(1)

Some of the K-factors within the meaning of Article 4(1), point (26), of Regulation (EU) 2019/2033 do not require further specifications as that Regulation elaborates in detail the methods for measuring them. This is the case with the ‘net position risk’ K-factor (K-NPR), which is derived from Regulation (EU) No 575/2013 of the European Parliament and of the Council (2), as well as with the ‘concentration risk’ K-factor (K-CON) and ‘trading counterparty default’ K-factor (K-TCD), which use a simplified application of the corresponding requirements under that Regulation. However, in other cases such as ‘assets under management’ (AUM), ‘client money held’ (CMH), ‘client orders handled’ (COH), ‘assets safeguarded and administered’ (ASA) and ‘daily trading flow’ (DTF), the methods for measuring those factors would benefit from further clarifications.

(2)

All activity carried out by an investment firm should be captured by K-factors in order to adequately reflect the risks. Taking into account that a tied agent is a natural or legal person who acts only on behalf of a certain investment firm and under the full and unconditional responsibility of that investment firm, there is a need to ensure that any activity of a tied agent is included in AUM, ASA, CMH and COH K-factors of an investment firm.

(3)

The investment service of the ‘investment advice’ referred to in Annex I, Section A, point 5, to Directive 2014/65/EU of the European Parliament and of the Council (3) is distinct from the ancillary service of the ‘advice to undertakings on capital structure, industrial strategy and related matters and advice and services relating to mergers and the purchase of undertakings’ referred to Annex I, Section B, point 3, to that Directive. Against this background and also on the basis of the definition of the ‘investment advice of an ongoing nature’ in of Article 4(1), point 21, of Regulation (EU) 2019/2033, where the aforementioned ancillary service is not included, it is necessary to specify that any assets under management relating to that ancillary service should be excluded for the purposes of the calculation of the K-AUM.

(4)

In order to ensure a consistent measurement of AUM and ASA when calculating K-AUM and K-ASA, financial instruments should be valued at their fair value in accordance with applicable accounting standards, so as to allow the reflection of the market value of the financial instruments, where available.

(5)

Since the calibration of the CMH coefficient in Table 1 of Article 15 of Regulation (EU) 2019/2033 already takes into account the risk to clients associated with the management of the cash, the amounts included in the measuring of the CMH should not be included in the measuring of the AUM. Further, in order to avoid any double counting in the calculation of the capital requirements, the amounts already considered for the measuring of the CMH should not be included in the measuring of the ASA.

(6)

The definition of CMH in Article 4(1), point 28, of Regulation (EU) 2019/2033 together with recital (24) of that Regulation clarify the amounts to be considered for the measuring of CMH. Therefore, it is sufficient to further specify the remaining operational aspects of the method for measuring the CMH with a view to ensuring the robustness of the CMH figures, in particular by avoiding overreliance on external reporting and focusing on the investment firm’s internal accounting records and figures used for [the] internal reconciliation.

(7)

The methods for measuring the amounts to be included as reception and transmission of orders and execution of orders in COH should include specific rules for the case where market prices are not readily available because they are not contained in the orders. It is necessary to reflect the differences between the case of execution of orders and the case of reception and transmission, as prices and timing at which the orders should be recorded for the measuring of COH may differ in each case. Further, in the case of reception and transmission of orders, in particular, the transmitted orders are a better reference for this purpose than the received orders, as the latter may fail to be transmitted.

(8)

As the investment service of ‘reception and transmission of orders in relation to one or more financial instruments’ referred to in Annex I, Section A, point 1, to Directive 2014/65/EU is distinct from the investment activities of ‘Operation of Multilateral or Organised Trading Facilities – MTFs, OTFs’ referred to in points 8 and 9 thereof, it is necessary to clarify that buying and selling interests brought together in MTFs and OTFs operated by the investment firm are not to be included for the calculation of the K-COH cash trades or the K-COH derivatives.

(9)

Since the capital requirements for investment firms under Regulation (EU) 2019/2033 are based on the K-factors which cover all the services and activities included in Annex I to Directive 2014/65/EU, it is necessary to lay down rules for the adaptation of those methods in those cases where otherwise there could occur double counting. This is the case, in particular, of certain ancillary services which can be performed only in conjunction with services and activities listed in Annex I, Section A, to that Directive. Therefore, orders related to the ancillary service referred to in Annex I, Section B, point 3, to Directive 2014/65/EU (advice to undertakings on capital structure, industrial strategy and related matters and advice and services relating to mergers and the purchase of undertakings), which relate to advice on transactions between investors, in case of corporate finance or private equity transactions, should not be included in the measuring of the AUM, nor in that of the COH, as those K-factors already account for them.

