Key Benefits:
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Proposal for Law No 174 /XII
Exhibition of Motives
On August 16, 2012, Regulation (EU) No 648/2012 came into force, of the
European Parliament and of the Council of July 4, 2012 (Regulation) on the
derivatives of the over-the-counter market, central counterparties and transaction repositories,
commonly designated by the acronym EMIR (of the designation in English language European
Market Infrastructure Regulation ).
The Regulation creates a new legal framework for over-the-counter market derivatives
(OTC derivative contracts), central counterparties, and transaction repositories. In
concrete, sets out requirements on centralized compensation and risk management
bilateral for OTC derivative contracts, reporting requirements for relative information
to the contracts of derivatives and uniform requirements for the exercise of the activities of the
central counterparties and transaction repositories.
The scheme provided for in the Regulation sets out, still, duties that imprison on the
financial counterparties and non-financial counterparties, in the use of contracts of
derivatives traded outside the regulated market, with the aim of ensuring the
smooth operation of the market and to mitigate episodes of non-compliance with effects
relevant systemic or that conduct operational risks and credit risk of the
counterpart.
Within the framework of the Regulation, the definition of the definition of
certain aspements of the regime, such as sanctionatory standards, with a view to ensuring their
effective operationalization in the internal legal order, which justifies the present initiative
legislative.
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In this sense, it matters to define the sanctionatory regime applicable to financial counterparties and
non-financial counterparties in the event of a breach of the duties laid down in the Regulation,
establishing, by imposition of the same, the disclosure of the applied sanctions.
Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the
Assembly of the Republic the following proposal for a law:
Article 1.
Object
1-It is granted to the Government authorisation to approve the scheme which ensures the implementation, in the
internal legal order, of the obligations arising from Regulation (EU) No 648/2012,
of the European Parliament and of the Council of July 4, 2012 on derivatives of the
over-the-counter market, central counterparties and transaction repositories, forward
designated by Regulation.
2-In concretization of the defined in the preceding paragraph, is the Government authorized to
establish:
a) The sanctionatory regime applicable to the violation of the standards of the Regulation;
b) The limitation period applicable to the counterordinational procedure as well as
to the fines and ancillary sanctions arising from the violation of the standards of the
Regulation; and
c) Limits to the exercise of activities by the central counterparties.
3-To ensure the implementation of the Regulation in the internal legal order, as well as the
operation of clearing house or settlement system is the Government
authorized, still, to amend the Securities Code, approved by the
Decree-Law No. 486/99, of November 13 and of the Decree-Law No. 357-C/2007 of 31 of
October, as amended by Decrees-Laws No. 52/2010 of May 26, and 18/2013, of 6 of
February.
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Article 2.
Sense and extension
1-In the use of the legislative authorization conferred by the ( a) of paragraph 2 of the previous article,
can the Government tipify the following conduits as serious counterorders:
a) Non-compliance, by financial counterparties and non-financial counterparties, of the
reporting duty of data relating to derivative contracts, planned
in paragraphs 1 and 3 of Article 9 of the Regulation and on the delegated acts delegated;
b) Non-compliance, by financial counterparties and non-financial counterparties, of the
data conservation duty relating to derivative contracts, provided for in the
n Article 9 (2) of the Regulation;
c) Non-compliance, by financial counterparties and non-financial counterparties, of the
duty of daily assessment of the outstanding balance of the current contracts, provided for in paragraph 2 of the
article 11 of the Regulation and on the delegated acts delegated;
d) Failure, by the financial and non-financial counterparties, of the duty of
public disclosure of information on the exemption granted, provided for in paragraph 11
of Article 11 of the Regulation and in the respects delegated acts;
e) Non-compliance, by the financial counterparties and non-financial counterparties of the
duties laid down in the regulations issued to ensure supervision of the
compliance with the duties imposed by the Regulation.
2-In the use of the legislative authorization conferred by the ( a ) of paragraph 2 of the previous article,
can the Government tipify the following conduits as very serious counterorders:
a) Non-compliance, by financial counterparties and non-financial counterparties, of the
duty compensation duty of over-the-counter (contract) derivatives
of OTC derivatives), provided for in Article 4 (1) and (3) of the Regulation and in the
respects delegated acts;
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b) Failure to, by the non-financial counterparties, the duties arising from the
assumption of positions in OTC derivative contracts that exceed the threshold of
applicable compensation, provided for in Article 10 (1) of the Regulation and in the
respects delegated acts;
c) Non-compliance, by financial counterparties and non-financial counterparties, of the
duty to ensure the establishment of procedures and mechanisms
appropriate measurement, monitoring and mitigation of operational risks and
of counterparty credit risk in the event of a conclusion of contracts of
oTC derivatives without compensation through a central counterparty, predicted in the
n Article 11 (1) of the Regulation and on the delegated acts delegated;
d) Failure, by financial counterparties, of the duty to establish
risk management procedures in respect of OTC derivatives contracts
celebrated as of August 16, 2012, provided for in the first part of paragraph 3 of the
article 11 of the Regulation;
e) Non-compliance, by non-financial counterparties, of the duty to establish
risk management procedures in respect of OTC derivatives contracts
concluded from the date on which the clearing threshold is exceeded,
provided for in the second part of Article 11 (3) of the Regulation;
f) Failure to, by financial counterparties, of the duty to arrest a
appropriate and proportional capital amount to manage the risk not covered by
exchanges of appropriate guarantees, provided for in Article 11 (4) of the Regulation.
3-It is the Government authorized to establish that the serious counterordinations provided for in the
n. 1 are punishable on the following terms:
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a) When the infraction is practiced by a financial counterparty, with a fine of
€ 3000 a € 1500000 and € 1000 a € 500000, depending on whether the person is applied
collective or singular;
b) When the infraction is practiced by a non-financial counterparty, with fine
from 600 a to € 300000 and from € 200 a to € 100000, depending on whether the person is applied
collective or singular.
4-It is the Government authorized to establish that very serious counterordinations
provided for in paragraph 2 are punishable in the following terms:
a) When the infraction is practiced by a financial counterparty, with a fine of
€ 10000 a € 5000000 and € 4000 a € 2000000, depending on whether it is applied to
collective or singular person;
b) When the infraction is practiced by a non-financial counterparty, with fine
from 2000 a to € 1000000 and from € 800 a to € 400000, depending on whether the person is applied
collective or singular.
