Updated 07/09/2024
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Article 7 - General principles regarding decision-making

Article 7

General principles regarding decision-making

Competent authorities, resolution authorities and ESMA shall take account of all the following principles and aspects when making decisions and taking action pursuant to this Regulation:

(a)

the effectiveness and proportionality of any decision or action in relation to an individual CCP are ensured, taking into account at least the following factors:

(i)

the CCP’s legal form, ownership and organisational structure, including, where applicable, any interdependencies within the group to which the CCP belongs;

(ii)

the nature, size and complexity of the CCP’s business, in particular the size, structure and liquidity in stressed conditions of the markets it serves;

(iii)

the structure, nature and diversity of the CCP’s clearing membership, as well as, to the extent the information is available, of its clearing members’ network of clients and indirect clients;

(iv)

the substitutability of the CCP’s critical functions in the markets it serves;

(v)

the CCP’s interconnectedness with other FMIs, trading venues, financial institutions and with the financial system in general;

(vi)

whether the CCP clears any OTC derivative contract pertaining to a class of OTC derivatives that has been declared subject to the clearing obligation in accordance with Article 5(2) of Regulation (EU) No 648/2012; and

(vii)

the actual or potential consequences of the infringements referred to in Articles 18(1) and 22(2).

(b)

the imperatives of efficacy, of timeliness, of due urgency of decision-making, when required, and of keeping costs as low as possible are observed when decisions are made and action is taken, while at the same time ensuring that market disruption is mitigated to the greatest extent possible;

(c)

the use of extraordinary public financial support is avoided to the greatest extent possible, such support is available and used only as a last resort and in accordance with the conditions laid out in Article 45, and no expectation of public financial support is created;

(d)

resolution authorities, competent authorities and other authorities cooperate with each other to ensure that decisions are made and action is taken in a coordinated and efficient manner;

(e)

the roles and responsibilities of relevant authorities within each Member State are defined clearly;

(f)

the interests of the Member States where the CCP provides services and where its clearing members, and to the extent the information is available, their clients and indirect clients, including where those clients or indirect clients are designated by Member States as O-SIIs, and any linked FMIs, including interoperable CCPs, are established, and in particular the impact of any decision or action or inaction on the financial stability or fiscal resources of those Member States and the Union as a whole;

(g)

resolution authorities and resolution colleges cannot require Member States to provide extraordinary public financial support, nor impinge on the budgetary sovereignty and fiscal responsibilities of Member States;

(h)

the interests of affected clearing members, and to the extent the information is available, their clients and indirect clients, creditors and other stakeholders of the CCP in the Member States involved need to be balanced by avoiding unfairly prejudicing or unfairly protecting the interests of particular actors and avoiding unfair burden allocation within and across Member States;

(i)

any obligation under this Regulation to consult an authority before any decision or action is taken implies at least an obligation to consult on those elements of the proposed decision or action which have or which are likely to have an effect on the clearing members, clients, linked FMIs or trading venues or an impact on the financial stability of the Member State where the clearing members, clients, linked FMIs or trading venues are established or located;

(j)

where an authority raises an issue concerning the financial stability of its Member State, the resolution authority and the resolution college of the CCP consider it thoroughly and if they do not take the concerns expressed into account, explain in writing the reasons for not doing so;

(k)

resolution plans referred to in Article 12 are complied with unless, taking into account the circumstances of the case, deviation from those plans is necessary in order to better achieve the resolution objectives;

(l)

transparency is ensured towards the relevant authorities wherever possible, and in any case where a proposed decision or action is likely to have implications on the financial stability or fiscal resources of any relevant Member State;

(m)

they coordinate and cooperate as closely as possible, also with the goal to lower the overall cost of resolution; and

(n)

the following are kept to a minimum, to the extent possible: negative economic and social effects, including negative impacts on financial stability, of any decision on all the Member States where the CCP provides services and where its clearing members, and to the extent the information is available, their clients and indirect clients, including where those clients or indirect clients are designated by Member States as O-SIIs, and any linked FMIs, including interoperable CCPs, are established.