Commission Delegated Regulation (EU) No 150/2013 of 19 December 2012 supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council on OTC derivatives, central counterparties and trade repositories with regard to regulatory technical standards specifying the details of the application for registration as a trade repository Text with EEA relevance

CHAPTER 1

REGISTRATION

SECTION 1

General

Article 1

Identification, legal status and class of derivatives

The application for registration as a trade repository shall in particular contain the following information:

(a) the corporate name of the applicant and legal address within the Union;

(b) an excerpt from the relevant commercial or court register, or other forms of certified evidence of the place of incorporation and scope of business activity of the applicant, valid at the application date;

(c) information on the classes of derivatives for which the applicant wishes to be registered;

(d) information on whether the applicant is authorised or registered by a competent authority in the Member State where it is established, and in such case, the name of the authority and any reference number related to the authorisation or registration;

(e) the articles of incorporation of the applicant, and, where relevant, other statutory documentation stating that the applicant is to conduct trade repository services;

(f) the minutes from the meeting where the applicant's Board approved the application;

(g) the name and contact details of the person(s) responsible for compliance, or any other staff involved in compliance assessments for the applicant;

(h) the programme of operations, including indications of the location of the main business activities;

(i) the identification of any subsidiaries and, where relevant, the group structure;

(j) any service, other than the trade repository function, that the applicant provides or intends to provide;

(k) any information on any pending judicial, administrative, arbitration or any other litigation proceedings irrespective of their type, that the applicant may be party to, particularly as regards tax and insolvency matters and where significant financial or reputational costs may be incurred, or any non- pending proceedings, that may still have any material impact on trade repository costs.

Article 2

Policies and procedures

Where information regarding policies and procedures is provided as part of an application, an applicant shall ensure that the application includes the following items:

(a) an indication that the Board approves the policies, that the senior management approves the procedures and that the senior management is responsible for the implementation and maintenance of the policies and procedures;

(b) a description of how the communication of policies and procedures within the applicant is organised, how compliance with the policies will be ensured and monitored on a day to day basis, and the person or persons responsible for compliance in that regard;

(c) any records indicating that employed and dedicated staff are aware of the policies and procedures;

(d) a description of the measures to adopt in the event of a breach of policies and procedures;

(e) an indication of the procedure for reporting to ESMA any material breach of policies or procedures which may result in a breach of the conditions for initial registration.

SECTION 2

Ownership

Article 3

Ownership of the trade repository

An application for registration as a trade repository shall contain:

(a) a list containing the name of each person or entity who directly or indirectly holds 5 % or more of the applicants capital or of its voting rights or whose holding makes it possible to exercise a significant influence over the applicants management;

(b) a list of any undertakings in which a person referred to in point (a) holds 5 % or more of the capital or voting rights or over whose management they exercise a significant influence.

Where the applicant has a parent undertaking, it shall:

(a) identify the legal address of that parent undertaking;

(b) indicate whether the parent undertaking is authorised or registered and subject to supervision, and when this is the case, state any reference number and the name of the responsible supervisory authority.

Article 4

Ownership chart

SECTION 3

Organisational structure, governance and compliance

Article 5

Organisational chart

Article 6

Corporate governance

Article 7

Internal control

The detailed information referred to in paragraph 1 shall contain:

(a) the applicant's internal control policies and respective procedures related to their consistent and effective implementation;

(b) any policies, procedures and manuals regarding the monitoring and evaluation of the adequacy and effectiveness of the applicant's systems;

(c) any policies, procedures and manuals regarding the control and safeguard for the applicant's information processing systems;

(d) the identity of the internal bodies in charge of the evaluation of the relevant internal control findings.

An application for registration as a trade repository shall contain the following information with respect to the applicant's internal audit activities:

(a) the composition of any Internal Audit Committee, its competences and responsibilities;

(b) its internal audit function charter, methodologies, standards and procedures;

(c) an explanation how its internal audit charter, methodology and procedures are developed and applied taking into account the nature and extent of the applicant's activities, complexities and risks;

(d) a work plan for three years following the date of application addressing the nature and extent of the applicant's activities, complexities and risks.

Article 8

Regulatory compliance

An application for registration as a trade repository shall contain the following information regarding an applicant’s policies and procedures for ensuring compliance with Regulation (EU) No 648/2012:

(a) a description of the roles of the persons responsible for compliance and of any other staff involved in the compliance assessments, including how the independence of the compliance function from the rest of the business will be ensured;

(b) the internal policies and procedures designed to ensure that the applicant, including its managers and employees, comply with all the provisions of Regulation (EU) No 648/2012, including a description of the role of the board and senior management;

(c) where available, the most recent internal report prepared by the persons responsible for compliance or any other staff involved in compliance assessments within the applicant.