5-In the use of the legislative authorization conferred by the ( a ) of paragraph 2 of the previous article,
it may still be the Government to determine the applicability, in the case of the practice of the
counterordinations referred to in paragraphs 1 and 2, of the following ancillary penalties:
a) Interdiction, for a period up to three years counted from the sentencing decision
definitive, from the exercise of the activity to which the counterordinate respects;
b) Inhibition, for a period up to three years counted from the sentencing decision
definitive, of the exercise of social positions and of functions of administration, management,
direction, managerial and surveillance in financial counterparties and the collective person where
has occurred the infraction, when the offender is a member of the social organs,
exercise managerial, management, direction or managerial positions or atue in
legal or voluntary representation of the collective person.
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6-In the use of the legislative authorization conferred by the ( b ) of paragraph 2 of the previous article,
may the Government define the limitation period applicable to the procedure
counterordinance as well as to the fines and ancillary sanctions, arising from the violation
by financial counterparties and non-financial counterparties of the standards of the
Regulation.
7-In the use of the legislative authorization conferred by the ( c ) of paragraph 2 of the previous article,
can the Government establish limits on the exercise of activities by the counterparties
central, in the following terms:
a) Booking your exercise to anonymous societies with the social object defined in the
Regulation and impose limits on the acquisition of real estate by these companies;
b) To impose the inhibition of voting rights and the unvalidity of social deliberations in
case of non-compliance with the regime applicable to the acquisition or reinforcement of
qualified participations;
c) Making it conditional on the exercise of activities by the central counterparties of the verification
of conduct requirements, and duties of professional secrecy may be imposed.
8-In the use of the legislative authorization conferred by paragraph 3 of the preceding Article, it may
Government to define the sanctionatory regime applicable to rape, by central counterparties,
of the provisions laid down in the Regulation, in the Securities Code,
approved by Decree-Law No. 486/99 of November 13 (CVM) and too much legislation
that provides for duties applicable to central counterparties, in the following terms:
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a) Typify the following conduits as very serious counterorders in scope
of the CVM:
i) The operation of clearing house, central counterparty or
system of settlement without registration of the rules in the Market Committee of
Securities, without the disclosure to the public of the rules or with
violation of registered rules;
ii) The violation, by entity that takes over the functions of clearing house
and by central counterparty, of the duty to adopt the necessary measures to the
minimization of risks and appropriate to the proper functioning of the
adopted mechanisms and the protection of markets;
iii) The violation, by central counterparty, of the duties relating to segregation and
portability and prudential requirements.
b) Qualify the remaining violations by adopting the established sanctionatory criteria
by the CVM;
c) To establish that the counterordinations practiced by the central counterparties are
applicable, by remission, the substantive and procedural rules established by the
CVM.
Article 3.
Duration
The present legislative authorization has the duration of 180 days.
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Article 4.
Entry into force
This Law shall come into force on the day following that of its publication.
Seen and approved in Council of Ministers of October 3, 2013
The Prime Minister
The Minister of the Presidency and Parliamentary Affairs
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The financial crisis has highlighted the risks inherent in the use of derivative contracts
traded outside regulated market, attentive to the complex network of interdependencies
that they establish and the absence of transparency, as they are negotiated in a manner
exclusively bilateral.
In that measure, Regulation (EU) No 648/2012 of the European Parliament has been approved and
of the Council, of July 4, 2012 (Regulation), relating to the derivatives of the market of
counter, central counterparties and transaction repositories, commonly designated
by the acronym EMIR (of the English language designation European Market Infrastructure
Regulation ).
The scheme provided for in the Regulation establishes the compulsory of certain classes
of these derivative contracts, by their standardization and financial relevance, to be
compensated through central counterparties, with the aim of ensuring the regular
operation of the market, preventing the spread of episodes of default with
relevant systemic effects.
The classes of derivatives contracts not eligible for compensation through counterparty
central, in so far as they also behave operational risks and credit risk of the
counterparty, become subject to appropriate procedures and mechanisms to measure,
follow up and mitigate the said risks, requiring the timely provision of guarantees
suitable and segregated among the counterparties.
The said obligations impend on the financial counterparties in the contracts of
derivatives, which cover the entities authorized to exercise activities in the banking sectors,
insurer and pension and securities funds, as well as on the
non-financial counterparties, albeit in less demanding terms.
Under certain conditions, the Regulation establishes exemptions for transactions
intragroup, either as to the compensation, or the mechanisms of mitigation of
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risks, such as the bilateral exchange of guarantees.
Still as a central element of the scheme provided for by the Regulation, avulate the duty of
communication to repositories of transactions of the data concerning all contracts of
derivatives concluded, whether they are, or not, compensated through central counterparty.
This duty falls on the financial counterparties and non-financial counterparties and on the
central counterparties, aimed at centrally storing all information relating to
this type of contracts and to allow access to it by the supervisory authorities.
The Regulation enshrines, still, the rules applicable to the authorisation, the exercise of the activity
and to the supervision of central counterparties, establishing, specifically, requirements of
organization and governance and requirements of a prudential nature.
Finally, the Regulation contains rules regarding the repositories of transactions, the
European Securities and Markets Authority (ESMA) the authority
responsible for the registration, recognition, supervision and sanctioning of these entities.
Although the Regulation entered into force on August 16, 2012, the application of
some of the foreseen obligations became dependent on the entry into force of technical standards
of regulation and technical standards of implementation to be adopted by the European Commission under
the form, respectively, of delegated acts and acts of execution.
In addition to the said regulations, the definition of a definition of
certain aspements of the regime, which justifies and imposes the approval of this decree-
law, with a view to ensuring the execution and operationalisation of the Regulation in the legal order
internal.
In this way, they are designated as national competent authorities for supervision
of the financial counterparties the Bank of Portugal, the Market Committee of the Values
Securities (CMVM) and the Insurance Institute of Portugal, with respect to entities
subject to the respect of supervision. The CMVM is, still, designated as the national authority
competent for the supervision of non-financial counterparties, for the authorisation and
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supervision of the central counterparties and for verification of the authenticity of the decisions of the
ESMA in the matter of application of sanctions to transaction repositories.
