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The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2018

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11.—(1) Article 2 is amended as follows.

(2) Before point (1) insert—

(A1) “FSMA” means the Financial Services and Markets Act 2000(1);

(A2) “MIFIR” means 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) 648/2012(2);

(A3) “Capital Requirements Regulation” means Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) 648/2012;

(A4) “2013 Regulations” means the Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013(3);

(A5) “Regulated Activities Order” means the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001(4);

(A6) “PRA-authorised person” has the meaning given in section 2B(5) of the FSMA(5);.

(3) For point (1) substitute—

(1) “CCP” means a body corporate or unincorporated association which interposes itself between the counterparties to the contracts traded on one or more financial markets, becoming the buyer to every seller and the seller to every buyer;.

(4) For point (4) substitute—

(4) “trading venue” means a UK trading venue within the definition in Article 2(1)(16A) of the MIFIR;.

(5) For point (5) substitute—

(5) “derivative” or “derivative contract” means a financial instrument referred to in paragraphs 4 to 10 of Part 1 of Schedule 2 to the Regulated Activities Order;.

(6) In point (7)—

(a)for the words “regulated market within the meaning of Article 4(1)(14) of Directive 2004/39/EC” substitute “UK regulated market within the meaning given in Article 2(1)(13A) of the MIFIR”;

(b)for “regulated market in accordance with Article 2a of this Regulation” substitute “a UK regulated market in accordance with an implementing act adopted by the Commission under Article 2a of this Regulation before exit day or in accordance with regulations made by the Treasury under that Article after exit day”.

(7) For point (8) substitute—

(8) “financial counterparty” means:

(a)an investment firm within the meaning given in Article 2(1A) of the MIFIR which:

(i)has its registered office or head office in the United Kingdom;

(ii)has permission under Part 4A of the FSMA to carry on regulated activities relating to investment services and activities (as defined in Article 2(1)(2) of the MIFIR) in the United Kingdom;

(iii)would require an authorisation given under 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 2011/61/EU(6) (as it had effect immediately before exit day) if it had its registered office (or if it does not have a registered office, its head office) in an EEA state; and

(iv)is not a firm which has permission under Part 4A of the FSMA to carry on regulated activities as an exempt investment firm, within the meaning given in regulation 8 of the Financial Services and Markets Act 2000 (Markets in Financial Instruments) Regulations 2017(7);

(b)a credit institution which is a CRR firm (within the meaning given in Article 4(1)(2A) of the Capital Requirements Regulation);

(c)an insurance undertaking or a reinsurance undertaking within the meaning given in section 417 of the FSMA;

(d)a UK UCITS (within the meaning given in section 237(3) of the FSMA) and, where relevant, its management company (within the meaning given in section 237(2) of the FSMA);

(e)an occupational pension scheme within the meaning given in section 1(1) of the Pension Schemes Act 1993(8); or

(f)an AIF (within the meaning given in regulation 3 of the Alternative Investment Fund Managers Regulations 2013(9)) managed by an AIFM (within the meaning given in regulation 4 of those Regulations) authorised or registered in accordance with those Regulations;.

(8) In point (9), for “Union” substitute “United Kingdom”.

(9) For point (13) substitute—

(13) “competent authority” means:

(a)the relevant competent authority referred to in the legislation (or the relevant competent authority of the firm, institution, undertaking or other entity) referred to in paragraphs (a) to (f) of point (8);

(b)the competent authority referred to in Article 10(5); or

(c)the authority designated under Article 22;.

(10) In point (16)—

(a)for “Articles 1 and 2 of Directive 83/349/EEC” substitute “section 1162 of the Companies Act 2006(10)”;

(b)for the words from “the group of undertakings” in the second place where it appears to the end of the point substitute “a group of undertakings meeting the conditions in Article 113(6) of the Capital Requirements Regulation”.

(11) In point (17), for the words from “of the activities” to the end of the point substitute “of the Annex I activities listed in points (2) to (12) and for this purpose “Annex I activities” has the meaning given in Article 4(1)(26A) of the Capital Requirements Regulation”.

(12) In point (18), for the words from “Article 2(15)” to the end of the point substitute “Article 4(1)(21) of the Capital Requirements Regulation”.

(13) In each of points (21) and (22), for “Articles 1 and 2 of Directive 83/349/EEC” substitute “section 1162 of the Companies Act 2006”.

(14) In point, (23), for “Article 1 of Directive 83/349/EEC” substitute “section 1162 of the Companies Act 2006”.

(15) In point (25), omit the words from “within the meaning” to “institutions”.

(16) After point (25) insert—

(25A) “subscribed capital” comprises all amounts, regardless of their actual designations, which, in accordance with the legal structure of the institution concerned, are regarded under the law of any part of the United Kingdom as equity capital subscribed by the shareholders or other proprietors;.

(17) For point (26) substitute—

(26) “reserves” means reserves as set out in item K.IV of balance sheet format 1 in Section B of Part 1 of Schedule 1 to the Large and Medium-sized Companies and Groups (Accounts and Reports) Regulations 2008(11) and profits and losses brought forward as a result of the application of the final profit or loss;.

(18) In point (27), for “national company law” substitute “company law applying in any part of the United Kingdom”.

(2)

As amended by the Markets in Financial Instruments (Amendment) (EU Exit) Regulations 2018 (S.I. 2018/ ).

(5)

Section 2B is inserted by section 6(1) of the Financial Services Act 2012 (c. 21).

(6)

OJ No. L 173, 12.6.2014, p.349.

(8)

1993 c.48. Section 1 is substituted by section 239 of the Pensions Act 2004 (c.35).

(10)

2006 c.46.

(11)

S.I. 2008/410. Relevant amending instrument is S.I. 2015/980.

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