Article 9

Senior management and members of the Board

An application for registration as a trade repository shall contain the following information in respect of each member of the senior management and each member of the Board:

(a) a copy of the curriculum vitae;

(b) detailed information on the knowledge and experience in IT management, operations and development;

(c) details regarding any criminal convictions in connection with the provision of financial or data services or in relation to acts of fraud or embezzlement, in particular in the form of an official certificate if available within the relevant Member State;

(d) a self-declaration of good repute in relation to the provision of a financial or data service, where each member of the senior management and the board states whether they: (i) have been convicted of any criminal offence in connection with the provision of financial or data services or in relation to acts of fraud or embezzlement; (ii) have been subject to an adverse decision in any proceedings of a disciplinary nature brought by a regulatory authority or government bodies or agencies or are the subject of any such proceedings which are not concluded; (iii) have been subject to an adverse judicial finding in civil proceedings before a court in connection with the provision of financial or data services, or for impropriety or fraud in the management of a business; (iv) have been part of the board or senior management of an undertaking whose registration or authorisation was withdrawn by a regulatory body; (v) have been refused the right to carry on activities which require registration or authorisation by a regulatory body; (vi) have been part of the board or senior management of an undertaking which has gone into insolvency or liquidation while this person was connected to the undertaking or within a year of the person ceasing to be connected to the undertaking; (vii) have been part of the board or senior management of an undertaking which was subject to an adverse decision or penalty by a regulatory body; (viii) have been otherwise fined, suspended, disqualified, or been subject to any other sanction in relation to fraud, embezzlement or in connection with the provision of financial or data services, by a government, regulatory or professional body; (ix) have been disqualified from acting as a director, disqualified from acting in any managerial capacity, dismissed from employment or other appointment in an undertaking as a consequence of misconduct or malpractice;

(e) a declaration of any potential conflicts of interests that the senior management and the members of the board may have in performing their duties and how these conflicts are managed.

SECTION 4

Staffing and remuneration

Article 10

Staffing policies and procedures

An application for registration as a trade repository shall contain the following policies and procedures:

(a) a copy of the remuneration policy for the senior management, board members and the staff employed in risk and control functions of the applicant;

(b) a description of the measures put in place by the applicant to mitigate the risk of over-reliance on any individual employees.

Article 11

Fitness and properness

An application for registration as a trade repository shall contain the following information about the applicant's staff:

(a) a general list of the staff directly employed by the trade repository, including their role and qualifications per role;

(b) a specific description of the information technology staff directly employed to provide trade repository services, together with the role and the qualifications of each individual;

(c) a description of the roles and qualifications of each individual who is responsible for internal audit, internal controls, compliance and risk assessment;

(d) the identity of the dedicated staff members and those members of the staff that are operating under an outsourcing arrangement;

(e) details of the training on the applicant's policies and procedures as well as the trade repository business, including any examination or other type of formal assessment required for staff regarding the conduct of trade repository activities.

The description referred to in point (b) shall include written evidence of the academic diploma and experience in information technology of at least one senior staff member responsible for IT matters.;

SECTION 5

Financial resources for the performance of the trade repository

Article 12

Financial reports and business plans

An application for registration as a trade repository shall contain the following financial and business information about the applicant:

(a) a complete set of financial statements, prepared in conformity with international standards adopted in accordance with Article 3 of Regulation (EC) No 1606/2002 of the European Parliament and of the Council (¹);

(b) where the financial statements of the applicant are subject to statutory audit within the meaning given in Article 2(1) of the Directive 2006/43/EC of the European Parliament and of the Council (²), the financial reports shall include the audit report on the annual and consolidated financial statements;

(c) if the applicant is audited, the name and the national registration number of the external auditor.

An application for registration as a trade repository shall contain a financial business plan contemplating different business scenarios for the trade repository services over a minimum three years' reference period and including the following additional information:

(a) the expected level of reporting activity in number of transactions;

(b) the relevant fixed and variable costs identified with respect to the provision of repository services under Regulation (EU) No 648/2012;

(c) positive and negative variations of at least 20 % from the base activity scenario identified.

