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Document 02015R2365-20220812
Regulation (EU) 2015/2365 of the European Parliament and of the Council of 25 November 2015 on transparency of securities financing transactions and of reuse and amending Regulation (EU) No 648/2012 (Text with EEA relevance)Text with EEA relevance
Consolidated text: Regulation (EU) 2015/2365 of the European Parliament and of the Council of 25 November 2015 on transparency of securities financing transactions and of reuse and amending Regulation (EU) No 648/2012 (Text with EEA relevance)Text with EEA relevance
Regulation (EU) 2015/2365 of the European Parliament and of the Council of 25 November 2015 on transparency of securities financing transactions and of reuse and amending Regulation (EU) No 648/2012 (Text with EEA relevance)Text with EEA relevance
02015R2365 — EN — 12.08.2022 — 003.001
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REGULATION (EU) 2015/2365 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 25 November 2015 on transparency of securities financing transactions and of reuse and amending Regulation (EU) No 648/2012 (OJ L 337 23.12.2015, p. 1) |
Amended by:
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Official Journal |
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No |
page |
date |
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COMMISSION DELEGATED REGULATION (EU) 2019/463 of 30 January 2019 |
L 80 |
16 |
22.3.2019 |
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REGULATION (EU) 2021/23 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 16 December 2020 |
L 22 |
1 |
22.1.2021 |
REGULATION (EU) 2015/2365 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 25 November 2015
on transparency of securities financing transactions and of reuse and amending Regulation (EU) No 648/2012
(Text with EEA relevance)
CHAPTER I
SUBJECT MATTER, SCOPE AND DEFINITIONS
Article 1
Subject matter
This Regulation lays down rules on the transparency of securities financing transactions (SFTs) and of reuse.
Article 2
Scope
This Regulation applies to:
a counterparty to an SFT that is established:
in the Union, including all its branches irrespective of where they are located;
in a third country, if the SFT is concluded in the course of the operations of a branch in the Union of that counterparty;
management companies of undertakings for collective investment in transferable securities (UCITS) and UCITS investment companies in accordance with Directive 2009/65/EC;
managers of alternative investment funds (AIFMs) authorised in accordance with Directive 2011/61/EU;
a counterparty engaging in reuse that is established:
in the Union, including all its branches irrespective of where they are located;
in a third country, where either:
Articles 4 and 15 do not apply to:
members of the European System of Central Banks (ESCB), other Member States’ bodies performing similar functions, and other Union public bodies charged with, or intervening in, the management of the public debt;
the Bank for International Settlements;
the central bank and other bodies performing similar functions and other public bodies charged with, or intervening in, the management of the public debt in the United Kingdom of Great Britain and Northern Ireland.
To that end and before adopting such delegated acts, the Commission shall present to the European Parliament and to the Council a report assessing the international treatment of central banks and of public bodies charged with or intervening in the management of the public debt.
That report shall include a comparative analysis of the treatment of central banks and of those bodies within the legal framework of a number of third countries. Provided that the report concludes, in particular with regard to the comparative analysis and potential effects, that the exemption of the monetary responsibilities of those third-country central banks and bodies from Article 15 is necessary, the Commission shall adopt a delegated act adding them to the list set out in paragraph 2 of this Article.
Article 3
Definitions
For purposes of this Regulation, the following definitions apply:
‘trade repository’ means a legal person that centrally collects and maintains the records of SFTs;
‘counterparties’ means financial counterparties and non-financial counterparties;
‘financial counterparty’ means:
an investment firm authorised in accordance with Directive 2014/65/EU of the European Parliament and of the Council ( 1 );
a credit institution authorised in accordance with Directive 2013/36/EU of the European Parliament and of the Council ( 2 ) or with Regulation (EU) No 1024/2013;
an insurance undertaking or a reinsurance undertaking authorised in accordance with Directive 2009/138/EC of the European Parliament and of the Council ( 3 );
a UCITS and, where relevant, its management company, authorised in accordance with Directive 2009/65/EC;
an AIF managed by AIFMs authorised or registered in accordance with Directive 2011/61/EU;
an institution for occupational retirement provision authorised or registered in accordance with Directive 2003/41/EC of the European Parliament and of the Council ( 4 );
a central counterparty authorised in accordance with Regulation (EU) No 648/2012;
a central securities depository authorised in accordance with Regulation (EU) No 909/2014 of the European Parliament and of the Council ( 5 );
a third-country entity which would require authorisation or registration in accordance with the legislative acts referred to in points (a) to (h) if it were established in the Union;
‘non-financial counterparty’ means an undertaking established in the Union or in a third country other than the entities referred to in point (3);
‘established’ means:
