ESMA’s 2019 Supervisory Convergence Work Programme and its Supervisory Priorities – what does it mean for market participants?

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ESMA’s 2019 Supervisory Convergence Work Programme and its Supervisory Priorities – what does it mean for market participants?

ESMA’s 2019 Supervisory Convergence Work Programme and its Supervisory Priorities – what does it mean for market participants?

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February 25, 2019

On February 6, the European Securities and Markets Authority (ESMA) published¹ its 2019 Supervisory Convergence Work Programme (SCWP). Five top priorities were identified, building up on ESMA’s work in 2018 and most of them hardly come as a surprise. Ensuring supervisory convergence in the context of the UK’s withdrawal from the EU, which started as a new task in 2018, is amongst the top priorities in 2019, and fostering supervisory convergence in the field of financial innovation builds up on the “new” 2018 task of monitoring developments in financial innovation through an analysis of emerging and existing instruments. The continuing themes focus on the consistent application of MiFID II/ MiFIR and ensuring adequate investor protection in the cross-border provision of services context. Other somewhat continuous priority includes making the use of data more consistent by clarifying existing and developing new reporting methodologies.

On February 19, ESMA published its 2019 Supervision Work Programme² (SWP). It focuses on the supervision of Trade Repositories (TRs), Credit Rating Agencies (CRAs) and the monitoring of third-country market infrastructures such as third-country central clearing counterparties (TC-CCPs) and third-country Central Securities Depositories (TC-CSDs). Currently, ESMA directly supervises eight TRs and 27 CRAs as well as carrying responsibility for four certified CRAs and 32 TC-CCPs. In 2019, ESMA is also expected to implement its new direct supervisory mandate under the Securities Financing Transactions Regulation (SFTR), which aims to increase the transparency of securities financing transactions. Furthermore, 2019 is the year when the Securitization Regulation (SecReg) becomes applicable, and ESMA anticipates preparatory work for the assessment of applications for the registration of securitization repositories.
This Client Alert provides an overview of ESMA’s 2019 priorities set in both the SCWP and SWP and the thematic areas and cross-cutting activities involved. This Client Alert should be read in conjunction with the Navigating 2019 supervisory outlook publication³ as it adds to the non-exhaustive outline of supervisory priorities of various EU institutions and European Supervisory Authorities (ESA) for Banking Union Supervised Institutions and other regulated market participants.

Factors influencing ESMA’s agenda

ESMA’s supervisory agenda is influenced by three main factors—the regulatory environment, the market environment and the priorities for supervision set at national level. Brexit is a big recurring theme in ESMA’s Work Programme especially given that many UK CRAs and TRs have expressed their desire to continue to provide their services in the EU-27 after Brexit. In order to do so, many have applied to register a new legal entity in the EU-27 and have notified ESMA of material changes as ESMA insists that any EU-27 registered TRs and CRAs should comply with the minimum substance requirements and outsourcing conditions.

As part of the regulatory environment plan, ESMA is focusing on following the projects within the CMU Action Plan⁴ and the legislative proposals regarding the facilitation of cross-border distribution of Undertakings for Collective Investments in Transferable Securities (UCITS) and Alternative Investment Funds (AIFs). Other plans of the Commission, which have earned their place on ESMA’s shortlist, include the Action Plan on Sustainable Finance⁵ and the FinTech Action Plan.⁶ These aim to strengthen the transparency of companies and the regulation of crowdfunding service providers currently in the legislative process. The latter builds on ESMA’s convergence work and may lead to new developments through introducing EU level authorization and establishing a public register of crowdfunding service providers. The relevant regulatory challenges identified focus on the UK’s decision to leave the EU as it presents challenges on many levels including for ESMA and National Competent Authorities (NCAs) in addition to those faced by financial firms, investors and consumers. The Prospectus Regulation⁷ which enters into force on July 21, 2019 will play an important role in supervisory convergence as it aims to align the requirements for NCAs on prospectus scrutiny and approval.

Aside from the challenges faced by market players in 2018 in terms of political risks, trade tensions and general tightening of financial conditions, the overarching themes identified include FinTech which continues to drive innovation and has also become the object of regulatory attention. Additionally, ESMA’s analysis on retaining investment products such as UCITS and AIF shows heterogeneity of costs across the EU for UCITS, an indicator of the differing national disclosure requirements.

