What is Act No. 139 / 2011 Coll.?

Act No. 139 / 2011 Coll., amending Act No. 284 / 2009 Coll., on Payment, as amended by Act No. 156 / 2010 Coll., and certain other laws — Act amending Act No. 284 / 2009 Coll., on Payment, as amended by Act No. 156 / 2010 Coll., and certain other laws.

When it became Act No. 139 / 2011 Coll. effectiveness?

Act No. 139 / 2011 Coll. became effective 27.05.2011.

Is Act No. 139 / 2011 Coll. still valid?

Yes, Act No. 139 / 2011 Coll. is still valid and effective.

Act No. 139 / 2011 Coll. - Act amending Act No. 284 / 2009 Coll., o...

139

THE LAW

of 27 April 2011

amending Act No. 284 / 2009 Coll., on Payment, as amended by Act No. 156 / 2010 Coll., and certain other laws

Parliament has decided on this law of the Czech Republic:

ČÁST DRUHÁ

Amendment to the Capital Market Enterprise Act

Čl. IV

Act No. 256 / 2004 Coll., on business on capital market, as amended by Act No. 635 / 2004 Coll., Act No. 179 / 2005 Coll., Act No. 377 / 2005 Coll., Act No. 56 / 2006 Coll., Act No. 57 / 2006 Coll., Act No. 62 / 2006 Coll., Act No. 70 / 2006 Coll., Act No. 159 / 2006 Coll., Act No. 120 / 2007 Coll., Act No. 420 / 2009 Coll., Act No. 296 / 2007 Coll., Act No. 29 / 2008 Coll., Act No. 223 / 2009 Coll.

1. In footnote 1, at the end of the second separate line, the words "as amended by Directive 2009 / 44 / EC of the European Parliament and of the Council 'are added.

2. At the end of footnote 1, the words "Directive 2009 / 44 / EC of the European Parliament and of the Council of 6 May 2009 amending Directive 98 / 26 / EC on settlement finality in payment and securities settlement systems and Directive 2002 / 47 / EC on financial collateral arrangements with regard to linked systems and credit claims are added to the separate line. '

3. in Article 2a (1) (a), the words "and electronic money institutions" shall be deleted;

4. in Sections 8, 124 (5) and 126 (5), the words "electronic money institution," shall be deleted;

5. in Article 10d (3) (b), the words "electronic money institutions" shall be deleted;

6. Part seven, including the title and footnotes 30 and 31, reads as follows:

„ČÁST SEDMÁ

SETTLEMENT SYSTEM

HLAVA I

BASIC PROVISIONS

§ 82

Settlement system with settlement finality

(1) A settlement system with irrevocability is a system,

(a) which has at least three participants referred to in § 84 (1) (a) to (g);

(b) settling [Paragraph 83 (a)] on the basis of the rules laid down;

(c) whose participants, at least one of which has its head office or head office in the Czech Republic, have agreed that the legal relations between them are governed by Czech law when carrying out the settlement; and

(d) the existence of which the Czech National Bank has notified the European Commission pursuant to § 90g (1) or (2).

(2) A foreign settlement system with an irrevocability of settlement is a settlement system the existence of which has been notified to the European Commission by the competent authority of another Member State pursuant to a European Union law governing the irrevocability of settlement in securities settlement systems (30).

(3) A settlement system with irrevocability of settlement and participation in such a system shall be established by contract.