if the counterparty is a natural person, where it has its head office;
if the counterparty is a legal person, where it has its registered office;
if the counterparty has, under its national law, no registered office, where it has its head office;
‘branch’ means a place of business other than the head office which is part of a counterparty and which has no legal personality;
‘securities or commodities lending’ or ‘securities or commodities borrowing’ means a transaction by which a counterparty transfers securities or commodities subject to a commitment that the borrower will return equivalent securities or commodities on a future date or when requested to do so by the transferor, that transaction being considered as securities or commodities lending for the counterparty transferring the securities or commodities and being considered as securities or commodities borrowing for the counterparty to which they are transferred;
‘buy-sell back transaction’ or ‘sell-buy back transaction’ means a transaction by which a counterparty buys or sells securities, commodities, or guaranteed rights relating to title to securities or commodities, agreeing, respectively, to sell or to buy back securities, commodities or such guaranteed rights of the same description at a specified price on a future date, that transaction being a buy-sell back transaction for the counterparty buying the securities, commodities or guaranteed rights, and a sell-buy back transaction for the counterparty selling them, such buy-sell back transaction or sell-buy back transaction not being governed by a repurchase agreement or by a reverse-repurchase agreement within the meaning of point (9);
‘repurchase transaction’ means a transaction governed by an agreement by which a counterparty transfers securities, commodities, or guaranteed rights relating to title to securities or commodities where that guarantee is issued by a recognised exchange which holds the rights to the securities or commodities and the agreement does not allow a counterparty to transfer or pledge a particular security or commodity to more than one counterparty at a time, subject to a commitment to repurchase them, or substituted securities or commodities of the same description at a specified price on a future date specified, or to be specified, by the transferor, being a repurchase agreement for the counterparty selling the securities or commodities and a reverse repurchase agreement for the counterparty buying them;
‘margin lending transaction’ means a transaction in which a counterparty extends credit in connection with the purchase, sale, carrying or trading of securities, but not including other loans that are secured by collateral in the form of securities;
‘securities financing transaction’ or ‘SFT’ means:
a repurchase transaction;
securities or commodities lending and securities or commodities borrowing;
a buy-sell back transaction or sell-buy back transaction;
a margin lending transaction;
‘reuse’ means the use by a receiving counterparty, in its own name and on its own account or on the account of another counterparty, including any natural person, of financial instruments received under a collateral arrangement, such use comprising transfer of title or exercise of a right of use in accordance with Article 5 of Directive 2002/47/EC but not including the liquidation of a financial instrument in the event of default of the providing counterparty;
‘title transfer collateral arrangement’ means a title transfer financial collateral arrangement as defined in point (b) of Article 2(1) of Directive 2002/47/EC concluded between counterparties to secure any obligation;
‘security collateral arrangement’ means a security financial collateral arrangement as defined in point (c) of Article 2(1) of Directive 2002/47/EC concluded between counterparties to secure any obligation;
‘collateral arrangement’ means a title transfer collateral arrangement and security collateral arrangement;
‘financial instrument’ means a financial instrument as defined in point (15) of Article 4(1) of Directive 2014/65/EU;
‘commodity’ means a commodity as defined in point (1) of Article 2 of Commission Regulation (EC) No 1287/2006 ( 6 );
‘total return swap’ means a derivative contract as defined in point (7) of Article 2 of Regulation (EU) No 648/2012 in which one counterparty transfers the total economic performance, including income from interest and fees, gains and losses from price movements, and credit losses, of a reference obligation to another counterparty.
CHAPTER II
TRANSPARENCY OF SFTS
Article 4
Reporting obligation and safeguarding in respect of SFTs
The reporting obligation laid down in the first subparagraph shall apply to SFTs which:
were concluded before the relevant date of application referred to in point (a) of Article 33(2) and remain outstanding on that date, if:
the remaining maturity of those SFTs on that date exceeds 180 days; or
those SFTs have an open maturity and remain outstanding 180 days after that date;
are concluded on or after the relevant date of application referred to in point (a) of Article 33(2).
The SFTs referred to in point (a) of the second subparagraph shall be reported within 190 days of the relevant date of application referred to in point (a) of Article 33(2).
Where a UCITS managed by a management company is the counterparty to SFTs, the management company shall be responsible for reporting on behalf of that UCITS.
Where an AIF is the counterparty to SFTs, its AIFM shall be responsible for reporting on behalf of that AIF.
In those cases, ESMA shall ensure that all of the relevant entities referred to in Article 12(2) have access to all of the details of SFTs they need to fulfil their respective responsibilities and mandates.
