Decree No. 268 / 2004 Coll.
Order on the formalities and annexes of the application pursuant to Act No. 256 / 2004 Coll., on the Capital Market Business
Valid
Order
Effective from 01.05.2004
Text versions:
01.05.2004
30.04.2004
Contents
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268
DECLARATION
of 7 April 2004
on the formalities and annexes of applications pursuant to Act No. 256 / 2004 Coll., on the Capital Market Business
According to Section 199 (2) (a) in conjunction with § 7, § 10 (4), § 11 (4), § 14 (4), § 19 (2), § 20 (2), § 28 (3), § 30 (7), § 45 (2), § 57 (2), § 61 (2), § 62 (2), § 74 (2), § 78 (2), § 79 (2), § 83 (4), § 85 (2), § 103 (3), § 106 (2), § 107 (2) and § 198 (3) of Act No 256 / 2004 Coll., on the capital market business (hereinafter "the Act '):
BASIC PROVISIONS
Subject matter
This decree regulates the particulars and annexes of the requests referred to in Section 199 (2) (a) of the Act.
Definition of terms
(1) For the purposes of this decree, evidence of the educational attainment shall be understood as a university diploma, together with a certificate of state examination, a certificate of discharge, a diploma of graduate of higher education, a diploma of graduation or another similar document issued by the competent educational institution in the Czech Republic, a certificate of recognition of education or part thereof in the Czech Republic issued under a special legislation, 1) or other written evidence which is credible
(a) the name and type or type of educational institution (university, non-university, higher education, etc.),
(b) the proper completion of the study programme;
(c) the duration of the study programme; and
(d) the content of the study programme.
(2) For the purposes of this decree, documents for assessing the credibility of a person:
(a) an extract from the Register of Penalties which is not more than 3 months old. A foreign natural person shall also submit a document of a similar nature issued by a competent authority in the State of residence, in the State of which he is a national citizen, unless he is the same as the State of permanent residence, as well as in the countries in which he has been continuously resident for more than 6 months in the last five years; If the documents are not issued by the competent State, the foreign natural person shall replace them with an honest declaration of his integrity within the meaning of the Commercial Business Act, 2)
(b) a document from the tax office, (3) which is not more than 3 months old, stating that the person under assessment does not have tax arrears against the territorial tax authorities of the State;
(c) copies of documents on:
1. the opening of criminal proceedings against the person under consideration;
2. the opening of an administrative, criminal or similar procedure against the person under consideration, provided that a financial penalty of at least CZK 20,000 or an activity ban can be imposed for the infringement of the legal obligation for which the proceedings are conducted; and
3. the opening of civil proceedings or arbitration proceedings against the person under consideration in the last 5 years in respect of his or her financial market activity or may seriously jeopardise the financial situation of the person concerned;
where appropriate, a copy of the decision in a case accompanied by a document stating the acquisition of legal authority issued in the proceedings referred to in points 1, 2 or 3; or an affidavit of the person under consideration stating that it is not known that it is with or has been conducted;
(d) a copy of the decisions by which the court or administrative authority refused to grant consent to the choice, appointment or provision of the person under consideration for reasons relating to its credibility, where such choice, appointment or provision necessarily requires such consent or has withdrawn such consent; or an affidavit stating that the court or administrative authority has not refused to consent to the choice, appointment or provision of the person under consideration for reasons relating to its credibility,
(e) where, in the last 10 years, the property of the person under consideration has been declared bankrupt, the bankruptcy, the settlement allowed, the compulsory settlement confirmed or the application for bankruptcy for the property of the person under assessment has been rejected, including copies of the corresponding decisions, or an affidavit stating that such a fact has not occurred; This also applies to a legal person whose statutory body or supervisory body is, or has been, an assessed person, unless the legal effects of the decision occurred prior to the establishment of the function of the person under consideration in that legal person,
(f) a copy of the decision to suspend or withdraw the authorisation of the person under consideration to carry out business activities on grounds relating to its credibility; or an affidavit stating that the person under consideration has not been suspended or revoked for reasons relating to his or her credibility;
(g) a copy of the decision to exclude the person under consideration from the professional association, chamber or association, including abroad, to reject the application for admission of the person under consideration to such a community and to impose disciplinary penalties within such a community, if it has been issued in the last 10 years and is related to the activities of the person under consideration in the financial market; or an affidavit stating that such a fact has not occurred,
(h) an affidavit by the person under consideration that it has not been limited to its legal capacity; and
(i) information on other facts which may affect the assessment of the person under consideration in terms of his / her credibility and the documents available to him / her.
