FIA has submitted a response to the European Securities and Markets Authority’s consultation paper on information on clearing fees and associated costs under the European Market Infrastructure Regulation (EMIR 3.0). FIA cautions against the proposed requirements on clearing service providers (clearing members and clients providing client clearing services - CSPs), which are duplicative, and suggests an alternative approach.
ESMA’s draft regulatory technical standards require CSPs to disclose, for each CCP at which they provide clearing services, the fees to be charged to clients for the provision of those services. The draft RTS duplicate existing fees and costs disclosure requirements on CSPs that are set out in other articles of EMIR and MiFID II.
FIA suggests that the clearing fees and associated costs requirements as proposed in ESMA's draft RTS should be significantly simplified and materially amended to enable firms to meet compliance with Article 7c(2) by directing clients to the CSPs’ public disclosures that are already being made under Article 38(1) and Article 39(7) of EMIR and privately sharing bilateral disclosures under Article 4(3a) of EMIR and Article 24(4) of MiFID II (the latter upon request).
In this way, the Article 7c(2) disclosure could help bring together the different sources of existing information in a ‘one-stop-shop’ by clearly setting out in one document where and how to obtain existing disclosure. It would make it easier for clients to identify where/how to access this information, without requiring CSPs to transform or duplicate this information to meet a new set of substantially similar requirements to those that already exist.
FIA notes that the proposed draft RTS requirements should go hand-in-hand with the broader EU simplification rulemaking agenda. ESMA’s draft RTS go beyond Level 1 when it comes to its territorial scope, and FIA asks ESMA to rectify this in the final draft RTS.
FIA also urges ESMA to introduce a sufficient implementation period to allow CSPs to comply with the RTS requirements. The proposed length of the implementation period depends on how close the final RTS rules are to FIA's proposals.
FIA has provided detailed responses to each of the four questions in the consultation paper. It also provides a gap analysis between the EMIR 3.0 fees and costs transparency disclosure requirement (Article 7c(2)) and other similar requirements on CSPs in EMIR and MiFID II.
Read the full response here.