This decree-law further establishes, in annex to the same, the legal regime applicable to the
central counterparties in the aspets not regulated by the Regulation. The rules of the new
legal regime have been adapted and autonomized from the Decree-Law No. 357-C/2007, 31 of
October, amended by the Decrees-Law No. 52/2010 of May 26, and 18/2013, of 6 of
February, which establishes the legal regime for the constitution and operation of the entities
gestures of markets and systems, altering such a degree in compliance. In this framework,
has chosen to keep in the Securities Code, in revised version, the principles
general governing the subject matter for compensation with central counterparty interposition.
In the face of the rules of the Regulation that enshrine the exclusivity of the object of the counterparties
central, it cees to allow institutions to act, in cumulation with others
activities, such as central counterparts. The figure of the clearing houses is retained,
leaving, however, the respected managements entities to be able to act cumulatively as
central counterparty, function that is reserved to the central counterparties.
The present decree-law also defines the sanctioning regime applicable to the counterparties
financial and non-financial counterparties in derivative contracts in the event of a breach
of the duties laid down in the Regulation, establishing, by imposition of the same, the
disclosure of the sanctions applied.
For greater systematic coherence, as the standards regarding the activity of
central counterparty are provided for in the Securities Code, the scheme
sanctionatory applicable to central counterparties remains in this same Code.
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Finally, the Regulation amended Directive No 98 /26/CE, of the European Parliament and of the
Council of May 19, 1998 on the definitive character of settlement in the systems
of payment and settlement of securities, in the sense of protecting the rights of the
operators that, in the frame of an interoperable system, have constituted guarantees to
favour of the operator of a receiver system, in the event of insolvency of the same.
Consequently, it proceeds to the one-off amendment of the Decree-Law No. 221/2000, 9 of
september, amended by the Decrees-Law No. 85/2011 of June 29, and 18/2013, of 6 of
February, which transposed the Directive in appreciation as well as the Code of Values
Securities in this matter.
The Bank of Portugal was heard, the CMVM, the Insurance Institute of Portugal, the
National Council of Financial Supervisors, the Portuguese Association of Banks, the
Portuguese Association of Insurance, the Portuguese Association of Funds of
Investment, Pensions and Patronians, the OMIClear-Compensation Society of
Energy Markets, S.G.C.C.C.C., S.A. and the National Board of Consumption.
Thus:
In the use of the legislative authorization granted by the Law n. [...], de [...], and pursuant to the
points a) and b) of Article 198 (1) of the Constitution, the Government decrees the following:
CHAPTER I
General arrangement
Article 1.
Object
1-The present decree-law ensures the implementation, in the internal legal order, of the Regulation
(EU) No 648/2012, of the European Parliament and of the Council of July 4, 2012,
relating to the derivatives of the counter market, central counterparties and repositories
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of transactions (Regulation), as well as of the delegated acts and acts of execution that the
develop.
2-In order to achieve the provisions of the preceding paragraph, the present decree-law shall carry out:
a) To the designation of the competent authorities for the supervision of counterparties
financial, non-financial counterparties and central counterparties and the designation of the
competent authority for the verification of the authenticity of the decisions of the
European Securities and Markets Authority (ESMA);
b) To the definition of the sanction regime applicable to financial counterparties and to
non-financial counterparties of the violation of the norms of the Regulation;
c) To the amendment to the Securities Code, approved by the Decree-Law n.
486/99, of November 13, to Decree-Law No. 221/2000 of September 9,
changed by Decrees-Law No. 85/2011, of June 29, and 18/2013, of 6 of
February, to the Decree-Law No. 357-C/2007 of October 31, as amended by the
Decrees-Laws No. 52/2010, of May 26, and 18/2013, of February 6, and à
Portaria No. 1619/2007 of December 26; and
d) To the approval of the legal regime of central counterparties.
CHAPTER II
Competent authorities
Article 2.
Competent authorities for the supervision of financial counterparties and of
non-financial counterparties
1-In accordance with the combined provisions of sections 8 and 13 of Article 2 of the
Regulation, the competent authorities for the supervision of compliance with
duties imposed by the Regulation to financial counterparties, as well as to the
finding of the respects infractions, procedural instruction and the application of fines and
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ancillary sanctions, are:
a) The Bank of Portugal, in respect of entities that are subject to its
supervision, specifically, credit institutions and financial companies;
b) The Securities Market Commission (CMVM), with respect to
collective investment bodies and investment firms subject to the
your exclusive supervision;
c) The Insurance Institute of Portugal, with respect to insurance and business enterprises
reinsurance, pension funds and respect the managing entities subject to your
supervision.
2-In accordance with Article 10 (5) of the Regulation, the competent authority for
supervision of the performance of duties imposed by the Regulation to counterparties
non-financial, as well as for the fact-finding of the infractions, the instruction
procedural and the application of fines and accessory sanctions, is the CMVM.
Article 3.
Competent authority for the authorisation and supervision of central counterparties
In accordance with Article 22 (1) of the Regulation, the competent authority for
authorization and supervision of central counterparties is the CMVM.
Article 4.
Verification of the authenticity of decisions of the European Values Authority
Securities and Markets
For the purposes of the provisions of Article 68 (4) of the Regulation, it is incumbent on the CMVM to
verification of the authenticity of ESMA decisions that apply fines and sanctions
Compulsory pecuniary payments to transaction repositories.
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CHAPTER III
Central counterparties
Article 5.
Legal regime of central counterparties
In addition to the provisions of the Regulation and the Securities Code,
approved by Decree-Law No. 486/99 of November 13, the legal regime is approved
of the central counterparties, published in annex to the present decree-law, which it is a part of
member.
CHAPTER IV
Sanctionatory regime
Article 6.
Serious counterorders
They constitute serious counterordinance the following typical illicit facts:
a) Non-compliance, by financial counterparties and non-financial counterparties, of the
reporting duty of data relating to derivative contracts, planned
in paragraphs 1 and 3 of Article 9 of the Regulation and on the delegated acts delegated;
b) Non-compliance, by financial counterparties and non-financial counterparties, of the
data conservation duty relating to derivative contracts, planned
in Article 9 (2) of the Regulation;
c) Non-compliance, by financial counterparties and non-financial counterparties, of the
duty of daily assessment of the outstanding balance of the current contracts, provided for in paragraph 2 of the
article 11 of the Regulation and on the delegated acts delegated;
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d) Non-compliance, by financial counterparties and non-financial counterparties, of the
duty of public disclosure of information on the exemption granted,
provided for in Article 11 (11) of the Regulation and in respect of the acts
delegates;
e) Non-compliance, by financial counterparties and non-financial counterparties,
of the duties laid down in the regulations issued pursuant to paragraph 3 of the
article 2.
