S.I. No. 318/2011 - European Communities (Financial Collateral Arrangements) (Amendment) (No. 2) Regulations 2011.

Item (1)

Provision amended (2)

Amendment (3)

1

Regulation 2

(a) Substitute the following for the definition of “close-out netting provision”:

“ ‘close-out netting provision’ means—

(a) a provision of a financial collateral arrangement, or an arrangement of which a financial collateral arrangement forms part, or

(b) an enactment or a rule of law, as a result of which, on the occurrence of an enforcement event, either or both of the following apply (whether through the operation of netting or set-off or otherwise):

(i) the obligations of the parties—

(I) are accelerated so as to be immediately due and are expressed as an obligation to pay an amount representing the estimated current value of the obligations, or

(II) are terminated and replaced by an obligation to pay such an amount;

(ii) an account is taken of what is due from each party to the other in respect of those obligations and the party from which the larger amount is due is required to pay to the other party a net amount equal to the balance of the account;".

(b) In the definition of “financial instruments” substitute the following for subparagraph (h):

“(h) claims relating to, or rights in or in respect of, shares, securities, bonds, and instruments of a kind referred to in subparagraphs (a) to (g);”.

(c) Insert the following definitions:“

‘enactment’ has the meaning given to it by section 2 of the Interpretation Act 2005 (No. 23 of 2005);

‘supervised financial institution’ means a financial institution that is subject to prudential supervision by a regulatory authority established by or under a law of a state, and includes (but is not limited to) the following:

(a) a credit institution (as defined in Article 4(1) of the Recast Credit Institutions Directive, but including the institutions listed in Article 2 of that Directive);

(b) an investment firm (as defined in Article 4.1(1) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004³ );

(c) a financial institution (as defined in Article 4(5) of the Recast Credit Institutions Directive);

(d) an insurance undertaking (as defined in Article 1(a) of Council Directive 92/49/EEC of 18 June 1992⁴ );

(e) an assurance undertaking (as defined in Article 1(1)(a) of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002⁵ );

(f) a management company (as defined in Article 1a(2) of Council Directive 85/611/EEC of 20 December 1985⁶ );

(g) an undertaking for collective investment in transferable securities (UCITS) as defined in Article 1(2) of Council Directive 85/611/EEC of 20 December 1985;”.

2

Regulation 3(2)

Substitute the following for paragraphs (2) and (3):

“(2) The collateral taker and the collateral provider who are the parties to the financial collateral arrangement must each be one of the following:

(a) a public authority (excluding a publicly guaranteed undertaking unless it is covered by one or more of subparagraphs (b) to (f));

(b) a central bank, the European Central Bank, the Bank for International Settlements, a multilateral development bank, the International Monetary Fund or the European Investment Bank;

(c) a supervised financial institution;

(d) a central counterparty, settlement agent or clearing house, or any similar entity that is operating in the futures, options or derivatives markets in a way not covered by the Settlement Finality Directive, provided the entity is regulated under the law of the State or of another country; (e) a person (other than a natural person) who acts as a trustee, or in a representative capacity, on behalf of—

(i) any one or more persons of whom at least one is a bondholder or the holder of any other form of securitised debt, or

(ii) an authority, bank, institution or other entity referred to in any of subparagraphs (a) to (d);

(f) any other person or group (other than a natural person), but only if the other party to the arrangement is an authority, bank, institution or other entity of a kind specified in any of subparagraphs (a) to (e).

(3) In paragraph (2)(d) “central counterparty”, “clearing house” and “settlement agent” have the respective meanings given by Article 2 of the Settlement Finality Directive.”.

3

Regulation 4(5)

Substitute the following for paragraph (5):

“(5) Paragraph (4) is without prejudice to Council Directive 93/13/EEC of 5 April 1993⁷ or any other law of the State concerning unfair contract terms.”.

4

Regulation 13(b)

Substitute the following for paragraph (b):

“(b) reorganisation measures commence on the day on which an intervention by an administrative authority or a judicial authority, referred to in the definition of “reorganisation measure” in Regulation 2(1), commences.”.

5

New Regulation

Insert the following after Regulation 18:

“Relationship between these Regulations and Credit Institutions (Stabilisation) Act 2010

18A. (1) For the avoidance of doubt, nothing in Regulation 6, 7, 10, 11 or 12 shall affect the operation or effect of section 61 of the Credit Institutions (Stabilisation) Act 2010 (No. 36 of 2010) (in this Regulation referred to as the ‘Act of 2010’).

(2) Without prejudice to paragraph (1) and for the avoidance of doubt, no order or requirement made under the Act of 2010 and no act, omission or consequence referred to in section 61 (3) of that Act shall constitute an enforcement event for the purposes of these Regulations.

(3) Without prejudice to paragraph (1) and for the avoidance of doubt, no order or requirement made under the Act of 2010 and no act, omission or consequence referred to in section 61 (3) of that Act shall constitute an enforcement event related to a financial collateral arrangement.”.