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Article 91 - 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.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
ANNEX I
List of infringements referred to in article 65(1)
I. Infringements relating to organisational requirements or conflicts of interest:
(a) a trade repository infringes article 78(1) by not having robust governance arrangements which include a clear organisational structure with well-defined, transparent and consistent lines of responsibility and adequate internal control mechanisms, including sound administrative and accounting procedures, which prevent the disclosure of confidential information;
(b) a trade repository infringes article 78(2) by not maintaining or operating effective written organisational and administrative arrangements to identify and manage any potential conflicts of interest concerning its managers, its employees, and any person directly or indirectly linked to them by close links;
(c) a trade repository infringes article 78(3) by not establishing adequate policies and procedures sufficient to ensure compliance, including that of its managers and employees, with all the provisions of this Regulation;
(d) a trade repository infringes article 78(4) by not maintaining or operating an adequate organisational structure to ensure continuity and orderly functioning of the trade repository in the performance of its services and activities;
(e) a trade repository infringes article 78(5) by not separating operationally its ancillary services from its function of centrally collecting and maintaining records of derivatives;
(f) a trade repository infringes article 78(6) by not ensuring that its senior management and the members of the board are of sufficiently good repute and experience so as to ensure the sound and prudent management of the trade repository;
(g) a trade repository infringes article 78(7) by not having objective non-discriminatory and publicly disclosed requirements for access by services providers and undertakings subject to the reporting obligation under article 9;
(h) a trade repository infringes article 78(8) by not publicly disclosing the prices and fees associated with services provided under this Regulation, by not allowing reporting entities to access specific services separately or by charging prices and fees that are not cost related;
(i) a trade repository infringes point (a) of article 78(9) by not establishing adequate procedures for the effective reconciliation of data between trade repositories;
(j) a trade repository infringes point (b) of article 78(9) by not establishing adequate procedures to verify the completeness and correctness of the data reported;
(k) a trade repository infringes point (c) of article 78(9) by not establishing adequate policies for the orderly transfer of data to other trade repositories where requested by the counterparties and CCPs referred to in article 9 or where otherwise necessary.
II. Infringements relating to operational requirements:
(a) a trade repository infringes article 79(1) by not identifying sources of operational risk or by not minimising those risks through the development of appropriate systems, controls and procedures;
(b) a trade repository infringes article 79(2) by not establishing, implementing or maintaining an adequate business continuity policy and disaster recovery plan aimed at ensuring the maintenance of its functions, the timely recovery of operations and the fulfilment of the trade repository’s obligations;
(c) a trade repository infringes article 80(1) by not ensuring the confidentiality, integrity or protection of the information received under article 9;
(d) a trade repository infringes article 80(2) by using the data that it receives under this Regulation for commercial purposes without the relevant counterparties having provided their consent;
(e) a trade repository infringes article 80(3) by not promptly recording the information received under article 9 or by not maintaining it for at least 10 years following the termination of the relevant contracts or by not employing timely and efficient record-keeping procedures to document changes to recorded information;
(f) a trade repository infringes article 80(4) by not calculating the positions by class of derivatives and by reporting entity based on the details of the derivative contracts reported in accordance with article 9;
(g) a trade repository infringes article 80(5) by not allowing the parties to a contract to access and correct the information on that contract in a timely manner;
(h) a trade repository infringes article 80(6) by not taking all reasonable steps to prevent any misuse of the information maintained in its systems.
III. Infringements relating to transparency and the availability of information:
(a) a trade repository infringes article 81(1) by not regularly publishing, in an easily accessible way, aggregate positions by class of derivatives on the contracts reported to it;
(b) a trade repository infringes article 81(2) by not allowing the entities referred to in article 81(3) direct and immediate access to the details of derivatives contracts they need to fulfil their respective responsibilities and mandates.
IV. Infringements relating to obstacles to the supervisory activities:
(a) a trade repository infringes article 61(1) by providing incorrect or misleading information in response to a simple request for information by ESMA in accordance with article 61(2) or in response to a decision by ESMA requiring information in accordance with article 61(3);
(b) a trade repository provides incorrect or misleading answers to questions asked pursuant to article 62(1)(c);
(c) a trade repository does not comply in due time with a supervisory measure adopted by ESMA pursuant to article 73;
(d) a trade repository infringes article 55(4) by not notifying ESMA in due time of any material changes to the conditions for its registration.
