Decree No. 309 / 2017 Coll.
Order on applications and notifications under the Capital Market Enterprise Act
Valid
Order
Effective from 03.01.2018
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309
DECLARATION
of 11 September 2017
on applications and notifications under the Capital Market Enterprise Act
Pursuant to Article 199 (2) of Act No. 256 / 2004 Coll., on Capital Market Enterprise, as amended by Act No. 296 / 2007 Coll., Act No. 230 / 2008 Coll., Act No. 139 / 2011 Coll., Act No. 188 / 2011 Coll., Act No. 241 / 2013 Coll. and Act No. 204 / 2017 Coll., to implement § 7 (5), § 14h (c) to (e), § 19 (4), § 20 (4), § 28a (4), § 30a (3), § 38 (4), § 39 (7), § 45 (4), § 47 (2), § 90a (5), § 192b (4) and § 198 (5):
Subject matter
(1) This Decree provides
(a) details of the application for
1. authorisation to act as investment intermediary;
2. authorisation to operate as an organiser of a regulated market;
3. authorisation to operate a settlement system with irrevocability;
4. authorisation to operate a CCP;
5. authorisation to provide investment services through a branch of a foreign person;
6. registration of the further business of a securities dealer or a regulated market operator;
7. accreditation or change of accreditation and extension of accreditation,
8. Authorisation to convert or conclude a contract for the transfer, cessation or payment of a commercial establishment or part thereof;
9. consent to or control the acquisition or increase of a qualifying holding in a regulated market operator;
10. entry in the list of forced controllers and liquidators;
(b) details of the details of the notification of the change in the conditions of accreditation.
(2) This decree further regulates the formats and other technical details of applications and notifications.
Definition of terms
For the purposes of this decree:
(a) proof of integrity issued by a foreign State, a document similar to the extract from the Register of Penalties which may not be more than 3 months old, issued by a foreign State;
1. where a foreign natural person is a citizen and a foreign State in which that person has remained continuously for more than 6 months in the last 3 years; or
2. in which the natural person who is a citizen of the Czech Republic has remained continuously in the last 3 years for more than 6 months, unless the information required to assess integrity is contained in the Annex to the extract from the Register of Penalties; or
3. in which a foreign legal person has its registered office or has had its registered office in the last 3 years, as well as a foreign State in which a foreign legal person or a legal person with its registered office in the Czech Republic has or has had a branch of a commercial establishment in the last 3 years, provided that the law of that foreign State regulates the criminal liability of legal persons,
(b) evidence of integrity of evidence of integrity issued by a foreign State, a declaration containing the information necessary for the measure of an extract from the record of the Register of Penalties and data and evidence of the person's current activity over the last 10 years, in particular concerning:
1. the imposition of administrative penalties in connection with the performance of employment, function or business activities;
2. the bankruptcy decision;
3. the suspension or withdrawal of an authorisation for a business or other activity, unless it has taken place at the request of the person holding the permit;
4. refusal of the consent of a court or administrative authority to choose, appoint or other profession or to acquire qualified participation or to control a person, where such consent has been required;
5. exclusion from the professional chamber, association or association of persons working in the financial market;
(c) a document relating to the acquisition of a qualifying holding, a declaration by the person intending to acquire or increase a qualifying holding, whether:
1. acquire shares in its own name and on its own account;
2. exercise or exercise voting rights for the benefit of a third party;
3. intends to transfer the voting rights to another person under a contract or other arrangement,
4. there is or is to be a fact on the basis of which it is or becomes a person controlled;
5. act in agreement with another person to whom the exercise of voting rights has been transferred or who has significant influence on the proceedings;
6. has debts exceeding 5% of the equity or assets or which may have such an effect;
(d) financial statements
1. annual reports and financial statements for the last 3 financial years or for the period during which a person carries on business activities if that period is less than 3 financial years; where that person is part of a consolidation unit, also consolidated annual reports and financial statements for the same period, and where the accounts are to be audited by the auditor under the Accounting Act, the accounts shall be presented by the auditor;
2. proof of income for the last 3 years, of assets and debts in the case of a natural person;
(e) data on persons with close links
1. details of the person for each person with close links; where a person with close links is a foreign person established in another Member State of the European Union, also indicating whether he is a person who is to be authorised by a supervisory authority of another Member State of the European Union to act as a credit institution, an electronic money institution, an insurance undertaking, a reinsurance undertaking, an investment company or an investment service provider, or another entity subject to an activity subject to authorisation by that supervisory authority, or whether he is a controlling person of that person;
2. a description of the structure of the group and the way in which it is linked with the graphic representation of the relationships between the individual closely linked persons, indicating the subject matter of their activities;
(f) data on professional experience
1. information on the type of professional experience;
2. an indication of the person with whom he is or has been practised;
3. an indication of the employment classification and, where relevant, the importance of the practice for financial market activity, a description of the activity carried out, including the extent of the powers and responsibilities associated with that activity, indicating the number of persons managed;
4. the definition of the duration of the activity referred to in point 3;
5. consent to the performance of a work assignment required by other legislation, where necessary;
(g) data on education
1. the name and type or type of educational institution, the study programme, the focus of the study programme, the duration of the study programme, the manner and date of completion of the study, and, where appropriate, the titles obtained,
2. an overview of the professional examinations, courses, traineeships and study visits relevant to the financial market, indicating their focus and the year of completion.
