Diario Oficial de la Unión Europea del 11/8/2023 - Sección Legislación
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Source: Diario Oficial de la Unión Europea - Sección Legislación
EN
L 201/2
Official Journal of the European Union
11.8.2023
5
To facilitate the calculation, collection and distribution of the cash penalties for fails of settlement instructions relating to cleared transactions submitted by CCPs, while at the same time reducing the risks and the cost related to such process, CSDs should calculate , collect from and distribute to their relevant participants, pursuant to Articles 16, 17 and 18 of Delegated Regulation EU 2018/1229, the cash penalties relating to settlement instructions submitted by CCPs for cleared transactions.
6
Where CCPs interpose themselves between counterparties, the net amount of penalties that CSDs have to collect and distribute in relation to settlement instructions submitted by a CCP would normally amount to zero since the settlement instructions submitted by the CCP represent both legs of the cleared transactions. However, in certain cases such as a late delivery of securities to a CCP on the intended settlement date which does not allow for the settlement of the delivery instructions from the CCP, or in cases of differences in the penalties calculated by different CSDs, imbalanced positions in respect of cleared transactions may remain in the books of the CCPs and the net amount of penalties to be collected from, or distributed to, CCPs can be different from zero. In such cases, the CCPs should be allowed to allocate to their clearing members the remaining net amount of penalties, credit or debit. CCPs should establish an appropriate mechanism in their rules to that effect.
7
Delegated Regulation EU 2018/1229 should therefore be amended accordingly.
8
To ensure that the calculation of penalties for settlement fails that occur before the date of application of this Regulation is not retroactively affected, it is appropriate to include transitional provisions.
9
To enable CCPs and CSDs to implement the necessary technological adaptations in view of ensuring compliance with the amended penalty mechanism, it is appropriate to defer the application of this Regulation.
10
This Regulation is based on the draft regulatory technical standards developed in close cooperation with the members of the European System of Central Banks and submitted to the Commission by the European Securities and Markets Authority.
11
The European Securities and Markets 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 Securities and Markets Stakeholder Group established in accordance with Article 37 of Regulation EU No 1095/2010 of the European Parliament and of the Council 3,
HAS ADOPTED THIS REGULATION:
Article 1
Amendment to Delegated Regulation EU 2018/1229
Article 19 of Delegated Regulation EU 2018/1229 is replaced by the following:
Article 19
Penalty mechanism for settlement fails relating to cleared transactions submitted by CCPs for settlement With respect to settlement fails relating to cleared transactions submitted by CCPs for settlement, CSDs shall apply Articles 16, 17 and 18.
CCPs may allocate to their clearing members any remaining net amount of penalties, credit or debit, paid pursuant to Article 16 and distributed pursuant to Article 172.
CCPs shall establish an appropriate mechanism in their rules to that effect.
3 Regulation EU No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority European Securities and Markets Authority, amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC OJ L 331, 15.12.2010, p. 84.