Where the historical financial information referred to in paragraph 1 is not available, an application for registration as a trade repository shall contain the following information about the applicant:

(a) the pro-forma statement demonstrating proper resources and expected business status in six months after registration is granted;

(b) an interim financial report where the financial statements are not yet available for the requested period of time;

(c) a statement of financial position, such as a balance sheet, income statement, changes in equity and of cash flows and notes comprising a summary of accounting policies and other explanatory notes.

An application for registration as a trade repository shall also contain the following financial information about the applicant:

(a) an indication of any future plans for the establishment of subsidiaries and their location;

(b) a description of the business activities which the applicant plans to carry out, specifying the activities of any subsidiaries or branches.

SECTION 6

Conflicts of interest

Article 13

Management of conflicts of interest

An application for registration as a trade repository shall contain the following information on the policies and procedures to manage conflicts of interest put in place by the applicant:

(a) policies and procedures with respect to the identification, management and disclosure of conflicts of interest and a description of the process used to ensure that the relevant persons are aware of the policies and procedures;

(b) any other measures and controls put in place to ensure the requirements referred to in point (a) on conflicts of interest management are met.

Article 14

Confidentiality

An application for registration as a trade repository shall contain the internal policies, procedures and mechanisms preventing any use of information maintained in the applicant trade repository:

(a) for illegitimate purposes;

(b) for disclosure of confidential information;

(c) not permitted for commercial use.

Article 15

Inventory and mitigation of conflicts of interest

SECTION 7

Resources and procedures

Article 16

Information Technology resources and outsourcing

An application for registration as a trade repository shall contain the following information relating to information technology resources:

(a) a detailed description of the information technology system including the relevant business requirements, functional and technical specifications, system architectural and technical design, data model and data flows, and operations and administrative procedures and manuals;

(b) user facilities developed by the applicant in order to provide services to the relevant users, including a copy of any user manual and internal procedures;

(c) the investment and renewal policies on information technology resources of the applicant;

(d) the outsourcing arrangements entered into by the applicant, including: (i) detailed definitions of the services to be provided, including measurable scope of those services, the granularity of the activities as well as conditions under which those activities are rendered, and their timelines; (ii) service level agreements with clear roles and responsibilities, metrics and targets for every key requirement of the trade repository that is outsourced, the methods employed to monitor the service level of the outsourced functions and the measures or actions to be taken in the event of not meeting service level targets; (iii) a copy of the contracts governing such arrangements.

Article 17

Ancillary services

Where an applicant, an undertaking within its group, or an undertaking with which the applicant has an agreement relating to trading or post-trading service offers, or plans to offer any ancillary services, its application for registration as a trade repository shall contain the following information:

(a) a description of the ancillary services that the applicant, or the undertaking within its group, performs and a description of any agreement that the trade repository may have with companies offering trading, post-trading, or other related services, as well as copies of such agreements;

(b) the procedures and policies that ensure the necessary degree of operational separation in terms of resources, systems and procedures, between the applicant's trade repository services under Regulation (EU) No 648/2012 and other business lines, including those business lines that comprise the provision of services under Union or third country legislation, irrespective of whether that separate business line is run by the trade repository, a company belonging to its holding company, or any other company within which it has an agreement in the context of the trading or post-trading chain or business line.

SECTION 8

Access rules

Article 18

Transparency of access rules

An application for registration as a trade repository shall contain the following information:

(a) the policies and procedures pursuant to which the different types of users report and access the data in a trade repository, including any process that the relevant users may need to access, consult, or modify the information maintained by the trade repository;

(b) a copy of the terms and conditions which determine the rights and obligations of the different types of users in relation to the information maintained by the trade repository;

(c) a description of the different categories of access available to users;

(d) the access policies and procedures pursuant to which other service providers may have non-discriminatory access to information maintained by the trade repository where the relevant counterparties have provided their written, voluntary and revocable consent;

(e) a description of the channels and mechanisms used by the trade repository to publicly disclose information on the access to that trade repository.

The information referred to in points (a), (b) and (c) of paragraph 1 shall be specified for the following types of users:

(a) internal users;

(b) reporting counterparties;

(c) report submitting entities;

(d) entities responsible for reporting;

(e) non-reporting counterparties;

(f) non-reporting third parties;

(g) entities listed in Article 81(3) of Regulation (EU) No 648/2012;

(h) other types of users, where applicable.

Article 19

Verification of completeness and correctness of data

An application for registration as a trade repository shall contain the following information: