of 9 June. December 2010
financial collateral arrangements
Parliament has passed the following Act of the United States:
PART THE FIRST
The subject of the edit
This law incorporates the relevant provisions of the European Union "^ 1") and modifies the
the procedure for provision of receivables on the basis of the Treaty, which
arranges for financial security, of the person authorized to negotiate financial
to ensure their rights and obligations and some other issues with the financial
by providing related.
The definition of some terms
In this Act shall mean the
and the claim of the financial nature of the claim) from contracts of
the subject of the funds are investment vehicles, emission allowances
greenhouse gas emissions ^ 2) ^ 3) or commodities, as well as the rights and
the claims associated with these agreements,
(b) trade-sale) repurchase financial instruments agreed at the same time
buy and purchase feedback financial instruments at the same time the agreed retroactive
(c)) financial instrument investment securities, securities, collective
investment or money market instrument,
(d) a claim for the payment of money) a claim for the payment of money
funds from an account in Czech or foreign currency or similar claim for
the payment of funds,
(e) the claim in respect of the claim of the credit), loan, lease or comparable
commitment to the return of the transferred or granted funds
in the Czech or foreign currency.
The purpose of the financial collateral
Financial collateral is used under the terms of this Act to
ensure the financial nature of the event that occurs when a
late compliance, or other fact specified in
the Treaty, which is the financial collateral or in the framework of the agreed
the final settlement ^ 4), that the right of the recipient to obtain from
the financial collateral is not subject to the limitations otherwise arising out of the General
modifications to the lien, and the transfer of goods, rights and other proprietary
the values for the benefit of the creditors.
The legal nature of financial collateral
(1) financial collateral has the nature of a lien to the financial
collateral or transfer financial collateral in favour of the
of the recipient.
(2) to transfer financial collateral occurs generally on the basis of the agreement
the financial collateral after completion of the transfer of the undertaking; in the case of
financial instruments, then also in the repurchasing trade. If the nature of the
financial collateral admits, and if it is in accordance with the agreement
the Contracting Parties, the transfer of ownership of the financial
collateral on its recipient.
TITLE I OF THE
THE SUBJECT MATTER OF FINANCIAL COLLATERAL, THE CLAIM OF FINANCIAL CHARACTER AND PERSON
ENTITLED TO NEGOTIATE THE FINANCIAL COLLATERAL
(1) the subject of financial collateral is a financial collateral, which may
and) financial instrument,
(b)) itself transferable right otherwise associated with a financial instrument,
(c)) the right deriving from registration of a financial instrument in the register and
to enable the creditor to dispose of, directly or indirectly to a financial instrument
at least in a similar manner as the legitimate holder,
(d)) money credited to an account in the Czech or foreign currency,
(e) a claim for the payment of money), or
(f)) the credit claim, if the creditor is a person referred to in section 7 (2). 1
(a). and), (b)), or t) or in § 7 para. 2 (a). (d)), or a foreign person
with similar activities as one of the persons referred to in § 7 para. 1 (b).
a) or (b)).
(2) financial collateral may also be a financial instrument or cash
funds credited to the account to which the collateral provider
the right of ownership arises only in the future, the right referred to in paragraph 1
(a). (b)), or (c)), that the collateral provider only arises
in the future, or a claim for payment of money or credit claim,
that is the result of financial collateral provider only in the future.
(3) financial collateral may be specified individually, or in a different way
so that it was possible to determine at any time during the term of the financial
ensure, for example, as a file of assets referred to in
paragraph 1, whose composition may change over time.
(4) the claim of a consumer credit or similar loan according to the
the foreign law may be financial collateral only
If its recipient and its provider of Bank, savings and loan
cooperative or a foreign person with similar activities as a bank or
savings and credit cooperative, or if the beneficiary or the
the provider of the person referred to in section 7 (2). 2 (a). d) to (f)).
(5) If a provider of financial collateral (hereinafter referred to as
"the provider") a natural person referred to in section 7 (2). 4, financial
collateral may be the only funds and financial instruments
that the recipient has the financial collateral arrangements (hereinafter referred to as "the recipient") in its
able to provide investment services, and cash and
financial instruments acquired for these values for the provider, and
cannot go about the funds that the recipient who is a bank
or a foreign person with similar activities as a Bank, billed as the
The claim of a financial nature
(1) financial security can be ensured only the claim of the financial
the character, including its accessory, and it is not decisive whether
on the claim for a service provider or any other person.
(2) financial security can be arranged for the claim the conditional or
the claim, which is to arise in the future.
(3) financial security can be arranged for claims of a certain type
emerging to the recipient at a certain time, or for the various claims arising
recipients of the same legal reason.
Person authorized to negotiate the financial collateral
(1) the provider and the recipient may only be
and) the Bank,
(b)), savings and credit cooperative,
(c)) the person whose activities are crucial
1. provision of mortgage, consumer or other credit,
2. the financial lease (finance lease)
3. the provision of payment services
4. the issue of electronic money,
5. implementation of securitization,
6. the issue of guarantees or obligations, consisting in the fact that
will satisfy the creditor for a certain sum of money, if certain third
the person fails to comply with a commitment or other conditions will be met,
7. Exchange activity
8. provision of consulting activities related to capital structure,
industrial strategy and related questions, the transformation of companies
or transfer of the business of racing,
9. management of the assets of the customer, if its part of the investment
a tool based on free thoughts in the context of the contractual arrangement, or
10. safekeeping of securities, management or
(d)) the person whose critical activities include dealing on own
or a foreign account with
1. payment instruments,
2. money market instruments
3. foreign exchange values,
4. investment securities
5. options trading
6. futures, whose value is related to a course or the value of the securities
Securities and currency rates, interest rate or interest rate yield, financial
indices or financial indicators, expressed quantitatively, and from which
give a right to cash settlement and/or delivery of property right
the values to which their value, or
7. the financial differential in the treaties,
(e) a central counterparty, a settlement agent) or a clearing house under
the law governing payment transactions,
(f)) as a securities dealer,
g) regulated market,
(h) a central counterparty, a settlement agent) or a clearing house under
the law governing the capital market,
I) legal person authorized to keep a record of investment instruments,
j) insurance company,
reinsurance undertaking, to)
l) investment company,
m) investment fund with legal personality,
n) Pension Fund
about) a legal entity that trades on its own account with the investment
instruments in order to reduce risks (hedging) of the shops with the investment
tools that are not financial instruments, and this activity is among the
its critical activities,
p) a legal entity that trades on its own account in commodities ^ 3)
or investment instruments that are not financial instruments, and this
activities include its decisive activity
q) a legal person who is the creator of the market according to the law governing
the capital market,
r) rating agency,
with the person with similar) foreign activities as one of the persons referred to in
(a)) to r) and
t) a legal person with a special statute exempted from the scope of Directive
The European Parliament and of the Council to govern the activities of credit institutions ^ 6).
(2) the provider and the recipient can be further
and) State or a Member State of the Federation,
(b) the local government unit of the State),
(c)) public corporation or any other legal person established by law,
which ensures the management and repayment of the Government or the public debt or
carries out activities with such administration and repayment,
(d)), the Central Bank of the Member State of the European Union or other State
the formation of the European economic area,
(e)), the Central Bank of the State not covered by point (d)) or the European
the Central Bank and the
(f)), the World Bank, the International Monetary Fund, the European Investment Bank
or other international financial institutions.
(3) provided that the beneficiary or provider of any of the persons
referred to in paragraph 1 or 2 may be the provider or the recipient of
and) other legal person,
(b)) other foreign person than the person physical and
(c)), the individual entrepreneur, if having regard to all
the circumstances of the apparent financial security arranged in connection with the
its business activities.
(4) the service provider may also be another natural person, provided
and is the recipient of the Bank), which is authorised to provide investment services,
a securities dealer or a foreign person with similar activities
as a bank or a securities dealer and authorised to provide
(b)), taking into account all the circumstances show that the financial
ensure agreed in connection with the loan or lease
as a provider to the customer, in order to facilitate trade with the investment
by the recipient as the lending or zapůjčitel,
(c)), it was expressly agreed that it is a financial collateral,
d) contract financial security, has in writing and
(e) prior to the conclusion of) the recipient informed about major providers
the characteristics of the law on financial collateral arrangements, and about how to
financial collateral legislation differs from General editing of lien
rights and the transfer of goods, rights or other assets for the benefit of
THE NEGOTIATION AND ESTABLISHMENT OF FINANCIAL COLLATERAL
The negotiation of the financial collateral
(1) the contract between the provider and the recipient, which is arranged
financial security, does not require a written or other special form; by
is without prejudice to § 7 (2). 4 (b). (d)).
(2) If a legal act, the characters of financial collateral under this
the law, it is a financial collateral, it was agreed that the
financial collateral; This is without prejudice to § 7 (2). 4 (b). (c)).
The emergence of the financial collateral
(1) to the emergence of financial collateral is needed to make financial
collateral shall be surrendered to the recipient, credited to the specified account to the recipient or
provided in a different way, which allows the beneficiary or the person
acting on his behalf to hold it or otherwise legally or de facto,
control, or that the lien to him entered in the register of
investment instruments for the benefit of the recipient.
(2) the fact that there has been the emergence of financial collateral, it must be possible
demonstrate in writing, otherwise it is not about financial security. The written form
is maintained, if the emergence of financial collateral captured record, which
the emergence of financial collateral shows and allows to reproduce in an unchanged
List of credit claims
(1) in the case of credit claims, the condition is proof of the emergence of
financial security also is satisfied by passing a list of credit claims
(hereinafter referred to as "the list") in written form to the recipient. The list captures the credit
the claim, which belongs to the financial collateral.
(2) unless the contract provides otherwise, it is considered that the credit claim
registered on the list of recipients with the swap provider stepped
the condition that occurs when a delay with the performance of secured claims
financial nature or that there is any other fact specified in
the Treaty, which is the financial collateral, or other fact
agreed in the context of the final settlement ^ 4) with the fact that the legal effects of
referrals occur only for those credit claims that the recipient
the exercise of the right to the satisfaction of the selects from the list.
(3) as soon as the list is handed over to the recipient, not the provider with the credit
claim registered on the list.
(4) the registration of the credit claim to the list is not the recipient or the provider
obliged to notify the debtor, whose commitment to the credit claim
DEALING WITH FINANCIAL COLLATERAL
To dispose of the pledged financial collateral, especially to convert it,
stop, take or allow its use by another, seize his
the fruits or benefits, the recipient can only, if the contract specifies. Loading
freeze frame of financial collateral cannot be arranged, if it is a
the credit claim; This is without prejudice to section 16.
Lien when dealing with financial collateral
If the recipient disposes of the freeze frame of financial collateral, the security interest
the right to the financial collateral shall cease to exist.
section 13 of the
Replacement financial collateral pledged
(1) the recipient that a freeze frame of financial collateral, the fed, it
replaces no later than the time when the secured claim becomes
due and payable, and that if the financial collateral
and the same amount of funds) the funds in the same currency,
(b)) financial instruments the same quantity of fungible financial
tools and if the financial collateral the rights referred to in § 5 para. 1
(a). (c)), the same amount of fungible rights; a contract
financial security in these cases, however, can determine for
what conditions will be replaced by a different property value, and
(c)) shall not be transferable rights separately otherwise associated with a financial instrument
What has been agreed.
Financial collateral pledged, with whom the recipient charges can be replaced
only property the value of which may be financial collateral.
(2) if so, can the recipient that a freeze frame of the financial
collateral, the fed, instead of replacing it in accordance with paragraph 1, set off
his claim guaranteed financial security that is payable,
in the framework of its inclusion in the final settlement ^ 4), against the value of
the financial collateral.
(3) if the performance of the recipient and the provider of receivables
of the same kind, the set-off referred to in paragraph 2 is permissible, if before
setting off reciprocal claims to their awards, and the subsequent change in the
the contents of the corresponding commitments to new mutual commitments
match the monetary claim in the same currency and in the amount specified by the
This award; unless agreed otherwise, they shall be in a manner that
corresponds to the practice on the financial market.
(4) Dealing with financial collateral or its replacement
referred to in paragraph 1 does not affect the emergence and duration of financial collateral.
(5) if it is to be replaced by financial collateral pledged pursuant to paragraph 1
equity value, the lien of the recipient in the same range
to the equity value of the financial collateral has been replaced.
REPLACEMENT FINANCIAL COLLATERAL PROVIDED, LIMITING THE SCOPE OF LIEN
RIGHTS TO IT, RETURN OF ITS PARTS AND THE ADDITION OF COLLATERAL
(1) a contract may specify that the provider has the duration of the financial
ensuring the right to
and replace the provided financial collateral) for other financial collateral
(b)) to require the return portion of the financial collateral or reduce the scope of
the lien of the financial collateral, and in excess
the amount of the secured claim.
(2) if the recipient claims the lack of assurance, especially in
as a result of changes in the value of the financial collateral, the amount of the secured claim
or the borrower's credit score provider or secured debt, may
the recipient may claim its reasonable supplement, unless the agreement otherwise.
