Redressement et résolution des chambres de compensation : l’AMF applique les orientations de l’ESMA

The AMF updates its doctrine with a new position DOC-2023-06 implementing ESMA guidelines ESMA91-372-1704, ESMA91-372-1700 & ESMA91-372-2070 on temporary restrictions, early intervention measures and the circumstances under which a central counterparty is failing or likely to fail in accordance with the Regulation relating to central counterparties’ recovery and resolution.
Published on 1st and 2nd June 2023, these 3 guidelines aim to ensure consistent and harmonised application by the competent authorities of the provisions set forth under the Regulation relating to CCPs‘ recovery and resolution. In particular, these guidelines provide guidance on the situations under which authorities should consider the application of temporary restrictions or early intervention measures to CCPs. They also detail the procedure to follow by authorities when they determine whether a central counterparty is failing or likely to fail. These guidelines will apply from 1st and 2nd August 2023, respectively.
As a reminder, the CCPRRR provides that competent authorities may apply to CCPs temporary restrictions measures such as the prohibition to make a dividend distribution, as well as early intervention measures such as requesting the removal of senior management or board member, where this is necessary to protect the financial resources of the CCP or to preserve the financial stability. This regulation also provides that the resolution authorities may implement a resolution plan where a CCP is failing or likely to fail. Hence, the above ESMA guidelines provide guidance on the circumstances under which authorities may apply such measures. They also clarify how authorities are to assess whether a CCP is deemed as failing or likely to fail.
Consequently, DOC-2023-06 implements the aforementioned 3 ESMA guidelines concerning the framework for the recovery and resolution of CCPs under the CCPRRR. Therefore, on 27 July 2023, the AMF declared its adherence to ESMA’s guidelines on specific matters by updating its doctrine. This includes the circumstances in which temporary restrictions may be imposed in the event of significant occurrences other than default, as per Article 45 bis of the EMIR regulation. Additionally, the AMF will apply consistent conditions for triggering early intervention measures (Article 18, paragraph 8 of CCPRRR) **and determine situations where the default of a CCP is deemed confirmed or foreseeable (Article 22, paragraph 6 of CCP RRR).
DOC-2023-06 is in application as of 27 July 2023.