(10)

Regulation (EU) 2019/2033 provides for two different coefficients for the measuring of COH in Table 1 of its Article 15, one for cash trades and a separate one for derivatives. Further clarifications should be provided on how to allocate trades between the two classes of instruments and on the valuation method to be used in each case. In particular, derivatives should be included in the measuring of K-factors based on the notional value and the cash trades at market value because the coefficients of the K-factors are calibrated on that basis.

(11)

It is necessary to specify the calculation of the notional amount of a derivative because Regulation (EU) 2019/2033 does not contain rules on how to calculate it. Given that Article 29(3) of Regulation (EU) 2019/2033 lays down rules on how to calculate the notional amount of derivatives for the purposes of the calculation of the TCD, and in order to ensure consistency in the measuring of the TCD and the DTF, those rules for measuring the notional amount of a derivative should apply also for the measuring of the DTF.

(12)

This Regulation is based on the draft regulatory technical standards submitted to the Commission by the European Banking Authority (EBA).

(13)

The EBA has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the advice of the Banking Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council (4). The EBA has also consulted the European Securities and Markets Authority before submitting the draft technical standards on which this Regulation is based,

(1)

Segregated accounts are defined in point (49) of Article 4(1) of Regulation (EU) 2019/2033 for the purposes of Table 1 in Article 15(2) of that Regulation. To enable investment firms to apply lower coefficients for the calculation of the own funds requirement “client money held”, where client money is held on segregated accounts, the notion of segregated accounts should be specified as embracing the conditions, which ensure the protection of client money in the event of the failure of an investment firm. As those conditions are set out in Article 2(1) of Commission Delegated Directive (EU) 2017/593 (2), it is appropriate to refer to the same conditions for the purposes of specifying the notion of segregated accounts under this Regulation. Therefore, this Regulation should establish a set of similar requirements as those laid down in Article 2(1) of Delegated Directive (EU) 2017/593.

(2)

This Regulation is based on the draft regulatory technical standards submitted to the Commission by the European Banking Authority.

(3)

The European Banking Authority has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the advice of the Banking Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1093/2010 of the European Parliament and of the Council (3),

(a)

records and accounts are kept in a way that enables investment firms at any time and without delay to distinguish funds held for one client from funds held for any other client and from their own funds;

(b)

records and accounts are maintained in a way that ensures their accuracy, and in particular their correspondence to the funds held for clients, and that they may be used as an audit trail;

(c)

reconciliations are conducted on a regular basis between the internal accounts and records of investment firms and those of any third parties by whom those funds are held;

(d)

necessary steps have been taken to ensure that client funds deposited are held in an account or accounts identified separately from any accounts used to hold funds belonging to the investment firm;

(e)

adequate organisational arrangements have been introduced to minimise the risk of the loss or diminution of client funds, or of rights in connection with those funds, as a result of misuse of the funds, fraud, poor administration, inadequate record-keeping or negligence.

(1)

Regulation (EU) No 236/2012 establishes the obligation to notify to competent authorities of significant net short positions in relation to the issued share capital of a company that has shares admitted to trading on a Union trading venue, where the position reaches or fall below the relevant notification threshold. It is necessary for the Commission to monitor whether such relevant notification threshold remains appropriate in light of developments in financial markets and to assess whether it is necessary to modify that threshold in accordance with Article 5(4) of that Regulation.

(2)

In early 2020, a substantial selling pressure and unusual volatility stemming from the global outbreak of COVID-19 led to significant downward price spirals affecting issuers from all sectors across financial markets. The European Securities and Markets Authority (ESMA) made use of its intervention powers in exceptional circumstances to temporarily lower the relevant notification threshold for significant net short positions in shares, in order to improve both ESMA’s and regulators’ monitoring activity of such positions, determine whether more stringent actions could be appropriate and be able to react quickly.

(3)

As the lower relevant notification threshold for significant net short positions in shares, which has been in place for twelve consecutive months and, due to partially improved market conditions, could no longer be extended as an emergency measure, it is appropriate to assess the impact of such measure and determine whether it should be made permanent by replacing the existing threshold. In that regard, the Commission takes into account the opinion (2) that ESMA issued on 13 May 2021.

(4)

The recent developments in financial markets observed by the Commission, such as the instability caused by the global outbreak of COVID-19, which has led to a more frequent recourse to emergency measures on short selling by regulators and ESMA, as well as the growing risk of retail investors being involved in short squeezes, have stressed the importance to gather additional intelligence in significant net short positions in shares on permanent basis, which is critical for market surveillance purposes. In that regard, ESMA’s opinion assessed that the lower relevant notification threshold significantly improved transparency and monitoring of significant net short positions in shares at individual, sectorial and market-wide level, resulting in an increase in regulatory efficiency. ESMA also considered that marginal costs for implementation by market participants should be negligible, considering that they have been applying such threshold for several months. Furthermore, the Commission considers that uncertainty with respect to the regulatory reporting obligation should be avoided and rules and obligations in this respect should be stable. On that basis, and taking into account recommendations set out in ESMA’s opinion, with which the Commission agrees, it is appropriate to amend the current relevant notification threshold and set it permanently at 0,1 %.

