1 These are the ‘public good’ based additional requirements, imposed especially for investor protection and prudential reasons.
3 Based on the 100 per cent bonus cap introduced by the CRD IV, Art 94(1)(g), some Member States have adopted stricter regulations, such as a 20 per cent cap in the Netherlands, a 50 per cent cap in Belgium, PwC Financial Services Regulatory Practice, ‘EU Bonus Cap: Restrictions Nearly Final for Asset Managers’ (March 2014) <http://pwc.to/1iLsRjq> accessed 1 August 2017. The UK Central Bank has announced that it will abandon the cap on remuneration.
4 Dealing especially with the different types of risks mentioned in the CRD IV, the relevant internal ratings-based approach (IRB) models, and the internal governance structure.
5 However, for the purposes of the Bank Recovery and Resolution Directive (BRRD) or the Single Resolution Mechanism (SRM), the consolidated position will have to be considered: see eg Art 45(8) BRRD; Art 12(6) Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (SRM Regulation).
6 Article 14(3) Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (SSM Regulation). The ECB decision is rendered on a no-objection basis.
7 See Art 17 Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (CRD IV), referring to the previous practice ie to require a substitute capital.
8 See Art 35 e.s. CRD IV.
9 Unless the EU agrees differently with the third state: Art 47(3).
10 See Preamble 23 and Art 47 CRD IV.
11 See inter alia Art 107(3) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (CRR); see European Parliament, ‘Third-country Equivalence in EU Banking Legislation’ (12 July 2017) <http://www.europarl.europa.eu/RegData/etudes/BRIE/2016/587369/IPOL_BRI(2016)587369_EN.pdf> accessed 1 August 2017.
12 Article 46 Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 (MiFIR).
13 Article 3 First Council Directive 77/780/EEC of 12 December 1977 on the coordination of the laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institution.
14 Second Council Directive 89/646/EEC of 15 December 1989 on the coordination of laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions and amending Directive 77/780/EEC.
15 See also Art 3 Directive 77/780, mainly relating to own funds requirements and two-headed management.
16 Article 35 and following.
20 This is not mentioned in several regulations, eg Recital 41 MiFIR.
21 See eg 20(1) Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to bepublished when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (Prospectus Directive). The directive will be replaced by Regulation 2017/1129, starting 21 July 2019.
22 Article 37 Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (AIFMD).
23 Not only formal laws of the home state of the branch, but also legally binding prudential and business conduct requirements may be taken into account: see Art 47 MiFIR.
24 See eg Art 25(9). Regulation (EU) No 909/2014 of the European Parliament and of the Council of 23 July 2014 on improving securities settlement in the European Union and on central securities depositories and amending Directives 98/26/EC and 2014/65/EU and Regulation (EU) No 236/2012 (CSDR).
27 European Commission and the United States Commodity Futures Commission, ‘Common approach for transatlantic CCPs’ Press release (10 February 2016); ‘European Commission Adopts Equivalence Decision for CCPs in USA’ (Brussels, 15 March 2016) <http://europa.eu/rapid/press-release_IP-16-807_en.htm> accessed 1 August 2017; Commission Implementing Decision (EU) 2016/377 of 15 March 2016, on the equivalence of the regulatory framework of the United States of America for central counterparties that are authorised and supervised by the Commodity Futures Trading Commission to the requirements of Regulation (EU) No 648/2012 of the European Parliament and of the Council. This decision is based on Art 25(6) EMIR, allowing the Commission to adopt an equivalence decision (‘may’).
30 Article 13 Directive 2009/65/EC of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS). The ESMA Principles (n 2) should be observed. This issue has become hotly debated, as delegation may leadto ‘letter box’ entities and firms without consistence norresponsibility. The European Supervisory Authorities and the ECB have published their approach towards these developments.
31 See Arts 14 and 17(4) Regulation (EU) 648/2012 of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (EMIR): ‘The competent authority shall grant authorisation only where it is fully satisfied that the applicant CCP complies with all the requirements laid down in this Regulation and that the CCP is notified as a system pursuant to Directive 98/26/EC’.
33 See the Commission Staff Working Document (n 29).
39 However, these figures relate to the nominal amount, not to the market value of the derivatives, being the amount that is at risk: see Milken Institute, ‘$700 Trillion in Global OTC Derivatives? Behind the Number’ (31 March 2014) <http://www.milkeninstitute.org/blog/view/580> accessed 1 August 2017.
40 EMIR provides that OTC derivatives have to be centrally cleared through CCPs. Euro denominated margins have to be constituted to reduce risk.
43 See A Barker and J Brundsden, ‘Brussels readies rule change to target UK euro clearing’ Financial Times (16 December 2016). The UK press mentions an additional margin requirement of $ 77 billion. Eighty-three thousand jobs would be in danger: Ph. Stafford in Financial Times (14 November 2016).
49 Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EU) No 1095/2010 establishing a European Supervisory Authority (European Securities and Markets Authority) and amending Regulation (EU) No 648/2012 as regards the procedures and authorities involved for the authorization of CCPs and requirements for the recognition of third-country CCPs, COM (2017) 331 final 2017/0136 (COD) (13 June 2017).
50 For payment and settlement related matters: (21) The central bank would be consulted on matters that may impact its monetary policy. It may also formulate additional requirements for being imposed by ESMA, eg collateral held in a CCP, segregation requirements, liquidity arrangements. ibid.
51 This analysis predates the EBA relocation decisions.
53 The ESA can address instructions to individual firms in case the negotiations of individual authorities have not been able to reach an agreement: see Art 19(4) Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (EBA Regulation); a comparable case relates to emergency measures: see Art 18(3) EBA Regulation.
54 These are two aspects the Commission consultation puts on the agenda.
55 Article 6(5) and 23(2) SSM Regulation.
56 See Art 4(3) SSM Regulation as advisor to EBA.
57 Present Art 17 ‘breach of Union Law’.
58 See eg the action in support of the colleges of supervisors, or the activity undertaken by the EBA in the field of stress testing.
59 See for prospectuses see eg Arts 13(5) and 17 of Directive 2003/71 of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC allowing the prospectus to be approved by one authority to be valid in other Member States as well. See also Art 6(3) of the Directive 2004/25 of 21 April 2004 on takeover bids.
60 See Communication from the Commission, ‘Responding to challenges for critical financial market infrastructures and further developing the Capital Markets Union’ COM (2017) 225 final (4 May 2017).
61 Already in 2007, the 3L3 Committee of the three ESAs put this topic on its agenda under the name ‘competing products’: ESMA: CESR Archive, CESR press release 322 (November 2007).