Details of the details of the application for authorisation to act as investment intermediary
(Paragraph 30a (3) of the Law)
(1) The details of the legal entity's application for authorisation of the activity of an investment intermediary under the Capital Market Business Act (hereinafter referred to as "the Act ') are the data and documents relating to the applicant and the data and documents related to the performance of the investment intermediary's activities.
(2) The data and supporting documents relating to the applicant are:
(a) founding acts;
(b) an extract from a business register or other similar business records which may not exceed 3 months;
(c) the actual registered office, if different from the registered office of the applicant;
(d) a list of applications for annulment of the resolutions of the General Assembly, on which the legal proceedings were not definitively closed at the date on which the application was lodged, if such proposals were made and could have a significant impact on the company's continued operation;
(e) evidence to assess the applicant's credibility;
(f) the list of members of the management body of the applicant and for each member of the management body
1. details of the person,
2. evidence of credibility assessment;
3. information on education and professional experience, including relevant evidence showing those facts;
4. an overview of the membership of elected bodies of other legal persons over the last 10 years, for each legal person, the details of the person and the designation of the duties performed and the period of his or her exercise in that legal person;
5. a list of the functions in the elected bodies of other legal persons which it intends to perform in parallel with the duties of a member of the management body of the applicant for each legal person, the details of the person and the designation of the function to be performed in that legal person, indicating whether it is an executive or non-executive member;
6. a brief description of the performance of the duties conferred on the member of the management body of the applicant; and
7. the applicant's report on the results of the evaluation of the proposed person with regard to the fulfilment of the conditions under Article 10 (3) (c) and (f) of the Act;
(g) the amount of the initial capital and the documents proving its origin;
(h) the financial statements of the applicant if the legal person has already been created;
(i) the list of persons having qualified participation in the applicant and the graphically displayed relationship between those persons;
(j) for each person listed under (i):
1. details of the person,
2. the amount of the share of the capital or voting rights expressed in percentage and absolute value, or the indication and description of any other form of application of a significant influence on the management of the applicant;
3. evidence to assess credibility,
4. an extract from a business register or other similar business records which may not be more than 3 months of age, if it is a legal or commercial person,
5. a document related to the acquisition of a qualifying holding;
6. an overview of the membership of the person in the elected bodies of other legal persons over the last 10 years, for each legal person, the details of the person and the description of the duties performed and the period of his or her exercise in that legal person,
7. an overview of the financial and personnel relations of that person and persons close to him at least to the members of the management body of the applicant and of the legal person who controls the applicant;
8. financial statements,
9. an indication of the supervisory authority where the person is subject to supervision by an authority other than the Czech Republic;
(k) the list of persons who are members of the elected body of a legal person listed in the list of persons having qualifying holdings referred to in point (i) and for each member
1. details of the person,
2. a description of the function performed,
3. evidence of credibility assessment; and
4. information within the scope of point (j) (6);
(l) the opinion of the authority which oversees the person listed in point (i) in the country of his registered office, if the person having qualified participation in the applicant is a legal person having its registered office outside the territory of the Member State of the European Union to which such supervision is exercised in the country of his registered office,
1. the intention of that person to participate in the activities of the legal entity in the Czech Republic for which authorisation is sought; and
2. the possible exchange of information necessary for the supervision of the applicant;
(m) data on persons with close links; where the person with close links is a person with a registered office in a Member State which is not a Member State of the European Union, also an analysis containing a comparison of the relevant legislation to demonstrate that the legislation of that State and the manner in which it is applied, including enforceability of the law, does not prevent the effective exercise of supervision over the applicant; and
(n) a description of the fact on the basis of which the person listed in point (i) becomes the person controlling the applicant when the control takes place.
