26 February 2013

BaFin: Rating agencies under ESMA supervision

ESMA's activities since transfer of authority

To date, 33 registrations have been issued to 19 firms and one certification process has been completed throughout the EU. In addition to the “Big Three” (Fitch, Moody’s, Standard & Poor's), there have also been many smaller and medium-sized agencies which have received registration or a certification. The list of these rating agencies can be viewed at ESMA's website. There is also a detailed Activity Report of ESMA's Rating Agencies unit for the 2011/12 year as well as the 2013 Work Plan.

Before and shortly after assuming its supervisory authority, ESMA made a large number of fundamental decisions regarding the interpretation of the EU Credit Rating Agencies Regulation. It also reviewed a host of third-country rating agencies legislation for comparability with the Regulation for the certification procedure, and signed several memoranda of understanding with third-country supervisory authorities.

Difficulty differentiating between ratings and scores

At present, ESMA is faced with the task of searching the market for providers of credit assessments which have thus far not submitted registrations but are obliged to do so pursuant to the Regulation. This is because it has proven difficult in practice in particular to differentiate between credit ratings and credit scores, which is essential to the existence of the registration requirement, due to the lack of clear statutory provisions. Certain market participants have thus far failed to recognise that their activities fall under the scope of the EU Credit Rating Agencies Regulation.

The transfer of supervisory authority to the new agency ESMA took place under circumstances which were all but ordinary: it was right at the time when the ratings of a large number of European sovereigns were downgraded. While the secretariat still had to be set up at ESMA– from the executive level down to the lowest ranks – there were already a large number of measures which had to be implemented and which often stood at the focus of public interest.

Outlook

The flurry of activity on the part of legislators in Brussels also has not left ESMA or the rating agencies much time to catch their breath. Though the new EU Credit Rating Agencies Regulation only entered into force in 2010, a second amended version (CRA III) is already in the pipeline. It, too, will bring a host of new provisions for the rating agencies, and thus also new supervisory responsibilities for ESMA.

CRA III is aimed at blunting to the greatest extent possible references to external ratings – particularly in supervisory frameworks. In addition, the opportunities of holding a financial interest in rating agencies will be subject to limitations in order to 
avoid conflicts of interest. Moreover, the planned amendments will stipulate that certain engagements of the rating agencies must rotate within given periods, will set out special provisions for sovereign ratings and will introduce a European rating platform and civil-law liability rules.

The negotiations between the European Commission, European Council and European Parliament (trialogue) were concluded in early December 2012. If the European Parliament passes CRA III, the new Regulation is likely to enter into force in the summer of 2013.

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