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In this act Article 19 of 42

Article 19 — Collateral management and segregation

Financial servicesLevel 2RTSEMIRIn forceOfficial source

19(1)

1.The procedures referred to in Article 2(2)(c) shall include the following:

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19(1)(a)
(a)a daily valuation of the collateral held in accordance with Section 6;
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19(1)(b)
(b)the legal arrangements and a collateral holding structure that allow access to the received collateral where it is being held by a third party;
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19(1)(c)
(c)where initial margin is held by the collateral provider, that the collateral is held in insolvency-remote custody accounts;
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19(1)(d)
(d)that non-cash initial margin is maintained in accordance with paragraphs 3 and 4;
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19(1)(e)
(e)that cash collected as initial margin is maintained in cash accounts at central banks or credit institutions which fulfil all of the following conditions:
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19(1)(e)(i)
(i)they are authorised in accordance with Directive 2013/36/EU or are authorised in a third country whose supervisory and regulatory arrangements have been found to be equivalent in accordance with Article 142(2) of Regulation (EU) No 575/2013;
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19(1)(e)(ii)
(ii)they are neither the posting nor the collecting counterparties, nor part of the same group as either of the counterparties;
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19(1)(f)
(f)the availability of unused collateral to the liquidator or other insolvency official of the defaulting counterparty;
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19(1)(g)
(g)the initial margin is freely transferable to the posting counterparty in a timely manner in case of the default of the collecting counterparty;
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19(1)(h)
(h)that non-cash collateral is transferable without any regulatory or legal constraints or third-party claims, including those of the liquidator of the collecting counterparty or third-party custodian, other than liens for fees and expenses incurred in providing the custodial accounts and other than liens routinely imposed on all securities in a clearing system in which such collateral may be held;
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19(1)(i)
(i)that any unused collateral is returned to the posting counterparty in full, excluding costs and expenses incurred for the process of collecting and holding the collateral.
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19(2)

2.Any collateral posted as initial or variation margin may be substituted by alternative collateral where all of the following conditions are met:

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19(2)(a)
(a)the substitution is made in accordance with the terms of the agreement between the counterparties referred to in Article 3;
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19(2)(b)
(b)the alternative collateral is eligible in accordance with Section 2;
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19(2)(c)
(c)the value of the alternative collateral is sufficient to meet all margin requirements after applying any relevant haircut.
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19(3)

3.Initial margin shall be protected from the default or insolvency of the collecting counterparty by segregating it in either or both of the following ways:

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19(3)(a)
(a)on the books and records of a third-party holder or custodian;
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19(3)(b)
(b)via other legally binding arrangements;
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19(4)

4.Counterparties shall ensure that non-cash collateral exchanged as initial margin is segregated as follows:

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19(4)(a)
(a)where collateral is held by the collecting counterparty on a proprietary basis, it shall be segregated from the rest of the proprietary assets of the collecting counterparty;
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19(4)(b)
(b)where collateral is held by the posting counterparty on a non-proprietary basis, it shall be segregated from the rest of the proprietary assets of the posting counterparty;
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19(4)(c)
(c)where collateral is held on the books and records of a custodian or other third-party holder, it shall be segregated from the proprietary assets of that third-party holder or custodian.
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19(5)

5.Where non-cash collateral is held by the collecting party or by a third-party holder or custodian, the collecting counterparty shall always provide the posting counterparty with the option to segregate its collateral from the assets of other posting counterparties.

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19(6)

6.Counterparties shall perform an independent legal review in order to verify that the segregation arrangements meet the requirements referred to in paragraph 1(g) and paragraphs 3, 4 and 5. That legal review may be conducted by an independent internal unit, or by an independent third party.

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19(7)

7.Counterparties shall provide evidence to their competent authorities of compliance with paragraph 6 in relation to each relevant jurisdiction and, upon request by a competent authority, shall establish policies ensuring the continuous assessment of compliance.

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19(8)

8.For the purposes of paragraph 1(e), the counterparties shall assess the credit quality of the credit institution referred to therein by using a methodology that does not solely or mechanistically rely on external credit quality assessments.

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