In order to ensure consistent application of this Article and in order to ensure consistency with the reporting made under Article 9 of Regulation (EU) No 648/2012 and internationally agreed standards, ESMA shall, in close cooperation with, and taking into account the needs of, the ESCB, develop draft regulatory technical standards specifying the details of the reports referred to in paragraphs 1 and 5 of this Article for the different types of SFTs that shall include at least:
the parties to the SFT and, where different, the beneficiary of the rights and obligations arising therefrom;
the principal amount; the currency; the assets used as collateral and their type, quality, and value; the method used to provide collateral; whether collateral is available for reuse; in cases where the collateral is distinguishable from other assets, whether it has been reused; any substitution of the collateral; the repurchase rate, lending fee or margin lending rate; any haircut; the value date; the maturity date; the first callable date; and the market segment;
depending on the SFT, details of the following:
cash collateral reinvestment;
securities or commodities being lent or borrowed.
In developing those draft technical standards, ESMA shall take into account the technical specificities of pools of assets and shall provide for the possibility of reporting position level collateral data where appropriate.
ESMA shall submit those draft regulatory technical standards to the Commission by 13 January 2017.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
The format shall include, in particular:
global legal entity identifiers (LEIs), or pre-LEIs until the global legal entity identifier system is fully implemented;
international securities identification numbers (ISINs); and
unique trade identifiers.
In developing those draft technical standards, ESMA shall take into account international developments and standards agreed at Union or global level.
ESMA shall submit those draft implementing technical standards to the Commission by 13 January 2017.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.
CHAPTER III
REGISTRATION AND SUPERVISION OF A TRADE REPOSITORY
Article 5
Registration of a trade repository
A trade repository shall submit to ESMA either of the following:
an application for registration;
an application for an extension of registration for the purposes of Article 4 of this Regulation in the case of a trade repository already registered under Title VI, Chapter 1 of Regulation (EU) No 648/2012.
Where the application is not complete, ESMA shall set a deadline by which the trade repository is to provide additional information.
After assessing an application as complete, ESMA shall notify the trade repository accordingly.
In order to ensure consistent application of this Article, ESMA shall develop draft regulatory technical standards specifying the details of all of the following:
the procedures referred to in paragraph 2 of this Article and which are to be applied by trade repositories in order to verify the completeness and correctness of the details reported to them under Article 4(1);
the application for registration referred to in point (a) of paragraph 5;
a simplified application for an extension of registration referred to in point (b) of paragraph 5 in order to avoid duplicate requirements.
ESMA shall submit those draft regulatory technical standards to the Commission by 13 January 2017.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
In order to ensure uniform conditions of application of paragraphs 1 and 2, ESMA shall develop draft implementing technical standards specifying the format of both of the following:
the application for registration referred to in point (a) of paragraph 5;
the application for an extension of registration referred to in point (b) of paragraph 5.
With regard to point (b) of the first subparagraph, ESMA shall develop a simplified format to avoid duplicate procedures.
ESMA shall submit those draft implementing technical standards to the Commission by 13 January 2017.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.
Article 6
Notification of and consultation with competent authorities prior to registration or extension of registration
Article 7
Examination of the application
Article 8
Notification of ESMA decisions relating to registration or extension of registration
ESMA shall, without undue delay, notify the competent authority as referred to in Article 6(1) of its decision.
Article 9
Powers of ESMA
Article 10
Withdrawal of registration
Without prejudice to Article 73 of Regulation (EU) No 648/2012, ESMA shall withdraw the registration of a trade repository where the trade repository:
expressly renounces the registration or has provided no services for the preceding six months;
obtained the registration by making false statements or by other irregular means;
no longer meets the conditions under which it was registered.
Article 11
Supervisory fees
Where a trade repository has already been registered under Title VI, Chapter 1, of Regulation (EU) No 648/2012, the fees referred to in the first subparagraph of this paragraph shall only be adjusted to reflect additional necessary expenditure and costs relating to the registration, recognition and supervision of trade repositories pursuant to this Regulation.
Article 12
Transparency and availability of data held in a trade repository
A trade repository shall collect and maintain the details of SFTs and shall ensure that the following entities have direct and immediate access to these details to enable them to fulfil their respective responsibilities and mandates:
ESMA;
the European Supervisory Authority (European Banking Authority) (‘EBA’);
the European Supervisory Authority (European Insurance and Occupational Pensions Authority) (‘EIOPA’);
the ESRB;
the competent authority supervising the trading venues of the reported transactions;
the relevant members of the ESCB, including the European Central Bank (ECB) in carrying out its tasks within a single supervisory mechanism under Regulation (EU) No 1024/2013;
the relevant authorities of a third country in respect of which an implementing act pursuant to Article 19(1) has been adopted;
supervisory authorities designated under Article 4 of Directive 2004/25/EC of the European Parliament and of the Council ( 8 );
the relevant Union securities and market authorities whose respective supervisory responsibilities and mandates cover transactions, markets, participants and assets which fall within the scope of this Regulation;
the Agency for the Cooperation of Energy Regulators established by Regulation (EC) No 713/2009 of the European Parliament and of the Council ( 9 );
the resolution authorities designated under Article 3 of Directive 2014/59/EU of the European Parliament and the Council ( 10 );
the Single Resolution Board established by Regulation (EU) No 806/2014 of the European Parliament and of the Council ( 11 );
the authorities referred to in Article 16(1);
the resolution authorities designated under Article 3 of Regulation (EU) 2021/23 of the European Parliament and of the Council ( 12 ).
