30 June 2016

AFME response to ESMA's Consultation Paper relating to the Guidelines on participant default rules and procedures under CSDR

First, Association for Financial Markets in Europe (AFME) members believe it is important to note that whilst there is a distinction between “insolvency” and “resolution” (resolution being pre-insolvency) and we understand ESMA considers its remit under CSDR in relation to its Guidelines to be limited to the narrower sense of "default" (meaning insolvency), the reality is that in relation to financial institution participants that are subject to BRRD, how a participant subject to a resolution action would be dealt with (if at all) under the default rules is important and ESMA should factor this important regime into its considerations. This could be achieved in part, for example, by providing in the Guidelines that resolution authorities should be stakeholders in the formulation of the default rules.

Secondly, AFME members would like to point out that the ‘default rules and procedures’ need to be flexible to deal with different participant types. For example, when the defaulting participant is another CSD or a third country financial institution as well as when the participant is an EU participant subject to BRRD and other European legislation governing the insolvency/winding up of financial institutions.

The Guidelines need to adequately reflect that participants may be both direct and indirect (but disclosed). These differences should be reflected in the Guidelines and translated into the relevant default rules.

Thirdly, in connection with the above, it is important that ESMA is mindful of, and the Guidelines take into consideration, not only how the default rules would apply in the insolvency (and preferably resolution) of EU participants but also how they would be applied to third country participants in insolvency (or resolution).

Full response

© AFME