Commission Delegated Regulation (EU) 2023/1192 of 14 March 2023 supplementing Regulation (EU) 2021/23 of the European Parliament and of the Council with regard to regulatory technical standards specifying the content of the written arrangements and procedures for the functioning of the resolution colleges (Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2021/23 of the European Parliament and of the Council of 16 December 2020 on a framework for the recovery and resolution of central counterparties and amending Regulations (EU) No 1095/2010, (EU) No 648/2012, (EU) No 600/2014, (EU) No 806/2014 and (EU) 2015/2365 and Directives 2002/47/EC, 2004/25/EC, 2007/36/EC, 2014/59/EU and (EU) 2017/1132 (1), and in particular Article 4(7), fourth subparagraph, thereof,

Whereas:

(1) In order to ensure the homogeneous governance of the resolution of CCPs across the Union, resolution colleges established pursuant to Article 4 of Regulation (EU) 2021/23 should rely on a commonly shared set of functioning rules.

(2) The resolution colleges are to facilitate cooperation among competent authorities and resolution authorities, notably at the preparatory stages of recovery and resolution, by gathering all relevant competent authorities, the relevant members of the European System of Central Banks, central banks of issue of the relevant Union currencies of the financial instruments cleared, the relevant ministry, the European Securities and Markets Authority (ESMA) and the European Banking Authority (EBA).

(3) In order to ensure efficient and effective decision making, information exchange processes and cooperation among the authorities, the written arrangements and procedures of the resolution college should include the necessary organisational provisions. In particular, the resolution college should recognise the need for the establishment of flexible substructures within the resolution college to carry out its functions and ensure that members are able to contribute in an appropriate manner in relation to the various activities of the college.

(4) The written arrangements and procedures of the resolution college should also include the necessary operational provisions. Those operational provisions should enable the resolution authorities to coordinate their input to the supervisory college established pursuant to Article 18 of Regulation (EU) No 648/2012 of the European Parliament and of the Council (2) which is covering the day-to-day operation of the CCP. Furthermore, those operational provisions should facilitate the resolution authorities’ task of organising the analysis, consideration and evaluation of the input that they receive from the supervisory college. Written arrangements and procedures should, therefore, include a process of communication between the supervisory college and the resolution college.

(5) To ensure the robustness of the resolution college, the efficiency of its inner processes, and efficient coordination with the supervisory college, the resolution college should rely on a set of operational rules governing the functioning of college meetings, the exchange of information within the resolution college and the communication arrangements.

(6) To ensure that operational procedures are effective to address an emergency, the resolution authority of the CCP should undertake appropriate tests for the readiness of the resolution college to act and respond in such a scenario.

(7) Timely and realistic planning for all joint decision processes is necessary to ensure smooth and efficient decision taking. Every authority involved in those processes should provide the resolution authority of the CCP with its contribution in relation to the respective joint decision in a timely and efficient way and in accordance with the timetables agreed for the respective joint decision.

(8) It is necessary to ensure that joint decisions are taken swiftly and in a timely manner. This is particularly important for decisions on resolution but is also relevant for resolution planning and resolvability assessment. At the same time, authorities involved in the joint decision-making process should be provided with sufficient time to express their views. The steps for reaching any joint decision should be set out, recognising that some of these steps may be performed in parallel and others sequentially.

(9) In order to ensure comparability of processes and outcomes, and therefore achieve convergence across different resolution colleges, it is necessary to set out uniform rules on the process and documentation required for the joint decision-making within the resolution colleges.

(10) It is furthermore necessary to set out the procedural framework for the resolution authority, authorities that are members of the resolution college and, where appropriate, third-party competent authorities and resolution authorities to strive for efficient and workable resolution planning even in the absence of joint decisions.

(11) This Regulation is based on the draft regulatory technical standards submitted to the Commission by ESMA.

