01 October 2013

ESMA/Maijoor address to BWF/ICMA Capital Markets Conference in Frankfurt

ESMA’s objectives include responsibility for:

• creating a Single Rulebook;
• ensuring supervisory convergence in the application of EU securities law across the 28 Member States;
• the supervision of Credit Rating Agencies and Trade Repositories;
• contributing to the financial stability of the EU; and
• investor protection.

These objectives apply to a broad range of financial activities in Europe’s securities markets, from trading complex derivatives to high frequency trading, the supervision of key financial market players – such as credit rating agencies and trade repositories – to the management of investment funds and how these are sold to the public. In essence ESMA’s work, in all its various guises, contributes to investor protection and stable financial markets in the EU.

It is no surprise that the G20 commitments steered ESMA’s agenda in its pioneering years towards the completion of the single rulebook and supervising CRAs. Talking about the strong focus on the G20, there is a concern that I would like to share with you. I believe that we need to ensure the right balance between regulation and supervision. Regulation is only credible when it is effectively supervised. We cannot have a model where a strong increase in the regulation of financial markets is without an accompanying increase in supervisory activity and the availability of adequate resources to supervise and enforce the new rules.

It will be of no surprise that this new reporting will need some adjustments and fine-tuning. We are already working closely with the entities that have applied for registration as trade repositories and national competent authorities to ensure that all counterparties know how to report and how to meet the obligations in this respect. We are particularly looking at the consistency in reporting between EMIR and MiFID and the reporting of Exchange Traded Derivatives (ETDs), which needs further clarification. ESMA has been working on both issues and proposed in August 2013 to the European Commission to delay the reporting date for ETDs with one year to January 2015. This delay would give ESMA time to develop guidelines for the reporting of ETDs. However, the European Commission signaled last week that it does not intend to support such a delay. While far from ideal, if the delay is not endorsed by the European Commission, ESMA intends to provide some Questions and Answers on ETD reporting before the start of the reporting obligation.

I think you all will agree with me if I say that EMIR already had an impact on the market and made markets more robust, more transparent and safer. That most of the technical standards have been finalised and published does however not mean that it is time for ESMA to take a rest. No matter how carefully legislation is drafted there will always be questions about its practical application.

Though more and more securities markets legislation is developed at EU level, its supervision and subsequent enforcement is mainly the task of the national regulators. The uneven supervision and application of EU law across the Member States could however result in regulatory arbitrage within the Internal Market. ESMA will therefore launch new activities in the near future to further strengthen consistency in supervisory outcomes. To improve the organisation and governance of our convergence work, we will introduce changes aimed at strengthening our peer review tool with more on-site visits, targeting of topical supervisory matters and more independent assessment teams. Indeed, this means that a group composed of representatives of national competent authorities and ESMA staff will be visiting a selection of national regulators to interview employees but also to review supervisory files.

We should avoid that CCPs are presented with products with risks they cannot manage properly. When derivatives lose liquidity they cease to be fit for central clearing and trading in a matter of weeks. In those cases, and in order to avoid increasing risks that CCPs cannot longer manage, or to impact liquidity further by forcing trading, regulators need to act swiftly. We currently lack those “express” measures in the EU financial markets, since the full legislative process of technical standards has to be applied.

Adopting mechanisms to suspend temporarily an obligation that could increase risk of reducing them or that would start to run contrary to the objective of a Regulation is a need that the European System of Financial Supervision should get sooner than later if we want EU markets to be properly regulated and supervised.

The way we are now funded appears to have become an important problem for the development of ESMA. The current model where National Competent Authorities partly fund the ESAs implies that more funding for the EU supervisors means less funding for the national supervisor. This results in tensions as it is inconsistent with the current regulatory reform agenda which requires the strengthening of regulation and supervision both at EU and national level.

Possible solutions to consider here are decreasing the level funding by NCAs and increasing funding from the EU budget, or from market participants. On the latter, while we are already partly funded by market participants, not all ESMA activities directly related to market participants are yet funded by them. To give an example, this could be the case where an infrastructure requests an ESMA decision that will allow it to operate in the EU single market. For instance, recognition of foreign infrastructures could be paid by the CCPs when applying to operate in the EU market, instead of the European taxpayers.

Full speech

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