«Implications of Regulation 648/2012 on OTC derivatives, central counterparties and trade repositories (EMIR) in selected CEE/SEE countries ...»
National implementation laws and regulations The EMIR Regulations are directly applicable in Hungary. In order to properly execute and manage the obligations under the EMIR Regulations, Act XCVIII of 2013 has been issued which amended existing Hungarian regulatory legislation, the Capital Market Act, Act on Settlement Finality in Payment and Securities Settlement Systems. Detailed provisions on the regulatory powers of MNB are set forth in Act CXXXIX of 2013 on the National Bank of Hungary (“MNB Act”).
Competent national authority’s measures to control central counterparties According to subheading 27 (control procedure) of the MNB Act, the MNB is entitled to conduct on-site audits. On-site audits may be conducted at any location where evidence necessary for ascertaining the relevant facts of the case can be found. Within their sphere of authority, persons conducting the audit may
1. enter premises necessary for conducting the audit;
2. inspect documents, data storage media, objects, and work procedures related to the object of the inspection;
3. request and prepare information and statements from an inspected person, its representatives, and any other persons at the site of the inspection; and
4. carry out trial transactions.
In the interest of ascertaining the relevant facts of a case, any person or organisation is required to provide requested information in writing and to send to the MNB documents relating to the object of the inspection.
MNB may also use any documents, data or other evidence acquired legally within the framework of its proceedings in the course of other proceedings. MNB is authorised to prepare a hard mirror image of any data storage media and to inspect the data stored on the data storage media using the copy.
National rules on penalties applicable to violations of EMIR and national law provisions If a financial counterparty, non-financial counterparty or a central counterparty does not comply with the provisions of EMIR or the relevant Hungarian laws, the MNB may take various measures against and impose sanctions on the non-compliant party as specified in detail in the MNB Act and in the Capital Market Act. Such measures and sanctions include initiating the dismissal of executive employees or initiating disciplinary actions against an employee, calling an extraordinary general meeting and specifying a mandatory agenda, ordering the disclosure of specific data or information, requiring the submission of a restoration plan, appointing a regulatory commissioner, and issuing an official warning.
The MNB also has the power to impose administrative fines in the amount of up to HUF 2 billion (approximately EUR 6,6 million), or up to 200% of the annual supervision fee (including both the minimum charge and the variable-rate fee) if this is higher than HUF 2 billion (approximately EUR 6,6 million). Fines which can be imposed on directors and executive employees range from HUF 100,000 (approximately EUR 330), to HUF 20 million (approximately EUR 66,000). Fines imposed on a director or an executive employee may not be covered by the audited organisation.
Derivative trades on the following regulated markets do not fall under EMIR • Budapesti Értékőzsde (Budapest Stock Exchange) Contact
POLANDCompetent national authority responsible for the supervision and execution of EMIR In Poland, the authorities responsible for the supervision of central counterparties, trade repositories, financial and non-financial counterparties and their activities are the Polish Financial Supervision Authority (Komisja Nadzoru Finansowego – “KNF”) and the National Depositary of Securities (Krajowy Depozyt Papierów Wartościowych – “KDPW”).
National implementation laws and regulations The EMIR Regulations are directly applicable in Poland. In order to properly execute and manage the obligations under the EMIR Regulations, Poland has already implemented changes in the Polish Act on Trading in Financial Instruments (Ustawa o obrocie instrumentami finansowymi) and the Polish Act on Capital Markets Supervision (Ustawa o nadzorze nad rynkiem kapitałowym) by legislation dated 28 June 2012, 24 October 2012, 24 April 2014 and 5 December 2014. Apart from implementing measures required by the EMIR Regulations, the amendments also implemented Regulation No. 236/2012 on short selling and certain aspects of credit default swaps. The last changes entered into force on 16 July 2015.
Competent national authority’s measures to control central counterparties According to the implementing measures applied under EMIR, the KNF is the competent administrative body for regulatory filings relating to a CCP license. As such, KNF is entitled to exercise administrative control over CCPs, including the right to request information relating to their functioning and financial standing as well as the right to direct audits.
KNF’s competences are as in EMIR. The procedure of requesting information from national authorities of other Member States is regulated by agreements concluded with them. The KDPW is authorised to assign Legal Entity Identifiers and to collect information on financial instruments transactions.
National rules on penalties applicable to violations of EMIR and national law provisions If a financial counterparty, non-financial counterparty or a central counterparty does not comply with the provisions of EMIR or national legislation, the KNF will be entitled to impose fines on such companies. According to the current draft, the fine may amount up to 10% of turnover disclosed in the latest financial statement; but not exceeding PLN 10,000,000 (approximately EUR 2,4 million) in the case of financial counterparties and CCPs and PLN 1,000,000 (approximately EUR 244,000) in the case of non-financial counterparties.
Such penalties would be subject to the completion of required administrative proceedings against the infringing parties. Beside penalties, the KNF may prohibit CCPs from investing, profits distributing or performing transactions in the case of probable violation of interests of market participants or a non-performance of obligations towards its members. There are also criminal sanctions provided for revealing or usage of confidential information otherwise than specified in EMIR: up to 3 years of imprisonment and up to PLN 1,000,000 fine.
Derivative trades on the following regulated markets do not fall under EMIR • Bondspot Securities Market • Warsaw Stock Exchange / Bonds / Catalyst / Main Market • Warsaw Stock Exchange / Commodity Derivatives • Warsaw Stock Exchange / Financial Derivatives • Warsaw Stock Exchange / Etps • Warsaw Stock Exchange / Equities / Main Market TITEL
ROMANIACompetent national authority responsible for the supervision and execution of EMIR In Romania, the authority responsible for the supervision of central counterparties, trade repositories, financial and non-financial counterparties and their activities is the Romanian Financial Supervisory Authority (Autoritatea de Supraveghere Financiara – “FSA”, formerly called the National Securities Commission).