§ 83

Definition of certain terms

For the purposes of this Act:

(a) settlement

1. netting of reciprocal claims on transactions in investment vehicles; or

2. the execution of mutual debt from transactions in investment vehicles by transfer of investment vehicles or funds;

(b) a settlement instruction by a settlement participant or a participant or an operator of a settlement system linked pursuant to Article 89 on the basis of which settlement is to be settled in accordance with settlement system rules with settlement finality (hereinafter referred to as "system rules");

(c) by a CCP, the person entering the settlement process between settlement system participants with irrevocability of settlement referred to in Article 84 (1) (a) to (g) or (m) as their sole counterparty;

(d) the settlement agent the person who holds for the settlement system participants with irrevocability referred to in § 84 (1) (a) to (g), (i) or (m) of the settlement account;

(e) by a clearing institution, the person who carries out the settlement by offsetting the mutual claims of participants in the settlement system with the irrevocability referred to in Article 84 (1) (a) to (g), (i), (j) or (m);

(f) the operating day by system rules, a regular period of time during which the settlement system with irrevocability receives and implements settlement instructions and other settlement operations related to such settlement.

§ 84

Settlement system participant with settlement finality

(1) A participant in a settlement system with settlement finality may only:

(a) the bank;

(b) savings and credit cooperatives;

(c) securities dealer,

(d) a foreign person whose business is in line with the activities of one of the persons referred to in (a) to (c);

(e) a legal person governed by public law or by a legal person whose entire obligations are guaranteed by public law;

(f) the Czech National Bank, the Foreign Central Bank or the European Central Bank,

(g) a legal person with a special status which is excluded from the scope of the European Union Regulation governing the taking up and pursuit of the business of credit institutions and its performance 31),

(h) settlement system operator with settlement finality (§ 90);

(i) a CCP;

(j) the settlement agent,

(k) clearing house,

(l) a person who carries out a similar activity to one of the persons referred to in points (h) to (k) in a settlement finality payment system, in a foreign settlement system with a settlement finality or in a foreign payment system with a settlement finality; or

(m) a person not referred to in points (a) to (l) for whom it is appropriate taking into account the degree of systemic risk arising from the scope of his activity.

(2) The activities of a CCP, settlement agent or clearing house may also be carried out by several participants in a settlement system with irrevocability.

HLAVA II

OPERATIONS OF THE ORDER SYSTEM WITH THE NON-DESIGNABLE ORDER

System rules

§ 85

(1) The settlement system operator with settlement finality shall establish the system rules.

(2) The rules of the system shall at least govern:

(a) the trading firm or the name, registered office and identification number, if any, of the settlement system operator with irrevocability;

(b) the terms and conditions of participation in a settlement system with settlement finality, which must be transparent and shall include objective criteria for access to a settlement system with settlement finality; persons with their registered office or place of business in another Member State of the European Union may not be disadvantaged for reasons other than economic reasons;

(c) the rights and obligations of participants in a settlement system with irrevocability resulting from their participation in that system;

(d) the manner and conditions in which obligations arising from participating in a settlement system with irrevocability of settlement are secured;

(e) the manner and conditions of settlement, including the determination of the procedure for correcting errors incurred during settlement;

(f) the formalities for the settlement order, the manner and conditions of its entry into the settlement system with irrevocability;

(g) the data provided by the settlement system participant with irrevocability to the settlement system operator with irrevocability to discharge its obligations and the manner in which they are provided;

(h) the measures that a settlement system operator with irrevocability may apply to a settlement system participant with irrevocability and the procedure for their application;

(i) the timetable for settlement, including the schedule of the different phases in which settlement takes place;

(j) the definition of the operating day;

(k) the moment at which the settlement instruction is considered accepted by a settlement system with irrevocability;

(l) the moment at which a settlement order entered into a settlement system with a settlement finality is considered unilaterally irrevocable and the technical conditions for ensuring its irrevocability;

(m) the investment instruments and the currency in which the settlement is made; and

(n) rules on access to risks which include at least:

1. the risks to which a settlement system with irrevocability of settlement is or may be exposed, including systemic risk, operational risk, liquidity and credit risk;

2. risk recognition, evaluation, measurement, monitoring and reporting procedures; and

3. procedures for taking measures to reduce risks, including the establishment of appropriate conditions for participating in a settlement system with irrevocability.

