08 March 2019

ESMA publishes responses to its Consultation on Guidelines on settlement fails

ABI

It would be extremely valuable to receive further guidance from ESMA regarding the implications (if any) that both the i) EC Implementing Decision (EU) 2018/2030 adopted on 19 December 2018 and ii) ESMA recognition decision of UK CSDs, could have in the context of this Guideline, in light of the fact that Guidelines  explicitly refer to items mentioned therein, namely «financial instruments that are initially recorded or centrally maintained in CSDs authorised in the EU i.e. financial instruments in relation to which an EU CSD acts in an issuer CSD capacity» and also to «financial instruments that are recorded in an EU CSD that acts in an investor CSD capacity for the respective financial instruments, even though they may be initially recorded or centrally maintained outside of CSDs authorised in the EU»;

With particular reference to Irish securities, ABI is pleased to acknowledge the consistent approach adopted by ESMA that supports «continued access to the UK Central Securities Depository (CSD), in order to allow the UK CSD to serve Irish securities and to avoid any negative impact on the Irish securities market». In this respect, it would be grateful to receive confirmation by ESMA (when publishing the responses received to this public consultation) that – as a consequence of the above-mentioned Implementing Decision and the ESMA recognition decision of UK CSDs – i) no implications on settlement of Irish securities are likely to occur and ii) Euroclear UK and Ireland will continue to be able to provide their services within 21 months from Hard Brexit date;

Last but no less importantly, it would be useful to receive further guidance by ESMA about the implication(s) of Hard Brexit on any settlement-related issue (also in the light of the EU contingency measures at issue) not only in the context of these two sets of Guidelines under consultation but also by other means such as for instance, Q&As, Public Statements. This would be in line with the approach already adopted on other areas (such as Prospectus Regulation, EMIR, etc.) potentially affected by the scenario of a Hard Brexit.

Full ABI response

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T2S CSDR Task Force

According to the proposed approach in Guideline 1, the T2S CSDR TF understands that the scope of financial instruments to be considered for the reporting of settlement fails is wider than the scope of financial instruments to be considered for the application of cash penalties and wonders if there is a specific rationale for this approach.

Indeed, under bullet point b of Guideline 1,  the “financial instruments that are recorded in an EU CSD that acts in an investor CSD capacity for the respective financial instruments, even though they may be initially recorded or centrally maintained outside of CSDs authorised in the EU” should be considered for the reporting of settlement fails, while as the scope of financial instruments subject to cash penalties, although it includes CSD-eligible MiFID financial instrument, shall exclude shares when their principal trading venue is located in a Third Country CSD, according to CSDR Art. 7.13.

This potential discrepancy in scope has concrete implications as documented under answer 2 of this consultation.The T2S CSDR TF also notes that the scope of the financial instruments subject to settlement fails reporting, being any CSD-eligible instrument, is operationally less cumbersome to retrieve than the scope of financial instruments subject to cash penalties, which requires combining several lists/instruments databases.

Full T2S CSDR Task Force response

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ECSDA

ECSDA would generally advise to carefully balance costs vs. benefits of the reporting and limit the granularity of the information to what is fundamentally necessary for further actions of competent authorities.

ECSDA stresse the fundamental importance of having more clarity on the instrument and instruction scope of the fails reporting, as well as the scope of other settlement discipline measures.

It believes that the scope of the requirements should be limited to transactions in financial instruments which the parties settle in an EU CSD. Hence, transactions where the actual place of settlement is outside of an EU CSD should be considered as out of scope of the reporting by EU (Investor-)CSDs.

ECSDA would kindly ask for providing the definition of the ISO 20022 or XML message (draft) format to be used for reporting, as soon as possible and ahead of the issuance of the final version of these guidelines. Else, it fears that the timely compliance with the guidelines would be at risk.

Full ECSDA response

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Consultation Paper on CSDR Guidelines on settlement fails reporting

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