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Document 02014R0909-20240116
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 (Text with EEA relevance)Text with EEA relevance
Consolidated text: 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 (Text with EEA relevance)Text with EEA relevance
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 (Text with EEA relevance)Text with EEA relevance
02014R0909 — EN — 16.01.2024 — 003.001
This text is meant purely as a documentation tool and has no legal effect. The Union's institutions do not assume any liability for its contents. The authentic versions of the relevant acts, including their preambles, are those published in the Official Journal of the European Union and available in EUR-Lex. Those official texts are directly accessible through the links embedded in this document
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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) |
Amended by:
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Official Journal |
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No |
page |
date |
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REGULATION (EU) 2016/1033 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 23 June 2016 |
L 175 |
1 |
30.6.2016 |
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REGULATION (EU) 2022/858 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 30 May 2022 |
L 151 |
1 |
2.6.2022 |
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REGULATION (EU) 2023/2845 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 13 December 2023 |
L 2845 |
1 |
27.12.2023 |
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Corrected by:
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
(Text with EEA relevance)
TITLE I
SUBJECT MATTER, SCOPE AND DEFINITIONS
Article 1
Subject matter and scope
Article 2
Definitions
For the purposes of this Regulation, the following definitions apply:
‘central securities depository’ or ‘CSD’ means a legal person that operates a securities settlement system referred to in point (3) of Section A of the Annex and provides at least one other core service listed in Section A of the Annex;
‘third-country CSD’ means any legal entity established in a third country that provides a similar service to the core service referred to in point (3) of Section A of the Annex and performs at least one other core service listed in Section A of the Annex;
‘immobilisation’ means the act of concentrating the location of physical securities in a CSD in a way that enables subsequent transfers to be made by book entry;
‘dematerialised form’ means the fact that financial instruments exist only as book entry records;
‘receiving CSD’ means the CSD which receives the request of another CSD to have access to its services through a CSD link;
‘requesting CSD’ means the CSD which requests access to the services of another CSD through a CSD link;
‘settlement’ means the completion of a securities transaction where it is concluded with the aim of discharging the obligations of the parties to that transaction through the transfer of cash or securities, or both;
‘financial instruments’ or ‘securities’ means financial instruments as defined in point (15) of Article 4(1) of Directive 2014/65/EU;
‘transfer order’ means transfer order as defined in the second indent of point (i) of Article 2 of Directive 98/26/EC;
‘securities settlement system’ means a system under the first, second and third indents of point (a) of Article 2 of Directive 98/26/EC that is not operated by a central counterparty whose activity consists of the execution of transfer orders;
‘settlement internaliser’ means any institution, including one authorised in accordance with Directive 2013/36/EU or with Directive 2014/65/EU, which executes transfer orders on behalf of clients or on its own account other than through a securities settlement system;
‘intended settlement date’ means the date that is entered into the securities settlement system as the settlement date and on which the parties to a securities transaction agree that settlement is to take place;
‘settlement period’ means the time period between the trade date and the intended settlement date;
‘business day’ means business day as defined in point (n) of Article 2 of Directive 98/26/EC;
‘settlement fail’ means the non-occurrence of settlement, or partial settlement of a securities transaction on the intended settlement date, due to a lack of securities or cash and regardless of the underlying cause;
‘central counterparty’ or ‘CCP’ means a CCP as defined in point (1) of Article 2 of Regulation (EU) No 648/2012;
‘competent authority’ means the authority designated by each Member State in accordance with Article 11, unless otherwise specified in this Regulation;
‘relevant authority’ means any authority referred to in Article 12;
‘participant’ means any participant, as defined in point (f) of Article 2 of Directive 98/26/EC in a securities settlement system;
‘participation’ means participation within the meaning of the first sentence of point (2) of Article 2 of Directive 2013/34/EU, or the ownership, direct or indirect, of 20 % or more of the voting rights or capital of an undertaking;
‘control’ means the relationship between two undertakings as described in Article 22 of Directive 2013/34/EU;
‘subsidiary’ means a subsidiary undertaking within the meaning of Article 2(10) and Article 22 of Directive 2013/34/EU;
‘home Member State’ means the Member State in which a CSD is established;
‘host Member State’ means the Member State, other than the home Member State, in which a CSD has a branch or provides CSD services;
‘branch’ means a place of business other than the head office which is a part of a CSD, which has no legal personality and which provides CSD services for which the CSD has been authorised;
‘default’ means, in relation to a participant, a situation where insolvency proceedings, as defined in Article 2, point (j), of Directive 98/26/EC, are opened against a participant or an event defined in the CSD’s internal rules as constituting a default;
‘delivery versus payment’ or ‘DVP’ means a securities settlement mechanism which links a transfer of securities with a transfer of cash in a way that the delivery of securities occurs if and only if the corresponding transfer of cash occurs and vice versa;
‘securities account’ means an account on which securities may be credited or debited;
‘CSD link’ means an arrangement between CSDs whereby one CSD becomes a participant in the securities settlement system of another CSD in order to facilitate the transfer of securities from the participants of the latter CSD to the participants of the former CSD or an arrangement whereby a CSD accesses another CSD indirectly via an intermediary. CSD links include standard links, customised links, indirect links, and interoperable links;
‘standard link’ means a CSD link whereby a CSD becomes a participant in the securities settlement system of another CSD under the same terms and conditions as applicable to any other participant in the securities settlement system operated by the latter;
‘customised link’ means a CSD link whereby a CSD that becomes a participant in the securities settlement system of another CSD is provided with additional specific services to the services normally provided by that CSD to participants in the securities settlement system;
‘indirect link’ means an arrangement between a CSD and a third party other than a CSD, that is a participant in the securities settlement system of another CSD. Such link is set up by a CSD in order to facilitate the transfer of securities to its participants from the participants of another CSD;
‘interoperable link’ means a CSD link whereby CSDs agree to establish mutual technical solutions for settlement in the securities settlement systems that they operate;
‘international open communication procedures and standards’ means internationally accepted standards for communication procedures, such as standardised messaging formats and data representation, which are available on a fair, open and non-discriminatory basis to any interested party;
‘transferable securities’ means transferable securities as defined in point (44) of Article 4(1) of Directive 2014/65/EU;
‘shares’ means securities specified in point (44)(a) of Article 4(1) of Directive 2014/65/EU;
‘money-market instruments’ means money-market instruments as defined in point (17) of Article 4(1) of Directive 2014/65/EU;
‘units in collective investment undertakings’ means units in collective investment undertakings as referred to in point (3) of Section C of Annex I to Directive 2014/65/EU;
‘emission allowance’ means emission allowance as described in point (11) of Section C of Annex I to Directive 2014/65/EU, excluding derivatives in emission allowances;
‘regulated market’ means regulated market as defined in point (21) of Article 4(1) of Directive 2014/65/EU;
‘multilateral trading facility’ or ‘MTF’ means multilateral trading facility as defined in point (22) of Article 4(1) of Directive 2014/65/EU;
‘trading venue’ means a trading venue as defined in point (24) of Article 4(1) of Directive 2014/65/EU;
‘settlement agent’ means settlement agent as defined in point (d) of Article 2 of Directive 98/26/EC;
‘SME growth market’ means an SME growth market as defined in point (12) of Article 4(1) of Directive 2014/65/EU;
‘management body’ means the body or bodies of a CSD, appointed in accordance with national law, which is empowered to set the CSD’s strategy, objectives and overall direction, and which oversees and monitors management decision-making and includes persons who effectively direct the business of the CSD.
Where, according to national law, a management body comprises different bodies with specific functions, the requirements of this Regulation shall apply only to members of the management body to whom the applicable national law assigns the respective responsibility;
‘senior management’ means those natural persons who exercise executive functions within a CSD and who are responsible and accountable to the management body for the day-to-day management of that CSD;
‘group’ means a group within the meaning of Article 2, point (11), of Directive 2013/34/EU;
‘close links’ means close links as defined in Article 4(1), point (35), of Directive 2014/65/EU;
‘qualifying holding’ means a direct or indirect holding in a CSD which represents at least 10 % of the capital or of the voting rights, as set out in Articles 9, 10 and 11 of Directive 2004/109/EC of the European Parliament and of the Council ( 1 ), or which makes it possible to exercise a significant influence over the management of the CSD;
‘deferred net settlement’ means a settlement mechanism whereby cash or securities transfer orders in relation to securities transactions of the participants in the securities settlement system are subject to netting, and whereby settlement of participants’ net claims and obligations takes place at the end of predefined settlement cycles during or at the end of the business day.
TITLE II
SECURITIES SETTLEMENT
CHAPTER I
Book-entry form
Article 3
Book-entry form
Where transferable securities are transferred following a financial collateral arrangement as defined in point (a) of Article 2(1) of Directive 2002/47/EC, those securities shall be recorded in book-entry form in a CSD on or before the intended settlement date, unless they have already been so recorded.
Article 4
Enforcement
CHAPTER II
Settlement periods
Article 5
Intended settlement date
The authorities competent for the supervision of trading venues shall ensure that paragraph 2 is applied.
CHAPTER III
Settlement discipline
Article 6
Measures to prevent settlement fails
Such measures shall at least consist of arrangements between the investment firm and its professional clients as referred to in Annex II to Directive 2014/65/EU to ensure the prompt communication of an allocation of securities to the transaction, confirmation of that allocation and confirmation of the acceptance or rejection of terms in good time before the intended settlement date.
ESMA shall, in close cooperation with the members of the ESCB, issue guidelines in accordance with Article 16 of Regulation (EU) No 1095/2010 on the standardised procedures and messaging protocols to be used for complying with the second subparagraph of this paragraph.
ESMA shall, in close cooperation with the members of the ESCB, develop draft regulatory technical standards to specify the measures to prevent settlement fails in order to increase settlement efficiency and in particular:
the measures to be taken by investment firms in accordance with paragraph 2, first subparagraph;
the details of the procedures that facilitate settlement referred to in paragraph 3, which could include the shaping of transaction sizes, partial settlement of failing trades and the use of auto-lend/borrow programmes provided by certain CSDs; and
the details of the measures to encourage and incentivise the timely settlement of transactions referred to in paragraph 4.
ESMA shall submit those draft regulatory technical standards to the Commission by 17 July 2025.
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 7
Measures to address settlement fails
Before establishing the procedures referred to in the first subparagraph, a CSD shall consult the relevant trading venues and CCPs in respect of which it provides settlement services.
The penalty mechanism referred to in the first subparagraph shall include cash penalties for participants that cause settlement fails (’failing participants‘). Cash penalties shall be calculated on a daily basis for each business day that a transaction fails to be settled after its intended settlement date until the transaction is either settled or bilaterally cancelled. The cash penalties shall not be configured as a revenue source for the CSD.
The penalty mechanism referred to in paragraph 2 shall not apply to:
transactions where the failing participant is a CCP, except for transactions entered into by a CCP where it does not interpose itself between the counterparties; or
transactions where insolvency proceedings are opened against the failing participant.
The Commission shall be empowered to adopt delegated acts in accordance with Article 67 to supplement this Regulation by specifying parameters for the calculation of a deterrent and proportionate level of the cash penalties referred to in paragraph 2, third subparagraph, of this Article based on all of the following:
asset type;
liquidity of the financial instrument;
type of transaction;
duration of the settlement fail.
When specifying the parameters referred to in the first subparagraph, the Commission shall take into account the level of settlement fails per class of financial instruments and the effect that low or negative interest rates could have on the incentives of counterparties and on settlement fails. The parameters used for the calculation of cash penalties shall ensure a high degree of settlement discipline and the smooth and orderly functioning of the financial markets concerned.
The Commission shall review the parameters for the calculation of the level of the cash penalties on a regular basis and at least every four years in order to reassess the appropriateness and effectiveness of the cash penalties in achieving a level of settlement fails in the Union deemed to be acceptable having regard to the impact on the financial stability of the Union.
Public disclosure of suspensions shall not contain personal data as defined in Article 4, point (1), of Regulation (EU) 2016/679 of the European Parliament and of the Council ( 3 ).
This paragraph shall not apply to failing participants which are CCPs or in cases where insolvency proceedings are opened against the failing participant.
The Commission shall be empowered to adopt delegated acts in accordance with Article 67 to supplement this Regulation by specifying:
the underlying causes of settlement fails that are considered as not attributable to the participants in the transaction under paragraph 3, point (a), of this Article; and
the circumstances in which operations are not considered as trading under paragraph 3, point (b), of this Article.
ESMA shall, in close cooperation with the members of the ESCB, develop draft regulatory technical standards to specify:
the details of the system monitoring settlement fails and the reports on settlement fails referred to in paragraph 1;
the processes for collection and redistribution of cash penalties and any other possible proceeds from such penalties in accordance with paragraph 2;
the conditions under which a participant is deemed to fail, consistently and systematically, to deliver the financial instruments as referred to in paragraph 7.
ESMA shall submit those draft regulatory technical standards to the Commission by 17 January 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
Article 7a
Mandatory buy-in process
The Commission may adopt the implementing act referred to in the first subparagraph only if both of the following conditions are met:
the application of the penalty mechanism referred to in Article 7(2) has not resulted in a long-term sustainable reduction of settlement fails in the Union or in maintaining a reduced level of settlement fails in the Union, even after a review of the level of cash penalties in accordance with Article 7(5), second subparagraph;
the level of settlement fails in the Union has or is likely to have a negative effect on the financial stability of the Union.
For the purposes of reaching the decision referred to in the first subparagraph, the Commission shall take into account all of the following:
the potential impact of the mandatory buy-in process on financial markets in the Union;
the number, volume and duration of settlement fails, including the number and volume of settlement fails outstanding at the end of the extension period referred to in paragraph 4;
whether a particular financial instrument or category of transactions in that financial instrument is already subject to appropriate contractual provisions that provide a right for receiving participants to trigger a buy-in.
The implementing act shall be adopted in accordance with the examination procedure referred to in Article 68(2). It shall specify a date of application that is not earlier than one year after its entry into force.
Before adopting the implementing act referred to in paragraph 1, the Commission shall:
assess the effectiveness and proportionality of the penalty mechanism referred to in Article 7(2) and, where appropriate, change the structure or severity of the penalty mechanism in order to increase settlement efficiency in the Union;
consider whether the conditions referred to in paragraph 1 are met, despite the prior application of the penalty mechanism referred to in Article 7(2) and the rationale for, and potential cost implications of, subjecting specific financial instruments and categories of transactions to mandatory buy-ins.
By way of derogation from the first subparagraph, based on the asset type and liquidity of the financial instruments concerned, the extension period may be increased to a maximum of seven business days where a shorter extension period would affect the smooth and orderly functioning of the markets concerned.
By way of derogation from the first and second subparagraphs, where the transaction relates to a financial instrument traded on an SME growth market, the extension period shall be 15 business days unless the SME growth market decides to apply a shorter period.
The intermediate receiving participant shall be considered as complying with the obligation to execute a mandatory buy-in against the failing participant where it passes on its obligation in accordance with the first subparagraph. The intermediate receiving participant may also pass on to the failing participant its obligations towards the end receiving participant pursuant to paragraphs 8, 9 and 10.
The relevant CSD shall be informed about how the failed transaction was resolved throughout the chain of transactions.
The mandatory buy-in process referred to in paragraph 4 shall not apply to:
the settlement fails, operations and transactions listed in Article 7(3);
securities financing transactions;
other types of transactions that render the buy-in process unnecessary;
transactions that fall within the scope of Article 15 of Regulation (EU) No 236/2012.
Cash compensation shall be paid no later than on the second business day after the end of either the mandatory buy-in process referred to in paragraph 4 or, in cases where the receiving participant chooses to defer the execution of the buy-in, the deferral period.
Paragraphs 4 to 10 shall apply to all transactions of the financial instruments referred to in Article 5(1) which are admitted to trading or traded on a trading venue or cleared by a CCP as follows:
for transactions cleared by a CCP, the CCP shall be the entity that executes the buy-in according to paragraphs 4 to 10;
for transactions not cleared by a CCP, but executed on a trading venue, the trading venue shall include in its internal rules an obligation for its members and its participants to apply the measures referred to in paragraphs 4 to 10;
for all transactions other than those referred to in points (a) and (b) of this subparagraph, CSDs shall include in their internal rules an obligation for their participants to be subject to the measures referred to in paragraphs 4 to 10.
A CSD shall provide the necessary settlement information to CCPs and trading venues to enable them to fulfil their obligations under this paragraph.
Without prejudice to points (a), (b) and (c) of the first subparagraph, CSDs may monitor the execution of buy-ins as referred to in those points with respect to multiple settlement instructions, on the same financial instruments and with the same date of expiry of the execution period, with the aim of minimising the number of buy-ins to be executed and thus the impact on the prices of the relevant financial instruments.
Before making the recommendation referred to in the first subparagraph, ESMA shall consult the members of the ESCB and the European Systemic Risk Board.
The Commission shall, without undue delay after receipt of the recommendation, on the basis of the reasons and evidence provided by ESMA, either suspend the mandatory buy-in mechanism referred to in paragraphs 4 to 10 for the specific categories of financial instruments by means of an implementing act, or reject the recommended suspension. Where the Commission rejects the recommended suspension, it shall provide the reasons therefor in writing to ESMA. Such information shall not be made public.
The implementing act referred to in the third subparagraph shall be adopted in accordance with the procedure referred to in Article 68(3).
The suspension of the mandatory buy-in mechanism shall be communicated to ESMA and shall be published in the Official Journal of the European Union and on the Commission’s website.
The suspension of the mandatory buy-in mechanism shall be valid for an initial period of no more than six months from the date of application of that suspension.
Where the grounds for the suspension continue to apply, the Commission may, by way of an implementing act, extend the suspension for additional periods of no more than three months each, with the total period of the suspension not exceeding 12 months. Any extensions of the suspension shall be published in accordance with the fifth subparagraph.
The implementing act referred to in the seventh subparagraph shall be adopted in accordance with the procedure referred to in Article 68(3). ESMA shall, in sufficient time before the end of the suspension referred to in the sixth subparagraph or of the extension referred to in the seventh subparagraph, issue an opinion to the Commission on whether the grounds for the suspension continue to apply.
Where the Commission considers that mandatory buy-ins are no longer justified or do not address settlement fails in the Union and are no longer necessary, appropriate or proportionate, it shall, without delay, adopt implementing acts amending or repealing the implementing act referred to in paragraph 1.
The implementing act referred to in the second subparagraph shall be adopted in accordance with the examination procedure referred to in Article 68(2).
Where ESMA considers that mandatory buy-ins are no longer justified or do not address settlement fails in the Union and are no longer necessary, appropriate or proportionate, it may recommend that the Commission amend or repeal the implementing act referred to in paragraph 1. Paragraph 13, first to fourth subparagraphs, shall apply mutatis mutandis.
ESMA shall, in close cooperation with the members of the ESCB, develop draft regulatory technical standards to further specify:
the details of the operation of the appropriate buy-in process referred to in paragraphs 4 to 10, including appropriate timeframes, calibrated taking into account the asset type and liquidity of the financial instruments, for the delivery of the financial instrument following the buy-in process;
the circumstances under which the extension period could be prolonged according to asset type and liquidity of the financial instruments, in accordance with the conditions referred to in paragraph 4, second subparagraph, taking into account the criteria for assessing liquidity under Article 2(1), point (17), of Regulation (EU) No 600/2014;
the details of the pass-on mechanism under paragraph 6;
other types of transactions that render the buy-in process unnecessary as referred to in paragraph 7, point (c), such as financial collateral arrangements or transactions that include close-out netting provisions;
a methodology for the calculation of the cash compensation referred to in paragraph 9;
the necessary settlement information referred to in paragraph 11, second subparagraph; and
the details of how the participants of the CSDs, the CCPs and the trading venue members are to take into account the specificities of retail investors when executing the mandatory buy-in in accordance with paragraph 11.
ESMA shall submit those draft regulatory technical standards to the Commission by 17 January 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
Article 8
Enforcement
CHAPTER IV
Internalised settlement
Article 9
Settlement internalisers
Competent authorities shall without delay transmit the information received under the first subparagraph to ESMA and shall inform ESMA of any potential risk resulting from that settlement activity.
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.
ESMA shall submit those draft implementing technical standards to the Commission by 18 June 2015.
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.
TITLE III
CENTRAL SECURITIES DEPOSITORIES
CHAPTER I
Authorisation and supervision of CSDs
Article 10
Competent authority
Without prejudice to the oversight by the members of the ESCB referred to in Article 12(1), a CSD shall be authorised and supervised by the competent authority of its home Member State.
Article 11
Designation of the competent authority
Where a Member State designates more than one competent authority, it shall determine their respective roles and shall designate a single authority to be responsible for cooperation with other Member States’ competent authorities, the relevant authorities, ESMA, and EBA, where specifically referred to in this Regulation.
Article 12
Relevant authorities
The following authorities shall be involved in the authorisation and supervision of CSDs where specifically referred to in this Regulation:
the authority responsible for the oversight of the securities settlement system operated by the CSD in the Member State whose law applies to that securities settlement system;
the central banks in the Union issuing the most relevant currencies in which settlement takes or will take place;
where relevant, the central bank in the Union in whose books the cash payments of a securities settlement system operated by the CSD is or will be settled.
ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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 13
Exchange of information
Article 14
Cooperation between authorities
In order to ensure consistent, efficient and effective supervisory practices within the Union, including cooperation between competent authorities and relevant authorities in the different assessments necessary for the application of this Regulation, ESMA may, in close cooperation with the members of the ESCB, issue guidelines addressed to competent authorities in accordance with Article 16 of Regulation (EU) No 1095/2010.
Article 15
Emergency situations
Without prejudice to the notification procedure provided for in Article 6(3) of Directive 98/26/EC, competent authorities and relevant authorities shall immediately inform ESMA, the European Systemic Risk Board established by Regulation (EU) No 1092/2010 of the European Parliament and of the Council ( 4 ) and each other of any emergency situation relating to a CSD, including of any developments in financial markets, which may have an adverse effect on market liquidity, the stability of a currency in which settlement takes place, the integrity of monetary policy or on the stability of the financial system in any of the Member States where the CSD or one of its participants are established.
Article 16
Authorisation of a CSD
Article 17
Procedure for granting authorisation
By way of derogation from the first subparagraph, where an applicant CSD does not comply with all requirements of this Regulation, but where it can reasonably be assumed that it will do so when it commences its activities, the competent authority may grant the authorisation subject to the condition that the applicant CSD has all the necessary arrangements in place to comply with the requirements of this Regulation when it commences its activities.
Each relevant authority may issue a reasoned opinion within its areas of competence to the competent authority within three months of receipt of the information by the relevant authority. Where a relevant authority does not provide an opinion within that timeframe it shall be deemed to have issued a positive opinion.
Where at least one of the relevant authorities issues a negative reasoned opinion, and the competent authority nevertheless intends to grant the authorisation, that competent authority shall, within one month of receipt of the negative opinion, provide the relevant authorities with the reasons why it intends to grant the authorisation notwithstanding the negative opinion.
Any of the relevant authorities that issued a negative opinion referred to in the third subparagraph may refer the matter to ESMA for assistance under Article 31(2), point (c), of Regulation (EU) No 1095/2010.
Where the issue is not settled within one month of the referral to ESMA, the competent authority intending to grant the authorisation shall take a final decision and provide the relevant authorities with a detailed explanation of its decision in writing.
Where the competent authority intends to refuse authorisation, the matter shall not be referred to ESMA.
A negative opinion referred to in the third subparagraph shall state in writing the full and detailed reasons why the requirements laid down in this Regulation or other requirements of Union law are not met.
The competent authority shall, before granting authorisation to the applicant CSD, consult the competent authorities of the other Member State involved in the following cases:
the CSD is a subsidiary of a CSD authorised in another Member State;
the CSD is a subsidiary of the parent undertaking of a CSD authorised in another Member State;
the CSD is controlled by the same natural or legal persons who control a different CSD authorised in another Member State.
The consultation referred to in paragraph 6 shall cover the following:
the suitability of the shareholders and persons referred to in Article 27(6) and the reputation and experience of the persons who effectively direct the business of the CSD referred to in Article 27(1) and (4), where those shareholders and persons are common to the CSD and to a CSD authorised in another Member State;
whether the relations referred to in points (a), (b) and (c) of paragraph 6 between the CSD authorised in another Member State and the applicant CSD do not affect the ability of the latter to comply with the requirements of this Regulation.
ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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.
ESMA shall submit those draft implementing technical standards to the Commission by 18 June 2015.
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 18
Effects of the authorisation
ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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 19
Extension and outsourcing of activities and services
An authorised CSD shall submit an application for authorisation to the competent authority of its home Member State where it wishes to outsource a core service to a third party under Article 30 or extend its activities to one or more of the following:
additional core services listed in Section A of the Annex, not covered by the initial authorisation;
ancillary services permitted under, but not explicitly listed in Section B of the Annex, not covered by the initial authorisation;
the operation of another securities settlement system;
the settlement of all or part of the cash leg of its securities settlement system in the books of another settlement agent;
setting up an interoperable link, including those with third-country CSDs.
The granting of an authorisation under paragraph 1, point (b), shall follow the procedure laid down in Article 17(1), (2), (3), (5) and (8a).
The granting of an authorisation under paragraph 1, point (e), shall follow the procedure laid down in Article 17(1), (2) and (3).
The competent authority shall inform the applicant CSD whether the authorisation has been granted or refused within three months of submission of a complete application.
Article 20
Withdrawal of authorisation
Without prejudice to any remedial actions or measures under Title V, the competent authority of the home Member State shall withdraw the authorisation in any of the following circumstances, where the CSD:
has not made use of the authorisation during 12 months, expressly renounces the authorisation or has provided no services or performed no activity during the preceding six months;
has obtained the authorisation by making false statements or by any other unlawful means;
no longer complies with the conditions under which authorisation was granted and has not taken the remedial actions requested by the competent authority within a set time-frame;
has seriously or systematically infringed the requirements laid down in this Regulation or, where applicable, in Directive 2014/65/EU or Regulation (EU) No 600/2014.
Article 21
CSD register
Article 22
Review and evaluation
The competent authority shall establish the frequency and depth of the review and evaluation referred to in the first subparagraph having regard to the size, systemic importance, risk profile, nature, scale and complexity of the activities of the CSD concerned.
The review and evaluation shall take place at least every three years.
▼M3 —————
The consulted authorities may issue a reasoned opinion within their areas of competence within three months of receipt of the information from the competent authority.
Where a consulted authority does not provide an opinion within that deadline it shall be deemed to have issued a positive opinion.
Where a consulted authority issues a negative reasoned opinion and the competent authority disagrees with it, that competent authority shall, within one month of receipt of the negative opinion, provide the consulted authority with a reasoning addressing the negative opinion.
Any of the consulted authorities that issued a negative opinion may refer the matter to ESMA for assistance under Article 31(2), point (c), of Regulation (EU) No 1095/2010.
Where the issue is not settled within one month of its referral to ESMA, the competent authority shall take the final decision on the review and evaluation and provide a detailed explanation of its decision in writing to the relevant authorities.
Negative opinions referred to in the fourth subparagraph shall state in writing the full and detailed reasons why the requirements laid down in this Regulation or other requirements of Union law are not met.
ESMA shall, in close cooperation with the members of the ESCB, develop draft regulatory technical standards to specify the following:
the information that the CSD is to provide to the competent authority for the purposes of the review and evaluation referred to in paragraph 1;
the information that the competent authority is to supply in accordance with paragraph 7;
the information that the competent authorities referred to in paragraph 8 are to supply one another.
ESMA shall submit those draft regulatory technical standards to the Commission by 17 January 2025.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with in Articles 10 to 14 of Regulation (EU) No 1095/2010.
ESMA shall submit those draft implementing technical standards to the Commission by 17 January 2025.
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 22a
Plans for recovery and orderly wind-down
The plans referred to in paragraph 1 shall have regard to the size, systemic importance, nature, scale and complexity of the activities of the CSD concerned and contain at least the following:
a substantive summary of the key recovery or orderly wind-down strategies;
an identification of the CSD’s critical operations and services;
adequate procedures ensuring the raising of additional capital in cases where the CSD’s equity capital approaches or falls below the requirements laid down in Article 47(1);
adequate procedures ensuring the orderly wind-down or restructuring of the CSD’s operations and services where the CSD is unable to raise new capital;
adequate procedures ensuring the timely and orderly settlement and transfer of the assets of clients and participants to another CSD in the event it becomes permanently impossible for the CSD to restore its critical operations and services;
a description of the measures needed to implement the key strategies.
Where a resolution plan under Directive 2014/59/EU, or a similar plan under national law with the aim of ensuring the continuity of a CSD’s core services, is established and maintained for a CSD, the resolution authority or, where no such authority exists, the competent authority shall inform ESMA of the existence of such a plan.
Where the recovery plan and the resolution plan under Directive 2014/59/EU, or any similar plan under national law, contain all of the elements listed in paragraph 2, the CSD shall not be required to prepare the plans pursuant to paragraph 1.
Article 23
Freedom to provide services in another Member State
Any CSD that intends to provide the services referred to in paragraph 2 in relation to financial instruments constituted under the law of another Member State referred to in Article 49(1), second subparagraph, point (a), for the first time, or to change the range of those services provided, shall communicate the following information to the competent authority of the home Member State:
the host Member State;
a programme of operations stating in particular the services which the CSD intends to provide, including the type of financial instruments constituted under the law of the host Member State in respect of which the CSD intends to provide such services;
the currency or currencies that the CSD intends to process;
an assessment of the measures the CSD intends to take to allow its users to comply with the law of the host Member State referred to in Article 49(1), second subparagraph, point (a), in relation to shares.
A CSD intending to set up a branch in another Member State for the first time or to change the range of the core service referred to in Section A, point 1, of the Annex, or of the core service referred to in Section A, point 2, of the Annex, provided through a branch, shall communicate the following information to the competent authority of the home Member State:
the information referred to in paragraph 3, points (a), (b) and (c);
the organisational structure of the branch and the names of the persons responsible for the management of the branch;
an assessment of the measures that the CSD intends to take to allow its users to comply with the law of the host Member State referred to in Article 49(1), second subparagraph, point (a), in relation to shares.
The competent authority of the host Member State shall without delay inform the relevant authorities of that Member State of any communication received under the first subparagraph.
The competent authority of the home Member State shall immediately inform the CSD of the date of transmission of the communication referred to in the first subparagraph.
Article 24
Cooperation between authorities of the home Member State and of the host Member State and peer review
The competent authority of the home Member State may invite staff from the competent authorities of the host Member States and from ESMA to participate in on-site inspections.
The competent authority of the home Member State shall transmit to ESMA and to the college referred to in Article 24a the findings of the on-site inspections and information on any remedial actions or penalties decided on by that competent authority.
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Where, despite measures taken by the competent authority of the home Member State, the CSD persists in acting in breach of the obligations arising from the provisions of this Regulation, the competent authority of the host Member State shall, after informing the competent authority of the home Member State, take all the appropriate measures needed in order to ensure compliance with the provisions of this Regulation within the territory of the host Member State. The competent authority of the host Member State shall inform ESMA and the college referred to in Article 24a of such measures without undue delay.
The competent authority of the host Member State or the competent authority of the home Member State may refer the matter to ESMA, which may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010.
In the context of the peer review referred to in the first subparagraph ESMA shall, where appropriate, also request opinions or advice from the Securities and Markets Stakeholder Group referred to in Article 37 of Regulation (EU) No 1095/2010.
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ESMA shall submit those draft implementing technical standards to the Commission by 18 June 2015.
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 24a
College of supervisors
The college shall be established within one month of the date when:
the competent authority of the home Member State determines that the activities carried out by the CSD in at least two host Member States are of substantial importance; or
the competent authority of the home Member State is notified by one of the entities listed in paragraph 4 that the activities carried out by the CSD in at least two host Member States are of substantial importance.
