Registration of a trade repository
1. A trade repository shall register with ESMA for the purposes of Article 4 under the conditions and the procedure set out in this Article.
2. To be eligible to be registered under this Article, a trade repository shall be a legal person established in the Union, apply procedures to verify the completeness and correctness of the details reported to it under Article 4(1), and meet the requirements laid down in Articles 78, 79 and 80 of Regulation (EU) No 648/2012. For the purposes of this Article, references in Articles 78 and 80 of Regulation (EU) No 648/2012 to Article 9 thereof shall be construed as references to Article 4 of this Regulation.
3. The registration of a trade repository shall be effective for the entire territory of the Union.
4. A registered trade repository shall comply at all times with the conditions for registration. A trade repository shall, without undue delay, notify ESMA of any material changes to the conditions for registration.
5. A trade repository shall submit to ESMA either of the following:
(a)
an application for registration;
(b)
an application for an extension of registration for the purposes of Article 4 of this Regulation in the case of a trade repository already registered under Title VI, Chapter 1 of Regulation (EU) No 648/2012.
6. ESMA shall assess whether the application is complete within 20 working days of receipt of the application.
Where the application is not complete, ESMA shall set a deadline by which the trade repository is to provide additional information.
After assessing an application as complete, ESMA shall notify the trade repository accordingly.
7. In order to ensure consistent application of this Article, ESMA shall develop draft regulatory technical standards specifying the details of all of the following:
(a)
the procedures referred to in paragraph 2 of this Article and which are to be applied by trade repositories in order to verify the completeness and correctness of the details reported to them under Article 4(1);
(b)
the application for registration referred to in point (a) of paragraph 5;
(c)
a simplified application for an extension of registration referred to in point (b) of paragraph 5 in order to avoid duplicate requirements.
ESMA shall submit those draft regulatory technical standards to the Commission by 13 January 2017.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
8. In order to ensure uniform conditions of application of paragraphs 1 and 2, ESMA shall develop draft implementing technical standards specifying the format of both of the following:
(a)
the application for registration referred to in point (a) of paragraph 5;
(b)
the application for an extension of registration referred to in point (b) of paragraph 5.
With regard to point (b) of the first subparagraph, ESMA shall develop a simplified format to avoid duplicate procedures.
ESMA shall submit those draft implementing technical standards to the Commission by 13 January 2017.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.
Notification of and consultation with competent authorities prior to registration or extension of registration
1. Where a trade repository applies for registration or for an extension of registration and is an entity authorised or registered by a competent authority in the Member State where it is established, ESMA shall, without undue delay, notify and consult that competent authority prior to the registration of the trade repository.
2. ESMA and the relevant competent authority shall exchange all information that is necessary for the registration, or the extension of registration, of the trade repository as well as for the supervision of the entity’s compliance with the conditions of its registration or authorisation in the Member State where it is established.
Examination of the application
1. ESMA shall, within 40 working days of the notification referred to in Article 5(6), examine the application for registration, or for an extension of registration, based on the compliance of the trade repository with this Chapter and shall adopt a fully reasoned decision accepting or refusing registration or an extension of registration.
2. A decision issued by ESMA pursuant to paragraph 1 shall take effect on the fifth working day following its adoption.
Notification of ESMA decisions relating to registration or extension of registration
1. Where ESMA adopts a decision as referred to in Article 7(1) or withdraws the registration as referred to in Article 10(1), it shall notify the trade repository within five working days with a fully reasoned explanation for its decision.
ESMA shall, without undue delay, notify the competent authority as referred to in Article 6(1) of its decision.
2. ESMA shall communicate any decision taken in accordance with paragraph 1 to the Commission.
3. ESMA shall publish on its website a list of trade repositories registered in accordance with this Regulation. That list shall be updated within five working days of the adoption of a decision under paragraph 1.
Powers of ESMA
1. The powers conferred on ESMA in accordance with Articles 61 to 68, 73 and 74 of Regulation (EU) No 648/2012, in conjunction with Annexes I and II thereto, shall also be exercised with respect to this Regulation. References to Article 81(1) and (2) of Regulation (EU) No 648/2012 in Annex I to that Regulation shall be construed as references to Article 12(1) and (2) of this Regulation respectively.
2. The powers conferred on ESMA or any official of or other person authorised by ESMA by Articles 61, 62 and 63 of Regulation (EU) No 648/2012 shall not be used to require the disclosure of information or documents which are subject to legal privilege.