(3) Where the person under consideration is a foreign person, for the purposes of this Order, the evidence of credibility, other than the documents referred to in paragraph 2, shall also mean the confirmation by the competent authority of the financial market surveillance in the State of residence or residence of that person that no administrative proceedings have been conducted against him for serious or repeated infringements of the law. The certificate shall also apply to legal persons in which the natural person assessed is, or has been, a statutory body or a member of a statutory or supervisory body, except where administrative proceedings have been conducted for acts which have taken place prior to the establishment of the function of the person under consideration. If the certificate referred to in the first and second sentences cannot be obtained because the competent supervisory authority refuses to issue them, the person under assessment shall make a declaration on his own behalf. Where several authorities supervise the financial market in the State of residence or residence of the foreign person under consideration, the confirmation of the authority whose jurisdiction is closest to that of the Securities Commission ("the Commission ') as the supervisory authority of the capital market shall suffice.
(4) For the purposes of this decree, an extract from the Commercial Register in the case of a legal person established abroad shall be understood as a authentic instrument proving at least the existence of a legal person and its registration, legal form and name. Where that instrument does not contain an indication of the address of the registered office, statutory bodies or the manner in which a foreign legal person is acting, such an indication shall be supported by other evidence. Where the statutory body of a foreign legal person is another legal person, it is also necessary to provide evidence of an extract from the commercial register of the legal person which is the statutory body.
General provisions on particulars and annexes of applications
(1) The application shall be submitted in the Czech language and shall contain the procedural requirements laid down in the general rules on administrative procedure (4) and those laid down in this Decree.
(2) The application must always contain details of the applicant (5).
(3) Where the applicant is a legal person, the application shall also be accompanied by proof that the person to whom the applicant is acting in respect of the application is entitled to act on his behalf. Where the applicant is represented, the application shall also contain details of the person (5) of the representative and the application shall be accompanied by a document proving the authorised representative to act on behalf of the representative.
(4) The authenticity of the signature of the applicant by proxy or similar instrument, which shall be submitted as a document referred to in paragraph 3, shall be officially verified; that does not apply to the power of attorney.
(5) An official translation into the Czech language must be attached to the Annex in a language other than Czech or Slovak.
(6) The original documents or copies of which conformity with the original is officially verified shall be submitted as annexes to the application; This does not apply if this decree expressly states that a copy of the document is to be annexed to the application.
(7) A foreign authentic instrument must be accompanied by a higher verification of documents (superlegalized) or by an appendage in accordance with the relevant international agreement, (6) unless otherwise declared by the international treaty, which the Czech Republic is bound by. 7) This does not apply to a foreign public instrument issued by a foreign administration with which the Commission has concluded a cooperation agreement; the list of such authorities shall be published by the Commission in the Securities Commission Bulletin.
(8) Where the nature of the case precludes the submission of an annex to the application required by this Order, the applicant shall state that fact in the application and, if the reasons are not apparent, justify the failure to submit an annex and provide adequate evidence of the reasons.
(9) The applicant may refer, instead of submitting the prescribed Annex, to a supporting document submitted to the Commission in the last 3 years which complies with the requirements laid down in that Annex; the application must identify it accurately.
(10) The application shall contain a list of all the annexes, indicating which provision of this Order is covered by the Annex. If an annex consists of several documents, the list shall include a list of such documents.
(11) The application shall be accompanied by proof of payment of the administrative fee. 8)
TRADER WITH PRICE PAPERS AND MACHINE
Forms of application for authorisation to operate a securities dealer
(K § 7 of the Act)
The details of the application for authorisation to operate a securities dealer shall be:
(a) an indication of the amount of the applicant's capital and net assets;
(b) the indication of the main investment services and ancillary investment services for which the applicant applies for authorisation and the proposal in relation to which investment instruments the applicant will provide investment services; and
(c) an affidavit by the applicant stating that the information given in the application and its annexes are true, up to date and complete.
Annexes to the application for authorisation to operate a securities dealer
(K § 7 of the Act)
The application referred to in Article 4 shall be accompanied by:
(a) the company's founding documents of the applicant's company, as amended, and the expert's or experts' opinion on the valuation of the non-cash contribution when the company was set up;
(b) an extract from the commercial register of the applicant who is not more than 3 months old and copies of the applications for registration in the commercial register which were not completed at the date of the application;
(c) a copy of the authorisation by which the applicant who is a bank carries out the activities of the bank;
(d) proof of the applicant's origin of the capital and of its repayment; where equity capital is used other than own resources, the applicant shall also attach proof of the origin of the funds of the provider of such resources, unless that provider is a bank authorised to act as a bank, issued by the Office of the Member State of the Organisation for Economic Cooperation and Development,
(e) proof of entry of the applicant's shares;
(f) a list of shareholders and an indication of the number of own shares held by the applicant, indicating the date of their acquisition;
(g) a list of the applicant's managers with details of the applicant's managers, defining their functions, indicating the powers associated with that function and the annexes referred to in Article 8 for each lead; in the case of senior persons other than a member of the statutory body, the Executive Director or a public limited-liability agent, or the person to whom the powers of one of those persons have been delegated, the applicant shall attach a list of such persons, stating on the basis of which they are actually managing the trader and the annexes referred to in Articles 8 and 10 respectively, for each such person,
(h) a list of persons having qualified participation in the applicant, specifying the proportion or other form of participation in the applicant and the annexes referred to in Article 10 for each person having qualified participation in the applicant;
(i) a list of persons closely linked to the applicant, indicating the details of persons closely linked to the applicant and the manner in which the connection is made;
(j) the business plan of the securities dealer (applicant) in relation to individual investment services supported by real economic calculations, including a draft activity strategy;
(k) a description of the organisational and management structure of the applicant and the project of the organisational and management structure of the securities dealer, in which the applicant shall indicate at least:
1. the scope, responsibilities and responsibilities of the management staff, their substitutability and control for each activity; and
2. the activity of the various organisational units, the framework number and the working capacity of the individual staff members, their substitutability and the requirements for the qualification of such staff members;
(l) evidence of compliance with the staff requirements laid down in specific legislation, 9) including structured professional CVs of the persons under consideration, containing information on the educational and professional experience achieved,
(m) evidence of compliance with the factual assumptions referred to in Article 6;
(n) the list of investment intermediaries from which the applicant intends to take instructions on investment instruments or an honest declaration not to use the services of investment intermediaries;
(o) the list of persons to whom the applicant intends to transmit instructions concerning investment instruments;
(p) draft rules for the conduct of a securities dealer with customers within the meaning of special legislation9); and
(q) a proposal for rules on the prudent provision of investment services, including the internal rules of the securities dealer, within the meaning of a specific legislation. 9)
Substantial assumptions for the performance of the business of a securities dealer
(1) The applicant shall provide adequate evidence of compliance with the substantive conditions for the performance of his activities with respect to the scope of the services for which he applies for authorisation to operate a securities dealer, evidence of:
(a) technical and programming means for keeping the diary of the dealer's securities 10) and other registers, 9)
(b) ensuring a direct or intermediate link with regulated market operators;
(c) the provision of direct or intermediary links with the settlement agents of investment vehicles;
(d) systems for accounting and economic records,
(e) systems for communication with customers; and
(f) technical equipment.