§ 86

(1) The operator and other settlement system participants with settlement finality comply with the system rules.

(2) The system rules in the current version shall be published in a way that allows remote access and shall be open to public consultation at the settlement system operator's headquarters with irrevocability in its official hours. Where a settlement system operator with irrevocability establishes an establishment, the rules of the system for consultation shall also be in that establishment.

§ 87

Amendment of system rules

(1) The change in system rules takes effect at the time of publication unless the settlement system operator determines a later time of effectiveness with a settlement finality. The change of system rules cannot be published until the Czech National Bank has given its consent to this change.

(2) Only the settlement system operator with irrevocability shall be a participant in the process of granting consent to change the system rules. If the Czech National Bank has not taken a decision on a request for approval to amend the rules of the system within 1 month of the date on which the request was received, the consent shall be granted.

Irrevocability of settlement instructions

§ 88

(1) From the moment set out in the system rules, the settlement order cannot be unilaterally withdrawn.

(2) Decisions on bankruptcy or decision or other intervention by a public authority to stop or limit settlement, to exclude or restrict the use of investment instruments or funds in the settlement account or to exclude or restrict the exercise of the right of satisfaction from collateral shall not affect:

(a) the validity, effectiveness or enforceability of a settlement order if that order has been accepted by a settlement system with irrevocability before or before the execution of this decision;

(b) the possibility of using investment vehicles or funds on the settlement finality account of a settlement participant to meet the obligations arising from the settlement system with settlement finality or in a system linked to the settlement system referred to in Article 89 if the investment instruments or funds are so used during the operating day during which the decision was made or the intervention took place; and

(c) the validity, effectiveness or enforceability of the right to satisfaction provided to the participant or settlement system operator with irrevocability of settlement or system linked pursuant to § 89.

(3) The effects of a decision on bankruptcy or a decision or other intervention by a public authority pursuant to paragraph 2 (a) shall be excluded even if the settlement order has been accepted by a settlement system with irrevocability of settlement after the decision has been issued or the intervention has been carried out if:

(a) settlement is carried out during the operating day during which this decision was taken or the intervention took place; and

(b) the settlement system operator with irrevocability has not been notified or otherwise known at the time when the settlement order became irrevocable pursuant to paragraph 1, the issuance of this decision or the execution of such intervention; the fact that the bankruptcy decision was published in the insolvency register does not in itself mean that the decision was known or should have been known to the settlement system operator with a settlement finality.

(4) A decision on bankruptcy or a decision or other intervention by a public authority pursuant to paragraph 2 shall not have retroactive effects on the rights and obligations arising from a settlement system with a settlement finality or a system linked pursuant to Paragraph 89 before or prior to the execution of that decision.

System interconnection

§ 89

(1) Where a settlement system operator with irrevocability concludes a settlement agreement on the interconnection of systems with another settlement system operator with irrevocability, a settlement system with irrevocability, a foreign settlement system with irrevocability of settlement or a foreign payment system with irrevocability of settlement allowing the mutual execution of settlement instructions, a new settlement system with irrevocability of settlement is not set up.

(2) Where possible, the settlement system operator with irrevocability shall ensure that the system rules and system rules linked pursuant to paragraph 1 are coordinated with regard to the moment at which the settlement order is considered unilaterally irrevocable and the moment at which such an order is deemed to be adopted by the system. Unless otherwise assessed by the parties in the contract referred to in paragraph 1, the rules of the interconnected systems shall apply in respect of these moments, independently of each other.

HLAVA III

OPERATOR OF THE MANAGEMENT SYSTEM WITH THE NON-DESIGNABLE ORDER

§ 90

(1) The settlement system operator with settlement finality is a legal person authorised to operate a settlement system with settlement finality on the basis of a settlement system permit with settlement finality granted by the Czech National Bank.

(2) The settlement system operator with settlement finality may also provide the investment service referred to in Article 4 (3) (a) for its participants, if it has this in the settlement system authorisation.

(3) The settlement system operator with settlement finality shall operate a settlement system with professional custody irrevocability.

(4) Cash or investment instruments that have been entrusted to the settlement system operator with irrevocability by administration or as collateral of a liability arising from the settled transaction in investment instruments are not part of the assets of the settlement system operator. The settlement system operator shall account for the assets of the third parties in its possession separately from its assets.

Authorisation to operate a settlement system with settlement finality

§ 90a

(1) The Czech National Bank grants permission to operate a settlement system with irrevocability of settlement to the applicant,

(a) which is a limited liability company or limited liability company;

(b) which has its registered office and its head office in the Czech Republic;

(c) which has an initial capital of at least EUR 730 000;

(d) whose initial capital is of transparent and safe origin;

(e) submit a business plan based on real economic calculations;

(f) whose substantive, technical, personnel and organisational assumptions are appropriate for the proper and prudent operation of the settlement system with irrevocable settlement;

(g) where any business consisting of activities other than the operation of a settlement system with irrevocability of settlement does not pose a material threat to the financial stability of the settlement system operator with irrevocability of settlement or cannot prevent the effective exercise of supervision over the activities of the settlement system operator with irrevocability of settlement;

(h) in which a qualified participant is held by persons suitable for the proper and prudent management of the settlement system operator with irrevocability;

(i) whose close links with another person do not prevent the effective exercise of supervision over the activities of the settlement system operator with irrevocability; in the case of close links with a person governed by the rule of law of a State other than a Member State, that legal order or the manner in which it is applied shall not prevent the effective exercise of supervision of the activities of the settlement system operator with irrevocable settlement;

(j) whose managers are trustworthy;

(k) the managers of which are actually managing the settlement system business with irrevocability are competent and have sufficient experience in terms of sound and prudent operation of the settlement system with irrevocability; and

(l) which has submitted system rules that are appropriate for the proper and prudent operation of a settlement system with irrevocability and systemic risk.

(2) The Czech National Bank will grant permission to operate a settlement system with irrevocability of settlement and to the applicant who:

(a) is a legal person;

(b) it has its registered office and its head office in another Member State of the European Union;

(c) it is entitled to operate a system similar to a settlement system with an irrevocability of settlement in which legal relationships between the participants of the settlement system are governed by the law of another Member State of the European Union; and

(d) submit system rules that are appropriate for the proper and prudent operation of a settlement system with irrevocability and systemic risk.

(3) An application for authorisation to operate a settlement system with irrevocability may be made only on a prescribed form to which the applicant shall attach evidence certifying compliance with the conditions referred to in paragraph 1 or 2. The model of the form and its annexes shall be laid down in the implementing legislation.

§ 90b

(1) The Czech National Bank shall decide on the application for authorisation to operate a settlement system with irrevocability within 6 months of its receipt.

(2) In the decision to grant permission to operate a settlement system with irrevocability, the Czech National Bank will approve the system rules.

(3) In the decision to grant permission to operate a settlement system with irrevocability, the Czech National Bank may determine the conditions to be met by the settlement system operator prior to the start of the business or to be observed in the performance of its business.

(4) The settlement system operator with irrevocability shall notify the Czech National Bank without undue delay of any change to the data specified in the application for authorisation to operate the settlement system with irrevocability or its annexes on the basis of which the permit to operate was granted.

HLAVA IV

INFORMATION OBLIGATIONS OF THE OPERATOR AND PARTICIPANTS OF THE EQUIPMENT SYSTEM

§ 90c

(1) The settlement system operator shall inform the Czech National Bank without undue delay of:

(a) the trading firm or the name or name and surname of the participants in the settlement system with irrevocability of settlement, of their head office, place of business or residence, of their identification number, if assigned, and, in the case of natural persons, of the date of their birth and of their birth, of their birth, of their birth, of their birth, of their birth, of their birth, of their place of residence or residence, and of the change of such data; and

(b) a proposal for a decision to cancel it with or without liquidation or to change its subject matter; it shall also inform the competent authority of the settlement system operator of the adoption of such a decision with an irrevocability of settlement.

