(2) in Article 4(1), the following subparagraph is added:

Removed:Centralisation of the notification to facilitate access by NCAs to relevant information for the group to which the NFCs belong. This should facilitate supervision of NFCs at EU level.

Added:‘The obligation to clear all OTC derivative contracts does not apply to contracts concluded in situations as referred to in the first subparagraph, point (a)(iv), between, on one side, a financial counterparty that meets the conditions set out in Article 4a(1), second subparagraph, or a non-financial counterparty that meets the conditions set out in Article 10(1), second subparagraph, and, on the other side, a pension scheme arrangement established in a third country and operating on a national basis, provided that such entity or arrangement is authorised, supervised and recognised under national law and where its primary purpose is to provide retirement benefits and is exempted from the clearing obligation under its national law.’;

Removed:Regulation (EU) No 648/2012

Added:(3) ▌Article4a is amended as follows: