The European Securities and Markets Authority (ESMA) has today published its 2016 supervisory priorities for credit rating agencies (CRAs) and trade repositories (TRs), as well as its annual report summarising the key supervisory work and actions undertaken during 2015.

2016 Supervisory Priorities

ESMA has seen a number of changes in the CRA and TR industries during 2015, with new applicants for registration in both sectors, and current authorised entities seeking to develop their businesses. This has included CRAs providing credit ratings on new asset classes or in new geographic areas, and TRs offering trade reporting services for other instrument types.

ESMA identifies its supervisory priorities on the basis of risk assessment exercises conducted throughout the year. In 2015 these identified high levels of governance and strategy risk, and operational risk in the CRA industry and high levels of risk associated with TRs’ data and systems. Therefore, in 2016 ESMA will focus its supervisory activities on:

• CRA governance and strategy and the quality of credit ratings;
• TR data quality and data access;
• Fees charged and information security for all supervised entities.

Steven Maijoor, ESMA Chair, said:

“The credit rating and trade repository industries continue to evolve and develop. We are receiving new applications for registration and existing entities are seeking to develop their businesses by expanding into new areas. ESMA supports these developments where they contribute to the maintenance of stable and orderly financial markets.

“For this reason, in 2016 ESMA will focus its work on the quality of the services being provided by supervised entities. This means we will concentrate on issues surrounding CRA governance, strategy and ratings quality, along with data quality and access to TRs’ data with a broad focus on the fee structures and information security in both industries.”

2015 Annual Supervisory Review – CRAs and TRs

In 2015, following its risk-based approach, ESMA focused its supervisory efforts on CRAs’ governance, risk management and internal decision making and on CRAs’ business development processes. Some notable achievements were:

• investigating the techniques being applied to validate credit rating methodologies by some CRAs and using the differences identified to encourage industry-wide debate about appropriate validation standards;
• conducting an IT risk assessment which identified that CRAs are facing serious risks in several areas including IT operations and information security;
• investigating the process of issuing credit ratings followed by one CRA and raising concerns about the preparation of issue ratings, the workloads of credit rating analysts and their involvement in the provision of ancillary services; and
• concluding an enforcement case against DBRS Ratings Ltd for internal control failings and imposing a €30,000 fine for past record-keeping breaches. The case highlighted the need for CRAs to establish clear decision-making procedures, organisational structures and effective compliance functions.

The key risks TR supervision focused on in 2015 related to the quality of TRs’ data, access to data held by TRs and the operation and performance of TRs’ systems. In 2015, ESMA continued working with TRs to implement the data quality action plan established in September 2014 including:

• harmonising TRs’ data validation;
• monitoring the inter-TR reconciliation process; and
• ensuring the harmonisation of the aggregate data made available on TRs’ websites.

ESMA has also been monitoring National Competent Authorities’ (NCAs) access to TR data. It has entered into a number of Memoranda of Understanding (MoUs) to help third country regulatory authorities access TR data and is developing an IT system to allow NCAs to submit data queries through a centralised web portal.

The European Securities and Markets Authority (ESMA) has today published a Discussion Paper (DP) regarding the technical implementation of the incoming Benchmarks Regulation (BR). ESMA is seeking stakeholder’s input to inform its future proposals on draft Regulatory Technical Standards (RTS) and Technical Advice (TA) to the European Commission.

Benchmarks are used in financial markets as a reference to price financial instruments and to measure performance of investment funds, as well as being an important element of many financial contracts and their integrity is critical to financial markets and to investors in particular. The BR’s objective is to improve the governance and control over the benchmark process, thereby ensuring their reliability and protecting users. The changes aim to:

• improve the quality of the input data and methodologies used by benchmark administrators;
• ensure that benchmark contributors provide adequate data and are subject to proper controls; and
• ensure the supervision and viability of critical benchmarks.

Steven Maijoor, ESMA Chair, said:

“The Benchmark Regulation, once implemented, will ensure the accuracy, robustness and integrity of benchmarks and the benchmark setting process by clarifying the behaviours and standards expected of administrators and contributors. These requirements will ensure that benchmarks are produced in a transparent and reliable manner and so contribute to well-functioning and stable markets, and investor protection.

“ESMA, in preparing for its work on regulatory technical standards and technical advice, is keen to ensure that all affected stakeholders have their views heard on this important topic and we hope that all interested parties will take this opportunity to contribute.”

The DP is seeking stakeholder’s feedback in the following areas:

• definition of benchmarks;
• requirements for the benchmark oversight function;
• requirements for the benchmark input data;
• governance and control requirements for supervised benchmark contributors;
• authorisation and registration of an administrator; and
• transparency requirements regarding the benchmark methodology.

The exact date when the Benchmarks Regulation will enter into force is still unknown as it has not yet been published in the Official Journal of the EU.

Next steps

ESMA will hold an open hearing on the DP on 29 February 2016 in Paris. It will use the responses to its DP to develop detailed implementing measures on which it will publish a follow-up consultation in Q3 2016.

