In this act Annex I of 2

ANNEX I

Financial servicesLevel 2RTSEMIRIn forceVerifiedOfficial source

Conditions applicable to financial instruments, bank guarantees, public guarantees and gold considered as highly liquid collateral

SECTION 1

Financial instruments

For the purposes of Article 46(1) of Regulation (EU) No 648/2012, highly liquid collateral in the form of financial instruments shall be financial instruments meeting the conditions provided for in point 1 of Annex II to this Regulation or transferable securities and money-market instruments which meet each of the following conditions:

(a)

the CCP can demonstrate to the competent authority that the financial instruments have been issued by an issuer that has low credit risk based upon an adequate internal assessment by the CCP. In performing such an assessment, the CCP shall employ a defined and objective methodology that shall not fully rely on external opinions and that takes into consideration the risk arising from the establishment of the issuer in a particular country;

(b)

the CCP can demonstrate to the competent authority that the financial instruments have a low market risk based upon an adequate internal assessment by the CCP. In performing such an assessment, the CCP shall employ a defined and objective methodology that shall not fully rely on external opinions;

(c)

they are denominated in one of the following currencies:

(i)

a currency the risk of which the CCP can demonstrate to the competent authorities that it is able to manage;

(ii)

a currency in which the CCP clears contracts, in the limit of the collateral required to cover the CCP’s exposures in that currency;

(d)

they are freely transferable and without any regulatory or legal constraint or third party claims that impair liquidation;

(e)

they have an active outright sale or repurchase agreement market, with a diverse group of buyers and sellers, to which the CCP can demonstrate reliable access, including in stressed conditions;

(f)

they have reliable price data published on a regular basis;

(g)

they are not issued by:

(i)

the clearing member providing the collateral, or an entity that is part of the same group as the clearing member, except in the case of a covered bond and only where the assets backing that bond are appropriately segregated within a robust legal framework and satisfy the requirements set out in this section;

(ii)

a CCP or an entity that is part of the same group as a CCP;

(iii)

an entity whose business involves providing services critical to the functioning of the CCP, unless that entity is an EEA central bank or a central bank of issue of a currency in which the CCP has exposures;

(h)

they are not otherwise subject to significant wrong-way risk.

SECTION 2

Bank guarantees

1. A commercial bank guarantee, subject to limits agreed with the competent authority, shall meet the following conditions to be accepted as collateral under Article 46(1) of Regulation (EU) No 648/2012:

(a)

it is issued to guarantee a non-financial clearing member;

(b)

it has been issued by an issuer that the CCP can demonstrate to the competent authority that it has low credit risk based upon an adequate internal assessment by the CCP. In performing such assessment the CCP shall employ a defined and objective methodology that shall not fully rely on external opinions and that takes into consideration the risk arising from the establishment of the issuer in a particular country;

(c)

it is denominated in one of the following currencies:

(i)

a currency the risk of which the CCP can demonstrate to the competent authorities that it is able to adequately manage;

(ii)

a currency in which the CCP clears contracts, in the limit of the collateral required to cover the CCP’s exposures in that currency;

(d)

it is irrevocable, unconditional and the issuer cannot rely on any legal or contractual exemption or defence to oppose the payment of the guarantee;

(e)

it can be honoured, on demand, within the period of liquidation of the portfolio of the defaulting clearing member providing it without any regulatory, legal or operational constraint;

(f)

it is not issued by:

(i)

an entity that is part of the same group as the non-financial clearing member covered by the guarantee;

(ii)

an entity whose business involves providing services critical to functioning of the CCP, unless that entity is an EEA central bank or a central bank of issue of a currency in which the CCP has exposures;

(g)

it is not otherwise subject to significant wrong-way risk;

(h)

it is fully backed by collateral that meets the following conditions:

(i)

it is not subject to wrong way risk based on a correlation with the credit standing of the guarantor or the non-financial clearing member, unless that wrong way risk has been adequately mitigated by haircutting of the collateral;

(ii)

the CCP has prompt access to it and it is bankruptcy remote in case of the simultaneous default of the clearing member and the guarantor.