In order to ensure consistent application of this Article, ESMA shall, in close cooperation with the ESCB and taking into account the needs of the entities referred to in paragraph 2, develop draft regulatory technical standards specifying:
the frequency and the details of the aggregate positions referred to in paragraph 1 and the details of SFTs referred to in paragraph 2;
the operational standards required, to allow the timely, structured and comprehensive:
collection of data by trade repositories;
aggregation and comparison of data across repositories;
the details of the information to which the entities referred to in paragraph 2 are to have access, taking into account their mandate and their specific needs;
the terms and conditions under which the entities referred to in paragraph 2 are to have direct and immediate access to data held in trade repositories.
Those draft regulatory technical standards shall ensure that the information published under paragraph 1 does not enable the identification of a party to any SFT.
ESMA shall submit those draft regulatory technical standards to the Commission by 13 January 2017.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
CHAPTER IV
TRANSPARENCY TOWARDS INVESTORS
Article 13
Transparency of collective investment undertakings in periodical reports
UCITS management companies, UCITS investment companies, and AIFMs shall inform investors on the use they make of SFTs and total return swaps in the following manner:
for UCITS management companies or UCITS investment companies in the half-yearly and annual reports referred to in Article 68 of Directive 2009/65/EC;
for AIFMs in the annual report referred to in Article 22 of Directive 2011/61/EU.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
Article 14
Transparency of collective investment undertakings in pre-contractual documents
In preparing the draft regulatory technical standards referred to in the first subparagraph, ESMA shall take into account the need to allow for a sufficient time before their application.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
CHAPTER V
TRANSPARENCY OF REUSE
Article 15
Reuse of financial instruments received under a collateral arrangement
Any right of counterparties to reuse financial instruments received as collateral shall be subject to at least both of the following conditions:
the providing counterparty has been duly informed in writing by the receiving counterparty of the risks and consequences that may be involved in one of the following:
granting consent to a right of use of collateral provided under a security collateral arrangement in accordance with Article 5 of Directive 2002/47/EC;
concluding a title transfer collateral arrangement;
the providing counterparty has granted its prior express consent, as evidenced by a signature, in writing or in a legally equivalent manner, of the providing counterparty to a security collateral arrangement, the terms of which provide a right of use in accordance with Article 5 of Directive 2002/47/EC, or has expressly agreed to provide collateral by way of a title transfer collateral arrangement.
With regard to point (a) of the first subparagraph, the providing counterparty shall at least be informed in writing of the risks and consequences that may arise in the event of the default of the receiving counterparty.
Any exercise by counterparties of their right to reuse shall be subject to at least both of the following conditions:
reuse is undertaken in accordance with the terms specified in the collateral arrangement referred to in point (b) of paragraph 1;
the financial instruments received under a collateral arrangement are transferred from the account of the providing counterparty.
By way of derogation from point (b) of the first subparagraph, where a counterparty to a collateral arrangement is established in a third country and the account of the counterparty providing the collateral is maintained in and subject to the law of a third country, the reuse shall be evidenced either by a transfer from the account of the providing counterparty or by other appropriate means.
CHAPTER VI
SUPERVISION AND COMPETENT AUTHORITIES
Article 16
Designation and powers of competent authorities
For the purpose of this Regulation, competent authorities shall comprise the following:
for financial counterparties, competent authorities or national competent authorities within the meaning of Regulations (EU) No 648/2012, (EU) No 1024/2013 and (EU) No 909/2014 and of Directives 2003/41/EC, 2009/65/EC, 2011/61/EU, 2013/36/EU and 2014/65/EU, and the supervisory authorities within the meaning of Directive 2009/138/EC;
for non-financial counterparties, the competent authorities designated in accordance with Article 10(5) of Regulation (EU) No 648/2012;
for the purpose of Articles 13 and 14 of this Regulation, concerning UCITS management companies and UCITS investment companies, the competent authorities designated in accordance with Article 97 of Directive 2009/65/EC;
for the purpose of Articles 13 and 14 of this Regulation, concerning AIFMs, the competent authorities designated in accordance with Article 44 of Directive 2011/61/EU.