Despite ESMA having invited NCAs to “non-prioritize” certain actions in the derivatives compliance space as the full implementation of EMIR reforms, known as EMIR 2.1 and 2.2 change how certain aspects of EMIR operate and thus how market counterparties trade with one another as well as operationalize compliance. ESMA still expects that NCAs, regardless of the “non-prioritization” request, which has made absent the use of the now much awaited future EU supervisory tool of formal “No Action Relief Letters,” which are being finalized as part of the EU’s Brexit Emergency Legislation, focus on EMIR compliance overall. Compliance with MiFID II concerning trading venues as well as implementation of the key requirements for MiFID II/MiFIR on product governance, information on risk and rules of conduct of business as well as suitability assessment is also high on the agenda. The supervision of investment funds and issuers also remains a priority, as well as the area of cyber/IT security and the development of IT systems and tools.

ESMA’s Supervisory Convergence Priorities

Ensuring supervisory convergence in the context of the UK’s decision to withdraw from the EU – aside from the discussion around the relocation of UK-based entities to the EU27, ESMA is invested in the prospect of further convergence on topics such as back-branching, minimal presence requirements in the EU. A peer review conducted at the end of 2019 will aim to look into NCAs’ handling of relocation requests.
Making data and its use more robust and consistent by developing and further clarifying reporting methodologies and providing guidance to ensure complete and high-quality data – a newly created Data Standing Committee will be in charge.
Driving forward consistency in the application of MiFID II/MiFIR and getting to a common understanding on arising supervisory challenges – ESMA will update its guidelines on “suitability”, “product governance” and “compliance function” and look further into periodic auction trading systems, the provision of market data by trading venues and approved publication arrangements.
Safeguarding the free movement of services in the EU through adequate investor protection in the context of cross-border provision of services – the key here is the focus on facilitating exchange of information among home NCAs and host NCAs on cross-border activities.
Fostering supervisory convergence in the field of financial innovation – ESMA aims to provide a forum for NCAs to share their views on the regulation and supervision of ICOs and crypto assets. ESMA is also committed to map the authorizing and licensing approaches for FinTech business models in the member states to further cooperation across national hubs and regulatory sandboxes.
Additionally, the enhanced supervision of CCPs continues to be relevant.

ESMA will also continue contributing to the Joint Committee of the ESAs especially on the implementation of PRIIPs, work on the PRIIPs review (level 2) and the implementation of the Securitization Regulation.⁸

Thematic activities and cross-cutting activities set in the SCWP

ESMA’s thematic activities revolve around a few key areas aligned with its supervisory priorities. Activities in the Intermediaries and Investor Protection area and Secondary Markets both revolve around the importance of the consistent implementation of the new MiFID II/MiFIR framework, including challenges in their implementation. A growing emphasis on sustainability at EU level and convergence work in the context of the UK’s withdrawal are also highlighted. Pre-trade transparency waivers in equity instruments granted by NCAs under MiFIR will be reviewed to assess compliance with the new MiFID II framework. The key areas of focus in the Investment Management and Market Integrity activities are on fostering common supervisory approaches under the UCITS and AIFMD frameworks and the context of the Market Abuse Regulation (MAR), the Short Selling Regulation (SSR) and the consistent implementation of the Benchmarks Regulation (BMR) respectively.

ESMA also aims to continue contributing to supervisory convergence regarding the MMFR by issuing guidelines on money market fund (MMF) managers’ reporting obligations and MMF stress testing. The possible links between MAR and crypto assets, ICOs or other non-financial instruments are highlighted as well. ESMA’s Q&A remain important in the context of its Post-trading activity, alongside the convergence in the CCP area, and also in terms of corporate finance in light of the new Prospectus Regulation. Finally, on the corporate reporting front, attention will be paid to issuers related to the enforcement of IFRS 9 “Financial Instruments” and IFRS 15 “Revenue from Contracts with Customers.” Updating the existing ESMA Guidelines on Enforcement of Financial Information is also foreseen.

Many of the cross cutting activities focus on EMIR and MiFID II/ MiFIR, especially in terms of data reporting, enhancing the performance of IT support systems and enhancing the quality of data reported. Aside from these, financial innovation remains key with FinTech, RegTech and distributed ledger technology alongside peer reviews and the ever-present impact of the UK’s withdrawal from the EU.

ESMA’s SWP priorities and impacts for specific market participants

ESMA when looking at the SWP as it applies to specific market participants assesses risks both on industry and firm level and does not use a one-size-fits-all approach, allowing it to adjust to the size, complexity or urgency of the case and entity. The overarching 2019 themes focus on supervisory activities in response to external factors, namely Brexit, the entry into force of the SFTR and the SecReg, as mentioned above.