(2) Evidence of technical and programming means for keeping a securities dealer's diary must demonstrate that the electronic information system
(a) allow the recording of all data recorded under the special legislation governing the keeping of the securities dealer's diary, 10)
(b) include all data registered under (a) in the output information;
(c) automatically records the time of entry of data registered in accordance with (a) together with the identification of the person who entered the data, the time of the change of such data together with the identification of the person who made the change and the time and manner of acquisition of the data output with the identification of the person acquiring the data output;
(d) allow the reproduction of data in paper form; and
(e) ensure, at the same time as the order for the execution of the transaction in the public market, that information is transmitted as to whether the transaction is for an own account for a securities dealer or as to a transaction for a customer, where the order is to be executed on a regulated market for investment instruments through a system managed by orders.
(3) If the applicant intends to provide its services via the Internet, it shall also provide evidence that:
(a) verification of identity (authentication) and customer access to the Internet address (URL address) will be ensured before each service is provided;
(b) the Internet address (URL address) shall be secured against unauthorised access;
(c) the publication of the update of the information at the website (URL address) will be kept secure; and
(d) compliance with market manipulation obligations shall be ensured where the trader's electronic information system allows the trader to transmit orders to the market without physical confirmation by the broker.
Forms of request for prior consent to the performance of the post of head of a securities dealer
(Paragraph 10 (4) of the Law)
The particulars of the request for prior consent to the performance of the post of head of a securities dealer shall be:
(a) details of the person of the securities dealer whose manager he is,
(b) an indication of the function to which the person to be chosen or appointed is to be considered; and
(c) an affidavit by the applicant stating that the information given in the application and its annexes are true, up to date and complete.
Annexes to the request for prior consent to the performance of the post of head of a securities dealer
(Paragraph 10 (4) of the Law)
The application referred to in Article 7 shall be accompanied by:
(a) the internal rules of the securities dealer governing the function to which the person is to be elected or appointed, including its intended competence and competence, unless prior consent to the choice or appointment as a member of the statutory authority of the securities dealer is requested. In the case of a lead person other than a member of a statutory body, the Executive Director or a public limited liability agent or the person to whom the powers of one of those persons have been delegated, the facts on the basis of which that person actually manages a securities dealer shall be indicated,
(b) a structured professional CV of the person under consideration containing information on educational and professional experience achieved with a description of the activities carried out and data on the performance of a separate business activity;
(c) evidence of the person under assessment of the educational attainment;
(d) documents or statements of honour of the person under consideration concerning professional experience;
(e) an overview of the legal persons in which the person under assessment acted as a statutory body or as a member of a statutory authority or as a member of a supervisory authority or where the person under examination has been engaged in a management activity other than that of a statutory authority or a member of a statutory body for the last 10 years;
(f) documents for assessing the credibility of the person under assessment;
(g) an affidavit by the person under consideration that he does not perform a function incompatible with the status of lead; and
(h) an affidavit by the person under consideration stating that no other activity of the person concerned shall prevent the proper performance of his duties.
Forms of request for approval to acquire participation in a non-bank dealer
(Paragraph 11 (4) of the Law)
The formalities for the request for approval to acquire participation in a non-bank securities dealer shall be:
(a) details of the person of the securities dealer in whom the qualifying participation takes place;
(b) details of the existing interest or other form of participation of the applicant in the securities dealer and of the proportion or other form of participation that the applicant intends to acquire in the securities dealer;
(c) details of the acquisition of an interest in a securities dealer where the applicant requests subsequent consent; and
(d) an affidavit by the applicant stating that the information given in the application and its annexes are true, up to date and complete.