Article 17
Cooperation between competent authorities
A competent authority may refuse to act on a request to cooperate and exchange information in accordance with paragraph 1 only in either of the following exceptional circumstances:
where judicial proceedings have already been initiated in respect of the same actions and against the same persons before the authorities of the Member State of the competent authority receiving the request; or
where a final judgment has already been delivered in relation to such persons for the same actions in the Member State of the competent authority receiving the request.
In the case of such a refusal, the competent authority shall notify the requesting authority and ESMA accordingly, providing as detailed information as possible.
Such cooperation shall be confidential and conditional upon a justified request from the relevant competent authorities, and only with a view to enabling those authorities to fulfil their respective responsibilities.
Notwithstanding the first and second subparagraphs the members of the ESCB may refuse to provide information where the transactions are entered into by them in the performance of their functions as monetary authorities.
In the case of a refusal as referred to in the third subparagraph, the relevant member of the ESCB shall notify the requesting authority of that refusal together with the justification therefor.
Article 18
Professional secrecy
CHAPTER VII
RELATIONSHIP WITH THIRD COUNTRIES
Article 19
Equivalence and recognition of trade repositories
The Commission may adopt implementing acts determining that the legal and supervisory arrangements of a third country ensure that:
trade repositories authorised in that third country comply with legally binding requirements which are equivalent to those laid down in this Regulation;
effective supervision of trade repositories and effective enforcement of their obligations takes place in that third country on an ongoing basis;
guarantees of professional secrecy exist, including the protection of business secrets shared with third parties by the authorities, and those guarantees are at least equivalent to those laid down in this Regulation; and
trade repositories authorised in that third country are subject to a legally binding and enforceable obligation to give direct and immediate access to the data to the entities referred to in Article 12(2).
The implementing act referred to in the first subparagraph shall also specify the relevant third-country authorities that are entitled to access the data on SFTs held in trade repositories established in the Union.
The implementing act referred to in the first subparagraph of this paragraph shall be adopted in accordance with the examination procedure referred to in Article 31(2).
A trade repository referred to in paragraph 3 shall submit to ESMA either of the following:
an application for recognition;
an application for extension of the registration for the purposes of Article 4 of this Regulation in the case of a trade repository already recognised in accordance with Regulation (EU) No 648/2012.
An application as referred to in paragraph 4 shall be accompanied by all necessary information, including at least the information necessary to verify that the trade repository is authorised and subject to effective supervision in a third country which satisfies all of the following criteria:
the Commission has determined, by means of an implementing act pursuant to paragraph 1, that the third country has an equivalent and enforceable regulatory and supervisory framework;
the relevant authorities of the third country have entered into cooperation arrangements with ESMA specifying at least:
a mechanism for the exchange of information between ESMA and any other Union authority that exercises responsibilities as a result of any delegation of tasks pursuant to Article 9(1) on the one hand and the relevant competent authorities of the third country concerned on the other; and
procedures concerning the coordination of supervisory activities.
ESMA shall apply Regulation (EC) No 45/2001 with regard to the transfer of personal data to a third country.
Article 20
Indirect access to data between authorities
ESMA may conclude cooperation arrangements with relevant authorities of third countries that need to fulfil their respective responsibilities and mandates regarding mutual exchange of information on SFTs made available to ESMA by Union trade repositories in accordance with Article 12(2) and on SFT data collected and maintained by third-country authorities, provided that guarantees of professional secrecy exist, including with regard to the protection of business secrets shared by the authorities with third parties.
Article 21
Equivalence of reporting
The Commission may adopt implementing acts determining that the legal, supervisory and enforcement arrangements of a third country:
are equivalent to the requirements laid down in Article 4;
ensure protection of professional secrecy equivalent to that laid down in this Regulation;
are being effectively applied and enforced in an equitable and non-distortive manner in order to ensure effective supervision and enforcement in that third country; and
ensure that the entities referred to in Article 12(2) have either direct access to the details on SFT data pursuant to Article 19(1) or indirect access to the details on SFTs pursuant to Article 20.
That implementing act shall be adopted in accordance with the examination procedure referred to in Article 31(2).
The Commission shall, in cooperation with ESMA, monitor the effective implementation by third countries for which an implementing act on equivalence has been adopted of the requirements equivalent to those laid down in Article 4 and report regularly to the European Parliament and to the Council. Where the report reveals an insufficient or inconsistent application of the equivalent requirements by third-country authorities, the Commission shall consider, within 30 calendar days of the presentation of the report, whether to withdraw the recognition as equivalent of the third-country legal framework in question.
CHAPTER VIII
ADMINISTRATIVE SANCTIONS AND OTHER ADMINISTRATIVE MEASURES
Article 22
Administrative sanctions and other administrative measures
Where the provisions referred to in the first subparagraph apply to legal persons, Member States shall empower competent authorities, in the case of an infringement, to apply sanctions, subject to the conditions laid down in national law, to members of the management body, and to other individuals who under national law are responsible for the infringement.