(i)

the suitability of the guarantor has been ratified by the board of the CCP after a full assessment of the issuer and of the legal, contractual and operational framework of the guarantee in order to have a high level of comfort on the effectiveness of the guarantee, and notified to the competent authority.

2. A bank guarantee issued by a central bank shall meet the following conditions to be accepted as collateral under Article 46(1) of Regulation (EU) No 648/2012:

(a)

it is issued by an EEA central bank or a central bank of issue of a currency in which the CCP has exposures;

(b)

it is denominated in one of the following a currencies:

(i)

a currency the risk of which the CCP can demonstrate to the competent authorities that it is able to adequately manage;

(ii)

a currency in which the CCP clears transactions, in the limit of the collateral required to cover the CCP’s exposures in that currency;

(c)

it is irrevocable, unconditional and the issuing central bank cannot rely on any legal or contractual exemption or defence to oppose the payment of the guarantee;

(d)

it can be honoured within the period of liquidation of the portfolio of the defaulting clearing member providing it without any regulatory, legal or operational constraint or any third party claim on it.

SECTION 2a

Public guarantees

Until 7 September 2024, a public guarantee that does not meet the conditions for a central bank guarantee set out in Section 2, paragraph 2, shall meet all of the following conditions to be accepted as collateral under Article 46(1) of Regulation (EU) No 648/2012:

(a)

it is explicitly issued or guaranteed by any of the following:

(i)

a central government in the EEA;

(ii)

regional governments or local authorities in the EEA, where there is no difference in risk between exposures of regional governments or local authorities and the central government of that Member State because of the specific revenue-raising powers of the former, and the existence of specific institutional arrangements the effect of which is to reduce their risk of default;

(iii)

the European Financial Stability Facility, the European Stability Mechanism, or the Union, where applicable;

(iv)

a multilateral development bank as listed under Article 117(2) of Regulation (EU) No 575/2013 of the European Parliament and of the Council and established in the Union;

(b)

the CCP can demonstrate that it has low credit risk based upon an internal assessment by the CCP;

(c)

it is denominated in one of the following currencies:

(i)

a currency the risk of which the CCP can demonstrate to the competent authorities that it is able to adequately manage;

(ii)

a currency in which the CCP clears transactions, in the limit of the collateral required to cover the CCP’s exposures in that currency;

(d)

it is irrevocable, unconditional and the issuing and guaranteeing entities cannot rely on any legal or contractual exemption or defence to oppose the payment of the guarantee;

(e)

For the purposes of point (b), the CCP shall employ, in performing the assessment referred to in that point, defined and objective methodology that shall not fully rely on external opinions.

SECTION 3

Gold

Gold shall be allocated pure gold bullion of recognised good delivery and meet the following conditions to be accepted as collateral under Article 46(1) of Regulation (EU) No 648/2012:

(a)

it is directly held by the CCP;

(b)

it is deposited with an EEA central bank or a central bank of issue of a currency in which the CCP has exposures that has adequate arrangements so as to safeguard clearing member or clients’ ownership rights to the gold and enables the CCP prompt access to the gold when required;

(c)

it is deposited with an authorised credit institution as defined under Directive 2006/48/EC that has adequate arrangements so as to safeguard clearing member or clients’ ownership rights to the gold, enables the CCP prompt access to the gold when required and the CCP can demonstrate to the competent authority that it has low credit risk based upon an adequate internal assessment by the CCP. In performing such an assessment, the CCP shall employ a defined and objective methodology that shall not fully rely on external opinions and that takes into consideration the risk arising from the establishment of the credit institution in a particular country;

(d)

it is deposited with a third country credit institution that is subject to and complies with prudential rules considered by the competent authorities to be at least as stringent as those laid down in Directive 2006/48/EC and which has robust accounting practices, safekeeping procedures and internal controls and that has adequate arrangements so as to safeguard clearing member or clients’ ownership rights to the gold, enables the CCP prompt access to the gold when required and CCP can demonstrate to the competent authority that it has low credit risk based upon an internal assessment by the CCP. In performing such an assessment, the CCP shall employ a defined and objective methodology that shall not fully rely on external opinions and that takes into consideration the risk arising from the establishment of the credit institution in a particular country.