(3) Where a person with a qualifying holding in the list referred to in paragraph 2 (i) is a legal person established in another Member State of the European Union and that person is subject to supervision by a competent authority in a Member State of the European Union of its registered office, the applicant, instead of the data and documents referred to in paragraph 2 (j) (3), (4), (6) to (8) and (k) and (l), may submit a confirmation to that supervisory authority that he is subject to his supervision, whose credibility he has examined, and that he has no up-to-to-date knowledge of his non-credibility.
(4) The information and documents relating to the performance of the investment intermediary's activities are:
(a) the business plan referred to in Article 30 (1) (f) of the Act for the first 3 financial years of the activity in the scope of the accounts data provided for in the Accounting Act, including comments on its individual items, which contain the basic bases on which the plan is based; for the definition of the activities pursued, the applicant shall indicate which main investment services referred to in Article 29 (1) of the Act will be carried out and in relation to which investment instruments under Article 29 (3) (a) to (e) of the Act will be carried out;
(b) a description of the manner in which the material, personnel and organisational conditions for the performance of the activity are fulfilled, based on the intended scope of the activities and the business plan;
(c) proposals for internal rules governing the rules for dealing with customers and for the prudential provision of investment services, including:
1. organisation arrangements,
2. checks on the persons by which they carry out the activities of the investment intermediary;
(d) a description of the way in which the requirements under Section 10 of the Act are met and, if it intends to use the tied agent, of the obligations represented under Section 32k of the Act; and
(e) a compulsory insurance contract pursuant to Article 31 of the Act or a draft of such a contract with the confirmation of an insurance undertaking or other similar person authorised to conclude an insurance contract that, in the case of the granting of an authorisation for the activity of an investment intermediary, that contract will be concluded.
(Paragraph 30a (3) of the Law)
(1) The details of the application for authorisation for the activity of an investment intermediary by a natural person shall be the particulars and documents of the applicant and the data and documents related to the performance of the activity of the investment intermediary.
(2) The data and supporting documents relating to the applicant are:
(a) the registered office, if different from the place of residence;
(b) a declaration of authenticity if the applicant is not a data subject kept in the population base register;
(c) evidence of credibility assessment;
(d) information on education and professional experience, including relevant documents proving those facts;
(e) an overview of the membership of elected bodies of other legal persons over the last 10 years, for each legal person, the details of the person and the description of the function performed and the period of his or her exercise in that legal person; and
(f) a summary of the functions of the elected legal persons that the applicant intends to perform in parallel with the activity of the investment intermediary, for each legal person, the details of the person and the designation of the function to be performed in that legal person, indicating whether the function is an executive or non-executive.
(3) The information and documents relating to the performance of the investment intermediary's activities are:
(a) the business plan referred to in Article 30 (2) (c) of the Act for the first 3 financial years of activity, in the scope of the accounts data provided for in the Accounting Act, covering its individual items of commentary, which contains the basic bases on which the plan is based; for the definition of the activities pursued, the applicant shall indicate which main investment services referred to in Article 29 (1) of the Act will be carried out and in relation to which investment instruments under Article 29 (3) (a) to (e) of the Act will be carried out;
(b) a description of the manner in which the material, personnel and organisational conditions for the performance of the activity are fulfilled, based on the intended scope of the activities and the business plan;
(c) proposals for internal rules governing the rules for dealing with customers and for the prudential provision of investment services, including:
1. organisation arrangements,
2. checks on the persons by which they carry out the activities of the investment intermediary;
(d) a description of the way in which the requirements under Section 32k of the Act are met, relating to the obligation of the represented, if the applicant intends to use the tied agent; and
(e) a compulsory insurance contract pursuant to Article 31 of the Act or a draft of such a contract with the confirmation of an insurance undertaking or other similar person authorised to conclude an insurance contract that, in the case of the granting of an authorisation for the activity of an investment intermediary, that contract will be concluded.