(2) A participant in a settlement system with a settlement finality without undue delay shall inform the settlement system operator with a settlement finality of the data within the scope of paragraph 1 (a).

(3) The settlement system operator with irrevocability shall without delay inform settlement system participants with irrevocability of settlement and system operator linked pursuant to § 89 on notification pursuant to § 90g (4).

(4) The settlement system operator with irrevocability of settlement sends the Czech National Bank the information and supporting documents necessary for the supervision of its financial situation, the results of its management and the fulfilment of the conditions for its performance. The time limits for sending information and supporting documents, details of their content, form and method of transmission shall be laid down in the implementing legislation.

(5) The settlement system operator with irrevocability of settlement with its head office in another Member State of the European Union is obliged to provide the Czech National Bank with the necessary information and explanations for the purpose of assessing the fulfilment of the conditions of performance of its business.

§ 90d

A participant in a settlement system with an irrevocability of settlement shall, upon request, inform the person who certifies the legal interest, the settlement system with an irrevocable settlement system in which it participates and its rules.

§ 90e

A participant in a foreign settlement system with an irrevocability of settlement which has its registered office or place of business in the Czech Republic,

(a) inform, upon request, the person who certifies the legal interest in this system and its rules; and

(b) without undue delay, inform the Czech National Bank of its participation in the scheme, of the Member State of the European Union which has notified the existence of the scheme to the European Commission, of the address of its registered office or place of business and of the change of that fact.

HLAVA V

NOTIFICATION OBLIGATIONS OF THE PUBLIC AUTHORITIES

§ 90f

Notification obligation for the court and other public authorities

The court or other public authority which has carried out the intervention shall inform the Czech National Bank of the decision of bankruptcy or of any other intervention by a public authority pursuant to Paragraph 88 (2) against a participant in a settlement system with irrevocability of settlement without undue delay. The court or other public authority shall also inform the Czech National Bank where such decisions have been taken or have taken similar actions against a participant in a foreign settlement system with irrevocability of settlement which has its registered office or place of business in the Czech Republic.

§ 90g

Notification obligations of the Czech National Bank

(1) The Czech National Bank shall notify the European Commission, without undue delay, of the existence of a settlement system with irrevocability, the operator of which has granted permission to operate a settlement system with irrevocability. In the notification, the Czech National Bank shall indicate the settlement system operator with irrevocability. If changes are made to this notification, the Czech National Bank shall inform the European Commission without undue delay. If the authorisation to operate the settlement system with settlement finality has been withdrawn, the Czech National Bank shall notify the European Commission of the disappearance of the settlement system with irrevocability of settlement without undue delay after the settlement has been completed on the basis of orders received prior to the date of withdrawal of the authorisation.

(2) The Czech National Bank may notify the European Commission of the existence of a securities settlement system which it operates under a law governing the status and competence of the Czech National Bank, provided that the system fulfils the conditions set out in § 82 (1) (a) to (c). In the notification, the Czech National Bank will state that it is an operator of this system. For this system and for the Czech National Bank in the performance of the activities of its operator, the second sentence of Paragraph 87 (1) and (2), Sections 90a, 90b, § 90c (1) and paragraph 4 shall not apply. The Czech National Bank shall withdraw the notification under the first sentence without undue delay if the system no longer fulfils the conditions set out in § 82 (1) (a), (b) or (c).

(3) If the Czech National Bank receives a notification pursuant to Paragraph 90f concerning a participant in a foreign settlement system with an irrevocability of settlement having its registered office or place of business in the Czech Republic, it shall immediately notify the competent authority of the Member State of the European Union which notified the European Commission of the existence of that system.