The college shall consist of:
ESMA;
the competent authority of the home Member State;
the relevant authorities referred to in Article 12;
the competent authorities of the host Member States in which the CSD’s activities are of substantial importance;
EBA, where the CSD has been authorised pursuant to Article 54(3).
The college shall, without prejudice to the responsibilities of competent authorities under this Regulation, ensure:
the exchange of information, including requests for information pursuant to Articles 13, 14 and 15 and information on the review and evaluation process pursuant to Article 22;
efficient supervision by avoiding unnecessary duplicative supervisory actions, such as information requests;
agreement on the voluntary entrustment of tasks among its members;
the exchange of information on an authorised outsourcing or extension of activities and services under Article 19;
the cooperation between the authorities of the home Member State and of the host Member State pursuant to Article 24 regarding the measures referred to in Article 23(3), point (d), and any issues encountered in relation to the provision of services in other Member States;
the exchange of information on group structure, senior management, management body and shareholders pursuant to Article 27;
the exchange of information on processes or arrangements that have a significant impact on governance or risk management for the CSDs belonging to the group.
In order to facilitate the performance of the tasks assigned to the college pursuant to paragraph 8, members of the college may add points to the agenda of a meeting.
The chair may invite additional participants to the discussions of the college on an ad hoc basis on specific topics.
The members of a college other than its chair may decide not to participate in a meeting of the college.
Upon the request of any of its members, the college shall adopt, in accordance with paragraph 11, non-binding opinions with regard to:
issues identified during the review and evaluation processes pursuant to Article 22 or 60;
issues relating to any outsourcing or extension of activities and services under Article 19; or
issues relating to any potential breach of this Regulation arising from the provision of services in a host Member State as referred to in Article 24(5).
That agreement shall determine the practical arrangements for the functioning of the college, including the modalities of communication amongst members of the college, and may determine tasks to be entrusted to them.
ESMA shall submit those draft regulatory technical standards to the Commission by 17 January 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
Article 25
Third countries
After consulting the authorities referred to in paragraph 5, ESMA may recognise a third-country CSD that has applied for recognition to provide the services referred to in paragraph 2, where the following conditions are met:
the Commission has adopted a decision in accordance with paragraph 9;
the third-country CSD is subject to effective authorisation, supervision and oversight or, if the securities settlement system is operated by a central bank, oversight, ensuring full compliance with the prudential requirements applicable in that third country;
cooperation arrangements between ESMA and the responsible authorities in that third country (‘responsible third-country authorities’) have been established pursuant to paragraph 10;
where relevant, the third-country CSD takes the necessary measures to allow its users to comply with the relevant national law of the Member State in which the third-country CSD intends to provide CSD services, including the law referred to in the second subparagraph of Article 49(1), and the adequacy of those measures has been confirmed by the competent authorities of the Member State in which the third-country CSD intends to provide CSD services;
the third-country CSD is established or authorised in a third country that is not identified as a high-risk third country in the delegated acts adopted pursuant to Article 9(2) of Directive (EU) 2015/849 of the European Parliament and of the Council ( 5 ).
When assessing whether the conditions referred to in paragraph 4 are met, ESMA shall consult:
the competent authorities of the Member States in which the third-country CSD intends to provide CSD services, in particular, on how the third-country CSD intends to comply with the requirement referred to in point (d) of paragraph 4;
the relevant authorities;
the responsible third-country authorities entrusted with the authorisation, supervision and oversight of CSDs.
The applicant CSD shall provide ESMA with all information deemed to be necessary for its recognition. Within 30 working days from the receipt of the application, ESMA shall assess whether the application is complete. If the application is not complete, ESMA shall set a time limit by which the applicant CSD has to provide additional information.
The competent authorities of the Member States in which the third-country CSD intends to provide CSD services shall assess the compliance of the third-country CSD with the law referred to in point (d) of paragraph 4 and inform ESMA with a fully reasoned decision whether the compliance is met or not within three months from the receipt of all the necessary information from ESMA.
The recognition decision shall be based on the criteria laid down in paragraph 4.
Within six months of submission of a complete application or of adoption of an equivalence decision by the Commission in accordance with paragraph 9, whichever is later, ESMA shall inform the applicant CSD in writing with a fully reasoned decision whether the recognition has been granted or refused.
The competent authorities of the Member States in which the third-country CSD, duly recognised under paragraph 4, provides CSD services, in close cooperation with ESMA, may request the responsible third-country authorities to:
report periodically on the third-country CSD’s activities in those host Member States, including for the purpose of collecting statistics;
communicate, within an appropriate time-frame, the identity of the issuers and participants in the securities settlement systems operated by the third-country CSD which provides services in that host Member State and any other relevant information concerning the activities of that third-country CSD in the host Member State.
ESMA shall withdraw the recognition of that CSD where the conditions laid down in paragraph 4 are no longer met, or in the circumstances referred to in Article 20.
In making the determination referred to in the first subparagraph, the Commission may also consider whether the legal and supervisory arrangements of a third country reflect the internationally agreed CPSS-IOSCO standards, in so far as the latter do not conflict with the requirements laid down in this Regulation.
In accordance with Article 33(1) of Regulation (EU) No 1095/2010, ESMA shall establish cooperation arrangements with the responsible third-country authorities whose legal and supervisory frameworks have been recognised as equivalent to this Regulation in accordance with paragraph 9. Such arrangements shall specify at least:
the mechanism for the exchange of information between ESMA, the competent authorities of the host Member State and the third-country responsible authorities, including access to all information regarding the CSDs authorised in third countries that is requested by ESMA and in particular access to information in the cases referred to in paragraph 7;
the mechanism for prompt notification of ESMA where a third-country responsible authority deems a CSD that it is supervising to infringe the conditions of its authorisation or of other applicable law;
the procedures concerning the coordination of supervisory activities including, where appropriate, on-site inspections.
Where a cooperation agreement provides for transfers of personal data by a Member State, such transfers shall comply with the provisions of Directive 95/46/EC and where a cooperation agreement provides for transfers of personal data by ESMA, such transfers shall comply with the provisions of Regulation (EU) No 45/2001.
ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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.
ESMA shall develop draft regulatory technical standards to specify the information that the third-country CSD is to provide to ESMA in the notification referred to in paragraph 2a. Such information shall be limited to what is strictly necessary, including, where applicable and available:
the number of participants located in the Union to whom the third-country CSD provides or intends to provide the services referred to in paragraph 2a;
the number and volume of transactions in financial instruments constituted under the law of a Member State settled during the previous year;
the number and volume of transactions settled by Union participants during the previous year.
ESMA shall submit those draft regulatory technical standards to the Commission by 17 January 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
CHAPTER II
Requirements for CSDs
Article 26
General provisions
Where a CSD intends to provide banking-type ancillary services to other CSDs pursuant to Article 54(2a), first subparagraph, point (b), that CSD shall have in place clear rules and procedures addressing potential conflicts of interest and mitigating the risk of discriminatory treatment towards those other CSDs and their participants.
A CSD shall maintain and operate effective written organisational and administrative arrangements to identify and manage any potential conflicts of interest between its participants or their clients and the CSD itself, including:
the CSD’s managers;
the CSD’s employees;
the members of the CSD’s management body;
any person with direct or indirect control over the CSD;
any person with close links with any of the persons listed in points (a), (b) and (c); and
any person with close links with the CSD itself.
A CSD shall maintain and implement adequate resolution procedures where possible conflicts of interest occur.
ESMA shall, in close cooperation with the members of the ESCB, develop draft regulatory technical standards specifying at the CSD level and at the group level as referred to in paragraph 7:
the monitoring tools for the risks of the CSDs referred to in paragraph 1;
the responsibilities of the key personnel in respect of the risks of the CSDs referred to in paragraph 1;
the potential conflicts of interest referred to in paragraph 3;
the audit methods referred to in paragraph 6; and
the circumstances in which it would be appropriate, taking into account potential conflicts of interest between the members of the user committee and the CSD, to share audit findings with the user committee in accordance with paragraph 6.
ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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.
EBA shall submit those draft regulatory technical standards to the Commission by 17 January 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Article 27
Senior management, management body and shareholders
For the purposes of this Article, an independent member of the management body means a member of the management body who has no business, family or other relationship that raises a conflict of interest regarding the CSD concerned or its controlling shareholders, its management or its participants, and who has had no such relationship during the five years preceding their membership of the management body.
A CSD shall, without delay:
provide the competent authority with information regarding the ownership of the CSD, and, in particular, the identity and scale of interests of any person having a qualifying holding in the CSD;
make public:
the information provided to the competent authority under point (a); and
the transfer of ownership rights that results in a change in control of the CSD.
Article 27a
Information to competent authorities
Where the conduct of a member of the management body is likely to be prejudicial to the sound and prudent management of the CSD, the competent authority shall take appropriate measures, which may include removing that member from the management body.
Any natural or legal person who has taken a decision to dispose, directly or indirectly, of a qualifying holding in a CSD (the ‘proposed vendor’) shall first notify the competent authority in writing thereof, indicating the size of such holding. Such a person shall likewise notify the competent authority where it has taken a decision to reduce a qualifying holding so that the proportion of the voting rights or of the capital held would fall below 10 %, 20 %, 30 % or 50 % or so that the CSD would cease to be that person’s subsidiary.
The competent authority shall have a maximum of 60 working days after the date of the written acknowledgement of receipt of the notification and all documents required to be attached to the notification on the basis of the list referred to in Article 27b(4) (the ‘assessment period’), to carry out the assessment provided for in Article 27b(1) (the ‘assessment’).
The competent authority shall inform the proposed acquirer or proposed vendor of the date of the expiry of the assessment period at the time of acknowledging the receipt.
The assessment period shall be suspended for the period between the date of the request for information by the competent authority and the receipt of a response thereto by the proposed acquirer. The suspension shall not exceed 20 working days. Any further requests by the competent authority for completion or clarification of the information shall be at its discretion but shall not result in a suspension of the assessment period.
Article 27b
Assessment
When assessing the notification provided for in Article 27a(2) and the information referred to in Article 27a(4), the competent authority shall, in order to ensure the sound and prudent management of the CSD in which an acquisition is proposed and having regard to the likely influence of the proposed acquirer on the CSD, assess the suitability of the proposed acquirer and the financial soundness of the proposed acquisition against all of the following:
the reputation and financial soundness of the proposed acquirer;
the reputation, knowledge, skills and experience of any person who will direct the business of the CSD as a result of the proposed acquisition;
whether the CSD will be able to comply and continue to comply with this Regulation;
whether there are reasonable grounds to suspect that, in connection with the proposed acquisition, money laundering or terrorist financing within the meaning of Article 1 of Directive (EU) 2015/849 is being or has been committed or attempted, or that the proposed acquisition could increase the risk thereof.