ESMA will look at policies, procedures and processes documents that evidence a sound and compliant culture of sufficiently staffed and independent governance, risk and control (compliance, legal and audit) functions in respective market participants it supervises. ESMA will also look as to whether its supervisory expectations are met with sufficient consideration of fallbacks (including business continuity planning) as well as testing the cyber-resilience and IT security of the relevant firm. More specifically this translates into the following supervisory priorities for 2019 for each category:

TR supervision

The UK’s withdrawal from the single market means UK-based TRs will have to transfer their trades to TRs based in the EU-27, and ESMA is closely monitoring that TRs implement the Guidelines on Portability before Brexit – this may be a challenge for some. The preparation for the SFTR and SecReg also affect TRs as new standards for reporting and processing technologies are implemented. Overarching themes include:

Data quality and access by authorities, with a particular focus on the Data Quality Action Plan, which includes TRACE-SFTP assessments – following the TRACE introduction in 2016, ESMA has performed three such assessments. Additionally, in terms of portability, to ensure that trades, which are to be ported from one TR to another, are in line with the revised RTS/ITS reporting requirements, reporting counterparties will need to upgrade these to meet the revised RTS/ITS reporting requirements
IT process and system reliability
Business continuity planning
Information security function

Future ESMA TR-related supervisory expectations include:

ESMA expects some of the currently registered TRs under EMIR to apply for an extension of registration for SFTR, and such applications will be a key supervisory priority in 2019.
ESMA expects some of the currently registered TRs under EMIR to apply for an extension of registration for SecReg, and such applications will be a key supervisory priority in 2019, in the absence of ESMA having finalized regulatory technical standards permitting securitization repository applications.

CRA supervision

ESMA registered four new CRAs in 2018, and after releasing its supervision Guidelines in 2017, it provided a supplement to these updated Guidelines on Endorsement in July 2018, which sets out the general principles used by ESMA for assessing whether an alternative internal requirement, to which a third country CRA has established and adheres to, can be considered “as stringent as” the requirement set out in the CRA Regulation. These Guidelines took effect from January 1, 2019. International cooperation of the supervision of the three largest CRAs has also been enhanced. ESMA has also obtained bilateral interactions with supervisors from third countries on smaller, globally operating, CRAs.

ESMA notes that firms that: (i) are legal persons established in the EU; and (ii) issue, on a professional basis, credit ratings (as defined by the CRA Regulation), which are disclosed publicly or distributed by subscription, should apply to ESMA for registration.”

CRAs have to meet the CRA Regulation Requirements to ensure they support high-quality credit analysis. As such, they are encouraged to use reliable information; continuously monitor all credit rating factors; minimize conflicts of interest and ensure that analytical functions are staffed with sufficient and expert resources. ESMA expects therefore that an appropriate level of transparency with regard to the process should also be maintained.

Key points of consideration include:

Portfolio risk - ESMA monitors large positive or negative shifts in credit ratings at asset class and individual firm level. From a supervisory perspective, ESMA’s risk assessment tends to focus on specific movements in credit ratings and large changes in credit rating distributions. The Validation Guidelines set out ESMA’s expectations on the use of quantitative and qualitative measures in validating rating methodologies and establish minimum standards in a significant area of the CRA Regulation where ESMA has seen significant divergences in market practices.
Quality of the rating process – ESMA conducted an investigation which found that CRA’s procedures are not always aligned with regulatory requirements and as such potential conflict of interest situations could be created. Thus, CRAs are expected to design internal control measures to prevent overreliance on limited sources of information or on key personnel to identify potential conflicts of interest with shareholders.
Cybersecurity – CRAs are required to notify ESMA of any material changes to the initial conditions of their registration. ESMA thoroughly assesses these notifications to ensure that the CRA still meets the conditions under which it was registered. In 2018, ESMA has assessed a wide variety of notifications, including the transfer of credit rating business from a CRA into a new legal entity, the acquisition of an EU CRA by non-EU CRAs, changes in outsourcing agreements, and various notifications related to Brexit. To be registered as a CRA in the EU, a firm needs to demonstrate that it fulfils the necessary organizational requirements and that it provides adequate safeguards, in particular with regard to governance, conflicts of interest, internal controls, rating process and rating methodologies, business activities and disclosures.

