Shearman & Sterling LLP | FinReg | EU Proposes to Amend Cash Penalty Process for Cleared trades
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  • EU Proposes to Amend Cash Penalty Process for Cleared trades

    The European Securities and Markets Authority has opened a consultation in which it proposes to amend the cash penalty process for cleared transactions under the EU Central Securities Depositories Regulation. The EU CSDR provides a harmonized regulatory and prudential regime for central securities depositories and increases the robustness and resilience of securities settlement arrangements. The settlement discipline regime, set out in EU Regulatory Technical Standards, provides measures for preventing settlement fails through automated matching, a hold and release mechanism and partial settlement. CSDR and the RTS also provide measures for monitoring and addressing settlement fails, such as a mechanism for cash penalties and a mandatory buy-in process. The settlement discipline rules have applied since February 1, 2022.

    ESMA is proposing to amend the RTS to remove the obligation on CCPs to collect and distribute penalties for cleared transactions. Instead, CSDs will operate the entire collection and distribution process for penalties (i.e., for cleared and uncleared trades). In terms of timing, ESMA is considering a six-month implementation delay to give industry time to test arrangements in their cash penalties processes. Responses to the consultation may be provided by September 9, 2022.

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