ESMA fines DTCC Derivatives Repository Limited €64,000 for data access failures

The European Securities and Markets Authority (ESMA) has fined the trade repository DTCC Derivatives Repository Limited (DDRL) €64,000, and issued a public notice, for negligently failing to put in place systems capable of providing regulators with direct and immediate access to derivatives trading data. This is a key requirement under the European Markets and Infrastructure Regulation (EMIR) in order to improve transparency and facilitate the monitoring of systemic risks in derivatives markets.

This is the first time ESMA has taken enforcement action against a trade repository registered in the European Union (EU). DDRL is the largest EU registered trade repository.

ESMA found that DDRL failed to provide direct and immediate access to derivatives data from 21 March 2014 to 15 December 2014, a period of about nine months in which access delays increased from two days to 62 days after reporting and affected 2.6 billion reports. This was due to its negligence in:

• failing to put in place data processing systems that were capable of providing regulators with direct and immediate access to reported data;
• failing, once they became aware, to inform ESMA in a timely manner of the delays that were occurring; and
• taking three months to establish an effective remedial action plan even while delays were worsening.

DDRL’s failures caused delays to regulators accessing data, revealed systemic weaknesses in its organisation particularly its procedures, management systems or internal controls and negatively impacted the quality of the data it maintained.

The European Securities and Markets Authority (ESMA) has issued today a consultation paper on draft technical standards implementing the Securities Financing Transaction Regulation (SFTR), which aims to increase the transparency of shadow banking activities. Securities financing transactions (SFTs) are transactions where securities are used to borrow cash (or other higher investment-grade securities), or vice versa – this includes repurchase transactions, securities lending and sell/buy-back transactions.

The European Securities and Markets Authority (ESMA) has published its final report containing the draft regulatory and implementing technical standards (RTS/ITS) under the Benchmarks Regulation (BMR). These contain the detailed rules to implement the new European regulatory framework aimed at ensuring the accuracy and integrity of benchmarks across the European Union.

In September 2016, the FSMA, as the national competent authority for Belgium, established the Euribor college and chaired its inaugural meeting. The college includes ESMA, the national competent authorities of the various banks contributing to the Euribor, as well as the national competent authorities of Member States for which the Euribor presents a systemic character because of its importance for their real economy, for the financing of households and enterprises, or for consumers in general. The Euribor college, chaired by the FSMA, currently consists of 17 national supervisory authorities and ESMA. The ECB has attended its meetings as an invited expert.

In 2015, EMMI developed a methodology that would ground the Euribor entirely on transactions (“Euribor+”) and has subsequently carried out a “pre-live verification” exercise, based on data gathered from 31 banks over a period running from September 2016 to February 2017. On May 4^th 2017, after consultation with the FSMA and as a result of its pre-live verification exercise, EMMI published its decision not to pursue a transition to the proposed Euribor+ methodology in the short term.

The college of Euribor takes note of this decision and will continue to engage with EMMI on alternative plans for Euribor reform and transition.

The European Securities and Markets Authority (ESMA) has published an Opinion setting out general principles aimed at fostering consistency in authorisation, supervision and enforcement related to the relocation of entities, activities and functions from the United Kingdom. The opinion is addressed to national competent authorities (NCAs), in particular of the 27 Member States that will remain in the EU (EU27).

The opinion is a practical tool to support supervisory convergence in the context of increased requests from UK financial market participants seeking to relocate to the EU27. It covers all legislation referred to in the ESMA Regulation, in particular the AIFMD, the UCITS Directive, MiFID I and MiFID II.

The European Securities and Markets Authority (ESMA) has published three Opinions setting out sector-specific principles in the areas of investment firms, investment management and secondary markets, aimed at fostering consistency in authorisation, supervision and enforcement related to the relocation of entities, activities and functions from the United Kingdom .

The opinions, building on the general opinion issued in May, are practical tools to support supervisory convergence in the context of requests from UK financial market participants seeking to relocate to the EU27. They are addressed to national competent authorities (NCAs) and are relevant for market participants considering relocating.

They provide guidance to NCAs aimed at ensuring a consistent interpretation of the requirements relating to authorisation, supervision and enforcement in order to avoid the development of regulatory and supervisory arbitrage risks.

Today, the Financial Services and Markets Authority (FSMA), the European Securities and Markets Authority (ESMA), the European Central Bank (ECB) and the European Commission announce the launch of a new working group tasked with the identification and adoption of a "risk-free overnight rate" which can serve as a basis for an alternative to current benchmarks used in a variety of financial instruments and contracts in the euro area.

The working group, chaired by a private sector representative and with the Secretariat to be provided by the ECB, will regularly consult market participants and end-users, as well as gather feedback from other public authorities. Its terms of reference will be made public and the group will regularly report on its meetings. This is to ensure transparency on all steps in the identification and adoption of a new risk free rate.