(5)

Regulation (EU) No 236/2012 should therefore be amended accordingly,

(1)

African swine fever is an infectious viral disease affecting kept and wild porcine animals and can have a severe impact on the concerned animal population and the profitability of farming causing disturbance to movements of consignments of those animals and products thereof within the Union and exports to third countries.

(2)

In the event of an outbreak of African swine fever in wild porcine animals, there is a serious risk of the spread of that disease to other wild porcine animals and to establishments of kept porcine animals.

(3)

Commission Delegated Regulation (EU) 2020/687 (2) supplements the rules for the control of the listed diseases referred to in Article 9(1), points (a), (b) and (c) of Regulation (EU) 2016/429, and defined as category A, B and C diseases in Commission Implementing Regulation (EU) 2018/1882 (3). In particular, Articles 63 to 66 of Delegated Regulation (EU) 2020/687 provide for certain measures to be taken in the event of an official confirmation of an outbreak of a category A disease in wild animals, including African swine fever in wild porcine animals. Notably, those provisions provide for the establishment of an infected zone and prohibitions on movements of wild animals of listed species and products of animal origin thereof.

(4)

Commission Implementing Regulation (EU) 2021/605 (4) lays down special disease control measures regarding African swine fever. In particular, in the event of an outbreak of that disease in wild porcine animals in an area of a Member State, Article 3, point (b), of that Implementing Regulation provides for the establishment of an infected zone in accordance with Article 63 of Delegated Regulation (EU) 2020/687. In addition, Article 6 of that Implementing Regulation provides that that area is to be listed as a restricted zone II in Part II of Annex I thereto and that the infected zone, established in accordance with Article 63 of Delegated Regulation (EU) 2020/687, is to be adjusted without delay to comprise at least the restricted zone II. The special control measures for African swine fever laid down in Implementing Regulation (EU) 2021/605 include, inter alia, prohibitions on movements of consignments of porcine animals kept in restricted zones II and products thereof outside those restricted zones.

(5)

Italy has informed the Commission of the current African swine fever situation on its territory, following an outbreak of that disease in wild porcine animals in the Piedmont region confirmed on 6 January 2022. Accordingly, the competent authority of that Member State is required to establish an infected zone in accordance with Delegated Regulation (EU) 2020/687 and Implementing Regulation (EU) 2021/605.

(6)

In order to prevent any unnecessary disturbance to trade within the Union and to avoid unjustified barriers to trade by third countries, it is necessary to identify at Union level the infected zone for African swine fever in Italy in collaboration with that Member State.

(7)

In order to prevent the further spread of African swine fever, pending the listing of the area of Italy affected by the recent outbreak as a restricted zone II in Part II of Annex I to Implementing Regulation (EU) 2021/605, the special control measures for African swine fever laid down therein, that apply to movements of consignments of porcine animals kept in restricted zones II and products thereof outside those zones, should also apply to movements of those consignments from the infected zone established by Italy following that recent outbreak, in addition to the measures laid down in Articles 63 to 66 of Delegated Regulation (EU) 2020/687.

(8)

Accordingly, that infected zone should be listed in the Annex to this Decision and it should be subject to the special control measures for African swine fever that apply to restricted zones II laid down in Implementing Regulation (EU) 2021/605. However, due to this new epidemiological situation of African swine fever and taking account of the increased immediate risk of the further spread of the disease, movements of consignments of kept porcine animals and products thereof to other Member States and to third countries should not be authorised from the infected zone in accordance with that Implementing Regulation. The duration of that zoning should be also laid down in this Decision.

(9)

Therefore, in order to mitigate the risks arising from the recent outbreak of African swine fever in wild porcine animals in Italy, the movements to other Member States and third countries of consignments of porcine animals kept in the infected zone and products thereof should not be authorised by Italy until the expiry date of this Decision.

(10)

Given the urgency of the epidemiological situation in the Union as regards the spread of African swine fever, it is important that the measures laid down in this Implementing Decision apply as soon as possible.

(11)

Accordingly, pending the opinion of the Standing Committee on Plants, Animals, Food and Feed, the infected zone in Italy should be established immediately and listed in the Annex to this Decision and the duration of that zoning fixed.

(12)

This Decision is to be reviewed at the next meeting of the Standing Committee on Plants, Animals, Food and Feed,