Financial Trading [EU]
Settlement finality
in payment and securities settlement systems
Transfers and payments of financial products must be regulated to avoid major risks, especially those linked to the insolvency of participants – in the transaction. This EU law lays down rules to minimise such risks.
Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems.
It guarantees that financial product transfer and payment orders can be finalised, mainly by mitigating problems arising from a participant’s insolvency. These participants may be:
financial institutions, e.g. banks;
systems operators, such as central securities depositories.
Transfer orders are irrevocable
Transfer orders of financial products are contractually enforceable. This is also applicable to any associated payment netting, situations where debt and claims are offset between participants.
The rules apply even when a participant is subject to insolvency proceedings, as long as the transfer order was underway before the proceedings started. The rules may also apply up to 24 hours afterwards to cover situations where transactions are entered into at times when relevant records are unavailable, for instance overnight.
Uniform rules
The directive seeks to ensure that uniform rules are applied where multiple settlement and payment systems are in operation from the moment the transactions are entered into in order to avoid difficulties arising from incompatible regulations.
Guarantees in insolvency situations
The existence of insolvency proceedings against a participant does not retroactively affect the rights and obligations of other participants nor their access to the normal financial guarantees inherent in a transaction.
Application & References
It originally took effect in 1998, since when it has been amended several times.
For more information, see the financial services and capital markets union page of the European Commission’s website.
Act
Entry into force
Deadline for transposition in the Member States
Official Journal
Directive 98/26/EC
11.6.1998
11.12.1999
OJ L 166 of 11.6.1998, pp. 45-50
Amending act(s)
Entry into force
Deadline for transposition in the Member States
Official Journal
Directive 2009/44/EC
30.6.2009
30.12.2010
OJ L 146 of 10.6.2009, pp. 37-43
Directive 2010/78/EU
4.1.2011
31.12.2011
OJ L 331 of 15.12.2010, pp. 120-161
Regulation (EU) No 648/2012
16.8.2012
OJ L 201 of 27.7.2012, pp. 1-59
Regulation (EU) No 909/2014
17.9.2014
–
OJ L 257 of 28.8.2014, pp. 1-72
Successive amendments and corrections to Directive 98/26/EC have been incorporated in the basic text. This consolidated version is for reference purposes only.
Improving securities settlement in the EU
Regulation (EU) No 909/2014 on improving securities settlement in the European Union and on central securities depositories
It aims to harmonise the timing and conduct of securities settlement in the European Union (EU) and the rules for central securities depositories (CSDs)* which operate the settlement infrastructure.
It is designed to increase the safety and efficiency of the system, particularly for intra-EU transactions.
Key Points
The regulation introduces:
shorter settlement periods: in general, these should take place no later than the second business day after the trading occurs;
an obligation to record in book-entry form* all transferable securities admitted to trading or traded on the trading venues;
settlement discipline: CSDs must operate a penalty system, including cash fines, to deal with settlement failures.
EU countries’ national authorities:
authorise and supervise CSDs. This includes a review on at least an annual basis;
exchange information and cooperate with each other and the European Securities and Markets Authority (ESMA).
CSDs must:
have robust governance arrangements, a clear organisational structure, internal controls and sound administrative and accounting procedures;
ensure senior management is of sufficiently good repute and experience;
establish user committees for each securities settlement system they operate;
maintain for at least 10 years all records of their services and activities;
remain fully responsible for any work they outsource;
display transparency by publicly disclosing the prices and fees involved in the core services they provide;
have sufficient capital to be adequately protected against operational, legal, custody, investment and business risks;
secure additional authorisation before providing any banking-type ancillary services.
CSDs in a non-EU country may operate through an EU-based branch, provided they meet certain requirements.
ESMA maintains a publicly available register of each authorised CSD.
Alongside the right to impose criminal sanctions, EU countries’ competent authorities have the power to apply appropriate administrative sanctions and other measures for an infringement.
Application & Background
Book-entry form requirements (Article 3(1)) apply from 1 January 2023 to transferable securities issued after that date and from 1 January 2025 to all transferable securities.
The regulation’s settlement date rules (Article 5(2)) apply from 1 January 2015.
Settlement across borders presents higher risks and costs for investors than domestic operations. At the same time, this form of transaction is increasing. Traditionally, CSDs have been regulated nationally.
The legislation provides a common set of prudential, organisational and conduct of business standards for use across the EU, whose existence will play a crucial role in financing the economy.
For more information, see:
‘Central Securities Depositories (CSDs)’ on the European Commission’s website;
‘Settlement’ on the European Securities and Markets Authority’s website.
KEY TERMS
Central securities depositories: institutions that put into effect transactions agreed on the market between buyers and sellers.
Book entry: where the ownership of a security is recorded in electronic form rather than in certificate form.
MAIN DOCUMENT
Regulation (EU) No 909/2014 of the European Parliament and of the Council of 23 July 2014 on improving securities settlement in the European Union and on central securities depositories and amending Directives 98/26/EC and 2014/65/EU and Regulation (EU) No 236/2012 OJ L 257, 28.8.2014, pp. 1-72)
Successive amendments to Regulation (EU) No 909/2014 have been incorporated in the original text. This consolidated version is of documentary value only.