Withdrawal of registration
1. Without prejudice to Article 73 of Regulation (EU) No 648/2012, ESMA shall withdraw the registration of a trade repository where the trade repository:
(a)
expressly renounces the registration or has provided no services for the preceding six months;
(b)
obtained the registration by making false statements or by other irregular means;
(c)
no longer meets the conditions under which it was registered.
2. ESMA shall, without undue delay, notify the relevant competent authority referred to in Article 6(1) of a decision to withdraw the registration of a trade repository.
3. The competent authority of a Member State in which the trade repository performs its services and activities and which considers that one of the conditions referred to in paragraph 1 has been met, may request ESMA to examine whether the conditions for the withdrawal of registration of the trade repository concerned are met. Where ESMA decides not to withdraw the registration of the trade repository concerned, it shall provide full reasons for its decision.
4. The competent authority referred to in paragraph 3 of this Article shall be the authority designated under points (a) and (b) of Article 16(1) of this Regulation.
Supervisory fees
1. ESMA shall charge the trade repositories fees in accordance with this Regulation and in accordance with the delegated acts adopted pursuant to paragraph 2 of this Article. Those fees shall be proportionate to the turnover of the trade repository concerned and fully cover ESMA’s necessary expenditure relating to the registration, recognition and supervision of trade repositories as well as the reimbursement of any costs that the competent authorities may incur as a result of any delegation of tasks pursuant to Article 9(1) of this Regulation. In so far as Article 9(1) of this Regulation refers to Article 74 of Regulation (EU) No 648/2012, references to Article 72(3) of that Regulation shall be construed as references to paragraph 2 of this Article.
Where a trade repository has already been registered under Title VI, Chapter 1, of Regulation (EU) No 648/2012, the fees referred to in the first subparagraph of this paragraph shall only be adjusted to reflect additional necessary expenditure and costs relating to the registration, recognition and supervision of trade repositories pursuant to this Regulation.
2. The Commission shall be empowered to adopt a delegated act in accordance with Article 30 to specify further the type of fees, the matters for which fees are due, the amount of the fees and the manner in which they are to be paid.
Transparency and availability of data held in a trade repository
1. A trade repository shall regularly, and in an easily accessible way, publish aggregate positions by type of SFTs reported to it.
2. A trade repository shall collect and maintain the details of SFTs and shall ensure that the following entities have direct and immediate access to these details to enable them to fulfil their respective responsibilities and mandates:
(a)
ESMA;
(b)
the European Supervisory Authority (European Banking Authority) (‘EBA’);
(c)
the European Supervisory Authority (European Insurance and Occupational Pensions Authority) (‘EIOPA’);
(d)
the ESRB;
(e)
the competent authority supervising the trading venues of the reported transactions;
(f)
the relevant members of the ESCB, including the European Central Bank (ECB) in carrying out its tasks within a single supervisory mechanism under Regulation (EU) No 1024/2013;
(g)
the relevant authorities of a third country in respect of which an implementing act pursuant to Article 19(1) has been adopted;
(h)
supervisory authorities designated under Article 4 of Directive 2004/25/EC of the European Parliament and of the Council ( 24 ) ;
(i)
the relevant Union securities and market authorities whose respective supervisory responsibilities and mandates cover transactions, markets, participants and assets which fall within the scope of this Regulation;
(j)
the Agency for the Cooperation of Energy Regulators established by Regulation (EC) No 713/2009 of the European Parliament and of the Council ( 25 ) ;
(k)
the resolution authorities designated under Article 3 of Directive 2014/59/EU of the European Parliament and the Council ( 26 ) ;
(l)
the Single Resolution Board established by Regulation (EU) No 806/2014 of the European Parliament and of the Council ( 27 ) ;
(m)
the authorities referred to in Article 16(1).
3. In order to ensure consistent application of this Article, ESMA shall, in close cooperation with the ESCB and taking into account the needs of the entities referred to in paragraph 2, develop draft regulatory technical standards specifying:
(a)
the frequency and the details of the aggregate positions referred to in paragraph 1 and the details of SFTs referred to in paragraph 2;
(b)
the operational standards required, to allow the timely, structured and comprehensive:
(i)
collection of data by trade repositories;
(ii)
aggregation and comparison of data across repositories;
(c)
the details of the information to which the entities referred to in paragraph 2 are to have access, taking into account their mandate and their specific needs;
(d)
the terms and conditions under which the entities referred to in paragraph 2 are to have direct and immediate access to data held in trade repositories.
Those draft regulatory technical standards shall ensure that the information published under paragraph 1 does not enable the identification of a party to any SFT.
ESMA shall submit those draft regulatory technical standards to the Commission by 13 January 2017.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