Competent authorities may cooperate with competent authorities of other Member States and relevant third-country authorities with respect to the exercise of their powers to impose sanctions.
Competent authorities may also cooperate with competent authorities of other Member States with respect to facilitating the recovery of pecuniary sanctions.
Member States shall, in accordance with national law, confer on competent authorities the power to apply at least the following administrative sanctions and other administrative measures in the event of the infringements referred to in paragraph 1:
an order requiring the person responsible for the infringement to cease the conduct and to desist from a repetition of that conduct;
a public statement which indicates the person responsible and the nature of the infringement in accordance with Article 26;
withdrawal or suspension of the authorisation;
a temporary ban against any person discharging managerial responsibilities, or any natural person who is held responsible for such an infringement, from exercising management functions;
maximum administrative pecuniary sanctions of at least three times the amount of the profits gained or losses avoided because of the infringement where those can be determined by the relevant authority, even if those sanctions exceed the amounts referred to in points (f) and (g);
in respect of a natural person, a maximum administrative pecuniary sanctions of at least EUR 5 000 000 or, in the Member States whose currency is not the euro, the corresponding value in the national currency on 12 January 2016;
in respect of legal persons, maximum administrative pecuniary sanctions of at least:
EUR 5 000 000 or, in the Member States whose currency is not the euro, the corresponding value in the national currency on 12 January 2016, or up to 10 % of the total annual turnover of the legal person according to the last available accounts approved by the management body for infringements of Article 4;
EUR 15 000 000 or, in the Member States whose currency is not the euro, the corresponding value in the national currency on 12 January 2016, or up to 10 % of the total annual turnover of the legal person according to the last available accounts approved by the management body for infringements of Article 15.
For the purpose of point (g)(i) and (ii) of the first subparagraph, where the legal person is a parent undertaking or a subsidiary of the parent undertaking which has to prepare consolidated financial accounts in accordance with Directive 2013/34/EU, the relevant total annual turnover shall be the total annual turnover or the corresponding type of income according to the relevant accounting regime according to the last available consolidated accounts approved by the management body of the ultimate parent undertaking.
Member States may provide that competent authorities have powers in addition to those referred to in this paragraph. Member States may also provide for a wider scope of sanctions and higher levels of sanctions than those provided for in this paragraph.
Article 23
Determination of administrative sanctions and other administrative measures
Member States shall ensure that, when determining the type and level of administrative sanctions and other administrative measures, competent authorities shall take into account all relevant circumstances, including, where appropriate:
the gravity and duration of the infringement;
the degree of responsibility of the person responsible for the infringement;
the financial strength of the person responsible for the infringement, by considering factors such as the total turnover in the case of a legal person or the annual income in the case of a natural person;
the importance of the profits gained or losses avoided by the person responsible for the infringement, insofar as they can be determined;
the level of cooperation of the person responsible for the infringement with the competent authority, without prejudice to the need to ensure disgorgement of profits gained or losses avoided by that person;
previous infringements by the person responsible for the infringement.
Competent authorities may take into account additional factors to those referred to in the first paragraph when determining the type and level of administrative sanctions and other administrative measures.
Article 24
Reporting of infringements
The mechanisms referred to in paragraph 1 shall include at least:
specific procedures for the receipt of reports of infringements of Article 4 or 15 and their follow-up, including the establishment of secure communication channels for such reports;
appropriate protection for persons working under a contract of employment who report infringements of Article 4 or 15 or who are accused of infringing those articles against retaliation, discrimination and other types of unfair treatment;
protection of personal data both of the person who reports the infringement of Article 4 or 15 and of the person who allegedly committed the infringement, including protection in relation to preserving the confidentiality of their identity, at all stages of the procedure without prejudice to disclosure of information being required by national law in the context of investigations or subsequent judicial proceedings.
Article 25
Exchange of information with ESMA
ESMA shall submit those draft implementing technical standards to the Commission by 13 January 2017.
Power is conferred to the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.
Article 26
Publication of decisions
Where a competent authority considers, following a case-by-case assessment, that the publication of the identity of the legal person subject to the decision, or the personal data of a natural person, would be disproportionate, or where such publication would jeopardise an ongoing investigation or the stability of the financial markets, it shall do one of the following:
defer publication of the decision until the reasons for that deferral cease to exist;
publish the decision on an anonymous basis in accordance with national law where such publication ensures effective protection of the personal data concerned and, where appropriate, postpone publication of the relevant data for a reasonable period of time where it is foreseeable that the reasons for anonymous publication will cease to exist during that period;
not publish the decision in the event that the competent authority is of the opinion that publication in accordance with point (a) or (b) will be insufficient to ensure:
that the stability of financial markets is not jeopardised; or
the proportionality of the publication of such decisions with regard to measures which are deemed to be of a minor nature.