Article 7.
Very serious counterorders
They constitute very serious counterordinance the following typical illicit facts:
a) Non-compliance, by financial counterparties and non-financial counterparties, of the
duty clearing of OTC derivatives contracts, provided for in paragraphs 1 and 3
of Article 4 of the Regulation and in the respects delegated acts;
b) Failure to, by the non-financial counterparties, the duties arising from the
assumption of positions in OTC derivative contracts that exceed the threshold of
applicable compensation, provided for in Article 10 (1) of the Regulation and in the
respects delegated acts;
c) Non-compliance, by financial counterparties and non-financial counterparties, of the
duty to ensure the establishment of procedures and mechanisms
appropriate measurement, follow-up and mitigation of operational risks
and counterparty credit risk in the event of a conclusion of contracts of
oTC derivatives without compensation through a central counterparty, predicted
in Article 11 (1) of the Regulation and on the delegated acts delegated;
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d) Failure, by financial counterparties, of the duty to establish
risk management procedures with respect to the OTC contracts concluded
as of August 16, 2012, provided for in the first part of paragraph 3 of the article
11. of the Regulation;
e) Non-compliance, by non-financial counterparties, of the duty to establish
risk management procedures with respect to the OTC contracts concluded
from the date on which the clearing threshold is exceeded, provided in the
second part of Article 11 (3) of the Regulation;
f) Failure to, by financial counterparties, of the duty to arrest a
appropriate and proportional capital amount to manage the uncovered risk
by exchanges of appropriate guarantees, provided for in Article 11 (4) of the
Regulation.
Article 8.
Responsibility for the counterordinations
1-By the practice of the counterordinations provided for in this chapter may be
held accountable:
a) The financial counterparties, as defined in point 8 of Article 2 of the
Regulation;
b) Non-financial counterparties, as defined in point 9 of Article 2 of the
Regulation;
c) Natural persons who are members of the social organs of the counterparties
referred to in the previous paragraphs or that they exercise managerial positions,
management, direction or managerial, or act on their representation, legal or voluntary.
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2-Collective persons referred to in the preceding paragraph, regardless of the regularity
of its constitution, are responsible for the counterordinations provided for in the present
chapter when the facts have been practiced by the holders of the posts of
administration, management, direction or managerial, in the exercise of their duties, as well as by
mandators, representatives or employees in the name and interest of the person
collective.
3-A The responsibility of the collective person is excluded when the agent attests against orders or
express instructions from that.
4-A The responsibility of the collective person does not bear the individual responsibility of the
respect agents.
5-Do not preclude the individual liability of the agents under the circumstance of the legal type of the
infraction require certain personal elements and these only if they check in person
collective, or require the agent to practise the fact in his or her interest, having that acted in the
interest of outrain.
6-A the invalidity or ineffectiveness of the acts in which the relationship between the individual agent is founded
and the collective person do not preclude the responsibility of this.
Article 9.
Negligence
The negligence is punishable, being the minimum and maximum limits of the reduced fines for
half.
Article 10.
Fulfillment of the omitted duty
1-Where the counterordinance results from the omission of a duty, the application of the penalty and
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the payment of the fine does not waive the offender of his or her compliance, if this is still
possible.
2-The offender may be subject to the injunction of fulfilling the omitted duty.
3-If the injunction is not met within the prescribed time, the offender incurs the targeted sanction
for the very serious counterorders.
Article 11.
Prescription
1-The procedure relating to the counterordinations provided for in this chapter prescribes in the
term of five years from the date of its practice.
2-The fines and ancillary penalties prescribe within five years of the day
in which the administrative decision becomes final or of the day on which the court decision
transiting on trial.
Article 12.
Fate of fines
Regardless of the stage at which it becomes final or transite on trial the decision
condensation, the product of the fines reverses in favor:
a) From the Deposit Guarantee Fund, created by Article 154 of the General Regime
of the Credit Institutions and Financial Societies, approved by the
Decree-Law No 298/92 of December 31 in the case of fines imposed by the
Bank of Portugal;
b) From the System of Indemnification to Investors, created by the Decree-Law
n. 222/99 of June 22, as amended by Decrees-Law No. 252/2003, 17 of
October, and 162/2009, of June 20, in the case of fines applied by the
CMVM;
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c) From the Motor Guarantee Fund, regulated by the Decree-Law No. 291/2007,
of August 21, as amended by Decree-Law No. 153/2008 of August 6 and of the
Labor Accident Fund, created by the Decree-Law No. 142/99, 30 of
april, amended by the Decrees-Law No 382-A/99 of September 22, and
185/2007, of May 10, in equal parts, in the case of fines imposed by the
Institute of Insurance of Portugal.
Article 13.
Responsibility for the payment of the fines
1-Case shall be condemned to the natural persons referred to in paragraph c) of Article 8 (1),
the respectful collective people respond in solidarity by the payment of the fines and
of the expense in which the first are condensed.
2-The holders of the governing bodies of the collective persons who, may do so,
have not been opposed to the practice of the infraction answer individual and secondarily
for the payment of the fine and the costs in which those are condemned, albeit the
Same, at the date of the conviction, hajam has been dissolved or entered into liquidation.
Article 14.
Fines
1-The serious counterordinations are punishable under the following terms:
a) When the infraction is practiced by a financial counterparty, with a fine of €
3000 a to € 1500000 and from 1000 a to € 500000, depending on whether the person is applied
collective or singular;
b) When the infraction is practiced by a non-financial counterparty, with fine
from 600 a to € 300000 and from € 200 a to € 100000, depending on whether the person is applied
collective or singular.
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2-Very serious counterordinations are punished in the following terms:
a) When the infraction is practiced by a financial counterparty, with a fine of €
10000 a to € 5000000 and from 4000 a to € 2000000, depending on whether the person is applied
collective or singular;
b) When the infraction is practiced by a non-financial counterparty, with fine
from 2000 a to € 1000000 and from € 800 a to € 400000, depending on whether the person is applied
collective or singular.