National implementation laws and regulations EMIR Regulations are directly applicable in Romania. In order to properly execute and manage the obligations under the EMIR Regulations the FSA has issued certain implementing regulations as follows: (i) Regulation no. 3/2013 on the authorisation and functioning of CCPs which entered into force on 30 August 2013, as amended (“FSA Regulation no. 3”);
(ii) Regulation no. 6/2013 issued in accordance with the provisions of article 12(1) of EMIR, regarding the sanctions regime which entered into force on 21 January 2014 (“FSA Regulation no. 6”); and (iii) Regulation no. 12/2014 regarding the interoperability arrangements between CCPs which entered into force on 22 July 2014.
Besides these regulations, the FSA issued Norm no. 6/2014 on the application of the ESMA Guidelines and recommendations regarding written agreements between members of colleges of CCPs.
The following laws should also be observed: Law no. 297/2004 on capital markets, as amended (the “Romanian Capital Markets Law”); Government Emergency Ordinance no.
99/2006 on credit institutions and capital adequacy, as amended; and the Government Emergency Ordinance no. 93/2012 regarding the establishment, organisation and functioning of the FSA, as amended.
Competent national authority’s measures to control central counterparties
The FSA is empowered to supervise the activity of CCPs and may:
1. require them to communicate data, information and documents;
2. organise inspections at their premises;
3. require them to make available all the necessary documents, indicating the means and the deadline for their delivery; and
4. ask them to amend their regulations in order to comply with the relevant applicable legal provisions.
National rules on penalties applicable to violations of EMIR and national law provisions If a financial counterparty (including the members of the administrative / supervisory board, directors and the representatives of the internal control department), a non-financial counterparty, a CCP (including its “board”, “independent board” and “senior management”, as defined in EMIR), or a market / system operator which manages a trading venue (including the members of the administrative / supervisory board, directors and the representatives of the internal control department) does not comply with the provisions of EMIR or of FSA Regulation no. 6 or of FSA Regulation no. 3, the FSA may sanction such entities in accordance with the provisions of the Romanian Capital Markets Law, which
may consist of:
2. fines (i.e., fixed fines which may range from RON 1,000 (approximately EUR 225) to RON 100,000 (approximately EUR 22,500) or a percentage which may range from 0.1% to 10% of the turnover achieved by the infringer or, if no turnover is achieved, a fine ranging from RON 10,000 (approximately EUR 2,250) to RON 2,500,000 (approximately EUR 563,063));
3. suspension of the authorisation; and
4. withdrawal of authorisation, or temporary prohibition from carrying out certain activities and services or temporary prohibition from holding a certain office.
In addition the FSA should publish the company’s violation of the EMIR provisions or of the above mentioned national regulations. The publication may be prevented only if it seriously jeopardises the financial markets or causes disproportionate damage to the parties involved.
Derivative trades on the following regulated markets do not fall under EMIR • Sibex-Sibiu Stock Exchange SA (Derivatives Regulated Market) • Sibex-Sibiu Stock Exchange SA (Spot Regulated Market) • Bucharest Stock Exchange (Derivatives Regulated Market) • Bucharest Stock Exchange (Spot Regulated Market) Contact
SLOVAKIACompetent national authority responsible for the supervision and execution of EMIR In Slovakia, the authority responsible for the supervision and execution of EMIR is the National Bank of Slovakia (in Slovak: Národná banka Slovenska, “NBS”) under its fuction as financial market supervisor.
National implementation laws and regulations EMIR, the Delegated Regulations and the Implementing Regulations (“EMIR Regulations”) are directly applicable in the Slovak Republic. In order to properly execute and manage the obligations under the EMIR Regulations, the Act No.132/2013 Coll. was passed (entering into force on 10 June 2013) and amended, inter alia, by the Act. No. 483/2001 Coll.
on Banks, the Act No. 566/2001 Coll. on Securities and Investment Services, the Act No.
747/2004 on Supervision of the Financial Market and in amendments and supplements to certain laws the Act No. 186/2009 Coll. on Financial Intermediation and Financial Counselling and in amendments and supplements to certain other acts. Further, NBS adopted recommendations and guidelines which must be observed.
Competent national authority´s measure to control central counterparties NBS controls the central counterparties as well as due performance of obligations set forth
by the EMIR Regulations and national laws. Within the scope of this control, NBS is authorised to, inter alia:
1. request information and documents pertaining to the supervised entities and their activities;
2. review due compliance with national and EU laws and obligations under the licenses;
3. request cooperation from the supervised entities and their employees;
4. enter the premises of the supervised entities;
5. request explanations, opinions and other oral and written information pertaining to the supervision.
Supervised parties are obliged to cooperate and comply with NBS’s demands and requests.
In case of non-compliance NBS may impose a disciplinary fine in the maximum amount of EUR 5,000 (natural person) and EUR 50,000 (legal entity).
National rules on penalties applicable to violations of EMIR and national law provisions NBS is authorised to impose financial penalties and non-financial measures for breach of
EMIR Regulations and national laws, such as:
1. a fine in the amount of EUR 330 to 664,000;
2. measures to eliminate and revise any identified deficiencies;
3. an obligation to submit separate statements, notifications and messages;
4. an order to publish correction of incomplete, incorrect or false mandatorily published information.
Derivated trades on the following regulated markets do not fall under EMIR
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