1. A registered trade repository shall comply at all times with the conditions for registration. The powers conferred on ESMA or any official of or other person authorised by ESMA by Articles 61, 62 and 63 of Regulation (EU) No 648/2012 shall not be used to require the disclosure of information or documents which are subject to legal privilege. For further information see ‘Frequently Asked Questions’. ESMA shall communicate any decision taken in accordance with paragraph 1 to the Commission. Power is conferred to the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010. 1. The power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of amending the list of entities that are excluded from the scope of this Regulation and of the type of fees, the matters for which fees are due, the amount of the fees and the manner in which they are to be paid by trade repositories. For purposes of this Regulation, the following definitions apply: ‘trade repository’ means a legal person that centrally collects and maintains the records of SFTs; ‘counterparties’ means financial counterparties and non-financial counterparties; an investment firm authorised in accordance with Directive 2014/65/EU of the European Parliament and of the Council (17); a credit institution authorised in accordance with Directive 2013/36/EU of the European Parliament and of the Council (18) or with Regulation (EU) No 1024/2013; an insurance undertaking or a reinsurance undertaking authorised in accordance with Directive 2009/138/EC of the European Parliament and of the Council (19); a UCITS and, where relevant, its management company, authorised in accordance with Directive 2009/65/EC; an AIF managed by AIFMs authorised or registered in accordance with Directive 2011/61/EU; an institution for occupational retirement provision authorised or registered in accordance with Directive 2003/41/EC of the European Parliament and of the Council (20); a central counterparty authorised in accordance with Regulation (EU) No 648/2012; a central securities depository authorised in accordance with Regulation (EU) No 909/2014 of the European Parliament and of the Council (21); a third-country entity which would require authorisation or registration in accordance with the legislative acts referred to in points (a) to (h) if it were established in the Union; ‘non-financial counterparty’ means an undertaking established in the Union or in a third country other than the entities referred to in point (3); if the counterparty is a natural person, where it has its head office; if the counterparty is a legal person, where it has its registered office; if the counterparty has, under its national law, no registered office, where it has its head office; ‘branch’ means a place of business other than the head office which is part of a counterparty and which has no legal personality; ‘securities or commodities lending’ or ‘securities or commodities borrowing’ means a transaction by which a counterparty transfers securities or commodities subject to a commitment that the borrower will return equivalent securities or commodities on a future date or when requested to do so by the transferor, that transaction being considered as securities or commodities lending for the counterparty transferring the securities or commodities and being considered as securities or commodities borrowing for the counterparty to which they are transferred; ‘buy-sell back transaction’ or ‘sell-buy back transaction’ means a transaction by which a counterparty buys or sells securities, commodities, or guaranteed rights relating to title to securities or commodities, agreeing, respectively, to sell or to buy back securities, commodities or such guaranteed rights of the same description at a specified price on a future date, that transaction being a buy-sell back transaction for the counterparty buying the securities, commodities or guaranteed rights, and a sell-buy back transaction for the counterparty selling them, such buy-sell back transaction or sell-buy back transaction not being governed by a repurchase agreement or by a reverse-repurchase agreement within the meaning of point (9); ‘repurchase transaction’ means a transaction governed by an agreement by which a counterparty transfers securities, commodities, or guaranteed rights relating to title to securities or commodities where that guarantee is issued by a recognised exchange which holds the rights to the securities or commodities and the agreement does not allow a counterparty to transfer or pledge a particular security or commodity to more than one counterparty at a time, subject to a commitment to repurchase them, or substituted securities or commodities of the same description at a specified price on a future date specified, or to be specified, by the transferor, being a repurchase agreement for the counterparty selling the securities or commodities and a reverse repurchase agreement for the counterparty buying them; ‘margin lending transaction’ means a transaction in which a counterparty extends credit in connection with the purchase, sale, carrying or trading of securities, but not including other loans that are secured by collateral in the form of securities; ‘securities financing transaction’ or ‘SFT’ means: securities or commodities lending and securities or commodities borrowing; a buy-sell back transaction or sell-buy back transaction; ‘reuse’ means the use by a receiving counterparty, in its own name and on its own account or on the account of another counterparty, including any natural person, of financial instruments received under a collateral arrangement, such use comprising transfer of title or exercise of a right of use in accordance with Article 5 of Directive 2002/47/EC but not including the liquidation of a financial instrument in the event of default of the providing counterparty; ‘title transfer collateral arrangement’ means a title transfer financial collateral arrangement as defined in point (b) of Article 2(1) of Directive 2002/47/EC concluded between counterparties to secure any obligation; ‘security collateral arrangement’ means a security financial collateral arrangement as defined in point (c) of Article 2(1) of Directive 2002/47/EC concluded between counterparties to secure any obligation; ‘collateral arrangement’ means a title transfer collateral arrangement and security collateral arrangement; ‘financial instrument’ means a financial instrument as defined in point (15) of Article 4(1) of Directive 2014/65/EU; ‘commodity’ means a commodity as defined in point (1) of Article 2 of Commission Regulation (EC) No 1287/2006 (22); ‘total return swap’ means a derivative contract as defined in point (7) of Article 2 of Regulation (EU) No 648/2012 in which one counterparty transfers the total economic performance, including income from interest and fees, gains and losses from price movements, and credit losses, of a reference obligation to another counterparty.
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