Common areas of supervision in 2019 across TRs and CRAs

Aside from Brexit, other ESMA workstreams that are common to CRAs and TRs include a follow-up on a thematic report on fees as well as a review of the effectiveness of the supervised firms’ internal control systems, and the use of new technologies. ESMA aims to tailor its actions to the specificities of the different industries. On Brexit specifically, it will assess whether CRAs and TRs are taking measures to “ensure that the post Brexit set-up in the EU-27 is as strong as the pre-Brexit set-up in the EU-28 (e.g. transfers of personnel or new hires to strengthen the presence of staff in the EU-27.)” This leaves a large amount of supervisory discretion to ESMA, which is increasingly finding its voice, notably in its Supervisory Principles on Relocations (SPoRs)⁹ as well as the Guidelines on Portability and further communication provided by ESMA to TRs.

TC-CCPs

Article 25 EMIR states that central counterparties established in third countries can provide clearing services to European clearing members once thy have been recognized by ESMA. Furthermore, the Capital Requirements Regulation (CRR) allows EU institutions and their third country subsidiaries to benefit from advantageous capital treatment with respect to cleared derivatives transaction when the CCP they are facing is also recognized by ESMA. According to ESMA this has led, as of December 31, 2018 for ca 50 TC-CCPs to apply for recognition by ESMA. Part of this is also reliant on the European Commission’s assessment of the third-country’s regime, and it is worth noting that how the Commission conducts those assessments is itself in a state of change.

To recap, the so-called “equivalence decisions” of the European Commission are implementing acts stipulating that the legal and supervisory arrangements of a third country ensure that the CCP in that country complies with requirements equivalent to those of EMIR. ESMA should also conclude cooperation arrangements with the relevant third-country authorities on top of that. ESMA thus has no direct supervision powers over TC-CCPs but has to monitor their activity as per the ESMA Regulation and to ensure financial stability in the EU. ESMA also assesses whether the classes of OTC derivatives cleared by recognized TC-CCPs should be subject to the clearing obligation as foreseen in EMIR. ESMA’s supervisory mandate on TC-CCPs and CCPs generally is also in the process of changing.

In relation to Brexit, in 2019 ESMA will pursue the recognition process, and it has already communicated that it will recognize three UK CCPs that will become third country CCPs on Brexit day. This thus means that there will be a special focus on ensuring continued access for EU clearing members and clients in a No-Deal scenario. ESMA will also continue its information gathering tasks of mapping interlinkages and exposures of EU entities with the TC-CCP. ESMA has requested data covering six areas:

The EU products, currencies and trading venues serviced by the CCP
The EU clearing members’ activity within the CCP in securities and derivatives (exchange traded and OTC)
The corresponding EU clearing members’ exposures (default contribution, margin provision and power of assessment)
Liquidity resources provided by EU entities to the CCP
Interoperability arrangements between the CCP and EU CCPs
Qualitative information on important changes at the CCP.

TC-CSDs

ESMA recognizes TC-CSDs under CSDR, if they provide notary or central maintenance services in relation to financial instruments constituted under the law of a Member State or that set up a branch in a Member State. The Commission should have adopted an equivalence decision beforehand, but so far none have been published with the exception of that published in respect of the UK on December 19, 2018. Similar to TC-CCP, whilst ESMA does not have direct supervision powers over TC-CSDs, it has to monitor TC-CSD activity as stated in the ESMA Regulation and in the context of CSDR to ensure EU financial stability.

ESMA’s SWP confirms that during 2019 it will pursue the recognition process for UK CSDs that will become TC-CSDs on Exit Day in a No-Deal scenario. ESMA will continue the negotiations and sign the corresponding memorandum of understanding and necessary supervisory instruments with the Bank of England, as the competent authority for UK CSDs. ESMA plans to monitor whether the recognized TC-CSD complies with the CSDR recognition criteria and with the equivalence conditions, if applicable, on an ongoing basis.

Outlook

While much of what ESMA is committing itself to do as part of its SCWP and SWP is of course welcome, past delivery timelines of what is already a full task list on the desks of ESMA have proven that market participants may want to consider timing and project delivery fallbacks so as to remain agile. As a number of the priorities discussed above have impacts on documented policies and procedures, but also possibly on documentation in place between market participants and/or their own counterparties, taking early action is recommendable as is having contingency plans, with staged (mutually agreed) fallbacks, to identify, mitigate and manage any adverse Brexit effects or any other operational continuity concerns.

If you would like to discuss any of the items mentioned above, in particular how to forward-plan any impacts on operationalizing compliance across documentation and non-documentation workstreams or how these priorities may affect your business or your clients more generally, please contact our Eurozone Hub key contacts.