EBA欧洲银行-21012008CfEvidenceoncommodities_9页_715kb

Summary of CESR/CEBS Call for Evidence on Commodities

Core Content

The European Commission issued a Call for Technical Advice (CfA) in December 2007, requesting CESR and CEBS to jointly provide advice on the regulatory treatment of firms offering investment services related to commodity and exotic derivatives. This is part of a broader review under Article 65(3)(a), (b), and (d) of MiFID and Article 48(2) of the CRD. The goal is to assess whether the current regulatory and market framework continues to support the intended aims of market and prudential regulation.

The Commission has already conducted two Calls for Advice (CfAs) and a Call for Evidence (CfE), but these were primarily fact-finding exercises. This current CfA is more deliberative, as it may involve regulatory choices that could affect the scope of the existing regime.

Main Objectives

CESR and CEBS are tasked with addressing the following key issues:

1. Market Failure

   • Assess whether the current regulatory and market situation leads to market failure, particularly in terms of:
     • Hampering market regulation (e.g., investor protection, market integrity, transparency).
     • Impeding prudential regulation (e.g., financial system stability, depositor protection).

2. Regulatory Failure

   • Evaluate whether differences in regulatory treatment across firms and member states lead to:
     • Competitive distortions.
     • Impairment of free movement of services.
     • Regulatory arbitrage.

3. Natural Resolution of Failures

   • Determine if market failures identified could be resolved naturally by market evolution in the short to medium term.

4. Regulatory Regime Evaluation

   • Provide views on regulatory options for firms in the commodities sector, including:
     • Clarifying exemptions under MiFID and CAD.
     • Maintaining or modifying the scope and nature of exemptions.
     • Introducing new categories of firms.
     • Making exemptions optional or mandatory.
     • Removing exemptions entirely.

Key Information

• Due Date: CESR and CEBS are requested to submit their advice by end of July 2008.
• Consultation Process: Interested parties are invited to submit their views via CESR's website by 18 February 2008. Contributions will be published unless requested otherwise.
• Legal Framework: The review is based on MiFID and CRD, with particular attention to Article 2(1)(i) and (k) of MiFID, and Article 48(2) of CRD.
• Market Failure Definition: Market failure is defined as significant sub-optimality in market functioning, such as price dispersion, concentrated market shares, information asymmetries, or systemic risk.
• Impact Analysis: CESR and CEBS are required to use the impact analysis framework from the Level 3 Committees. They should provide quantitative and statistical data where possible to support their analysis.

Regulatory Considerations

CESR and CEBS are asked to examine several specific aspects of the current regulatory treatment:

• CAD Large Exposures and Free Deliveries: Whether the current approach is appropriate in light of market practices and shortcomings identified in CEBS' second advice.
• Capital Requirements for Commodities Risk: The methodology used in Annex IV of the CAD, especially in light of CEBS' second advice.
• Internal Models for Capital Calculation: The requirements for using internal models as outlined in Annex V of the CAD.
• Market Integrity and Conduct of Business: The obligations under MiFID to ensure market integrity and compliance with organisational rules.
• Instrument Classification: Criteria for determining whether a financial instrument is treated as a commodity derivative, exotic derivative, or for commercial purposes.

Variability in Regulatory Treatment

CESR and CEBS should assess whether the analysis varies based on:

• The type of entity providing investment services.
• The nature of the financial instrument (e.g., energy derivatives).
• Whether the analysis differs for firms in the energy supply sector, particularly those dealing with electricity, coal, gas, and oil.

Recommendations

CESR and CEBS are to consider the following regulatory options:

• Clarifying Exemptions: Provide guidance on the meaning and scope of exemptions.
• Maintaining Exemptions: Keep the current exemptions permanent.
• Modifying Exemptions: Change the scope or range of firms benefiting from exemptions.
• Optional Exemptions: Allow firms to opt-in to the European regime if they wish.
• Mandatory Exemptions: Prevent national regulation of exempt firms.
• Removing Exemptions: Consider eliminating some or all exemptions.

Conclusion

This Call for Evidence aims to evaluate the effectiveness of current regulatory frameworks in supporting market integrity and prudential stability in the commodities and exotic derivatives sectors. CESR and CEBS are to provide comprehensive, evidence-based advice, taking into account market practices, regulatory harmonisation, and impact analysis. The outcome of this review may influence future regulatory reforms and policy decisions by the European Commission.