CENTRAL COUNTERPARTIES ACCESS REGULATIONS

CENTRAL COUNTERPARTIES ACCESS

SUBSIDIARY LEGISLATION 370.35

CENTRAL COUNTERPARTIES

ACCESS REGULATIONS

3rd January, 2018

LEGAL NOTICE 387 of 2017.

(1)

The title of these regulations is the Central

Counterparties Access Regulations.

(2) The purpose of these regulations is to transpose and

implement Article 4(1)(51), and Articles 37 and 38 of MIFID as

herein defined, and they shall be interpreted and applied accordingly.

(1)

In

these

regulations

unless

the

context

otherwise requires

"the Acts" means the Financial Markets Act and the

Investment Services Act;

"Central Bank of Malta" means the bank established by

article 3 of the Central Bank of Malta Act;

"central counterparty" or "CCP" means a legal person

that interposes itself between the counterparties to the

contracts traded on one or more financial markets, becoming

the buyer to every seller and the seller to every buyer;

"EMIR Regulation" means Regulation (EU) No 648/

2012 of the European Parliament and of the Council of the 4th

July, 2012 on OTC derivatives, central counterparties and

trade repositories, as amended from time to time;

"investment firm" means any person, other than persons

to whom MiFID does not apply in terms of Article 2 of the

said directive, whose regular occupation or business is the

provision of any one or more core investment services to third

parties on a professional basis;

"Maltese investment firm" means a person licensed in

terms of the Act, whose head office is in Malta and who is

entitled to carry on an activity in a Member State or EEA State

other than Malta in exercise of a European right;

"MiFID" means Directive 2014/65/EU of the European

Parliament and of the Council of 15 May 2014 on markets in

financial instruments and amending Directive 2002/92/EC and

Directive 2011/61/EU, as amended from time to time, and

includes any implementing measures that have been or may be

issued thereunder.

(2)

Words and expressions used in the Acts shall, in these

CENTRAL COUNTERPARTIES ACCESS

regulations, have the same meaning as is assigned to them in the Acts.

(1) Without prejudice to Titles III, IV or V of the EMIR

Regulation, investment firms, market operators operating an MTF and

regulated markets from Member States or EEA States other than Malta

shall have the right of direct and indirect access to CCP, clearing and

settlement systems in Malta for the purposes of finalising or arranging

the finalisation of transactions in financial instruments.

(2) The direct and indirect access of the investment firms,

market operators operating an MTF and regulated markets referred to

in sub-regulation (1) to such facilities shall be subject to the same non-

discriminatory, transparent and objective criteria which apply to local

members or participants.

(3) The use of the facilities referred to in sub-regulation (1) to

the clearing and settlement of transactions in financial instruments

undertaken on a trading venue in Malta shall not be restricted.

(4) Regulated markets shall offer, in Malta, the right to

designate the system for the settlement of transactions in financial

instruments undertaken on that regulated market to all their members

or participants, subject to the following conditions

(a)

such links and arrangements between the

designated settlement system and any other system or facility as

are necessary to ensure the efficient and economic settlement of

the transaction in question;

(b)

agreement by the competent authority that

technical conditions for settlement of transactions concluded on

the regulated market through a settlement system other than that

designated by the regulated market are such as to allow the

smooth and orderly functioning of financial markets.

(5) Any assessment by the competent authority shall be

without prejudice to the competences of the Central Bank of Malta as

overseer of settlement systems. The competent authority shall take into

account the oversight and, or supervision of the clearing and settlement

system already exercised by the Central Bank of Malta as overseer of

clearing and settlement systems in order to avoid undue duplication of

control.

(1)

The competent authority shall not prevent

investment firms, market operators operating an MTF and regulated

markets from Member States or EEA States other than Malta from

entering into appropriate arrangements with a CCP or clearing house

and a settlement system in Malta with a view to providing for the

clearing and, or settlement of some or all trades concluded by the

members or participants under their systems.

(2)

The European regulatory authority shall take into account

CENTRAL COUNTERPARTIES ACCESS

the oversight and, or supervision of the clearing and settlement

system already exercised by the Central Bank of Malta and other

central banks as overseers of clearing and settlement systems in order

to avoid undue duplication of control.

(1)

Maltese investment firms, market operators

operating an MTF and regulated markets shall not be prevented from

entering into appropriate arrangements with a CCP or clearing house

and a settlement system of another Member State or an EEA State

with a view to providing for the clearing and, or settlement of some

or all trades concluded by the members or participants under their

systems.

(2) The competent authority may not oppose the use of CCP,

clearing houses and, or settlement systems in another Member State

or EEA State except where demonstrably necessary in order to

maintain the orderly functioning of that regulated market or MTF and

taking into account the conditions for settlement systems established

in regulation 3(4).

(3) The competent authority shall take into account the

oversight and, or supervision of the clearing and settlement system

already exercised by the Central Bank of Malta and other central

banks as overseers of clearing and settlement systems in order to

avoid undue duplication of control

(1)

Where a person falling within the scope of

these regulations fails to comply with any provisions of such

regulations or any rules issued thereunder further implementing such

regulations, the competent authority may, by notice in writing and

without recourse to a court hearing, impose on such person an

administrative penalty and other administrative measures in

accordance with the provisions of the Financial Markets Act (MiFID

and MiFIR Administrative Penalties, Measures and Investigatory

Powers) Regulations, 2017 or the Investment Services Act and

Banking Act (MiFID and MiFIR Administrative Penalties, Measures

and Investigatory Powers) Regulations, 2017.

(2) A right of appeal to the Financial Services Tribunal shall

lie from the decisions which the competent authority shall take under

these regulations and the provisions of Part VI of the Financial

Markets Act or Article 19 of the Investment Services Act shall apply

mutatis mutandis.