Annexes to the request for approval to acquire an interest in a non-bank dealer
(Paragraph 11 (4) of the Law)
(1) The applicant shall add to the application referred to in Article 9:
(a) an extract from a commercial register which is not more than 3 months old and a copy of the applications for registration which have not been completed at the date of the application or an extract from a similar register with details of the applicant's person;
(b) details of persons closely linked to the applicant with a description of the relationship between the closely connected persons and the applicant;
(c) details of persons with whom the applicant is in conformity, 11)
(d) documents for assessing the applicant's credibility; If the applicant is a legal person, he shall also attach evidence to assess the credibility of the members of the statutory body of the applicant,
(e) an overview of the applicant's financial and other liabilities, the amount of which exceeds or may have an effect of 5% of the applicant's equity capital, indicating the counterparties, the amount of the liability, the date of the commitment, the duration of the liability and the maturity of the liability, including information on the delay in the performance of such liabilities;
(f) proof of origin of the means of acquisition of a qualifying holding; where non-own resources are used to acquire a qualifying holding, the applicant shall also attach proof of the origin of the funds of the provider of such resources, unless that provider is a bank authorised to act as a bank, issued by the Office of the Member State of the Organisation for Economic Cooperation and Development,
(g) details of the applicant's membership in professional associations, chambers or associations, including foreign associations;
(h) the accounts of the applicant for the last 3 years verified by the auditor and, where the applicant is part of the consolidation unit, the consolidated accounts of the auditor; if the applicant is a foreign person, documents equal to them,
(i) the plan and justification for the intended change in the qualifying holding in the securities dealer;
(j) the applicant's strategic intention for the business of the trader, in particular in relation to the existing business plan and the development plan of the trader;
(k) an affidavit by the applicant that he does not exercise rights relating to a qualifying holding in a securities dealer in the interests of another person;
(l) documents and statements of honour concerning other facts which may affect the assessment of the suitability of the applicant in terms of the fair and prudent management of the trader, where such facts are known to the applicant; and
(m) a statement that the applicant did not exercise the voting rights attached to securities acquired without the consent of the Commission and that it did not otherwise exercise a significant influence on the management of the securities dealer and a justification why the applicant did not request the Commission to give its prior consent.
(2) Where the applicant is a natural person, he shall, in addition to the documents provided for in paragraph 1, add to the application:
(a) a structured professional CV containing data on educational and professional experience achieved, describing the activities carried out and data on the performance of a separate business activity; and
(b) an overview of the current and previous membership of the person under consideration in the statutory and supervisory bodies of all legal entities over the last 10 years.
(3) Where the applicant is a legal person, he shall, in addition to the documents provided for in paragraph 1, add to the application:
(a) details of the applicant's business history;
(b) a detailed description of the applicant's current business activities; and
(c) an overview of the current and past membership of the members of the statutory and supervisory body of the applicant in the statutory and supervisory bodies of other legal entities over the last 10 years and of the data on the performance of the independent business of the members of the statutory and supervisory body of the applicant.
Forms of application for authorisation to act as agent
(Paragraph 14 (4) of the Act)
The details of the application for authorisation to act as a broker shall be:
(a) defining the type of professional specialisation of the broker;
(b) details of the brokerage test, the date of its execution and its category;
(c) an indication as to whether the applicant is seeking remission of the brokerage test; and
(d) an affidavit by the applicant stating that the information given in the application and its annexes are true, up to date and complete.
Annexes to the application for authorisation to act as broker
(Paragraph 14 (4) of the Act)
The application referred to in Article 11 shall be accompanied by:
(a) a certificate of performance of the brokerage test or, where the applicant, together with an application for authorisation to act as a broker, requests for the waiver of the brokerage test, provides proof of the composition of a similar test before a self-governing organisation operating in the capital market or proof of the composition of a similar test abroad, together with evidence of knowledge of the capital market legislation in the Czech Republic; and
(b) documents to assess its credibility.