Short selling of securities
Regulation (EU) No 236/2012 on short selling and certain aspects of credit default swaps
It seeks to regulate certain aspects of short selling* and credit default swaps (CDS)* in the European Union (EU).
Key Points
In times of financial instability, certain financial transactions such as short selling, ‘naked short selling’* and credit default swaps bear the risk of aggravating any downward spiral in the prices of shares, especially in banks, threatening their viability and creating risks to the whole banking system.
Such instability in the financial markets can spill over into the real economy.
The regulation lays down strict rules on short selling and certain aspects of credit default swaps, in proportion to the risks associated with them, including:
measures to prevent ‘naked’ short selling of shares and loans issued by governments (called ‘sovereign debt’);
a ban on ‘naked’ CDS transactions (including on sovereign debt).
Disclosure requirements – financial institutions have to disclose certain short selling transactions to the banking authorities. Larger ones – above a certain threshold – must be publicly disclosed to the markets.
In periods of exceptional financial instability, the competent authorities in any EU country can temporarily restrict short selling if the price of the securities in question is falling significantly.
A proposed suspension has to be notified to other national authorities and to the European Securities and Markets Authority that must then issue an opinion on it.
Application
It has applied since 1 November 2012.
KEY TERMS
Short selling: a transaction in which a financial institution sells a financial product it has borrowed, with the aim of buying it back later. The institution hopes that in the meantime the price of the product will have declined, so it has to pay less than the price it obtained from the sale.
Credit default swaps (CDS): highly risky, unregulated derivatives.
Naked short selling: perceived as riskier than normal short selling – when the seller has not even borrowed the financial product in the first place.
MAIN DOCUMENT
Regulation (EU) No 236/2012 of the European Parliament and of the Council of 14 March 2012 on short selling and certain aspects of credit default swaps (OJ L 86, 24.3.2012, pp. 1–24)
Successive amendments to Regulation (EU) No 236/2012 have been incorporated in the original text. This consolidated version is of documentary value only.
RELATED DOCUMENTS
Regulation (EU) 2016/1033 of the European Parliament and of the Council of 23 June 2016 amending Regulation (EU) No 600/2014 on markets in financial instruments, Regulation (EU) No 596/2014 on market abuse and Regulation (EU) No 909/2014 on improving securities settlement in the European Union and on central securities depositories (OJ L 175, 30.6.2016, pp. 1–7)
Financial collateral arrangements – improving legal clarity
Directive 2002/47/EC – financial collateral arrangements – improving legal clarity
This Directive aims to create a clear uniform EU legal framework for the use of securities and cash as collateral in financial transactions.
Key Points
The Directive applies to certain specified categories such as central banks and supervised financial institutions. EU countries may, however, exclude specific categories such as unincorporated firms i.e. that do not have the legal status of a company.
The Directive applies to financial collateral including cash and financial instruments such as shares and bonds. Certain opt-outs are permitted by EU countries such as the collateral provider’s own shares.
The Directive sets down minimum formal requirements by EU countries concerning collateral arrangements including, for example, that such arrangements must be evidenced in writing or in a legally equivalent manner.
Enforcement of collateral arrangements by the collateral taker is possible, for example by sale or appropriation of the financial instruments.
The collateral taker has a contractually agreed right to use the financial collateral provided as if he were full owner. If he chooses to exercise this right, he is obliged to transfer back the equivalent amount of collateral.
EU countries must recognise close-out netting* arrangements, even if the collateral taker or provider is subject to insolvency proceedings or reorganisation.
EU countries are blocked from applying their national insolvency rules to financial collateral arrangements in certain cases. Such arrangements may not be declared invalid or void in order, for example, to take account of changes in market value.
Application & Background
From 27 June 2002.
European Commission website on financial collateral
KEY TERMS
Financial collateral is the property (such as securities) provided by a borrower to a lender to minimise the risk of financial loss to the lender if the borrower fails to meet their financial obligations to the lender.
Close-out netting is a legal mechanism that reduces the risks between 2 counterparties. Upon the default of 1 of the 2 counterparties, all future claims and contractual relations between them become due, calculated, netted and then set off. What finally remains for actual payment can be a small fraction only of the initial gross claim between those 2 parties.
References
Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements
Act
Entry into force
Deadline for transposition in the Member States
Official Journal
Directive 2002/47/EC
27.6.2002
27.12.2003
OJ L 168, 27.06.2002, pp. 43-50
Amending act(s)
Entry into force
Deadline for transposition in the Member States
Official Journal
Directive 2009/44/EC
30.6.2009
30.12.2010
OJ L 146, 10.6.2009, pp. 37-43
Directive 2014/59/EU
2.7.2014
31.12.2014
OJ L 173, 12.6.2014, pp. 190-348
RELATED ACTS
Report from the Commission to the European Parliament and the Council: Evaluation Report on the Financial Collateral Arrangements Directive (2002/47/EC) (COM(2006) 833 final of 20.12.2006)
last update 07.10.2015