Article 27
Right of appeal
Member States shall ensure that decisions and measures taken pursuant to this Regulation are properly reasoned and subject to a right of appeal before a tribunal. The right of appeal before a tribunal shall also apply where, in respect of an application for authorisation which provides all of the information required, no decision is taken within six months of its submission.
Article 28
Sanctions and other measures for the purpose of Articles 13 and 14
Sanctions and other measures established in accordance with Directives 2009/65/EC and 2011/61/EU shall be applicable to infringements of Articles 13 and 14 of this Regulation.
CHAPTER IX
REVIEW
Article 29
Reports and review
For the purposes of the report referred to in the first subparagraph, ESMA shall, within 24 months of the date of entry into force of the delegated act adopted by the Commission pursuant to Article 4(9), and every three years thereafter, or more frequently where significant developments in market practices arise, submit a report to the European Parliament, to the Council and to the Commission on the efficiency of the reporting, taking into account the appropriateness of single-side reporting, in particular in terms of reporting coverage and quality as well as reduction of reports to trade repositories, and on significant developments in market practices with a focus on transactions having an equivalent objective or effect to an SFT.
To that end, ESMA shall, by 13 October 2016, in cooperation with EBA and the ESRB and taking due account of international efforts, submit a report to the Commission, to the European Parliament and to the Council, assessing:
whether the use of SFTs leads to the build-up of significant leverage that is not addressed by existing regulation;
where appropriate, the options available to tackle such a build-up;
whether further measures to reduce the pro-cyclicality of that leverage are required.
ESMA’s report shall also consider the quantitative impact of the FSB recommendations.
For the purposes of the Commission’s reports referred to in the first subparagraph, within 33 months of the date of entry into force of the delegated act adopted by the Commission pursuant to Article 4(9), and every three years thereafter, or more frequently where material changes to fees are introduced, ESMA shall submit a report to the Commission on the fees charged to trade repositories in accordance with this Regulation. Those reports shall set out at least ESMA’s necessary expenditures relating to the registration, recognition and supervision of trade repositories, the costs that the competent authorities incurred carrying out work pursuant to this Regulation, in particular, as a result of any delegation of tasks, as well as the fees charged to trade repositories and their proportionality to trade repositories’ turnover.
CHAPTER X
FINAL PROVISIONS
Article 30
Exercise of delegated powers
Article 31
Committee procedure
Article 32
Amendments to Regulation (EU) No 648/2012
Regulation (EU) No 648/2012 is amended as follows:
In Article 2, point (7) is replaced by the following:
“OTC derivative” or “OTC derivative contract” means a derivative contract the execution of which does not take place on a regulated market within the meaning of Article 4(1)(14) of Directive 2004/39/EC or on a third-country market considered to be equivalent to a regulated market in accordance with Article 2a of this Regulation;’.
The following Article is inserted:
‘Article 2a
Equivalence decisions for the purposes of the definition of OTC derivatives
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 86(2) of this Regulation.
In Article 81, paragraph 3 is replaced by the following:
A trade repository shall make the necessary information available to the following entities to enable them to fulfil their respective responsibilities and mandates:
ESMA;
EBA;
EIOPA;
the ESRB;
the competent authority supervising CCPs accessing the trade repositories;
the competent authority supervising the trading venues of the reported contracts;
the relevant members of the ESCB, including the ECB in carrying out its tasks within a single supervisory mechanism under Council Regulation (EU) No 1024/2013 ( *1 );
the relevant authorities of a third country that has entered into an international agreement with the Union as referred to in Article 75;
supervisory authorities designated under Article 4 of Directive 2004/25/EC of the European Parliament and of the Council ( *2 );
the relevant Union securities and market authorities whose respective supervisory responsibilities and mandates cover contracts, markets, participants and underlyings which fall within the scope of this Regulation;
the relevant authorities of a third country that have entered into a cooperation arrangement with ESMA, as referred to in Article 76;
the Agency for the Cooperation of Energy Regulators established by Regulation (EC) No 713/2009 of the European Parliament and of the Council ( *3 );
the resolution authorities designated under Article 3 of Directive 2014/59/EU of the European Parliament and the Council ( *4 );
the Single Resolution Board established by Regulation (EU) No 806/2014;
competent authorities or national competent authorities within the meaning of Regulations (EU) No 1024/2013 and (EU) No 909/2014 and of Directives 2003/41/EC, 2009/65/EC, 2011/61/EU, 2013/36/EU and, 2014/65/EU, and supervisory authorities within the meaning of Directive 2009/138/EC;
the competent authorities designated in accordance with Article 10(5) of this Regulation.