Forms of application for authorisation to convert a securities dealer or to conclude a transfer, stop or lease agreement to the undertaking of the securities dealer
(Articles 19 (2) and 20 (2) of the Law)
The details of the application for authorisation for the merger of a securities dealer, which is not a bank, with another securities dealer, for the division of a securities dealer, which is not a bank, for the transfer of the assets of a securities dealer, which is not a bank, to its shareholders, for the transfer of the assets of another person to a securities dealer, which is not a bank, or for the conclusion of a contract for the transfer, cessation or lease of an undertaking or part of the undertaking of a securities dealer that is not a bank, shall be:
(a) details of persons involved in the conversion of a securities dealer, where appropriate, the transfer, rental or cessation of an undertaking or part of an undertaking of a securities dealer;
(b) a list of the managers of the companies involved in the conversion of the securities dealer, where applicable, the transfer, rental or cessation of the undertaking or part of the undertaking of the securities dealer, and details thereof;
(c) details of the amount and repayment of the applicant's capital, the number, amount and subject matter of the individual deposits to which the capital was subscribed, the number, nominal value, the form and form of the shares of all the companies involved in the conversion, or the participants in the transfer contract, or part of it or the lease or termination of the undertaking of the securities dealer; and
(d) an affidavit by the applicant stating that the information given in the application and its annexes are true, up to date and complete.
Annexes to the application for authorisation to convert a securities dealer or to conclude a contract to transfer, stop or rent an undertaking of a securities dealer
(Articles 19 (2) and 20 (2) of the Law)
The application referred to in Article 13 shall be accompanied, mutatis mutandis, by:
(a) a proposal for a merger agreement, a division agreement, a contract for the acquisition of the capital by the principal shareholder or a contract for the transfer, lease or termination of the undertaking or part thereof;
(b) joint reports of the boards or reports of the boards of the participating companies on the conversion and joint reports of the supervisory boards or reports of the supervisory boards of the participating companies on the review of the conversion;
(c) the board of directors of the company being acquired on the division and the supervisory board of the company being acquired on the review of the division;
(d) the division project;
(e) detailed information on the transformation of the securities dealer, where appropriate, the transfer, cessation or lease of the undertaking or part of the undertaking of the securities dealer, including in particular the intention of the applicant, changes to the business plan, timing, description of the effects on the provision of investment services, description of the integration of organisational units and individual employees into the new organisational structure and description of the transfer of competences;
(f) the interim accounts and the auditor's report on its verification, provided that the final accounts were drawn up on the date on which more than six months elapsed on the date on which the draft merger contract was drawn up;
(g) details of the summary of cases, rights and obligations entered in the accounts of the transferred, hired or stopped undertaking;
(h) a description of the groups of persons between whom close links arise as a result of the conversion and the legal successors of the persons involved in the conversion; and
(i) an overview of the changes in the facts referred to in Sections 4 and 5 resulting from the transformation and the annexes referred to in Section 5 in the light of the changed facts.
Forms of application for authorisation to provide investment services through the external organisational body
(Paragraph 28 (3) of the Law)
The details of the application for authorisation to provide investment services through the organisational body shall be:
(a) details of the amount of capital and net assets of a foreign person;
(b) the indication of the main investment services and ancillary investment services for which the applicant applies for authorisation, indicating, in relation to which investment vehicles the investment service organisation shall provide and the details of any other business of the investment service;
(c) information on how investment services are regulated in the State where the applicant has its registered office, including rules which may have a significant impact on the level of investor protection;
(d) an indication of the amount of funds secured by the applicant's organisational component;
(e) an indication of the management body and a reference to a request from the Commission to give consent to the performance of the management body of the applicant; and
(f) an affidavit by the applicant stating that the information given in the application and its annexes are true, up to date and complete.
Annexes to the application for authorisation to provide investment services through the organisational component
(Paragraph 28 (3) of the Law)
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Regulation Information
| Citation | Decree No. 268 / 2004 Coll., on the formalities and annexes of the application pursuant to Act No. 256 / 2004 Coll., on the Capital Market Business |
|---|---|
| Regulation Type | Order |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 30.04.2004 |
|---|---|
| Effective from | 01.05.2004 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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