ANNEX II
List of the coefficients linked to aggravating and mitigating factors for the application of article 65(3)
The following coefficients shall be applicable, cumulatively, to the basic amounts referred to in article 65(2):
I. Adjustment coefficients linked to aggravating factors:
(a) if the infringement has been committed repeatedly, for every time it has been repeated, an additional coefficient of 1,1 shall apply;
(b) if the infringement has been committed for more than six months, a coefficient of 1,5 shall apply;
(c) if the infringement has revealed systemic weaknesses in the organisation of the trade repository, in particular in its procedures, management systems or internal controls, a coefficient of 2,2 shall apply;
(d) if the infringement has a negative impact on the quality of the data it maintains, a coefficient of 1,5 shall apply;
(e) if the infringement has been committed intentionally, a coefficient of 2 shall apply;
(f) if no remedial action has been taken since the breach has been identified, a coefficient of 1,7 shall apply;
(g) if the trade repository’s senior management has not cooperated with ESMA in carrying out its investigations, a coefficient of 1,5 shall apply.
II. Adjustment coefficients linked to mitigating factors:
(a) if the infringement has been committed for less than 10 working days, a coefficient of 0,9 shall apply;
(b) if the trade repository’s senior management can demonstrate to have taken all the necessary measures to prevent the infringement, a coefficient of 0,7 shall apply;
(c) if the trade repository has brought quickly, effectively and completely the infringement to ESMA’s attention, a coefficient of 0,4 shall apply;
(d) if the trade repository has voluntarily taken measures to ensure that a similar infringement cannot be committed in the future, a coefficient of 0,6 shall apply.
(
1
) Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349).
(
2
) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ L 176, 27.6.2013, p. 338).
(
3
) Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 335, 17.12.2009, p. 1).
(
4
) Directive (EU) 2016/2341 of the European Parliament and of the Council of 14 December 2016 on the activities and supervision of institutions for occupational retirement provision (IORPs) (OJ L 354, 23.12.2016, p. 37).
(
5
) Regulation (EU) No 909/2014 of the European Parliament and of the Council of 23 July 2014 on improving securities settlement in the European Union and on central securities depositories and amending Directives 98/26/EC and 2014/65/EU and Regulation (EU) No 236/2012 (OJ L 257, 28.8.2014, p. 1).
(
6
) OJ L 35, 11.2.2003, p. 1.
(
7
) OJ L 390, 31.12.2004, p. 38.
(
8
) OJ L 372, 31.12.1986, p. 1.
(
9
) OJ L 222, 14.8.1978, p. 11.
(
10
) Regulation (EU) 2017/2402 of the European Parliament and of the Council of 12 December 2017 laying down a general framework for securitisation and creating a specific framework for simple, transparent and standardised securitisation, and amending Directives 2009/65/EC, 2009/138/EC and 2011/61/EU and Regulations (EC) No 1060/2009 and (EU) No 648/2012 (OJ L 347, 28.12.2017, p. 35).
(
11
) Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349).
(
12
) Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 (OJ L 173, 12.6.2014, p. 84).
(
13
) Regulation (EU) 2015/2365 of the European Parliament and of the Council of 25 November 2015 on transparency of securities financing transactions and of reuse and amending Regulation (EU) No 648/2012 (OJ L 337, 23.12.2015, p. 1).
(
14
) Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purpose of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC (OJ L 141, 5.6.2015, p. 73).
(
15
) OJ L 228, 11.8.1992, p. 1.
(
16
) OJ L 168, 27.6.2002, p. 43.
(
17
) OJ L 176, 27.6.2013,p.1.
(
18
) Council Regulation (EU) No 1024/2013 of 15 October 2013 conferring specific tasks on the European Central Bank concerning policies relating to the prudential supervision of credit institutions (OJ L 287, 29.10.2013, p. 63).
(
19
) Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids (OJ L 142, 30.4.2004, p. 12).
(
20
) Regulation (EC) No 713/2009 of the European Parliament and of the Council of 13 July 2009 establishing an Agency for the Cooperation of Energy Regulators (OJ L 211, 14.8.2009, p. 1).
(
21
) Directive 2014/59/EU of the European Parliament and of the Council of 15 May 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms and amending Council Directive 82/891/EEC and Directives 2001/24/EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC, 2011/35/EU, 2012/30/EU and 2013/36/EU, and Regulations (EU) No 1093/2010 and (EU) No 648/2012, of the European Parliament and of the Council (OJ L 173, 12.6.2014, p. 190).
(
22
) Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 (OJ L 173, 12.6.2014, p. 84).
(
23
) Regulation (EU) 2019/834 of the European Parliament and of the Council of 20 May 2019 amending Regulation (EU) No 648/2012 as regards the clearing obligation, the suspension of the clearing obligation, the reporting requirements, the risk-mitigation techniques for OTC derivative contracts not cleared by a central counterparty, the registration and supervision of trade repositories and the requirements for trade repositories (OJ L 141, 28.5.2019, p. 42).
(
24
) Regulation (EU) 2017/1131 of the European Parliament and of the Council of 14 June 2017 on money market funds (OJ L 169, 30.6.2017, p. 8).
(
25
) OJ L 191, 13.7.2001, p. 45.