(3) the Exchange or return of part of the collateral, or reduce the scope of
the lien of the financial collateral referred to in paragraph 1, as well as
supplement the guarantee referred to in paragraph 2 do not affect the emergence and duration
TITLE V OF THE
SPECIAL CONTRACTUAL ARRANGEMENTS
The contractual arrangements for the purposes of ensuring other financial receivables
the nature of the
Specifies if the contract, the recipient is entitled to keep the provided
financial collateral and after fulfilment of the undertaking, which corresponds to the secured
the claim of a financial nature, for the purpose of securing other debts
financial nature. The content of such agreement may also be agreement
the parties that for a time after which the recipient is entitled to retain
provided financial collateral is not required under section 13 replaced
pledged financial collateral with which he treated.
section 16 of the
The contractual arrangements in the case of the performance of debt in installments
(1) belongs to the credit claim to financial collateral that was
stopped or referred to the recipient, and that is fulfilled in instalments, fulfils
the individual debtor debt payments including accessories for the duration of
financial security continue to be a provider.
(2) contract financial security, however, may in
such cases, specify that the debtor fulfil individual debt payments
including accessories after the agreed time; such arrangement is
the provider shall be obliged to submit a report to the debtor. As long as this agreement is not
provider notified to the debtor, or until the recipient of such an arrangement
the debtor fails to fulfil the individual debtor debt payments
the provider. Unless otherwise agreed, looking at debt payments
received by the recipient as to replenish collateral.
(3) on the expiry of the period for which the debtor was based on the arrangements referred to in
paragraph 2 complete each debt payments including accessories
the recipient, the recipient is obliged to submit a report to the debtor. Until this
the fact is the recipient notified to the debtor, or as long as the provider
This fact proves the debtor, the debtor fulfils the individual instalments
debt continues to be a recipient.
TITLE VI OF THE
EXERCISE OF THE RIGHT TO THE SATISFACTION OF THE FINANCIAL COLLATERAL
The method of exercise of the right to the satisfaction of the financial collateral
(1) if there is a delay with the performance of the secured debt of the financial
character, or if there is another fact that is specified in the contract, which
financial security is stipulated, or agreed in the framework of the final
^ 4) settlement, the recipient may satisfy in a way which is
by the provider; in other cases, satisfy, with respect to legal
the nature of the financial collateral,
and from the proceeds of realisation) financial collateral; does not specify a way
liquidation of the contract, cashing in a way that matches the practices
the financial market, or
(b)) by offsetting the financial collateral against the value of their debt,
you want to the provider, even in the context of the inclusion of such values into the
the final settlement ^ 4).
(2) leaving the financial collateral pledged to the recipient can
satisfy only if it has been arranged in this way and if it was at the same time
agreed price for leaving or agreed method of determining, with the
How to determine the price must reflect the practices of the relevant financial
(3) if the recipient has chosen to satisfy the debts of the financial
the character of only some of the credit claims registered in the list and
the remaining credit claims is already achieved by any other claim
financial character, the list is deleted; This is without prejudice to section 15.
(4) If as a result of the exercise of the right to the satisfaction of the financial collateral
the recipient becomes a claim for payment of money or credit claim
the provider is obliged to report this fact to the debtor,
the commitment of such a claim is responsible. If the debtor indicates
the fact that the recipient's claim, the debtor is entitled to his/her
demand that he prove the acquisition of receivables.
The use of other law to exercise the right to the satisfaction of
Unless the Treaty provides otherwise, to execute the right to the satisfaction of the financial
collateral shall not apply, if the law provides for the
and the recipient in advance) announced the realisation of financial collateral
provider or any other person,
(b)) exercise the right of recovery from the financial collateral has enabled the Court
administrative authority or any other person,
(c)) financial collateral was liquidated at public auction or other
prescribed manner, or
(d)) before doing any of the right to the satisfaction of the financial collateral has expired
certain time limit.
THE PROVISIONS OF THE COMMON
The effects of the acquisition of the claims by the beneficiary of the obligation of the borrower
If the recipient establishes the debtor whose commitment corresponds to the credit
claim or a claim for the payment of money of acquisition,
the debtor is relieved of the obligation only to the fulfilment of the recipient. It is sufficient if the
the recipient of the debtor proves that the credit claim was registered on
a list of.
Waiver of rights of set-off
The debtor whose commitment corresponds to the credit claim, when a lender
is the person referred to in section 7 (2). 1 (b). and), (b)), or t) or in § 7 para. 2
(a). (d)), or a foreign person with similar activities as one of the
the persons referred to in § 7 para. 1 (b). and) or (b)), it may declare that it
against this credit claim has waived the right to set-off any
a claim which has or will have against the lender and each subsequent
the creditor that loan debt gets a referral or from another
the rule of reason; This law, the debtor may give up even before the creation of
the claim for set-off.