When assessing the financial soundness of the proposed acquirer, the competent authority shall pay particular attention to the type of business pursued and envisaged in the CSD in which the acquisition is proposed.
When assessing the CSD’s ability to comply with this Regulation, the competent authority shall pay particular attention to whether the group of which it will become a part has a structure that makes it possible to exercise effective supervision, to effectively exchange information among the competent authorities and to determine the allocation of responsibilities among the competent authorities.
Article 27c
Derogation for CSDs providing banking-type ancillary services
Articles 27a and 27b shall not apply to a CSD which has been authorised pursuant to Article 54(3) and is subject to Directive 2013/36/EU.
Article 28
User committee
Article 29
Record keeping
ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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.
ESMA shall submit those draft implementing technical standards to the Commission by 18 June 2015.
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 30
Outsourcing
Where a CSD outsources services or activities to a third party, it shall remain fully responsible for discharging all of its obligations under this Regulation and shall comply at all times with the following conditions:
outsourcing does not result in the delegation of its responsibility;
the relationship and obligations of the CSD towards its participants or issuers are not altered;
the conditions for the authorisation of the CSD do not effectively change;
outsourcing does not prevent the exercise of supervisory and oversight functions, including on-site access to acquire any relevant information needed to fulfil those functions;
outsourcing does not result in depriving the CSD of the systems and controls necessary to manage the risks it faces;
the CSD retains the expertise and resources necessary for evaluating the quality of the services provided, the organisational and capital adequacy of the service provider, for supervising the outsourced services effectively and for managing the risks associated with the outsourcing on an ongoing basis;
the CSD has direct access to the relevant information of the outsourced services;
the service provider cooperates with the competent authority and the relevant authorities in connection with the outsourced activities;
the CSD ensures that the service provider meets the standards set down by the relevant data protection law which would apply if the service providers were established in the Union. The CSD is responsible for ensuring that those standards are set out in a contract between the parties and that those standards are maintained.
Article 31
Services provided by parties other than CSDs
ESMA shall include such information in the CSD register referred to in Article 21.
Article 32
General provisions
Article 33
Requirements for participation
In the event of a refusal, the requesting participant has the right to complain to the competent authority of the CSD that has refused access.
That competent authority shall duly examine the complaint by assessing the reasons for refusal and shall provide the requesting participant with a reasoned reply.
That competent authority shall consult the competent authority of the place of establishment of the requesting participant on its assessment of the complaint. Where the authority of the requesting participant disagrees with the assessment provided, any one of the two competent authorities may refer the matter to ESMA, which may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010.
Where the refusal by the CSD to grant access to the requesting participant is deemed to be unjustified, the competent authority of the CSD that has refused access shall issue an order requiring that CSD to grant access to the requesting participant.
ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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.
ESMA shall submit those draft implementing technical standards to the Commission by 18 June 2015.
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 34
Transparency
Article 35
Communication procedures with participants and other market infrastructures
CSDs shall use in their communication procedures with participants of the securities settlement systems they operate, and with the market infrastructures they interface with international open communication procedures and standards for messaging and reference data in order to facilitate efficient recording, payment and settlement.
Article 36
General provisions
For each securities settlement system it operates a CSD shall have appropriate rules and procedures, including robust accounting practices and controls, to help ensure the integrity of securities issues, and minimise and manage the risks associated with the safekeeping and settlement of transactions in securities.
Article 37
Integrity of the issue
ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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 38
Protection of securities of participants and those of their clients
However, a CSD and its participants shall provide individual clients segregation for citizens and residents of, and legal persons established in, a Member State where required under the national law of the Member State under which the securities are constituted as it stands at 17 September 2014. That obligation shall apply as long as the national law is not amended or repealed and its objectives are still valid.
Article 39
Settlement finality
Article 40
Cash settlement
Article 41
Participant default rules and procedures
Article 42
General requirements
A CSD shall adopt a sound risk-management framework for comprehensively managing legal, business, operational and other direct or indirect risks, including measures to mitigate fraud and negligence.
Article 43
Legal risks
Article 44
General business risk
A CSD shall have robust management and control systems as well as IT tools in order to identify, monitor and manage general business risks, including losses from poor execution of business strategy, cash flows and operating expenses.
Article 45
Operational risks
It shall also inform the competent authority and relevant authorities without delay of any operational incidents resulting from such risks.
ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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 46
Investment policy
ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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 47
Capital requirements
Capital, together with retained earnings and reserves of a CSD, shall be proportional to the risks stemming from the activities of the CSD. It shall be at all times sufficient to:
ensure that the CSD is adequately protected against operational, legal, custody, investment and business risks so that the CSD can continue to provide services as a going concern;
ensure an orderly winding-down or restructuring of the CSD’s activities over an appropriate time span of at least six months under a range of stress scenarios.
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EBA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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 1093/2010.
Article 47a
Deferred net settlement
ESMA shall submit those draft regulatory technical standards to the Commission by 17 January 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
Article 48
CSD links
A link shall be supported by an appropriate contractual arrangement that sets out the respective rights and obligations of the linked CSDs and, where necessary, of the CSDs’ participants. A contractual arrangement with cross-jurisdictional implications shall provide for an unambiguous choice of law that govern each aspect of the link’s operations.
Interoperable securities settlement systems and CSDs, which use a common settlement infrastructure shall establish identical moments of:
entry of transfer orders into the system;
irrevocability of transfer orders.
The securities settlement systems and CSDs referred to in the first subparagraph shall use equivalent rules concerning the moment of finality of transfers of securities and cash.
ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
Powers 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 III
Access to CSDs
Article 49
Freedom to issue in a CSD authorised in the Union
Without prejudice to the issuer’s right referred to in the first subparagraph, the corporate or similar law of the Member State under which the securities are constituted shall continue to apply. The corporate or similar law of the Member State under which the securities are constituted means:
the corporate or similar law of the Member State where the issuer is incorporated; and
the governing corporate or similar law of the Member State under which the securities are issued.
Member States shall compile a list of key relevant provisions of their corporate or similar law, as referred to in the second subparagraph. Competent authorities shall communicate that list to ESMA by 17 January 2025. ESMA shall publish that list by 17 February 2025. Member States shall regularly, and at least every two years, update that list. They shall communicate the updated list at those regular intervals to ESMA. ESMA shall publish such updated list.
The CSD may charge a reasonable commercial fee for the provision of its services to issuers on a cost-plus basis, unless otherwise agreed by both parties.
In the case of a refusal, the requesting issuer shall have the right to complain to the competent authority of the CSD that refuses to provide its services.
The competent authority of that CSD shall duly examine the complaint by assessing the reasons for refusal provided by the CSD and shall provide the issuer with a reasoned reply.
The competent authority of the CSD shall consult the competent authority of the place of establishment of the requesting issuer on its assessment of the complaint. Where the competent authority of the place of establishment of the requesting issuer disagrees with that assessment, any one of the two competent authorities may refer the matter to ESMA, which may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010.
Where the refusal by the CSD to provide its services to an issuer is deemed to be unjustified, the responsible competent authority shall issue an order requiring the CSD to provide its services to the requesting issuer.
ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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.
ESMA shall submit those draft implementing technical standards to the Commission by 18 June 2015.
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 50
Standard link access
A CSD shall have the right to become a participant of another CSD and set up a standard link with that CSD in accordance with Article 33 and subject to the prior notification of the CSD link provided under Article 19(5).
Article 51
Customised link access
Article 52
Procedure for CSD links
Where a CSD refuses access, it shall provide the requesting CSD with full reasons for its refusal.
In the case of a refusal, the requesting CSD has the right to complain to the competent authority of the CSD that has refused access.
The competent authority of the receiving CSD shall duly examine the complaint by assessing the reasons for refusal and shall provide the requesting CSD with a reasoned reply.
The competent authority of the receiving CSD shall consult the competent authority of the requesting CSD and the relevant authority of the requesting CSD referred to in point (a) of Article 12(1) on its assessment of the complaint. Where any of the authorities of the requesting CSD disagrees with the assessment provided, any one of the authorities may refer the matter to ESMA, which may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010.
Where the refusal by the CSD to grant access to the requesting CSD is deemed to be unjustified, the competent authority of the receiving CSD shall issue an order requiring that CSD to grant access to the requesting CSD.
ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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.
ESMA shall submit those draft implementing technical standards to the Commission by 18 June 2015.
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 53
Access between a CSD and another market infrastructure
A CSD shall provide access to its securities settlement systems on a non-discriminatory and transparent basis to a CCP or a trading venue and may charge a reasonable commercial fee for such access on a cost-plus basis, unless otherwise agreed by both parties.
A party that refuses access shall provide the requesting party with full written reasons for such refusal based on a comprehensive risk assessment. In the case of a refusal, the requesting party has the right to complain to the competent authority of the party that has refused access.
The competent authority of the receiving party and the relevant authority referred to in point (a) of Article 12(1) shall duly examine the complaint by assessing the reasons for refusal and shall provide the requesting party with a reasoned reply.
The competent authority of the receiving party shall consult the competent authority of the requesting party and the relevant authority referred to in point (a) of Article 12(1) on its assessment of the complaint. Where any of the authorities of the requesting party disagrees with the assessment provided, any of them may refer the matter to ESMA, which may act in accordance with the powers conferred on it under Article 19 of Regulation (EU) No 1095/2010.
Where the refusal by a party to grant access is deemed to be unjustified, the responsible competent authority shall issue an order requiring that party to grant access to its services within three months.
ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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.
ESMA shall submit those draft implementing technical standards to the Commission by 18 June 2015.
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.
TITLE IV
PROVISION OF BANKING-TYPE ANCILLARY SERVICES FOR CSD PARTICIPANTS
Article 54
Authorisation and designation to provide banking-type ancillary services
A CSD that intends to settle the cash payments for all or part of its securities settlement systems through accounts opened with a credit institution or with a CSD in accordance with Article 40(2) shall be authorised, under the conditions specified in paragraphs 3 to 9a of this Article, to designate for that purpose one or more:
credit institutions authorised in accordance with Article 8 of Directive 2013/36/EU; or
CSDs authorised to provide banking-type ancillary services pursuant to paragraph 3 of this Article.
An authorisation to designate credit institutions or CSDs in accordance with the first subparagraph shall only be used with regard to the banking-type ancillary services referred to in Section C of the Annex for the settlement of the cash payments for all or part of the securities settlement systems of the CSD seeking to use the banking-type ancillary services, and not to carry out any other activities.
The credit institutions and CSDs authorised to provide banking-type ancillary services designated in accordance with the first subparagraph shall be considered to be settlement agents.