(12) ESMA has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits, and requested the advice of the Securities and Markets Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council (3),

HAS ADOPTED THIS REGULATION:

CHAPTER 1

OPERATIONAL ORGANISATION OF RESOLUTION COLLEGES

Article 1

Identification of resolution college members and potential observers

Article 2

Third-country authorities as observers in the resolution college

(a) the opinion of the resolution authority of the CCP, also having regard to paragraph 2, point (b) and (c), on the equivalence of the confidentiality requirements applicable to the potential observer;

(b) the terms and conditions for the participation of observers in the resolution college referred to in Article 5(2), point (f) of this Regulation;

(c) the opinion of the resolution authority of the CCP as to the significance of the exposure of the relevant third-country clearing members or interoperable CCPs;

(d) the setting of a deadline for the resolution college to take a decision on the request or the intention to invite to participate in the resolution college, upon the expiration of which consent of the resolution college is to be assumed. Within the deadline set out in this paragraph, point (d), any disagreeing authorities referred to in Article 4(2), points (b) and (c), of Regulation (EU) 2021/23 may express its fully reasoned objection to the opinion of the resolution authority of the CCP referred to in point (a). When an objection is expressed, the resolution authority of the CCP shall take it into account before making its final decision. The final decision of the resolution authority of the CCP on the request or the intention to invite to participate shall be fully reasoned and communicated to all resolution college members and shall, if relevant, reflect the reasons for not taking into account diverging views.

Article 3

Communication with the CCP

Article 4

Establishment and update of contact details

The contact details referred to in the first subparagraph shall also include out-of-hours contact details for emergency situations.

Article 5

Content of written arrangements and procedures for the functioning of the resolution college

(a) the rules on resolution college governance, its working language and voting procedures;

(b) the tasks and decisions to be undertaken by the resolution college, including the right of the resolution college to form committees and the procedures to obtain agreement on the formation of such committees and the delegation of tasks to them, together with any applicable conditions;

(c) the responsibilities of the resolution authority of the CCP as the chair of the resolution college referred to in Article 4(5) of Regulation (EU) 2021/23 and in relation to the tasks and decisions referred to in point (b) of this paragraph;

(d) the structure of the resolution college, in particular any committees formed under point (b) and the identification of the resolution college members participating in such committees and observers admitted to such committees;

(e) the terms and conditions for the participation of members of the resolution college, including their involvement in the tasks and decisions identified in point (b);

(f) the terms and conditions for the participation of observers in the resolution college, including their involvement in the dialogues and activities of the resolution college, as well as their rights and obligations regarding exchange of information, having regard to Articles 4, 8 and 80 of Regulation (EU) 2021/23. For this purpose, the resolution authority of the CCP shall ensure that the terms and conditions for the participation of observers are not more favourable than terms and conditions set out for resolution college members;

(g) day-to-day, as well as emergency-situation, communication, cooperation and coordination arrangements, such as regular updates on the corporate structure and business activities of the CCP, including the type of services it provides, the products, asset classes and types of transactions it clears, the CCPs, trading venues, payment systems and central securities depositories and securities settlement systems to which it is linked and the geographical mix of direct and significant indirect participants known to the CCP;

(h) procedures for the adoption of joint decisions as far as this is not covered by Regulation (EU) 2021/23 and procedures to reach a common understanding where a joint decision is not required but such a common understanding within the resolution college, or within any of its committees, appears necessary to the resolution authority of the CCP;

(i) arrangements for exchanging confidential and non-confidential information as set out in Article 8, including the relevant scope and frequency of such exchange and the communication channels to be used, having regard to Articles 8, 73 and 80 of Regulation (EU) 2021/23 and to the role of the resolution authority of the CCP as the coordinator for collecting and disseminating information amongst the resolution college members and observers, where applicable;

(j) a description of relevant information to be shared with resolution college members and observers, in particular in relation to resolution planning, resolvability assessment and other tasks referred to in Article 4 of Regulation (EU) 2021/23, having regard to Articles 8, 73 and 80 of that Regulation and to the role of the resolution authority of the CCP;

(k) arrangements for the treatment of confidential information having regard to Articles 8, 73 and 80 of Regulation (EU) 2021/23;

(l) procedures for convening and holding regular and ad hoc meetings referred to in Article 7;

(m) arrangements relating to the interaction between the resolution college and the supervisory college referred to in Article 2, point (24), of Regulation (EU) 2021/23, including the coordination of inputs from resolution college members and the communication of such input to that supervisory college where required for the purposes of exercising their tasks under that Regulation;

(n) procedures in relation to the communication policy referred to in Article 9 of this Regulation;

(o) any other agreement concerning the functioning of the resolution college;

(p) any provisions covering amendment and discontinuance arrangements.

Article 6

Establishment and update of written arrangements and procedures for the functioning of the resolution college

Where the members of the resolution college submit opinions regarding the proposal for the written arrangements and procedures pursuant to paragraph 2, they shall submit those opinions, together with a thorough explanation of the comments and suggestions provided to the resolution authority of the CCP within the deadline.

Article 7