Commission Delegated Regulation (EU) 2023/1615 of 3 May 2023 supplementing Regulation (EU) 2021/23 of the European Parliament and of the Council with regard to regulatory technical standards specifying the conditions under which compensation, cash equivalent of such compensation or any proceeds that are due pursuant to Article 63(1) of that Regulation are to be passed on to clients and indirect clients and the conditions under which passing on is to be considered proportionate (Text with EEA relevance)
Definitions
For the purposes of this Regulation, the following definitions apply:
1.
‘clearing service provider’ means a clearing member as defined in Article 2, point (14) of Regulation (EU) No 648/2012 of the European Parliament and of the Council ( 3 ) , a client as defined in Article 2, point (15), of Regulation (EU) No 648/2012, an indirect client, a second indirect client or a third indirect client as defined in Article 1, point (b),(d) or (e) of Commission Delegated Regulation (EU) 2017/2154 ( 4 ) , that provides clearing services, directly or indirectly, in the Union;
2.
‘clearing service user’ means a client as defined in Article 2, point (15), of Regulation (EU) No 648/2012, or an indirect client, a second indirect client or a third indirect client as defined in Article 1, point (b),(d) or (e) of Delegated Regulation (EU) 2017/2154, that uses clearing services provided by a clearing service provider;
3.
‘reimbursement’ means the recompense or compensation clearing members receive in accordance with Article 27(6) of Regulation (EU) 2021/23, including instruments of ownership, debt instruments or instruments recognising a claim on the CCP’s future profits, or any cash equivalent of such recompense or compensation or any proceeds they receive following a claim made in accordance with Article 62 of Regulation (EU) 2021/23 including where any of these amounts, referred to under those articles, are passed on to a clearing service user;
4.
‘qualifying contribution’ means the contribution, made via a clearing member of the CCP, under the conditions set out in Article 63 of Regulation (EU) 2021/23, by a clearing service user to the CCP in resolution to which it has indirect access through a clearing service provider and where the contribution made, via the clearing member of the CCP, in the resolution procedure, has resulted in a reimbursement.
Form of the reimbursement
The reimbursement credited or awarded to a clearing service provider and passed on to a clearing service user may take the form of cash, financial instruments, instruments of ownership, debt instruments or instruments recognising a claim on the CCP’s future profit.
Distribution of the reimbursement
1. Clearing service providers shall, in a fair and non-discriminatory manner, distribute the relevant reimbursement among all clearing service users that have made a qualifying contribution, including clearing service users that are no longer clearing service users of the clearing service provider receiving the reimbursement, proportionally to the qualifying contribution made by each of those clearing service users.
2. Clearing service providers shall calculate the reimbursement to be distributed in a transparent manner and inform each clearing service user separately in accordance with Article 5(2), point (c).
3. Clearing service providers shall allocate the reimbursement to their own accounts and to the accounts of their clearing service users that made a qualifying contribution on the basis of a calculation of the qualifying contribution made and shall not discriminate between different recipients, nor rank them. Clearing service providers shall not allocate any part of the reimbursement to their own account before having allocated to the accounts of their clearing service users that made a qualifying contribution the part of the reimbursement to which those clearing service users are entitled.
4. Clearing service providers may apply deductions from or set-off towards the reimbursement where a clearing service user owes an obligation that is due and payable to a clearing service provider that is under the obligation, in accordance with Article 63 of Regulation (EU) 2021/23, to pass on reimbursement to that same clearing service user.
However, where the recipient is also a clearing service provider, the reimbursement to be passed on to its clearing service users shall be calculated based on the reimbursement that was to be received by the clearing service provider before any deductions or set-off as referred to in the first subparagraph were made.
5. A clearing service provider shall hold the reimbursement received pursuant to Article 27(6) or 62 of Regulation (EU) 2021/23 on a separate and segregated account until all reimbursements due are fully distributed.
Type of reimbursement and delivery
1. Where the reimbursement consists of different types of financial assets or financial instruments, irrespective of whether those assets or financial instruments take the form of cash, instruments of ownership, debt instruments, or any other instruments recognising a claim on the future profits of the CCP in resolution, clearing service providers shall break that reimbursement down by type of assets or instruments. Each clearing service provider shall subsequently allocate and distribute the reimbursement to each of its clearing service users and to its own account, where entitled to reimbursement, proportionally to the qualifying contribution made and in the same proportion of each type of financial assets or financial instruments.
2. A clearing service provider that, due to settlement restrictions or due to another impediment to the transfer of some assets or instruments, is unable to distribute the reimbursement to a clearing service user, that made a qualifying contribution, in the form required by paragraph 1, shall notify the clearing service user concerned thereof without delay.
3. Where the settlement restriction or impediment referred to in paragraph 2 cannot be remedied within three working days from the receipt by the clearing service user of the notification referred to in that paragraph, the clearing service provider shall request the clearing service user to appoint an alternative recipient for the relevant assets or instruments within five working days. A clearing service user may also request the clearing service provider to distribute the financial assets or financial instruments to an alternative recipient. Where an alternative recipient has been appointed by the clearing service user, the clearing service provider shall transfer the financial assets or financial instruments to that alternative recipient to the extent possible and at a reasonable cost for the clearing service user.
4. Where a transfer to an alternative recipient under paragraph 3 is not possible, the clearing service provider shall inform the clearing service user concerned thereof in writing within three working days of the appointment of the alternative recipient, stating the reason for that impossibility. In that case, the clearing service provider shall sell the assets or instruments concerned to a third party on an established securities market at the prevailing market price and transfer the proceeds of the sale, net of any reasonable costs of sale, to the clearing service user.
Reimbursement information
1. Clearing service providers shall notify, in writing, the clearing service users that have made a qualifying contribution of any reimbursement they are entitled to.
2. The notification referred to in paragraph 1 shall contain all of the following information:
(a)
where applicable, a copy of the decision by the resolution authority that the clearing member is entitled to the payment of the difference referred to in Article 62 of Regulation (EU) 2021/23;
(b)
where applicable, a copy of the decision of the resolution authority requiring the CCP to provide compensation to the clearing members that have incurred excess losses as referred to in Article 27(6), first subparagraph, of Regulation (EU) 2021/23, together with an explanation of how that amount is deducted from any entitlement to the payment of the difference referred to in Article 62 of Regulation (EU) 2021/23;
(c)
clear and precise information on the reimbursement that is to be distributed to the clearing service user and on the methodology used to calculate such reimbursement;
(d)
clear and precise information on the reimbursement received by the clearing service provider before any set-off or other deductions were made in accordance with Article 3(4) of this Regulation;
(e)
clear and precise information on the form in which the reimbursement has been provided to the clearing service provider, distinguishing between cash and financial instruments and between each of the different forms of financial instruments, including instruments of ownership, debt instruments or instruments recognising a claim on the future profits of the CCP, and information on the composition of the reimbursement for the clearing service user;
(f)
subject to any confidentiality restrictions, general details on the overall distribution of the reimbursement between the clearing service users of the clearing service provider and the own accounts of the clearing service provider;
(g)
any calculation of interest or any other relevant factor affecting the reimbursement.
Entry into force
This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union .
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