Article 15.
Ancillary sanctions
Jointly with the fine, and in function of the seriousness of the infraction and the fault of the agent,
may be applied to you by the practice of any of the counterordinations provided for in the articles
6. and 7 the following ancillary penalties:
a) Interdiction, for a period up to three years counted from the sentencing decision
definitive, from the exercise of the activity to which the counterordinate respects;
b) Inhibition, for a period up to three years counted from the sentencing decision
definitive, of the exercise of social positions and of functions of administration, management,
direction, managerial and surveillance in financial counterparties and the collective person
where the infraction has occurred, when the offender is a member of the organs
social, exercise managerial, management, direction or managerial positions or atue in
legal or voluntary representation of the collective person.
Article 16.
Suspension of the execution of the penalty
1-A competent authority for the application of the penalty may suspend, total or
partially, the execution of that.
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2-A suspension may be conditional on the fulfilment of certain obligations,
specifically those deemed necessary for the regularization of illegal situations, the
repair damage or the prevention of hazards.
3-The time of suspension of the sanction is set between two and five years, counting its
beginning from the date on which the sentencing decision becomes final or transiting into
judged.
4-A suspension does not cover the expense.
5-Elapsed the time of suspension without the accused having practiced any
counterordinance provided for in this decree-law, and without having contravained obligations
that it has been imposed upon, considers itself to be extinguished the sanction whose execution had been
suspended, proceeding, in the contrary case, to its execution when it reveals that the
purposes that were on the basis of the suspension could not, by way of it, be
achieved.
Article 17.
Disclosure of sentencing decisions
1-The competent authorities designated in Article 2 shall publicly disclose the decisions
applied for violation of the provisions of Articles 4, 5 and 7 to 11 of the Regulation,
particularly on the respected websites, even if you have been required to
judicial challenge, being, in this case, made express mention of that fact, unless that
disclosure could severely affect financial markets or cause damage
disproportionate to the interested parties.
2-A Judicial decision confirming, change or revoke the authority's sentencing decision
competent or from the court of the 1 th instance is communicated immediately to the authority
competent and mandatorily disclosed in the terms of the preceding paragraph.
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3-A The disclosure provided in the previous figures does not contain personal data in the acetion of the
point ( a) of Article 3 of Law No 67/98 of October 26.
Article 18.
Subsidiary law
The counterordinations provided for in this Chapter shall be subsidally applicable to the scheme
general of the illicit of mere social ordinance, constant of the Decree-Law No. 433/82, of 27 of
October, changed by the Decrees-Laws 356/89, of October 17, 244/95, of 14 of
september, and 323/2001, of December 17, and by Law No. 109/2001 of December 24.
CHAPTER V
Legislative amendments
Article 19.
Amendment to the Securities Code
Articles 6, 35, 258, 260, 268, 274, 280, 281, 352, 352, 352, 352, 352, 352, 352, 352
355, 359, 361, 363, 388, 389, 396, and 400, 396 and 400 of the Code of Values
Securities, approved by the Decree-Law No. 486/99 of November 13, pass to
next essay:
" Article 6.
[...]
1-[...].
2-[...].
3-A CMVM and the managing entities of regulated markets, of systems
of settlement, of clearing house, of centralized systems of
securities and central counterparties may require the translation to
portuguese of documents drawn up in foreign language that are to them
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referred to in the framework of their duties.
Article 35.
[...]
1-The managing entities of regulated markets, of systems of
multilateral trading, of settlement and chamber systems of
compensation and central counterparties may constitute or promote the
constitution of guarantee funds.
2-[...].
3-[...].
4-[...].
Article 258.
[...]
1-The provisions of this Chapter shall apply to all operations in which
intervenes a central counterparty.
2-Without prejudice to the provisions of the following articles, and in the other legislation
applicable, the authorization and the exercise of the activity of the central counterparties
comply with the provisions of Regulation (EU) No 648/2012 of Parliament
European and Council, of July 4, 2012, and in respect of acts
delegates and acts of execution.
3-The operations in which it intervenes a central counterparty become effective
in the face of it after its registration with it.
4-In addition to the operations provided for in Regulation (EU) No 648/2012, of the
European Parliament and Council, July 4, 2012, are still
subject to compensation with central counterparty interposition as
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operations carried out on regulated market and trading system
multilateral on the financial instruments referred to in points (e) and (f) of the
n Article 2 (1).
Article 259.
[...]
1-A The central counterparty shall ensure the sound management of the operations.
2-[ Revoked ].
3-[...].
4-[...].
Article 260.
General principles
1-A central counterparty must adopt appropriate measures for prevention and management
of risks, particularly credit, liquidity and operational, as well as
appropriate measures for the proper functioning of the adopted mechanisms and the
protection of the markets.
2-A central counterparty must have solid government mechanisms, which
enable its sound and prudent management.
3-[ Revoked ].
4-[ ... ].
5-[ ... ].
6-[ ... ].
7-[ ... ].
Article 265.
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Registration of rules of the central counterparty
1-[ Revoked ].
2-The rules of the central counterparty that ensure the appropriate exercise of its
activity, specifically those relating to its government, functioning,
risk management, segregation, portability, admission and maintenance of
compensating members, are the object of registration in the CMVM, which aims at
verification of their sufficiency, suitability and legality.
3-[ Revoked ].
4-[ ... ].
Article 268.
[...]
1-[...].
2-[...]:
a) [...];
b) [...];
c) Entities managing bodies of clearing; and
d) Central counterparties.
3-[ Revoked ].
4-[...].
5-In accordance with the rules of the system, the same participant can act only
as a settlement agent or clearing house, or exercise both
functions.
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6-The rules of the clearing houses are the object of registration in the CMVM, which
aims at the verification of its sufficiency, suitability and legality, owing them
be disclosed to the public.
7-[ Previous Article No 6 ].
Article 274.
[...]
1-The transfer orders are introduced to the system by the participants
or, by delegation of these, by the managing entity of the regulated market
or of the multilateral trading system where financial instruments
have been transacted, by the entity that takes over the chamber functions of
compensation or by the central counterparty regarding the operations
carried out in that market or system.
2-[...].
3-[...].