Details of the details of the application for authorisation to operate the regulated market operator
(K § 38 (4) of the Act)
The details of the application for authorisation for the activity of a regulated market operator shall be the particulars and documents of the applicant referred to in Article 3 (2) and (3) and the following particulars and documents relating to the performance of the activity of the regulated market operator:
(a) the business plan referred to in Article 38 (1) (g) of the Act for the first 3 financial years of the activity, within the scope of the financial statements, in accordance with the Accounting Act covering its individual items of comments, which contains the basic bases on which the plan is based;
(b) proposals for internal rules governing:
1. an organisational arrangement with a definition of the activities and related responsibilities and decision-making powers, including the activities of the bodies and committees of the organiser of the regulated market; and
2. the activity of the various organisational units and the staff framework,
(c) draft rules
1. trading on a regulated market,
2. access to a regulated market;
3. the admission of investment vehicles to trading on a regulated market;
4. to enforce the obligations laid down in points 1 to 3, including possible penalties for infringements; and
5. the checks on persons with whom they carry out the activities of the organiser of the regulated market, including the arrangements for ensuring that such persons are trustworthy and have the necessary knowledge, skills and experience, and the means of verifying the incapacity of such persons;
(d) measures to prevent market abuse;
(e) how the transactions are settled;
(f) technical security of provision of the proposed range of services;
(g) the principles and procedures for ensuring the proper operation of trading and other systems, including measures in the event of disruption of such systems and emergency situations;
(h) draft rules for the management of the information system, including security rules and rules for data backup and storage;
(i) draft rules on disclosure pursuant to § 48 (1) (i) (3) and (4) of the Act to participants in the organised market;
(j) administrative, control and security procedures for the recording and processing of data, the handling of confidential information under the directly applicable European Union market abuse regulation (1) and personal data protected under another legislation;
(k) draft rules to ensure compliance with obligations under the law governing the measure against the legalisation of proceeds from crime, including their organisational, technical and personnel security;
(l) a description of the organisational, technical and staffing activities aimed at monitoring
1. compliance by market participants with the legislation, trading rules and rules on access to a regulated market;
2. compliance with the applicant's legislation and internal rules by his staff;
3. compliance with the conditions for admission of investment vehicles to trading laid down by law and the rules for admission of investment vehicles to trading for investment vehicles admitted to trading; and
4. the performance of the information obligation laid down by law to the issuer of investment securities admitted to trading or to a third party in the event of subsequent admission of the investment instrument to trading without the consent of the issuer;
(m) procedures for monitoring trade in an organised market and for evaluating the occurrence of an emergency situation on the market or conduct that may be considered to be the use of internal information or market manipulation, analysis of individual types of crisis situations in the development of the capital market and in the operations of the applicant which may have an adverse impact on the functioning of the capital market, and procedures for dealing with such situations;
(n) the procedures for managing the risks associated with the proposed range of services provided, their evaluation and measures to limit those risks; insurance contracts, bank guarantees and similar instruments intended to cover those risks or documents indicating the willingness of other entities to take an obligation to cover those risks, unless the relevant legal acts have been carried out, shall be considered as measures;
(o) procedures for detecting and addressing any negative effects on the activities of the organiser of the regulated market or its participants that could arise from a conflict between the interests of the organiser of the regulated market or its members and the proper functioning of the regulated market, including an internal regulation for transactions concluded by employees for their own account or for persons close to them;
(p) draft rules under Article 38 (1) (l) of the Act and a description of the operation of the multilateral trading system under the directly applicable European Union2), where authorised to operate the multilateral trading system; and
(q) a draft of the rules under Article 38 (1) (m) of the Act and a description of the functioning of the organised trading system under the directly applicable European Union2), if authorised to operate the organised trading system.
Details of the details of the application for authorisation to operate a settlement system with irrevocability
(K § 90a (5) of the Act)
(1) The details of the application for authorisation to operate a settlement system with irrevocability, if the applicant is a legal person established in the Czech Republic, are the data and documents concerning the applicant and the data and documents related to the operation of the settlement system.