Where a CSD seeks to provide any banking-type ancillary services from within the same legal entity as the legal entity operating the securities settlement system the authorisation referred to in paragraph 2 shall be granted only where the following conditions are met:
the CSD is authorised as a credit institution as provided for in Article 8 of Directive 2013/36/EU;
the CSD meets the prudential requirements laid down in Article 59(1), (3) and (4) and the supervisory requirements laid down in Article 60;
the authorisation referred to in point (a) of this subparagraph is used only to provide the banking-type ancillary services referred to in Section C of the Annex and not to carry out any other activities;
the CSD is subject to an additional capital surcharge that reflects the risks, including credit and liquidity risks, resulting from the provision of intra-day credit, inter alia, to the participants in a securities settlement system or other users of CSD services;
the CSD reports at least monthly to the competent authority and annually as a part of its public disclosure as required under Part Eight of Regulation (EU) No 575/2013 on the extent and management of intra-day liquidity risk in accordance with point (j) of Article 59(4) of this Regulation;
the CSD has submitted to the competent authority an adequate recovery plan to ensure continuity of its critical operations, including in situations where liquidity or credit risk crystallises as a result of the provision of banking-type ancillary services.
In the case of conflicting provisions laid down in this Regulation, in Regulation (EU) No 575/2013 and in Directive 2013/36/EU, the CSD referred to in point (a) of the first subparagraph shall comply with the stricter requirements on prudential supervision. The regulatory technical standards referred to in Articles 47 and 59 of this Regulation shall clarify the cases of conflicting provisions.
Where all of the following conditions are met, a CSD may be authorised to designate a credit institution to provide banking-type ancillary services for the settlement of the cash payments for all or part of that CSD’s securities settlement systems pursuant to paragraph 2a, point (a):
the credit institution meets the prudential requirements laid down in Article 59(1), (3) and (4) and the supervisory requirements laid down in Article 60;
the credit institution does not itself carry out any of the core services referred to in Section A of the Annex;
the authorisation under Article 8 of Directive 2013/36/EU is used only to provide the banking-type ancillary services referred to in Section C of the Annex for the settlement of the cash payments for all or part of the securities settlement systems of the CSD seeking to use the banking-type ancillary services, and not to carry out any other activities;
the credit institution is subject to an additional capital surcharge that reflects the risks, including credit and liquidity risks, resulting from the provision of intra-day credit, inter alia, to the participants in a securities settlement system or other users of CSD services;
the credit institution reports at least monthly to the competent authority and discloses to the public annually as a part of its public disclosure as required under Part Eight of Regulation (EU) No 575/2013 on the extent and management of intra-day liquidity risk in accordance with Article 59(4), point (j), of this Regulation; and
the credit institution has submitted to the competent authority an adequate recovery plan to ensure continuity of its critical operations, including in situations where liquidity or credit risk materialises as a result of the provision of banking-type ancillary services from within a separate legal entity.
The competent authority shall monitor at least once per year that the threshold defined in the first subparagraph is respected and report its findings to ESMA. Where the competent authority determines that the threshold has been exceeded, it shall require the CSD concerned to seek authorisation in accordance with paragraph 4. The CSD concerned shall submit its application for authorisation within six months.
EBA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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 1093/2010.
EBA shall, in close cooperation with the members of the ESCB and ESMA, develop draft regulatory technical standards to determine the threshold referred to in paragraph 5 and accompanying appropriate risk management and prudential requirements to mitigate risks in relation to the designation of credit institutions in accordance with paragraph 2a. When developing those standards, EBA shall take into account the following:
the implications for the market stability that could derive from a change of risk profile of CSDs and their participants, including the systemic importance of CSDs for the functioning of securities markets;
the implications for the credit and liquidity risks for CSDs, for the designated credit institutions involved and for the CSD participants that result from the settlement of cash payments through accounts opened with credit institutions that are not subject to paragraph 4;
the possibility for CSDs to settle cash payments in several currencies;
the need to avoid both an unintended shift from settlement in central bank money to settlement in commercial bank money and disincentives to the efforts of CSDs to settle in central bank money; and
the need to ensure a level playing field amongst CSDs in the Union.
EBA shall submit those draft regulatory technical standards to the Commission by 17 January 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
Article 55
Procedure for granting and refusing authorisation to provide banking-type ancillary services
From the moment when the application is considered to be complete, the competent authority shall transmit all information included in the application to the following authorities:
the relevant authorities;
the competent authority referred to in point (40) of Article 4(1) of Regulation (EU) No 575/2013;
the competent authorities in the Member States where the CSD has established interoperable links with another CSD except where the CSD has established interoperable links referred to in Article 19(5);
the competent authorities in the host Member State where the activities of the CSD are of substantial importance for the functioning of the securities markets and the protection of investors within the meaning of Article 24(4);
the competent authorities responsible for the supervision of the participants of the CSD that are established in the three Member States with the largest settlement values in the CSD’s securities settlement system on an aggregate basis over a one-year period;
ESMA; and
EBA.
Where an authority referred to in paragraph 4, points (a) to (e), issues a negative reasoned opinion, the competent authority intending to grant the authorisation shall, within one month of receipt of that negative opinion, provide the authorities referred to in paragraph 4, points (a) to (e), with the reasons addressing the negative opinion.
Where, within one month of those reasons being presented, any of the authorities referred to in paragraph 4, points (a) to (e), issues a negative opinion and the competent authority nevertheless intends to grant the authorisation, any of the authorities that issued a negative opinion may refer the matter to ESMA for assistance under Article 31(2), point (c), of Regulation (EU) No 1095/2010.
Where 30 days after referral to ESMA the issue is not settled, the competent authority wishing to grant the authorisation shall take the final decision and provide a detailed explanation of its decision in writing to the authorities referred to in points (a) to (e) of paragraph 4.
Where the competent authority wishes to refuse authorisation, the matter shall not be referred to ESMA.
Negative opinions shall state in writing the full and detailed reasons why the requirements laid down in this Regulation or other parts of Union law are not met.
The competent authority shall, without undue delay, inform the authorities referred to in paragraph 4, points (a) to (e), of the results of the authorisation process, including any remedial actions.
ESMA shall submit those draft regulatory technical standards to the Commission by 18 June 2015.
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.
ESMA shall submit those draft implementing technical standards to the Commission by 18 June 2015.
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 56
Extension of the banking-type ancillary services
Article 57
Withdrawal of authorisation
Without prejudice to any remedial actions or measures under Title V, the competent authority of the CSD’s home Member State shall withdraw the authorisations referred to in Article 54 in any of the following circumstances:
where the CSD has not made use of the authorisation within 12 months, expressly renounces the authorisation or where the designated credit institution has provided no services or performed no activity for the preceding six months;
where the CSD has obtained the authorisation by making false statements or by any other unlawful means;
where the CSD or the designated credit institution is no longer in compliance with the conditions under which authorisation was granted and has not taken the remedial actions requested by the competent authority within a set time-frame;
where the CSD or the designated credit institution has seriously and systematically infringed the requirements laid down in this Regulation.
Article 58
CSD register
ESMA shall introduce in the register, that it is required to make available on its dedicated website in accordance with Article 21(3), the following information:
the name of each CSD which was subject to a decision under Articles 54, 56 and 57;
the name of each designated credit institution;
the list of banking-type ancillary services that a designated credit institution or a CSD authorised under Article 54 is authorised to provide for the CSD’s participants.
Article 59
Prudential requirements applicable to credit institutions or CSDs authorised to provide banking-type ancillary services
A credit institution designated under point (b) of Article 54(2) or a CSD authorised under point (a) of Article 54(2) to provide banking-type ancillary services shall comply with the following specific prudential requirements for the credit risks related to those services in respect of each securities settlement system:
it shall establish a robust framework to manage the corresponding credit risks;
it shall identify the sources of such credit risks, frequently and regularly, measure and monitor corresponding credit exposures and use appropriate risk-management tools to control those risks;
it shall fully cover corresponding credit exposures to individual borrowing participants using collateral and other equivalent financial resources;
if collateral is used to manage its corresponding credit risk, it shall accept highly liquid collateral with minimal credit and market risk; it may use other types of collateral in specific situations if an appropriate haircut is applied;
it shall establish and apply appropriately conservative haircuts and concentration limits on collateral values constituted to cover the credit exposures referred to in point (c), taking into account the objective of ensuring that collateral can be liquidated promptly without significant adverse price effects;
it shall set limits on its corresponding credit exposures;
it shall analyse and plan for how to address any potential residual credit exposures, and adopt rules and procedures to implement such plans;
it shall provide credit only to participants that have cash accounts with it;
it shall provide for effective reimbursement procedures of intra-day credit and discourage overnight credit through the application of sanctioning rates which act as an effective deterrent.
A credit institution designated under point (b) of Article 54(2) or a CSD authorised under point (a) of Article 54(2) to provide banking-type ancillary services shall comply with the following specific prudential requirements for the liquidity risks relating to those services in respect of each securities settlement system:
it shall have a robust framework and tools to measure, monitor, and manage its liquidity risks, including intra-day liquidity risks, for each currency of the security settlement system for which it acts as settlement agent;
it shall measure and monitor on an ongoing and timely basis, and at least daily, its liquidity needs and the level of liquid assets it holds; in doing so, it shall determine the value of its available liquid assets taking into account appropriate haircuts on those assets;
it shall have sufficient liquid resources in all relevant currencies for a timely provision of settlement services under a wide range of potential stress scenarios including, but not limited to the liquidity risk generated by the default of at least one participant, including its parent undertakings and subsidiaries, to which it has the largest exposures;
it shall mitigate the corresponding liquidity risks with qualifying liquid resources in each currency such as cash at the central bank of issue and at other creditworthy financial institutions, committed lines of credit or similar arrangements and highly liquid collateral or investments that are readily available and convertible into cash with prearranged and highly reliable funding arrangements, even in extreme but plausible market conditions and it shall identify, measure and monitor its liquidity risk stemming from the various financial institutions used for the management of its liquidity risks;
where prearranged funding arrangements are used, it shall select only creditworthy financial institutions as liquidity providers; it shall establish and apply appropriate concentration limits for each of the corresponding liquidity providers including its parent undertaking and subsidiaries;
it shall determine and test the sufficiency of the corresponding resources by regular and rigorous stress testing;
it shall analyse and plan for how to address any unforeseen and potentially uncovered liquidity shortfalls, and adopt rules and procedures to implement such plans;
where practical and available, without prejudice to the eligibility rules of the central bank, it shall have access to central bank accounts and other central bank services to enhance its management of liquidity risks and Union credit institutions shall deposit the corresponding cash balances on dedicated accounts with Union central banks of issue;
it shall have prearranged and highly reliable arrangements to ensure that it can liquidate in a timely fashion the collateral provided to it by a defaulting client;
it shall report regularly to the authorities referred to in Article 60(1), and disclose to the public, as to how it measures, monitors and manages its liquidity risks, including intra-day liquidity risks.