Article 279.
[...]
1-[...].
2-A the obligation to which the preceding paragraph is concerned is incumbent upon the participant who
has introduced into the system the transfer order or which has been indicated
by the managing entity of the regulated market or the system of
multilateral trading where the operations to be liquidated, by the
entity that takes over the functions of clearing house or by
central counterparty regarding these operations.
3-[...].
4-[...].
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Article 280.
[...]
1-[...].
2-[...].
3-[...].
4-In cases where there is central counterparty, this is the one that triggers the
procedures provided for the situations of default.
5-[...].
6-[...].
Article 281.
[...]
1-[...]:
a) [...];
b) Entities that take over the functions of clearing house or
central counterparties;
c) [...];
d) [...];
e) [...].
2-[...].
Article 284.
[...]
1-[...].
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2-[...].
3-[...].
4-[...].
5-If the operator of the settlement system has constituted guarantees in favor
of another operator in the frame of an interoperable system, the rights of the
system operator that constituted the guarantees are not affected by a
possible insolvency proceedings concerning the operator of the system that the
received.
Article 352.
[...]
1-[...].
2-When in the financial instruments market if it occurs disturbance
that endanger the national economy, may the Government, by
joint office of the Prime Minister and the member of the government
responsible for the area of finance, order the appropriate measures,
notably the temporary suspension of regulated markets or
multilateral trading systems, of certain categories of operations or of the
activity of managing entities of regulated markets, of systems of
multilateral trading, of settlement systems, of the chamber of
compensation, of centralized securities and securities systems
central counterparties.
Article 355.
[...]
1-[...]:
a) [...];
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b) [...];
c) Managing entities of settlement systems, of the chamber of
compensation, of centralized securities systems and
central counterparties;
d) [...];
e) [...];
f) [...].
2-[...].
3-[...].
Article 359.
[...]
1-[...]:
a) Managing entities of regulated markets, of systems of
multilateral trading, of settlement systems, of the chamber of
compensation, of centralized securities systems and
central counterparties;
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
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g) [...];
h) [...];
i) [...];
j) [...];
k) [...].
2-[...].
3-[...].
Article 361.
[...]
1-[...].
2-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) To replace the managing entities of regulated markets, of
multilateral trading systems, of settlement systems, of
clearinghouse, of centralized values of values
securities and central counterparties when they do not adopt the
measures necessary for regularization of anomalous situations that
put into question the regular functioning of the market, of the activity
exercised or the interests of the investors;
f) [...];
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g) [...].
3-[...].
4-[...].
Article 363.
[...]
1-[...]:
a) The managing entities of regulated markets, of systems of
multilateral trading, of settlement systems, of the chamber of
compensation, of centralized securities systems and the
central counterparties;
b) [...];
c) [...].
2-[...].
3-[...].
4-[...].
Article 372.
[...]
1-In the limits of law and regulations, the managing entities of the markets
regulated, of the multilateral trading systems, of the systems of
settlement, the clearing houses, the centralised systems of
securities and central counterparties can regulate
autonomously the activities per se managed.
2-[...].
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Article 388.
[...]
1-[...].
2-[...].
3-[...]:
a) [...];
b) Managing entities of regulated markets, of systems of
multilateral trading, of settlement systems, of the chamber of
compensation, of centralized securities systems,
central counterparties or holding companies of social shareholdings
in these entities.
4-[...].
5-[...].
6-[...].
Article 389.
[...]
1-[...].
2-[...].
3-[...]:
a) [...];
b) Sending to the managing entities of regulated markets, of systems
of multilateral trading, of settlement systems, of chamber of
compensation, of centralized securities systems and the
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central information counterparties that is not complete,
true, current, clear, objective and licite;
c) [...];
d) [...];
e) [...].
4-[...].
5-[...].
Article 395.
[...]
1-[...].
2-[...]:
a) [...];
b) [...];
c) The carrying out of operations by holders of administration bodies,
direction and supervision of financial intermediaries or entities
management of regulated markets, of trading systems
multilateral, of settlement systems, of clearing house, of
centralized securities systems and central counterparties,
as well as by the working respects, if such operations
are vetted;
d) [...].
3-[ ... ].
Article 396.
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[...]
1-[...]:
a) The exercise of the functions of clearinghouse, of the activity of
central counterparty and the settlement system functions outside the
cases and terms provided for in law or regulation, in particular the
exercise by unauthorized entity for the purpose;
b) The operation of clearing house, central counterparty
or of a system of settlement without registration of the rules in the CMVM, without the
disclosure to the public of the rules or with violation of registered rules;
c) [...];
d) [...];
e) The violation, by entity that exercises the functions of chamber of
compensation or by central counterparty, of the duty to adopt the
measures necessary to minimise the risks and appropriate to the good
operation of the adopted mechanisms and the protection of markets;
f) The violation, by central counterparty, of the duties concerning segregation
and portability and prudential requirements.
2-[ Revoked ].
Article 400.
[...]
[...]:
a) [...];
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b) Serious counterordinance, when the agent is financial intermediary
or any of the entities referred to in paragraph b) of the Article 3 (3)
388., in the exercise of respect for activities;
c) [...]. "
Article 20.
Amendment to Decree-Law No 221/2000 of September 9
Article 6 of the Decree-Law No. 221/2000 of September 9, amended by the Decrees-Laws
n. paragraphs 85/2011, of June 29, and 18/2012, of February 6, passes the following essay:
" Article 6.
[...]
1-[ ... ].
2-[...].
3-If the operator has constituted guarantees in favour of another operator in the
frame of an interoperable system, the rights of the system operator that
constituted the guarantees are not affected by an eventual process of
insolvency pertaining to the operator of the system that received them.
4-[ Previous Article No 3 ]. "
Article 21.
Amendment to Decree-Law No 357-C/2007 of October 31
1-Articles 1, 2, and 44 and 44 of the Decree-Law No 357-C/2007 of October 31,
changed by Decrees-Laws No. 52/2010, of May 26, and 18/2013, of February 6
go on to have the following essay:
" Article 1.
[...]
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1-The present decree-law regulates the legal regime of the managing societies of
regulated market, from the managing companies of trading systems
multilateral, the clearing house holding companies, of the
settlement system holding companies and the managing societies of
centralized securities system.
2-[...].