(2) The data and supporting documents relating to the applicant are those referred to in Article 3 (2) and (3), with the exception of the report for a member of the management body referred to in Article 3 (2) (f) (7).
(3) The data and documents relating to the operation of the settlement system are:
(a) a business plan for the first 3 financial years of activity, to the extent that the accounts are presented in accordance with the Accounting Act, covering its various items of comments, which contains the basic bases on which the plan is based, and a description of how the individual activities are secured;
(b) the definition of investment vehicles that may be subject to claims and debts on transactions that may be settled in a settlement system operated by the applicant;
(c) draft rules of the settlement system pursuant to Section 85 of the Act;
(d) a proposal for rules on the functioning of the settlement system containing a description of the roles of each participant, their responsibilities and responsibilities;
(e) contractual arrangements for the functioning of the settlement system, including the model draft contract with the participant in the settlement system;
(f) a description of the technical, organisational and personnel security of providing the proposed range of settlement system activity with irrevocability;
(g) a proposal for a risk management system, which shall cover in particular the identification, measurement, monitoring and management of risks arising from individual activities, the determination of responsibilities and responsibilities for risk management, the method of setting limits, the frequency of measurement and continuous monitoring of individual risks and the procedure for dealing with critical situations when the limit is exceeded; the applicant shall also attach insurance contracts and other instruments intended to cover those risks and contracts with third parties involved in the process of measuring, monitoring, managing or evaluating those risks;
(h) analysis of individual types of crisis situations in the operation of a settlement finality system or other business activities, where appropriate, containing procedures for their resolution and including the definition of liability in such a situation;
(i) administrative, control and security procedures for the recording and processing of data, the handling of internal information under the directly applicable European Union market abuse regulation (1) and personal data protected under another legislation;
(j) draft rules for ensuring compliance with obligations under the law governing the measure against the legalisation of proceeds from crime, including their organisational, technical and personnel security; and
(k) draft internal rules governing:
1. an organisational arrangement defining the activities and associated responsibilities and decision-making powers, including the activities of the authorities and committees of the settlement system operator; and
2. the activity of the various organisational units and the staff framework.
(4) The details of the application for authorisation to operate a settlement system with irrevocability, where the applicant is a legal person established in another Member State of the European Union, shall be the following:
(a) an extract from the business records proving the existence of the applicant and the identification of the person who may act as the applicant, the extent and manner of such action, unless it is apparent from the document submitted,
(b) an authorisation to operate a settlement system with settlement finality issued by the supervisory authority of the country of the applicant's registered office, unless this results from the document referred to in (a);
(c) evidence to assess the credibility of the applicant or to confirm to the supervisory authority of the country of the applicant's registered office that he is subject to his supervision, the credibility of which he has examined, and that he has no up-to-date knowledge indicating his unreliability; and
(d) draft settlement system rules with irrevocability of settlement pursuant to Section 85 of the Act.
Details of the details of the application for authorisation to operate a CCP
(K § 192b (4) of the Act)
The details of the application for authorisation to operate a CCP shall be the data and evidence of the applicant in accordance with Article 3 (2) and (3) and the following data and documents relating to the performance of the CCP's activities:
(a) a business plan for the first 3 financial years, within the scope of the financial statements data provided for in the Accounting Act, covering on its individual items the comments on which the plan is based, and a description of how the individual activities related to the operation of the CCP are secured;
(b) determining the scope of activities and services, including the categories of investment vehicles for which the applicant applies for authorisation;
(c) a proposal for a management and control system containing in particular:
1. organisational arrangements,
2. a risk management system, including identifying and limiting potential conflicts of interest;
3. internal control system,
4. Capital and capital requirements strategy; and
5. a system of remuneration for workers which contributes to and is consistent with sound and effective risk management;
(d) draft rules for participation and access to the CCP's clearing system;
(e) draft rules for settlement of transactions via a CCP;
(f) draft procedures for the management of clearing members' accounts;
(g) the design of technical security for the proposed scope of the CCP's activities;
(h) draft procedures for the management of the information system, including security, backup and storage of data;
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Regulation Information
| Citation | Decree No. 309 / 2017 Coll., on applications and notifications under the Capital Market Enterprise Act |
|---|---|
| Regulation Type | Order |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 19.09.2017 |
|---|---|
| Effective from | 03.01.2018 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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