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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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Trade Repositories

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56.—(1) Omit Articles 60 to 70.

(2) For Article 71 substitute—

Article 71Withdrawal of registration

1.  The FCA may, on its own initiative, withdraw the registration of a trade repository where the trade repository:

(a)expressly renounces the registration or has provided no services for the preceding 6 months;

(b)obtained the registration by making false statements or by any other irregular means; or

(c)no longer meets the conditions for registration.

2.  The FCA may also, on its own initiative, withdraw the registration of a trade repository where it is desirable to do so to advance one or more of its operational objectives set out in section 1B(3) of the FSMA.

3.  The FCA may, on an application by a trade repository, withdraw the registration of the trade repository.

4.  The decision to withdraw the registration of a trade repository under paragraph 1, 2 and 3 shall be reflected in the Register.

Article 71aPublication and notification of decisions about registration of trade repositories

1.  The FCA must publish on its website a list of trade repositories registered in accordance with Article 58 (“the Register”).

2.  On the adoption of a decision under Article 58 or 71, the FCA must notify its decision to the trade repository concerned.

3.  A refusal of an application to register under Article 58 comes into effect on the fifth working day following the day on which it is adopted.

4.  A withdrawal of registration under Article 71 takes effect:

(a)immediately upon the adoption of the decision if the notice states that is the case;

(b)on such date as may be specified in that notice; or

(c)if no date is specified in the notice, when the matter to which the notice relates is no longer open to review.

5.  A decision to withdraw a registration on the FCA’s own initiative under paragraph 1 or 2 of Article 71 may be expressed to take effect immediately (or on a specified date) only if the FCA, having regard to the ground on which it is exercising its power reasonably considers that it is necessary for the withdrawal or direction to take effect immediately (or on that date).

6.  If the decision referred to in paragraph 2 is:

(a)to refuse the application for registration made under Article 58;

(b)to exercise the FCA’s power under paragraph 1 or 2 of Article 71; or

(c)to refuse an application made by a trade repository under paragraph 3 of Article 71,

the FCA must give the trade repository a written notice.

7.  A written notice under paragraph 6 must:

(a)give details of the decision made by the FCA;

(b)state the FCA’s reasons for the decision;

(c)state when the decision takes effect; and

(d)inform the trade repository that it may either:

(i)request a review of the decision by the FCA, and make written representations for the purpose of the review, within such period as may be specified in the notice; or

(ii)refer the matter to the Upper Tribunal (“the Tribunal”) within such period as may be specified in the notice; and

(e)indicate the procedure on a reference to the Tribunal.

8.  If the trade repository requests a review of the decision made by the FCA (“the original decision”) the FCA must consider any written representations made by the trade repository and review the original decision.

9.  On a review under paragraph 8, the FCA may adopt any decision (“the new decision”) it could have adopted on the application.

10.  The FCA must give the trade repository written notice of its decision on the review.

11.  This paragraph applies to a decision—

(a)to maintain a decision to refuse an application for registration, made under Article 58;

(b)to refuse to revoke a decision made under paragraph 1 or 2 of Article 71; or

(c)to maintain a decision to refuse an application from a trade repository under paragraph 3 of Article 71.

12.  A written notice in relation to a decision to which paragraph 11 applies must:

(a)give details of the new decision made by the FCA;

(b)state the FCA’s reasons for the new decision;

(c)state whether the decision takes effect immediately or on such date as may be specified in the notice;

(d)inform the trade repository that it may, within such period as may be specified in the notice, refer the new decision to the Tribunal; and

(e)indicate the procedure on a reference to the Tribunal.

Article 71b
Reference to the Tribunal

1.  A trade repository may, subject to paragraph 2, refer to the Tribunal the FCA’s decision to:

(a)refuse to register the trade repository under Article 58;

(b)exercise its power under paragraph 1 or 2 of Article 71; or

(c)refuse the trade repository’s application under paragraph 3 of Article 71.

2.  Where there is a review under paragraph 8 of Article 71a, paragraph 1 applies only in relation to the FCA’s decision in response to that review..

(3) Omit Articles 72 to 74.

(4) Article 75 is amended in accordance with paragraphs (5) to (9).

(5) In the heading, omit “and international agreements”.

(6) In paragraph 1—

(a)for “The Commission may adopt an implementing act determining” substitute “The Treasury may by regulations determine”;

(b)at the end of point (a) insert “including compliance with the requirements to give direct and immediate access to the data to the entities referred to in paragraph 3 of Article 81”;

(c)for the second sub-paragraph substitute “Regulations made under the first sub-paragraph must also specify the relevant authorities in third countries which are entitled to access data held by trade repositories established in the United Kingdom.”.

(7) Omit paragraph 2.

(8) In paragraph 3—

(a)for the words from the beginning to “ESMA” substitute “The FCA”;

(b)in point (a) for the words from “ESMA” to “Regulation” substitute “the FCA”;

(9) Omit paragraph 4.

(10) In Article 76—

(a)for “ESMA” where it first appears substitute “the FCA”;

(b)for “ESMA” in the second place where it appears substitute “The FCA”;

(c)for “Union trade repositories” in both places where it appears substitute “trade repositories established in the United Kingdom”.

(11) Article 77 is amended in accordance with paragraphs (12) to (14).

(12) In paragraph 1—

(a)for “Union” substitute “United Kingdom”;

(b)for “ESMA” substitute “the FCA”;

(13) In paragraph 2—

(a)for “ESMA”, wherever it appears, substitute “the FCA”;

(b)in the first sub-paragraph, omit the words from “which” to the end of the sub-paragraph;

(c)in the second sub-paragraph, after “receipt of the application” insert “or the date on which a cooperation arrangement with a third country prescribed in accordance with paragraph 3 of Article 75 is entered into, whichever is later”.

(14) After paragraph 2 insert—

3.  The FCA may grant recognition to a trade repository established in a third country only if:

(a)the trade repository is authorised and subject to supervision in that third country;

(b)the third country is recognised by regulations made by the Treasury as one in which the arrangements for trade repositories are equivalent to those in the United Kingdom (in accordance with paragraph 1 of Article 75); and

(c)cooperation arrangements entered into with the third country (in accordance with paragraph 3 of Article 75) provide for the FCA to have immediate and continuous access to the information needed for the performance of their duties, including information on derivative contracts held in trade repositories established in the third country.

4.  The FCA may, on its own initiative, withdraw the recognition of a trade repository granted under paragraph 2 where the trade repository:

(a)no longer meets the conditions for recognition in points (a) to (c) of paragraph 3;

(b)expressly renounces the recognition or has provided no services for the preceding 6 months; or

(c)obtained the recognition by making false statements or by any other irregular means.

5.  A trade repository must, without undue delay, notify the FCA of any material changes affecting the condition for recognition in point (a) of paragraph 3..

(15) In Article 81, in paragraph 3, after point (c) insert—

(d)the relevant authorities of a third country where the third country is recognised by regulations made by the Treasury as one in which the arrangements for trade repositories are equivalent to those in the United Kingdom (in accordance with paragraph 1 of Article 75);

(e)the relevant authorities of a third country that has entered into a cooperation arrangement with the FCA as referred to in Article 76..

(16) Omit Article 82.

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