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Summary of Conclusions Management Board - 16 November 2021

ESMA REGULAR USE 12 January 2022 ESMA22-106-3706

SUMMARY OF CONCLUSIONS

Management Board

Tuesday 16 November 2021 14h00 – 18h00 MS Teams Frederiek. [email protected] europa. eu Tel: +33 1 58 36 43 37

Date: Time: Location: Contact:

Adoption of agenda

1.

Decision: The agenda was adopted.

2. Confirmation of absence of conflict of interests

Decision

Decision

Decision: The Board endorsed the Chair’s statement whereby she indicated a potential conflict of interest for agenda item 9 on the ESMA Chair’s probationary period. She will leave the meeting and thus abstain from participating in the discussion and decision on the item.

3. Report by ESMA Chair, Executive Director and CCP

Discussion

Supervisory Committee Chair

The Chair reported on the organisation of the December Board, including the end of Anneli Tuominen’s term as ESMA vice-chair and the upcoming election for her replacement.

The Executive Director reported on the:  Ongoing audits concerning ESMA, namely the European Court of Auditors (ECA)’s ongoing a

performance audit on the Single Market for investment funds; and

 Continued impact of COVID-19 on ESMA’s activities, in particular that from 20 October 2021 missions and meetings with external participants are allowed, with restrictions remaining in place to ensure the safety of ESMA staff and visitors. .

Conclusion: The Board took note of the report and suggested to discuss the outcome of the ECA’s performance audit on the Single Market for investment funds at a future Board meeting.

4. Activity Report

1) Cover note

Discussion

ESMA • 201-203 rue de Bercy • CS 80910 • 75589 Paris Cedex 12 • France • Tel. +33 (0) 1 58 36 43 21 • www. esma. europa. eu

Discussion

2) Presentation

The Executive Director presented the activity report.

The Board discussed the activity report, in particular:  How to focus efforts on key deliverables and the necessary prioritisation and resource allocation;  The lack of flexibility of ESMA’s funding structure, in particular in relation to the ability to act as a risk-

based supervisor;

 The importance of promoting supervisory convergence to enhance investor protection in the area of sustainable finance (preventing greenwashing) and ESMA’s contribution to the Money Market Funds Review; and

 The need for ESMA to continue to attract and maintain high-quality and specialised staff.

Conclusion: The Board took note of the report.

5. Data Reporting Service Providers (project update)

1) Presentation

2) Report

Discussion

Discussion

The Head of Data Reporting Unit presented the Data Reporting Service Providers project update.

The Board discussed the update, in particular the:  Cost for entities of supervision by ESMA and by national competent authorities, and the difficulty in

obtaining consistent and comparable data allowing for the appropriate levels of fees to be set;

 Importance of a timely adoption of the delegated acts (if necessary by splitting them and delay only

the delegated act on fees);

 Proposal to follow a pragmatic approach so that, on 1 January 2022, the supervision would be handed over to ESMA only for the Approved Reporting Mechanisms (ARMs) and Approved Publication Arrangements (APAs) expected to be supervised by ESMA under the future delegated act, whereas the handover of supervision of those likely to be eligible for derogation would not be performed on 1 January 2022; and

 Need to communicate the pragmatic approach in a public statement.

Conclusion: The Board took note of the Data Reporting Service Providers project update and the proposed statement.

6. Update on 2021 and 2022 budgets and high-level discussion

on 2023 planning

1) Presentation

2) Note

The Executive Director and the Head of Finance and Procurement Unit presented the update on 2021 and 2022 budgets and the high-level discussion on 2023 planning.

Discussion

Discussion

2

The Board discussed the update, in particular the:  Complexity of ESMA’s fee structure;  Reduction of fee funded revenues in relation to the supervision of Data Reporting Service Providers,

Securitisation Repositories and Benchmark administrators; and

 Inclusion of upcoming mandates under European Commission legislative proposals, including the Digital Operational Resilience Act (DORA) and the Markets in Crypto-Assets Regulation (MICA), in the 2023 budget.

Conclusion: The Board discussed and provided support for the update on the 2021 and 2022 budgets and the high-level presentation of 2023 planning.

7. Away Day

1) Presentation

Issues note

2)

Discussion

Decision

The Chair presented the issues note on the 2021 Board of Supervisors away day.

Decision: The Board agreed that the discussion at the 2021 Board of Supervisors Away Day should be composed of discussions on (1) ESMA’s next strategic orientation including supervisory convergence and (2) investor protection in the context of markets in crypto assets. The Board also agreed that ESMA’s data strategy should be discussed at a future Board of Supervisors meeting.

8. Ethics & Integrity

1) Presentation

2) Report on NCAs’ professional secrecy rules

3) Report on trading rules and practices of NCA staff

Discussion

Discussion

Discussion

The Head of the Legal and Enforcement Department and the Legal Officers presented the outcome of the ethics and integrity surveys.

The Board discussed the surveys, in particular the:  Benefit of developing benchmarks of minimum expectations regarding professional secrecy rules and

trading rules and practices based on the results of the surveys; and

 Possibility for ESMA to use the results to identify good practices to that could be considered for ESMA

Conclusion: The Board discussed the surveys and agreed to identify common minimum expectations in both draft reports as well as to perform a fatal flaw check with relevant national competent authorities and then share the results with the Board of Supervisors.

9. ESMA Chair

staff.

1) Presentation

Discussion

3

2) ESMA Chair probationary period

The Vice-Chair presented the note on the ESMA Chair’s probationary period.

Decision: The Board selected Derville Rowland (IE) and Erik Thedéen (SE) as reporting officers appointed to set the ESMA Chair’s probationary period objectives.

10. ESMA’s anti-fraud strategy 2022-2025

1) Cover note

2) Strategy

/

Decision: The Board adopted ESMA’s anti-fraud strategy 2022-2025.

11. A. O. B.

Decision

Information

Decision

4

Participants list

Members

ESMA

Verena Ross

Vojtech Belling

Colm Kincaid (alternate)

Vassiliki Lazarakou

Benoit de Juvigny (alternate)

Magdalena Łapsa-Parczewska

Malin Omberg (alternate)

CZ

IE

EL

FR

PL

SE

Non-voting Members

Executive Director

Natasha Cazenave

European Commission

Anne Schaedle (alternate)

Observer

Vice- Chair

ESMA

Anneli Tuominen

Summary of Conclusions

Frederiek Vermeulen Laura Weil

5

Head of Legal and Enforcement Department

Sophie Vuarlot-Dignac

Head of Unit Data Reporting

Olga Petrenko

Head of Unit Finance and Procurement

Veronica Magrini

Enrico Gagliardi

Alessandro Generali

Legal Officer

Legal Officer

For the Management Board,

Done at Paris on 12 January 2022

Verena Ross Chair

6

ANNEX:

OUTCOME OF WRITTEN PROCEDURES

Written Procedures (outcomes from 23 September to 16 November 2021)

1. Summary of conclusions – 3 September Management Board

1) Summary of conclusions

23 September 2021

Decision

Decision: The Board adopted the summary of conclusions of the September 2021 Management Board.

2. Summary of conclusions – September Management Board

5 November 2021

1) Summary of conclusions

Decision: The Board adopted the summary of conclusions of the September 2021 Management Board.

Decision 7

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