Regulations 2023

Suppliment tal-Gazzetta tal-Gvern ta’ Malta Nru. 21,109, 1 ta’ Settembru, 2023

L.N. 208 of 2023

SET-OFF AND NETTING ON INSOLVENCY ACT

(CAP. 459)

Financial Collateral Arrangements (Amendment)

Regulations 2023

IN EXERCISE of the powers conferred by article 7 of the Set-

Off and Netting on Insolvency Act, the Minister responsible for

financial regulation has made the following regulations

(1) The title of these regulations is the Financial Title and scope.

Collateral Arrangements (Amendment) Regulations, 2023, and these

regulations shall be read and construed as one with the Financial

Collateral Arrangements Regulations, hereinafter referred to as "the S.L. 459.01.

principal regulations".

(2) The scope of these regulations is to transpose Article 89 of

Regulation (EU) 2021/23 of the European Parliament and of the

Council of 16 December 2020 on a framework for the recovery and

resolution of central counterparties and amending Regulations (EU)

No 1095/2010, (EU) No 648/2012, (EU) No 600/2014, (EU) No 806/

2014 and (EU) 2015/2365 and Directives 2002/47/EC, 2004/25/EC,

2007/36/EC, 2014/59/EU and (EU) 2017/1132.

Sub-regulation (4) of regulation 1 of the principal Amends

regulation 1 of

regulations shall be substituted by the following

the principal

regulations.

"(4) The provisions of these regulations shall be

without prejudice to

(a) Directive 2008/48/EC of the European

Parliament and the Council of 23 April 2008 on

credit agreements for consumers, as amended

from time to time, and the Consumer Credit

Regulations; and

(b) the BRRD, the CCP RRR, the relevant

provisions of the Malta Financial Services

Authority Act and Financial Markets Act

transposing the CCP RRR, and the Recovery and

Resolution Regulations.".

Sub-regulation (1) of regulation 2 of the principal Amends

regulation 2 of

regulations shall be amended as follows

the principal

regulations.

(a)

immediately before the definition ""book entry

securities collateral" ", there shall be added the following new

definition

" "binding legal instrument" means any directly

applicable measures, including, but not limited to, any

implementing technical standards, regulatory technical

standards or similar measures, issued under European

Union legislation;";

(b) immediately after the definition " "book entry

securities collateral" " there shall be added the following new

definition

" "BRRD" means Directive 2014/59/EU of the

European Parliament and of the Council of 15 May 2014

establishing a framework for the recovery and resolution of

credit institutions and investment firms and amending

Council Directive 82/891/EEC, and Directives 2001/24/

EC, 2002/47/EC, 2004/25/EC, 2005/56/EC, 2007/36/EC,

2011/35/EU,

2012/30/EU

and

2013/36/EU,

and

Regulations (EU) No 1093/2010 and (EU) No 648/2012, of

the European Parliament and of the Council, as amended

from time to time, and includes any binding legal

instruments, guidelines and other measures that have been

or may be issued thereunder;";

(c) immediately after the definition " "cash" ", there shall

be added the following new definition

" "CCP RRR" means Regulation (EU) 2021/23 of the

European Parliament and of the Council of 16 December

2020 on a framework for the recovery and resolution of

central counterparties and amending Regulations (EU) No

1095/2010, (EU) No 648/2012, (EU) No 600/2014, (EU)

No 806/2014 and (EU) 2015/2365 and Directives 2002/47/

EC, 2004/25/EC, 2007/36/EC, 2014/59/EU and (EU) 2017/

1132, as amended from time to time, and includes any

implementing measures that have been or may be issued

thereunder;"; and

(d) immediately after the definition ""European Union"",

there shall be added the following new definition

" "Financial Collateral Arrangements Directive"

means Directive 2002/47/EC of the European Parliament

and of the Council of 6 June 2002 on financial collateral

arrangements, as amended from time to time;".

Immediately after sub-regulation (2) of regulation 3 of the Amends

3 of

principal regulations, there shall be added the following new sub- regulation

the principal

regulation

regulations.

"(3) The provisions of Article 7(1) of Financial

Collateral Arrangements Directive and of regulations 6,

7, 8, 9 and 10(1) shall not apply to

(a) any restriction on the enforcement of

financial collateral arrangements or any

restriction on the effect of a security financial

collateral arrangement, any close out netting or

set-off provision that is imposed by virtue of

regulations 59 to 72 of the Recovery and

Resolution Regulations or by virtue of the

provisions under Title V, Chapter III, Section 3 or

under Chapter IV of the CCP RRR or in terms of

the relevant provisions of the Malta Financial

Services Authority Act implementing the said

provisions of the CCP RRR; or

(b) any restriction which

(i) is imposed in terms of any

applicable national law that facilitates the

orderly resolution of

(aa) an insurance company,

insurance undertaking and assurance

undertaking in terms of regulation

4(1)(g);

(bb) a central counterparty,

settlement agent or clearing house,

including similar institutions regulated

under national law acting in the

futures, options and derivatives

markets to the extent not covered by

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; or

(cc) a non-natural person, who

acts in a trust or representative

capacity on behalf of any one or more

persons that includes any bondholders

or holders of other forms of securitised

debt or on behalf of any institution as

defined in regulation 4(1)(a) to (l); and

(ii) is subject to safeguards at least

equivalent to those set out in regulations 73

to 80 of the Recovery and Resolution

Regulations or in Title V, Chapter V of the

CCP RRR.".

€0.18