Article 33
Entry into force and application
This Regulation shall apply from 12 January 2016, with the exception of:
Article 4(1), which shall apply:
12 months after the date of entry into force of the delegated act adopted by the Commission pursuant to Article 4(9) for financial counterparties referred to in points (3)(a) and (b) of Article 3 and third-country entities referred to in point (3)(i) of Article 3 which would require authorisation or registration in accordance with the legislation referred to in points (3)(a) and (b) of Article 3 if they were established in the Union;
15 months after the date of entry into force of the delegated act adopted by the Commission pursuant to Article 4(9) for financial counterparties referred to in points (3)(g) and (h) of Article 3 and third-country entities referred to in point (3)(i) of Article 3 which would require authorisation or registration in accordance with the legislation referred to in points (3)(g) and (h) of Article 3 if they were established in the Union;
18 months after the date of entry into force of the delegated act adopted by the Commission pursuant to Article 4(9) for financial counterparties referred to in points (3)(c) to (f) of Article 3 and third-country entities referred to point (3)(i) of Article 3 which would require authorisation or registration in accordance with the legislation referred to in points (3)(c) to (f) of Article 3 if they were established in the Union; and
21 months after the date of entry into force of the delegated act adopted by the Commission pursuant to Article 4(9) for non-financial counterparties;
Article 13, which shall apply from 13 January 2017;
Article 14, which shall apply from 13 July 2017 in the case of collective investment undertakings subject to Directive 2009/65/EC or Directive 2011/61/EU that are constituted before 12 January 2016;
Article 15, which shall apply from 13 July 2016, including for collateral arrangements existing on that date.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
ANNEX
Section A – Information to be provided in the UCITS half-yearly and annual reports and the AIF’s annual report
Global data:
Concentration data:
Aggregate transaction data for each type of SFTs and total return swaps separately to be broken down according to the below categories:
Data on reuse of collateral:
Safekeeping of collateral received by the collective investment undertaking as part of SFTs and total return swaps:
Number and names of custodians and the amount of collateral assets safe-kept by each of the custodians
Safekeeping of collateral granted by the collective investment undertaking as part of SFTs and total return swaps:
The proportion of collateral held in segregated accounts or in pooled accounts, or in any other accounts
Data on return and cost for each type of SFTs and total return swaps broken down between the collective investment undertaking, the manager of the collective investment undertaking and third parties (e.g. agent lender) in absolute terms and as a percentage of overall returns generated by that type of SFTs and total return swaps
Section B – Information to be included in the UCITS Prospectus and AIF disclosure to investors:
( 1 ) Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349).
( 2 ) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).
( 3 ) Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 335, 17.12.2009, p. 1).
( 4 ) Directive 2003/41/EC of the European Parliament and of the Council of 3 June 2003 on the activities and supervision of institutions for occupational retirement provision (OJ L 235, 23.9.2003, p. 10).
( 5 ) Regulation (EU) No 909/2014 of the European Parliament and of the Council of 23 July 2014 on improving securities settlement in the European Union and on central securities depositories and amending Directives 98/26/EC and 2014/65/EU and Regulation (EU) No 236/2012 (OJ L 257, 28.8.2014, p. 1).
( 6 ) Commission Regulation (EC) No 1287/2006 of 10 August 2006 implementing Directive 2004/39/EC of the European Parliament and of the Council as regards recordkeeping obligations for investment firms, transaction reporting, market transparency, admission of financial instruments to trading, and defined terms for the purposes of that Directive (OJ L 241, 2.9.2006, p. 1).
( 7 ) Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (OJ L 182, 29.6.2013, p. 19).
( 8 ) Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (OJ L 142, 30.4.2004, p. 12).
( 9 ) Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators (OJ L 211, 14.8.2009, p. 1).
( 10 ) Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC, and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ L 173, 12.6.2014, p. 190).
( 11 ) Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 (OJ L 225, 30.7.2014, p. 1).
( 12 ) Regulation (EU) 2021/23 of the European Parliament and of the Council of 16 December 2020 on a framework for the recovery and resolution of central counterparties and amending Regulations (EU) No 1095/2010, (EU) No 648/2012, (EU) No 600/2014, (EU) No 806/2014 and (EU) 2015/2365 and Directives 2002/47/EC, 2004/25/EC, 2007/36/EC, 2014/59/EU and (EU) 2017/1132 (OJ L 022, 22.1.2021, p. 1).
( 13 ) Commission Decision 2001/528/EC of 6 June 2001 establishing the European Securities Committee (OJ L 191, 13.7.2001, p. 45).
( 14 ) Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).
( *1 ) Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63).
( *2 ) Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (OJ L 142, 30.4.2004, p. 12).
( *3 ) Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators (OJ L 211, 14.8.2009, p. 1).
( *4 ) Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ L 173, 12.6.2014, p. 190).’.