The exclusion of the effects of certain acts of the Court or administrative authority
(1) a decision or other Act court or administrative authority, which is
affects the rights of third parties and has been made for the purpose of maintenance or restoration
the financial situation of the provider or the recipient, where appropriate, the prohibition or
restrictions perform certain transactions or funds transfer
the provider or recipient of the ^ 7), does not affect the exercise of rights and the fulfilment of the
the obligations arising from a financial collateral arrangement under the conditions
laid down in this law or comparable conditions of foreign
legislation, in particular on the right of the recipient to achieve the satisfaction of
financial collateral, where the financial collateral has been agreed and
was created before the adoption of the decision or performing another task. This is true
even in the case that the financial collateral has been agreed or was on the day of
adoption of a decision or perform other Act court or administrative
the authority, however, the financial collateral has been agreed or was until
This event occurred, unless the recipient knew of that fact
or should and could know.
(2) paragraph 1 shall be neuplatí for the effects of acts of the initiation
insolvency proceedings, enforcement, enforcement proceedings, access to
the introduction of a compulsory winding up or administration of the provider or the recipient;
the exclusion of these effects govern other laws.
Relationship to certain provisions of the regulations of the civil law
The legal effects of the transfer of financial collateral shall be governed by the provisions of this
the law and within the limits of financial collateral arrangements, regardless of the
the General arrangements of the lien and transfer of goods, rights or other
assets for the benefit of the creditors. The provisions of this Act shall be
also, regardless of the general legislation governs legal relations related
using the list, and with the right of waiver of set-off. Unaffected
other provisions of the Civil Code governing the terms of
the effectiveness of the assignment or stop the claim against the debtor and the
conservation of the objections against the claim that the debtor could apply at the time of
Article 23 of the
The protection of the legal status of the debtor of the credit claim to the case
included in the financial collateral
As a result of the inclusion of the credit claim to financial collateral shall not
deterioration of the legal status of the debtor, whose commitment to this
credit claim is responsible.
THE PROVISIONS OF THE TRANSITIONAL AND EFFICACY
This Act governs legal relationships arising before the date of the acquisition of its
efficiency; the emergence of these relations, as well as claims arising from the financial
ensure that last on the date of entry into force of this law, however,
assessed according to the existing legislation.
The effectiveness of the
This Act shall take effect on 1 January 2000. January 2011.
Němcová in r.
Nečas in r.
1) directive of the European Parliament and of the Council 2002/47/EC of 6 May 1999. June
2002 on financial collateral agreements, as amended by the directive of the European
Parliament and Council directive 2009/44/EC.
Article. 9 European Parliament and Council Directive 98/26/EC of 19 June 2000. may
1998 on settlement finality in payment systems and in systems
settlement of trades in securities, as amended by the directive of the European
Parliament and Council directive 2009/44/EC.
2) § 2 (2). 1 (b). (f))) and (l) of the Act No. 695/2004 Coll., on conditions for
trading with greenhouse gas emission allowance trading and amending
3) Article. 2 (2). 1 Commission Regulation (EC) no 1287/2006 of 10 March 2006. August
2006 implementing directive of the European Parliament and of the Council
2004/39/EC as regards record-keeping obligations for investment firms,
transaction reporting, market transparency, admission of financial instruments to
trading, and defined terms for the purposes of that directive, as amended by
to apply this regulation of 19 March 2003. November 2009.
4) section 193 of the Act No. 256/2004 Coll., on the capital market, in
amended by Act No. 409/2010 Sb.
6) Article. 2 of European Parliament and Council Directive 2006/48/EC of 14 July 1999.
June 2006 concerning the access to the activity of credit institutions and on its performance
(recast), amended by Commission directives 2007/18/EC and 2010/18/EU.
7 for example, section 28 paragraph 1). 1 (b). ) to c) of Act No. 87/1995 Coll., on
savings and credit cooperatives and some measures with the
related and the addition of the Czech National Council Act No. 586/1992 Coll., on the
income taxes, as amended by later regulations, as amended by Act No.
100/2000 Coll., Act No. 283/2004 Coll., Act No. 57/2006 Coll. and Act No.
120/2007 Coll., section 43 para. 1 of Act No. 42/1994 Coll., on pension
insurance with State contribution and on changes of some acts
related to its introduction, as amended by Act No. 169/1999 Coll., Act
No 36/2004 Coll. and Act No. 57/2006 Sb.