3-[...].
Article 2.
[...]
The regulated market gestural societies, the managing companies of
multilateral trading system, the chamber gestural societies of
compensation, settlement system management companies and societies
centralized securities system gestures should adopt the type
anonymous society.
Article 42.
[...]
1-The gestural societies referred to in the c) of Article 268 (2) of the
Securities code must use in your firm the denomination
"society manager of clearinghouse" or abbreviated
"SGCC".
2-[ Revoked ].
3-Without prejudice to the provisions of this Title, the companies referred to in paragraph 1
is applicable, with due adaptations, Title II of this decree-law,
with the exception of your chapter III.
Article 44.
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[...]
[...]:
a) Exercise of the activity of chamber gestural holding companies
compensation;
b) Technical, human and material means and risk management techniques
necessary for the granting of registration to the managing companies of
clearing house;
c) [...]. "
2-It is amended the epiggrafe of Title III of the Decree-Law No 357-C/2007 of October 31,
changed by Decrees-Laws No 52/2010, of May 26, and 18/2013, of February 6,
which goes on to have the following essay:
"TITLE III-Societies gestures of clearing house"
CHAPTER VI
Transitional and final provisions
Article 22.
Transitional provisions
1-The provisions laid down in the Regulations of the CMVM n. 4/2007 on Entities
Gestures of Markets, Systems and Services, and 5/2007 on Compensation, Counterparty
Central and Liquidation remain in place in all that does not contravene the regime
approved by this decree-law.
2-The legal or contractual remissions to the Decree-Law No. 357-C/2007, 31 of
October, amended by Decrees-Laws No 52/2010, of May 26, and 18/2013, of 6 of
February, relating to the central counterparties consider themselves to be made for the provisions
correspondents of the legal regime of central counterparties approved in annex to the
present decree-law.
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Article 23.
Regulatory provisions
1-It is up to the Bank of Portugal, the CMVM and the Insurance Institute of Portugal to approve the
regulation necessary to ensure supervision of the performance of duties
tax by the Regulation to financial counterparties, in respect of the area of acting.
2-It is up to the CMVM to approve the necessary regulation to ensure the supervision of the
compliance with the duties imposed by the Regulation to non-financial counterparties and
to the central counterparties.
Article 24.
Abrogation standard
They are revoked:
a) Article 259 (2), Art. 260 (3), Articles 261 to 264, paragraphs 1
Article 265 (3), Article 268 (3) and Article 396 (2) of the Code
of the Securities;
b) Article 42 (2) and Article 43 of the Decree-Law No. 357-C/2007 of 31 of
October, amended by Decrees-Laws No 52/2010, of May 26, and 18/2013,
of February 6;
c) The point e) of point 1 of the Portaria No 1619/2007 of December 26.
Article 25.
Entry into force
This decree-law shall come into force 30 days from its publication.
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ANNEX
(referred to in Article 5)
Legal regime of central counterparties
Chapter I
General provisions
Article 1.
Societarium type, firm and headquarters
1-Central counterparties adopt the anonymous society type.
2-A The firm of central counterparties includes the denomination "central counterparty" or
abbreviately "CC".
3-Central counterparties have their registered office and effective administration in Portugal.
Article 2.
Number of shareholders
The central counterparties constitute and remain with any number of shareholders.
Article 3.
Acquisition of real estate
Central counterparties may not acquire real estate that is not indispensable to their
installation and operation.
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Chapter II
Qualified participations and disclosure of shareholdings
Article 4.
Imputation of voting rights and elements for the prudential assessment
1-In the centerpiece of the voting rights of the participant in the central counterparty is applicable
provisions of Articles 20, 20-A and 21 of the Securities Code, approved
by Decree-Law No. 486/99 of November 13, with due adaptations.
2-In the basket of the qualifying holdings, as defined in section 20 of the article
2 of Regulation (EU) No 648/2012, of the European Parliament and of the Council, of 4
of July 2012 (Regulation), in the central counterparties are not considered:
a) Voting rights held as a result of firm outlet or placement with
guarantee of financial instruments, provided that the voting rights are not
exerted or otherwise used to intervene in the management of society and
are ceded within one year of the acquisition;
b) The shares transacted exclusively for the purposes of operations of
compensation;
c) The holdings of financial intermediary acting as a market maker
to attain or exceed 5% of the voting rights corresponding to the capital
social, as long as that one does not intervene in the management of the participating society, nor
influencing it to acquire these shares or to support its price;
d) The shares held by custodian entities, acting in that capacity, provided that
demonsrem before the Securities Market Commission (CMVM)
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that they can only exercise the voting rights associated with the shares under
instructions communicated in writing or by electro-media.
3-For the purposes of the b) and c) of the preceding paragraph, the provisions of Article 16 shall apply.
and in Article 18 of the Securities Code, approved by the Decree-Law
n. 486/99, of November 13.
4-For the purposes of Article 32 of the Regulation, the CMVM establishes by regulation the
elements required for the assessment of the suitability of the potential acquirer and the soundness
financial from the acquisition project.
5-For the purposes of the assessment provided for in the preceding paragraph, the CMVM requests the opinion of the
Bank of Portugal or the Insurance Institute of Portugal, as applicable, should the
proposed acquirer is subject to the supervision of some of these authorities.
Article 5.
Communication to CMVM
1-The acts upon which the acquisition, the increase, the alienation or the
decrease in qualified participation subject to the prior communication provided for in paragraph 2
of Article 31 of the Regulation, are communicated to the CMVM and to the central counterparty
by the participants, within 15 days.
2-A central counterparty communicates to the CMVM, as soon as it has knowledge,
any change in its shareholding.
Article 6.
Inhibition of voting rights
1-A The acquisition or enhancement of qualified participation determines the inhibition of exercise
of the voting rights inherent in the participation to the extent necessary to prevent the
acquirer of exercising in the society, through vote, influence higher than that which
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held prior to the acquisition or reinforcement of participation, provided that it is verified
any of the following situations:
a) Not having the acquirer complied with the communication obligation of the acquisition of the
said participation, in accordance with Article 31 (2) of the Regulation;
b) Having the acquirer acquired or increased his / her participation after having
has complied with the communication provided for in Article 31 (2), but before the
CMVM shall have pronounced, pursuant to Articles 31 and 32, all of the
Regulation;
c) Having the CMVM opposite the acquisition or increase in participation project
qualified.
