Elements of independence
1. The valuer shall be deemed to be independent from any relevant public authority and from the CCP where all the following conditions are met at the time of their appointment and during the valuation of the assets and liabilities of the CCP referred to in Article 24, Article 26(1) and Article 61 of Regulation (EU) 2021/23:
(a)
the valuer has no material common or conflicting interest within the meaning of Article 3 of this Regulation;
(b)
the valuer possesses the necessary qualifications, experience, ability, knowledge and resources required under Article 4 of this Regulation to be able to effectively carry out the valuations referred to in Article 24, Article 26(1) and Article 61 of Regulation (EU) 2021/23;
(c)
the valuer is separate from the relevant public authorities and from the CCP in accordance with Article 5 of this Regulation.
2. The resolution authority shall establish a list of potential valuers that meet the requirements laid down in this Article. That list shall be reviewed on a regular basis.
Material common or conflicting interests
1. The valuer shall not have any actual or potential material interest in common or in conflict with any relevant public authority or with the CCP.
2. For the purposes of paragraph 1, the resolution authority shall consider an actual or potential interest to be material where it considers that such interest is likely to influence, or is likely to be perceived by external stakeholders as influencing the valuer’s judgement in carrying out the valuations referred to in Article 24, Article 26(1) and Article 61 of Regulation (EU) 2021/23.
For the purposes of the first subparagraph, the resolution authority shall consider the following:
(a)
the past or present provision of services by the applicant valuer to the CCP or a relevant public authority;
(b)
any personal and financial relationships between the applicant valuer and the CCP or a relevant public authority.
3. For the purposes of paragraph 1, the resolution authority shall consider interests in common or in conflict with the following parties to be relevant:
(a)
the senior management and the members of the management body of the CCP and any group company of the CCP as referred to in Article 2, point (28), of Regulation (EU) 2021/23;
(b)
the legal or natural persons that control or have a qualifying holding in the CCP;
(c)
the creditors identified by the resolution authority as being significant on the basis of the information available to the resolution authority;
(d)
the clearing members of the CCP as defined in Article 2, point (12), of Regulation (EU) 2021/23; clients of the CCP as defined in Article 2, point (18), of that Regulation; and indirect clients of the CCP as defined in Article 2, point (20), of that Regulation;
(e)
interoperable CCPs as defined in Article 2, point (21), of Regulation (EU) 2021/23.
4. The resolution authority shall deem a valuer to have an actual material interest in common or in conflict with the CCP where:
(a)
in the year preceding the date on which the valuer’s eligibility is assessed, the valuer has completed a statutory audit of the CCP pursuant to Directive 2006/43/EC of the European Parliament and of the Council ( 5 ) ;
(b)
the valuer has been employed by the CCP or a relevant public authority during the period of 3 years preceding the assessment of its independence.
5. A person appointed as a valuer shall:
(a)
maintain, in accordance with any applicable codes of ethics and professional standards, policies and procedures to identify any actual or potential interest which may be considered to constitute a material interest;
(b)
notify the resolution authority without delay of any actual or potential interest in common or in conflict with any relevant public authority or with the CCP which the valuer considers may, in the assessment of the resolution authority, be considered to amount to a material interest;
(c)
take appropriate steps to ensure that none of the staff or other persons involved in carrying out the valuation has any material interest in common or in conflict with any relevant public authority or with the CCP;
(d)
notify the resolution authority of any material investments or other material financial interests and confirm that they are not conflicting with its position as a valuer;
(e)
where that person is a legal person, provide evidence of efficient structural separation or other arrangements that have been put in place or are to be put in place to address any threats to independence such as self-review, self-interest, advocacy, familiarity, trust or intimidation, including arrangements to differentiate between those staff members who may be involved in the valuation and other staff members;
(f)
where the person is a statutory auditor, ensure the auditor is duly covered by internal rules to manage any conflict of interest;
(g)
notify the resolution authority of their activities relevant to the appointment for the period of 3 years preceding the assessment of the valuer’s independence;
(h)
not seek or accept financial or other advantages from any relevant public authority or from the CCP, without prejudice to the payment to the valuer of remuneration and expenses that are reasonable in connection with the conduct of the valuation.
Qualifications, experience, ability, knowledge and resources
1. The valuer shall possess the necessary qualifications, experience, ability and knowledge and hold or have access to sufficient human and technical resources to be able to carry out the valuation effectively and to independently assess the valuation without undue reliance on any relevant public authority or on the CCP.
2. The valuer shall be qualified as a statutory auditor or audit firm as defined in Article 2, points (2) and (3) of Directive 2006/43/EC.
3. For the purposes of paragraph 1, a person considered for the position of valuer shall provide evidence or confirmation in writing of the following necessary experience, ability and knowledge:
(a)
of the valuations made of financial instruments, of valuation in post-trading, and in particular of the instruments cleared by the CCP;
(b)
of Regulation (EU) 2021/23 and Regulation (EU) No 648/2012;
(c)
to apply and understand the recovery plans and rulebooks of the CCP;
(d)
to apply and understand the resolution plan of the CCP and applicable resolution tools under Regulation (EU) 2021/23.
4. The valuer shall be able to apply their competence and experience in an independent manner and shall not need to seek or take any instructions or guidance from any relevant public authority or from the CCP.
5. Paragraph 4 shall not prevent the provision of instructions, guidance, premises, technical equipment or other forms of support where the resolution authority considers that it is necessary and that it does not affect the valuer’s judgement in carrying out the valuation referred to in Article 24 of Regulation (EU) 2021/23.
Structural separation
1. The valuer shall be legally, structurally, operationally and effectively separate from any relevant public authority and from the CCP.
2. For the purposes of paragraph 1, the following requirements shall apply:
(a)
where the valuer is a natural person, the valuer shall not be an employee or contractor of any relevant public authority or of the CCP;
(b)
where the valuer is a legal person, the valuer shall not belong to the same group of companies as the CCP.