(4) If the Czech National Bank receives a notification pursuant to Paragraph 90f or a similar notification from an authority of a Member State of the European Union concerning a settlement participant with settlement finality, it shall notify the settlement finality operator without delay.

30) Article 10 of Directive 98 / 26 / EC of the European Parliament and of the Council.

31) Article 2 of Directive 2006 / 48 / EC of the European Parliament and of the Council, as amended by Commission Directives 2007 / 18 / EC and 2010 / 16 / EU. '

7. In Section 100 (1) (c), the words "where the provisions of Section 82 (4) to (8), Section 83 (7) to (14), Section 86 to 88 apply mutatis mutandis' are replaced by the words" where a CSD operates a settlement system with irrevocability, it shall be considered as an operator of a settlement system with irrevocability '.

8. in § 135 (1) (j) to (l):

"(j) the settlement system operator with irrevocability (§ 90), which has its registered office in the Czech Republic,

(k) a settlement system participant with an irrevocability (Section 84) that is not an operator of that system;

(l) a participant in a foreign settlement system with an irrevocability of settlement which has its registered office or place of business in the Czech Republic (§ 90e), "

9. In Paragraph 138 (1), the words "with irrevocability of settlement with head office in the Czech Republic" shall be inserted after the word "system."

10. In Article 138 (2), the words "with irrevocability of settlement with head office in the Czech Republic" shall be inserted after the word "system."

11. in Paragraph 145, the following paragraph 4 is inserted after paragraph 3:

"(4) He who has been withdrawn from the authorisation to operate a settlement system with irrevocability shall notify the participants of that settlement system without undue delay. Pending the completion of the settlement on the basis of settlement instructions received before the date of withdrawal of the authorisation, it shall continue to be considered as an operator of the settlement system with irrevocable settlement. ';

Paragraphs 4 to 8 shall be renumbered paragraphs 5 to 9.

12. in Article 158 (1) (c), the word "or" shall be deleted;

13. In Paragraph 158, at the end of paragraph 1, the dot is replaced by a comma and the following points (e) to (i) are added:

"(e) infringes the organisational requirements laid down in Paragraph 48 or one of them;

(f) fails to comply with the information obligation under Paragraph 50;

(g) shall not allow participants in a regulated market to choose another settlement system pursuant to Paragraph 51 (1);

h) infringes the restriction or prohibition of the Czech National Bank pursuant to § 52; or

(i) fails to fulfil any of the obligations under Paragraph 67 or 68. ';

14.

„§ 160

Administrative offences of the operator and settlement system participant with settlement finality

(1) An operator of a settlement system with irrevocability shall commit an administrative offence by:

a) in contravention of § 87 (1), publish an amendment to the system rules without the approval of the Czech National Bank;

(b) not to notify a change in the data referred to in Paragraph 90b (4); or

(c) fails to comply with the information obligation under Paragraph 90c (1).

(2) The settlement system operator with irrevocability of settlement located in the Czech Republic commits an administrative offence by:

(a) operate a settlement system with irrevocability of settlement contrary to Paragraph 90 (3);

(b) fails to comply with the information obligation under Paragraph 90c (3); or

(c) fails to comply with the notification requirement under Paragraph 145 (4).

(3) A participant in a settlement system with irrevocability of settlement shall commit an administrative offence by failing to comply with an information obligation under Article 90c (2) or Article 90d.

Citation	Act No. 139 / 2011 Coll., amending Act No. 284 / 2009 Coll., on Payment, as amended by Act No. 156 / 2010 Coll., and certain other laws
Regulation Type	-
Author	-
Collection	Code of Laws

Date of Promulgation	27.05.2011
Effective from	27.05.2011
Effective until	-
Status	Valid

Act No. 139 / 2011 Coll.

Act amending Act No. 284 / 2009 Coll., on Payment, as amended by Act No. 156 / 2010 Coll., and certain other laws

Contents