EBA shall submit those draft regulatory technical standards to the Commission by 17 January 2025.
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 1093/2010.
Article 60
Supervision of designated credit institutions and CSDs authorised to provide banking-type ancillary services
The competent authorities referred to in the first subparagraph shall also be responsible for the supervision of designated credit institutions and CSDs referred to in that subparagraph as regards their compliance with the prudential requirements referred to in Article 59 of this Regulation.
The competent authorities referred to in the first subparagraph shall regularly, and at least every two years, assess whether the designated credit institution or CSD authorised to provide banking-type ancillary services complies with Article 59 and shall inform the competent authority of the CSD which shall then inform the authorities referred to in Article 55(4) and, where applicable, the college referred to in Article 24a, of the results, including any remedial actions or penalties, of its supervision under this paragraph.
►M3 The competent authority of the CSD shall, after consulting the competent authorities referred to in paragraph 1 and the relevant authorities, review and evaluate at least every two years the following: ◄
in the case referred to in point (b) of Article 54(2), whether all the necessary arrangements between the designated credit institutions and the CSD allow them to meet their obligations as laid down in this Regulation;
in the case referred to in point (a) of Article 54(2), whether the arrangements relating to the authorisation to provide banking-type ancillary services allow the CSD to meet its obligations as laid down in this Regulation.
The competent authority of the CSD shall regularly, and at least every two years, inform the authorities referred to in Article 55(4) and, where applicable, the college referred to in Article 24a, of the results, including any remedial actions or penalties, of its review and evaluation under this paragraph.
Where a CSD designates an authorised credit institution in accordance with Article 54, in view of the protection of the participants in the securities settlement systems it operates, a CSD shall ensure that it has access from the credit institution it designates to all necessary information for the purpose of this Regulation and it shall report any infringements thereof to the competent authority of the CSD and to competent authorities referred to in paragraph 1.
TITLE V
SANCTIONS
Article 61
Administrative sanctions and other measures
Member States may decide not to lay down rules for administrative sanctions as referred to in the first subparagraph where the infringements referred to in that subparagraph are already subject to criminal sanctions in their national law by 18 September 2016. Where they so decide, Member States shall notify, in detail, to the Commission and to ESMA, the relevant parts of their criminal law.
By 18 September 2016, the Member States shall notify the rules referred to in the first subparagraph to the Commission and ESMA. Member States shall notify the Commission and ESMA without undue delay of any subsequent amendments thereto.
Where Member States have chosen, in accordance with paragraph 1, to lay down criminal sanctions for the infringements of the provisions referred to in Article 63 their competent authorities shall provide ESMA annually with anonymised and aggregated data regarding all criminal investigations undertaken and criminal penalties imposed. ESMA shall publish data on criminal sanctions imposed in an annual report.
Competent authorities shall exercise their functions and powers in accordance with their national frameworks:
directly;
in collaboration with other authorities;
under their responsibility by delegation to entities to which tasks have been delegated according to this Regulation; or
by application to the competent judicial authorities.
Article 62
Publication of decisions
Where the decision to impose a sanction or other measure is subject to an appeal before the relevant judicial or other relevant authorities, competent authorities shall, without undue delay, also publish on their official websites information on the appeal status and outcome thereof. Moreover, any decision annulling a previous decision to impose a sanction or a measure shall also be published.
Where the publication of the identity of the legal persons or of the personal data of the natural persons is considered by the competent authority to be disproportionate following a case-by-case assessment conducted on the proportionality of the publication of such data, or where publication jeopardises the stability of financial markets or an ongoing investigation, Member States shall ensure that competent authorities do one of the following:
delay the publication of the decision to impose the sanction or other measure until the moment when the reasons for non-publication cease to exist;
publish the decision to impose the sanction or other measure on an anonymous basis in a manner which is in conformity with national law, if such anonymous publication ensures effective protection of the personal data;
not publish the decision to impose a sanction or other measure at all in the event that the options set out in points (a) and (b) above are considered to be insufficient to ensure:
that the stability of financial markets would not be put in jeopardy;
the proportionality of the publication of such decisions with regard to measures which are deemed to be of a minor nature.
In the case of a decision to publish a sanction or other measure on an anonymous basis, the publication of the relevant data may be postponed for a reasonable period if it is envisaged that within that period the reasons for anonymous publication will cease to exist.
Competent authorities shall inform ESMA of all administrative sanctions imposed but not published in accordance with point (c) of the third subparagraph including any appeal in relation thereto and the outcome thereof. Member States shall ensure that competent authorities receive information and the final judgement in relation to any criminal sanction imposed and submit it to ESMA. ESMA shall maintain a central database of sanctions communicated to it solely for the purposes of exchanging information between competent authorities. That database shall be accessible only to competent authorities and it shall be updated on the basis of the information provided by the competent authorities.
Article 63
Sanctions for infringements
This Article shall apply to the following provisions of this Regulation:
provision of services set out in Sections A, B and C of the Annex in infringement of Articles 16, 25 and 54;
obtaining the authorisations required under Articles 16 and 54 by making false statements or by any other unlawful means as provided for in point (b) of Article 20(1) and point (b) of Article 57(1);
failure of CSDs to hold the required capital, thus infringing Article 47(1);
failure of CSDs to comply with the organisational requirements, thus infringing Articles 26 to 30;
failure of CSDs to comply with the conduct of business rules, thus infringing Articles 32 to 35;
failure of CSDs to comply with the requirements for CSD services, thus infringing Articles 37 to 41;
failure of CSDs to comply with the prudential requirements, thus infringing Articles 43 to 47;
failure of CSDs to comply with the requirements for CSD links, thus infringing Article 48;
abusive refusals by CSDs to grant different types of access, thus infringing Articles 49 to 53;
failure of designated credit institutions to comply with the specific prudential requirements related to credit risks, thus infringing Article 59(3);
failure of designated credit institutions to comply with specific prudential requirements related to liquidity risks, thus infringing Article 59(4).
Without prejudice to the supervisory powers of competent authorities, at least in the event of an infringement referred to in this Article, the competent authorities shall, in conformity with national law, have the power to impose at least the following administrative sanctions and other measures:
a public statement which indicates the person responsible for the infringement and the nature of the infringement in accordance with Article 62;
an order requiring the person responsible for the infringement to cease the conduct and to desist from a repetition of that conduct;
withdrawal of the authorisations granted under Article 16 or 54, in accordance with Article 20 or 57;
a temporary or, for repeated serious infringements, a permanent ban against any member of the institution’s management body or any other natural person, who is held responsible, from exercising management functions in the institution;
maximum administrative pecuniary sanctions of at least twice the amounts of the profit gained as a result of an infringement where those amounts can be determined;
in respect of a natural person, maximum administrative pecuniary sanctions of at least EUR 5 million or in the Member States whose currency is not the euro, the corresponding value in the national currency on the date of adoption of this Regulation;
in the case of a legal person, maximum administrative pecuniary sanctions of at least EUR 20 million or up to 10 % of the total annual turnover of the legal person according to the last available accounts approved by the management body; where the legal person is a parent undertaking or a subsidiary of the parent undertaking which has to prepare consolidated financial accounts according to 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 Directives according to the last available consolidated accounts approved by the management body of the ultimate parent undertaking.
Article 64
Effective application of sanctions
Member States shall ensure that, when determining the type and level of administrative sanctions or other measures, the competent authorities take into account all relevant circumstances, including, where appropriate:
the gravity and the 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, for example as indicated by the total turnover of the responsible legal person or the annual income of the responsible natural person;
the importance of the profits gained, losses avoided by the person responsible for the infringement or the losses for third parties derived from 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.
Article 65
Reporting of infringements
The mechanisms referred to in paragraph 1 shall include at least:
specific procedures for the receipt and investigation of reports on potential or actual infringements and their follow-up, including the establishment of secure communication channels for such reports;
appropriate protection for employees of institutions who report potential or actual infringements committed within the institution against retaliation, discrimination or other types of unfair treatment at a minimum;
protection of personal data concerning both the person who reports the potential or actual infringements and the natural person who is allegedly responsible for an infringement in compliance with the principles laid down in Directive 95/46/EC;
protection of the identity of both the person who reports the infringements and the natural person who is allegedly responsible for an infringement, at all stages of the procedures unless such disclosure is required by national law in the context of further investigation or subsequent administrative or judicial proceedings.
Such a channel may also be provided through arrangements provided for by social partners. The same protection as is referred to in points (b), (c) and (d) of paragraph 2 shall apply.
Article 66
Right of appeal
Member States shall ensure that decisions and measures taken in pursuance of this Regulation are properly reasoned and subject to a right of appeal before a tribunal. The right of appeal before a tribunal shall apply where no decision is taken, within six months of its submission, in respect of an application for authorisation which contains all the information required under the provisions in force.
TITLE VI
DELEGATION OF POWER, IMPLEMENTING POWERS, TRANSITIONAL, AMENDING AND FINAL PROVISIONS
Article 67
Exercise of the delegation
Article 68
Committee procedure
Article 69
Transitional provisions
A third-country CSD that provides the core services referred to in Section A, points 1 and 2, of the Annex in relation to financial instruments constituted under the law of a Member State referred to in Article 49(1), second subparagraph, pursuant to the applicable national rules on recognition of third-country CSDs shall notify ESMA thereof within two years of 16 January 2024.
ESMA shall develop draft regulatory technical standards to specify the information that the third-country CSD is required to provide to ESMA in the notification referred to in the second subparagraph. Such information shall be limited to what is strictly necessary including, where applicable and available:
the number of participants to whom the third-country CSD provides or intends to provide the services referred to in the second subparagraph;
the categories of financial instruments in respect of which the third-country CSD provides such services; and
the total volume and value of such financial instruments.
ESMA shall submit those draft regulatory technical standards to the Commission by 17 January 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
The delegated act adopted pursuant to Article 7(15), points (a), (b) and (g), as applicable before 16 January 2024 shall continue to apply until the date of application of the delegated act adopted pursuant to Article 7(10).
A CSD that, in another Member State, provided core services referred to in Section A, points 1 and 2, of the Annex or set up a branch in accordance with Article 23 as applicable before 16 January 2024 shall be subject to the procedure set out in Article 23(3) to (6) only in relation to:
the setting up of a new branch;
a change in the range of those services.
Article 70
Amendments to Directive 98/26/EC
Directive 98/26/EC is amended as follows:
the third indent of the first subparagraph of point (a) of Article 2 is replaced by the following:
designated, without prejudice to other more stringent conditions of general application laid down by national law, as a system and notified to the European Securities and Markets Authority by the Member State whose law is applicable, after that Member State is satisfied as to the adequacy of the rules of the system.’;
in Article 11, the following paragraph is added:
Article 71
Amendments to Directive 2014/65/EU
Directive 2014/65/EU is amended as follows:
in Article 2(1), point (o) is replaced by the following:
CSDs except as provided for in Article 73 of Regulation (EU) No 909/2014 of the European Parliament and of the Council ( *1 ).
in Article 4(1), the following point is added:
‘central securities depository’ or ‘CSD’ means a central securities depository as defined in point (1) of Article 2(1) of Regulation (EU) No 909/2014.’;
in Section B of Annex I, point (1) is replaced by the following:
‘(1) Safekeeping and administration of financial instruments for the account of clients, including custodianship and related services such as cash/collateral management and excluding providing and maintaining securities accounts at the top tier level (‘central maintenance service’) referred to in point (2) of Section A of the Annex to the Regulation (EU) No 909/2014.’.
▼M3 —————
Article 73
Application of Directive 2014/65/EU and Regulation (EU) No 600/2014
CSDs authorised in accordance with Article 16 of this Regulation shall not require authorisation under Directive 2014/65/EU in order to provide the services explicitly listed in Sections A and B of the Annex to this Regulation.
Where a CSD authorised in accordance with Article 16 of this Regulation provides one or more investment services or carries out one or more investment activities in addition to providing the services explicitly listed in Sections A and B of the Annex to this Regulation, Directive 2014/65/EU with the exception of Articles 5 to 8, Article 9(1) to (2) and (4) to (6) and Articles 10 to 13, and Regulation (EU) No 600/2014 shall apply.
Article 74
Reports
ESMA shall, in cooperation with EBA and the competent authorities and the relevant authorities, submit annual reports to the Commission providing assessments of trends, potential risks and vulnerabilities, and, where necessary, recommendations of preventative or remedial action in the markets for services covered by this Regulation. Those reports shall include at least an assessment of the following:
settlement efficiency for domestic and cross-border operations for each Member State based on the number and volume of settlement fails, amount of penalties referred to in Article 7(2), number and volumes of buy-in transactions referred to in Article 7(3) and (4) and any other relevant criteria;
the appropriateness of penalties for settlement fails, in particular the need for additional flexibility in relation to penalties for settlement fails in relation to illiquid financial instruments referred to in Article 7(4);
measuring settlement which does not take place in the securities settlement systems operated by CSDs based on the number and volume of transactions based on the information received under Article 9 and any other relevant criteria;
the cross-border provision of services covered by this Regulation based on the number and types of CSD links, number of foreign participants in the securities settlement systems operated by CSDs, number and volume of transactions involving such participants, number of foreign issuers recording their securities in a CSD in accordance with Article 49 and any other relevant criteria;
the handling of access requests in Articles 49, 52 and 53 to identify the reasons for rejection of access requests by CSDs, CCPs and trading venues any trends in such rejections and ways in which the risks identified could be mitigated in future so as to allow for access to be granted, and any other substantive barriers to competition in post-trade financial services;
the handling of applications submitted in accordance with the procedures referred to in Article 23(3) to (7) and Article 25(4) to (10);
where applicable, the findings of the peer review process for cross-border supervision in Article 24(6) and whether the frequency of such reviews could be reduced in the future, including an indication of whether such findings indicate the need for more formal colleges of supervisors;
the application of civil liability rules of Member States relating to the losses attributable to CSDs;
the procedures and conditions under which CSDs have been authorised to designate credit institutions or themselves to provide banking-type ancillary services in accordance with Articles 54 and 55, including an assessment of the effects that such provision may have on financial stability and competition for settlement and banking-types ancillary services in the Union;
the application of the rules referred to in Article 38 on protection of securities of participants and those of their clients, in particular those in Article 38(5);
the application of the sanctions and in particular the need to further harmonise the administrative sanctions for the infringement of the requirements laid down in this Regulation.
By 17 January 2025 and every two years thereafter, ESMA, in close cooperation with the members of the ESCB, shall submit a report to the European Parliament and to the Council on the assessment regarding the potential shortening of the period referred to in Article 5(2), first sentence (‘settlement cycle’). That report shall include all of the following:
an assessment of the appropriateness of shortening the settlement cycle and the potential impact of such shortening on CSDs, trading venues and other market participants;
an assessment of the costs and benefits of shortening the settlement cycle in the Union, differentiating, where appropriate, between different financial instruments and categories of transactions;
a detailed outline of how to move to a shorter settlement cycle, differentiating, where appropriate, between different financial instruments and categories of transactions;
an overview of international developments on settlement cycles and their impact on the Union’s capital markets.
Upon the request of the Commission, ESMA shall provide a cost-benefit analysis of the introduction of the mandatory buy-in process. Such cost-benefit analysis shall consist of the following elements:
the average duration of settlement fails with respect to the financial instruments or categories of transactions in those financial instruments to which mandatory buy-ins could apply;
the impact of the introduction of the mandatory buy-in process on the Union market, including an assessment of the underlying causes of the settlement fails to which mandatory buy-ins could apply and an analysis of the implications of subjecting specific financial instruments and categories of transactions to mandatory buy-ins;
the application of a similar buy-in process in comparable third-country markets and the impact on the competitiveness of the Union market;
any clear impact on financial stability in the Union stemming from settlement fails;
any clear impact on fragmentation of the Union’s capital markets stemming from diverging settlement efficiency rates, including the reasons for such divergence and appropriate measures to limit it.
That report shall cover at least the shaping of transaction sizes, the partial settlement of failing trades and the use of auto-lend/borrow programmes.
Thereafter, ESMA, after consulting the members of the ESCB, shall report every three years on any potential additional tools to improve settlement efficiency in the Union. In cases where no new tools have been identified, ESMA shall inform the Commission thereof and shall not be required to provide a report.
Article 75
Review
By 17 January 2029, the Commission shall review and prepare a general report on this Regulation. The Commission shall, in particular, assess:
the matters referred to in Article 74(1), points (a) to (l), establish whether there are substantive barriers to competition in relation to the services subject to this Regulation which are insufficiently addressed and consider the potential need to apply further measures to:
improve settlement efficiency;
limit the impact on taxpayers of the failure of CSDs;
address any identified competition or financial stability issues related to internalised settlement;
minimise barriers to cross-border settlement;
ensure adequate powers and information for authorities to monitor risks;
the functioning of the regulatory and supervisory framework for Union CSDs, especially those CSDs whose activities are of substantial importance for the functioning of securities markets and the protection of investors in the Union in at least two host Member States, focusing in particular on the cross-border provision of services, potential risks for clients and participants of CSDs, investor protection and the financial stability in the Union;
the functioning and scope of the Union regulatory and supervisory framework for third-country CSDs, in particular the supervision of such CSDs when providing services in the Union, including the role of ESMA.
The Commission shall submit the report to the European Parliament and to the Council, together with any appropriate proposals.
Article 76
Entry into force and application
By way of derogation from the first subparagraph of this paragraph, in the case of a trading venue that has access to a CSD referred to in Article 30(5), Article 5(2) shall apply at least six months before such a CSD outsources its activities to the relevant public entity, and in any event from 1 January 2016.
An MTF that complies with the criteria laid down in Article 33(3) of Directive 2014/65/EU shall be subject to the second subparagraph of Article 7(3) of this Regulation:
until the final determination of its application for registration under Article 33 of Directive 2014/65/EU; or
where an MTF has not applied for registration under Article 33 of Directive 2014/65/EU, until ►M1 13 June 2018 ◄ .
This Regulation shall be binding in its entirety and directly applicable in all Member States.
ANNEX
LIST OF SERVICES
SECTION A
Core services of central securities depositories
1. Initial recording of securities in a book-entry system (‘notary service’);
2. Providing and maintaining securities accounts at the top tier level (‘central maintenance service’);
3. Operating a securities settlement system (‘settlement service’).
SECTION B
Non-banking-type ancillary services of CSDs that do not entail credit or liquidity risks
Services provided by CSDs that contribute to enhancing the safety, efficiency and transparency of the securities markets, which may include but are not restricted to:
Services related to the settlement service, such as:
Organising a securities lending mechanism, as agent among participants of a securities settlement system;
Providing collateral management services, as agent for participants in a securities settlement system;
Settlement matching, instruction routing, trade confirmation, trade verification.
Services related to the notary and central maintenance services, such as:
Services related to shareholders’ registers;
Supporting the processing of corporate actions, including tax, general meetings and information services;
New issue services, including allocation and management of ISIN codes and similar codes;
Instruction routing and processing, fee collection and processing and related reporting.
Establishing CSD links, providing, maintaining or operating securities accounts in relation to the settlement service, collateral management, other ancillary services.
Any other services, such as:
Providing general collateral management services as agent;
Providing regulatory reporting;
Providing information, data and statistics to market/census bureaus or other governmental or inter-governmental entities;
Providing IT services.
SECTION C
Banking-type ancillary services
Banking-type services directly related to core or ancillary services listed in Sections A and B, such as:
Providing cash accounts to, and accepting deposits from, participants in a securities settlement system and holders of securities accounts, within the meaning of point 1 of Annex I to Directive 2013/36/EU;
Providing cash credit for reimbursement no later than the following business day, cash lending to pre-finance corporate actions and lending securities to holders of securities accounts, within the meaning of point 2 of Annex I to Directive 2013/36/EU;
Payment services involving processing of cash and foreign exchange transactions, within the meaning of point 4 of Annex I to Directive 2013/36/EU;
Guarantees and commitments related to securities lending and borrowing, within the meaning of point 6 of Annex I to Directive 2013/36/EU;
Treasury activities involving foreign exchange and transferable securities related to managing participants’ long balances, within the meaning of points 7(b) and (e) of Annex I to Directive 2013/36/EU.
( 1 ) Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC (OJ L 390, 31.12.2004, p. 38).
( 2 ) Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC (OJ L 345, 31.12.2003, p. 64).
( 3 ) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).
( 4 ) Regulation (EU) No 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board (OJ L 331, 15.12.2010, p. 1).
( 5 ) Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).
( 6 ) Directive 2009/65/EC of the European Parliament and of the Council of 13 July 2009 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) (OJ L 302, 17.11.2009, p. 32).
( 7 ) 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).
( 8 ) Directive 2011/61/EU of the European Parliament and of the Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010 (OJ L 174, 1.7.2011, p. 1).
( 9 ) Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (OJ L 309, 25.11.2005, p. 15).
( 10 ) Commission Directive 2006/70/EC of 1 August 2006 laying down implementing measures for Directive 2005/60/EC of the European Parliament and of the Council as regards the definition of politically exposed person and the technical criteria for simplified customer due diligence procedures and for exemption on grounds of a financial activity conducted on an occasional or very limited basis (OJ L 214, 4.8.2006, p. 29).
( 11 ) Commission Decision 2001/528/EC of 6 June 2001 establishing the European Securities Committee (OJ L 191, 13.7.2001, p. 45).
( *1 ) 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).’;