2-Failure to comply with the duty of communication referred to in paragraph 1 of the preceding Article
determines the inhibition of voting rights, up to the achievement of the missing communication.
Article 7.
Special arrangements for the invalidity of deliberations
1-Whenever the CMVM or the central counterparty administration body has
knowledge of some situation of inhibiting exercise of voting rights, in the
terms of the provisions of the previous article, shall immediately communicate that fact to the
chair of the table of the general assembly of the society, and this shall act in such a way
prevent the exercise of the inbred voting rights.
2-Are nullable the social deliberations taken on the basis of inbred votes, unless if
prove that deliberation would have been adopted without those votes.
3-A cancellability of deliberation can be argued in the general terms or, still, by the
CMVM.
Article 8.
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Disclosure of shareholdings
The governing body of the central counterparty shall promote disclosure in the
respects site on the Internet:
a) Of information relating to qualifying holdings, including the acquisition,
increase, decrease and cessation of the same, as well as the identity of the
respect holders, in relation either to the social capital represented by shares
with a right to vote, or to the total social capital;
b) Until the fifth day prior to the achievement of the general meeting, of the list of
shareholders who are holders of representative shares of more than 2% of the capital
social represented by shares with the right to vote or the total social capital.
Chapter III
Administration and surveillance
Article 9.
Idoneity, availability and qualification of the holders of the organs of
administration and supervisory
1-On the appreciation of the requirements of idoneity, availability and qualification
professional of the holders of the administration and supervisory bodies of the
central counterparties are applicable, with due adaptations, paragraphs 2 and 3 of the article
30. and Articles 31 and 33 of the General Regime of Credit Institutions and Societies
Financial, approved by the Decree-Law No. 298/92 of December 31.
2-A CMVM, for the purposes of the verification of the requirements set out in this Article, exchange
information with the Bank of Portugal and with the Insurance Institute of Portugal.
3-For the purposes of this Article, the suitability, availability and the
qualification of members of the governing bodies and supervisory bodies
which are found to be registered with the Bank of Portugal or the Insurance Institute of
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Portugal, when such registration is subject to conditions of idoneity, unless
supervent facts at the date of the said registration lead the CMVM to pronounce
in the opposite sense.
4-A CMVM communicates to the Bank of Portugal or to the Insurance Institute of Portugal,
depending on applicable, any decision in the sense of the non-verification of the suitability,
availability and qualification of members of the governing bodies and bodies
of surveillance that are found to be registered with these supervisory authorities.
Article 10.
Communication of designation of the holders of the governing bodies and of
surveillance
1-A designation of holders of the administration and supervisory bodies shall be communicated to the
CMVM by the central counterparty up to 15 days after its occurrence.
2-A central counterparty or any interested party can communicate to the CMVM the intention
of designation of holders of the administration or supervisory bodies of that.
3-A CMVM may deduce opposition to that designation or assignment intent, with
foundation in the lack of idoneity, availability or professional qualification, in the
deadline of 30 days after having received the communication of the designation or intention to
designation of the person concerned.
4-A deduction for opposition on grounds of lack of idoneity, availability or
professional qualification of the holders of the administration or supervisory bodies is
communicated to the interested and the central counterparty.
5-The holders of the administration and supervisory bodies, even if already designated, do not
may start the exercise of those duties before the deadline referred to in the
n. 3.
6-A the lack of communication to the CMVM or the exercise of functions before the
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term of opposition referred to in paragraph 3 does not determine the invalidity of the practiced acts
by the person concerned in the performance of their duties.
7-If in relation to any holder of the administration or supervisory bodies
cease to be checked, in fact supervenient or not known to the CMVM at the date
of the act of non-opposition, the requirements set out in paragraph 1 of the previous article, the CMVM
notifies the central counterparty to, within the period that it is fixed, terminate the functions of the
people in question and promote their replacement.
Chapter IV
Exercise of activity
Article 11.
Deontological code
1-Central counterparties approve a deontological code to which they become subject:
a) The holders of their social organs;
b) Their workers;
c) The compensating members.
2-The deontological code regulates, specifically:
a) The rules on the exercise of duties and holding of shareholdings
qualified by the holders of their administration bodies in other entities,
intended to prevent the occurrence of conflicts of interest;
b) The standards of diligence and professional aptitude that should be observed in
all activities of the society;
c) The sanctions appropriate to the seriousness of the violation of its rules.
3-The standards that have by recipients the holders of the social bodies, the
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employees of society and compensating members must establish levels
high requirement.
4-The deontological code and respect amendments shall be communicated to the CMVM in the
deadline of 15 days after its approval.
Article 12.
Professional secret
1-The holders of the social bodies of central counterparties, their collaborators and the
people who give you, on a permanent or occasional basis, any services, are
subject to professional secrecy as to all the facts and elements whose
knowledge adheres to them from the exercise of their duties or the provision of their
services.
2-The duty of secrecy does not cease with the expiry of the functions or services.
3-The facts and elements covered by the duty of secrecy can only be revealed in the
terms set out in the law.
Article 13.
Disciplinary power and reporting duties
1-Are subject to the disciplinary power of the central counterparty, in the terms provided for in the
code deontological code, the persons referred to in points b) and c) of Article 11 (1)
2-Constitute infraction disciplinary violation of the duties to which they are subject to persons
referred to in paragraph 1, provided for in law, in regulation or in the deontological code.
3-The disciplinary applied sanctions are communicated to the CMVM.
4-If the infraction set up equally counterordinance or public crime, the organ of
administration of the society communicates it, immediately, to the CMVM.
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Chapter V
Intervention of the CMVM
Article 14.
Central counterparty register
The CMVM maintains a record of the central counterparties by you authorised in the terms
of Articles 14 and 17 of the Regulation.
Article 15.
Regulation
It is up to the CMVM, within 90 days, the regulation of the matters concerning the
implementation of the scheme applicable to central counterparties with respect to:
a) Instruction of the application for the authorization of a central counterparty pursuant to the
Regulation;
b) Informative requirements relating to disclosure and communications relating to
qualified participations and the designation of holders of the organs of
administration and surveillance;
c) Financial information to be reported to the CMVM and to be disclosed to the public.
