Article 17b
Procedure for adopting decisions, reports or other measures
1.
A CCP’s competent authority shall submit in electronic format via the central database a request for an opinion:
(a)
by ESMA, pursuant to Article 23a(2), where the CCP’s competent authority intends to adopt a decision, report or other measure in relation to Articles 7, 8, 20, 21, 29 to 33, 35, 36, 37, 41 and 54;
(b)
by the college referred to in Article 18, pursuant to Article 19, where the CCP’s competent authority intends to adopt a decision, report or other measure in relation to Articles 20, 21, 30, 31, 32, 35, 37, 41, 49, 51 and 54.
The request for an opinion referred to in the first subparagraph of this paragraph, together with all relevant documents, shall be shared immediately with ESMA and with the college referred to in Article 18.
2.
Unless otherwise specified under a relevant article, the CCP’s competent authority shall, within 30 working days of submitting the request referred to in paragraph 1, assess the CCP’s compliance with the respective requirements. By the end of that assessment period, the CCP’s competent authority shall transmit its respective draft decision, report or other measure to ESMA and the college referred to in Article 18.
3.
Unless otherwise specified under a relevant article, following the receipt of both the request for an opinion referred to in paragraph 1 and the draft decisions, reports or other measures referred to in paragraph 2:
(a)
ESMA shall, with respect to Article 20, adopt an opinion assessing the CCP’s compliance with the respective requirements in accordance with Article 23a(1), point (e), Article 23a(2) and Article 24a(7), first subparagraph, point (bc); ESMA shall transmit its opinion to the CCP’s competent authority and the college referred to in Article 18; ESMA may include in its opinion any conditions or recommendations it considers necessary to mitigate any shortcomings in the CCP’s risk management, in relation to identified cross-border risks or risks to the financial stability of the Union; ESMA shall also, with respect to Articles 21 and 37, adopt an opinion in accordance with those Articles and in accordance with Article 23a(2) and Article 24a(7), first subparagraph, point (bc), and ESMA may include in its opinion any conditions or recommendations it considers necessary;
(b)
ESMA may, with respect to Articles 7, 8, 29 to 33, 35, 36, 41, and 54, adopt an opinion in accordance with Article 23a and Article 24a(7), first subparagraph, point (bc), on that draft decision, report or other measure where necessary to promote a consistent and coherent application of a relevant article; and
(c)
the college referred to in Article 18 shall adopt an opinion pursuant to Article 19 assessing the CCP’s compliance with the respective requirements and transmit it to the CCP’s competent authority and ESMA; the opinion of that college may include conditions or recommendations that it considers necessary to mitigate any shortcomings in the CCP’s risk management.
For the purpose of the first subparagraph, point (b), of this paragraph, where the draft decision, report or other measure submitted to ESMA in accordance with that point shows a lack of convergence or coherence in the application of this Regulation, ESMA shall issue guidelines or recommendations to promote the necessary consistency or coherence in the application of this Regulation pursuant to Article 16 of Regulation (EU) No 1095/2010. Where ESMA adopts an opinion in accordance with point (b), the competent authority shall give it due consideration and shall inform ESMA of any subsequent action or inaction thereto.
ESMA and the college referred to in Article 18 shall each adopt their opinions within the deadline provided by the CCP’s competent authority, which shall be at least 15 working days following the receipt of the relevant documents under paragraph 2 of this Article.
4.
Within 10 working days of receipt of the opinions of ESMA and of the college referred to in Article 18 and, where issued, the opinion of ESMA adopted under paragraph 3, first subparagraph, point (b), of this Article, or within the relevant period where otherwise specified in this Regulation, the CCP’s competent authority shall, after duly considering the opinions of ESMA and of the college, including any conditions or recommendations contained therein, adopt its decision, report or other measure as required under a relevant article and transmit it to ESMA and the college.
Where the decision, report or other measure does not reflect an opinion of ESMA or of the college referred to in Article 18, including any conditions or recommendations contained therein, it shall contain full reasons and an explanation of any significant deviation from that opinion or those conditions or recommendations.
For the purpose of paragraph 3, first subparagraph, points (a) and (b), of this Article, where the CCP’s competent authority does not comply or does not intend to comply with the opinion of ESMA or with any conditions or recommendations included therein, ESMA shall inform its Board of Supervisors in accordance with Article 24a. The information shall also include the reasoning from the CCP’s competent authority for non-compliance or for its intention not to comply.
The CCP’s competent authority shall adopt its decisions, reports or other measures in accordance with the relevant Articles set out in paragraph 1 of this Article.