European Communities (Settlement Finality) Regulations 2010
Source: Iris Oifigiúl 2010-12-28 01942-01942

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paragraphs: (1) These Regulations may be cited as the European Communities (Settlement Finality) Regulations 2010.
(2) These Regulations come into operation on 30 June 2011.
(3) These Regulations apply to—
(a) designated systems that are subject to the law of the State (regardless of the currency or currencies in which such systems operate),
(b) participants in systems referred to in subparagraph (a), and
(c) collateral security provided in connection with participation in such a system, or operations of a central bank in the context of its function as a central bank.
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paragraphs: (1) In these Regulations
(a) rules that enable action to be taken in respect of unperformed contracts to which the participant is party,
(b) arrangements for netting,
(c) arrangements for the closing-out of open positions, and
(d) arrangements for the application or transfer of collateral security;
(a) if under the law of the State and in relation to a body corporate, means—
(i) proceedings for the appointment of an examiner in respect of the body, or
(ii) proceedings for the compulsory winding up of the body, or
(iii) a voluntary winding up (either creditors’ or members’) of the body, or
(iv) proceedings for the appointment of an administrator in respect of the body, or
(b) if under the law of the State and in relation to a natural person, means—
(i) proceedings under which the person is or may be adjudicated bankrupt, or
(ii) if the person has died insolvent, proceedings for the administration in bankruptcy of the person’s estate, or
(iii) proceedings with the objective of the protection by a court of the person and the person’s property from any action or other process, or
(c) if under the law of a Member State other than the State, or a third country, means any collective measure provided for in the law of that Member State or third country to wind up or reorganise a person if the measure involves suspending or imposing limitations on relevant transfers or payments;
(a) an institution, a central counterparty, a settlement agent, a clearing house, or a system operator that is a participant in a designated system, or
(b) a person that is treated by the Bank, in accordance with Regulation 5(1), as a participant in a designated system;
(a) between 3 or more participants (other than the operator of the system, any settlement agent, any central counterparty, any clearing house or any indirect participant),
(b) with common rules and standardised arrangements for the clearing (whether or not through a central counterparty) or execution of transfer orders between the participants,
(c) governed by the law of a Member State chosen by the participants (being a Member State in which at least one of those participants has its head office),
(a) an instruction by a participant to place an amount of money at the disposal of a recipient by means of a book entry on the accounts of a credit institution, a central bank, a central counterparty or a settlement agent,
(b) an instruction that results in the assumption or discharge of a payment obligation as defined by the rules of a designated system, or
(c) an instruction by a participant to transfer the title to, or an interest in, a security or securities by means of a book entry on a register or by any other means.
(2) A word or expression used in these Regulations and also in the Settlement Finality Directive has, in these Regulations, unless the contrary intention appears in these Regulations, the same meaning as it has in that Directive.
(3) Nothing in these Regulations prevents a participant from acting as, or carrying out the functions of, a central counterparty, a settlement agent or a clearing house.
(4) Nothing in these Regulations prevents a system operator from acting as a settlement agent, central counterparty or clearing house.
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paragraphs: (1) For the purposes of these Regulations references to the commencement of insolvency proceedings shall be construed in accordance with this Regulation.
(2)“Commencement” of insolvency proceedings under the law of the State in relation to a body corporate means—
(a) the making by the Court of an order for the appointment of an examiner in respect of the body, or
(b) the making by the Court of an order for the winding up of the body, or
(c) the passing by the members of the body of a resolution for the voluntary winding up (whether creditors’ or members’) of the body.
(3)“Commencement” of insolvency proceedings under the law of the State in relation to a natural person means—
(a) the making of an order of the Court adjudicating the person bankrupt, or
(b) if the person dies insolvent, the making by the Court of an order for the administration in bankruptcy of the person’s estate, or
(c) the making by the Court of an order providing for the protection of the person and the person’s property under an arrangement controlled by the Court.
(4)“Commencement” of insolvency proceedings under the law of a Member State (other than the State) or a third country (whether in relation to a body corporate or a natural person) means the opening (within the meaning given by Article 6 of the Settlement Finality Directive) of insolvency proceedings against the body or person.
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paragraphs: (1) The Minister may designate a system as a designated system if—
(a) he or she is satisfied that the rules of the system comply with Regulation 7, and
(b) the system is governed by the law of the State.
(2) If the Minister designates a system he or she—
(a) shall so notify the European Commission, and
(b) shall notify the European Commission of the system operator.
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paragraphs: (1) Subject to paragraph (2), the Bank may decide
(a) that a person that participates in a designated system and is responsible for discharging financial obligations arising from transfer orders made through the system is to be treated as a participant, or
(b) that persons belonging to a class of persons that participate in a designated system and are responsible for discharging financial obligations arising from transfer orders made through the designated system are to be treated as participants.
(2) The Bank may decide to treat a person as a participant, or persons belonging to a class of persons as participants, under paragraph (1) only if
(a) the Bank considers that the treatment is justified on the grounds of systemic risk, and
(b) the designated system is one—
(i) in which at least 3 participants (other than a person to be treated as a participant because of that decision) participate, and
(ii) through which transfer orders of the kind referred to in paragraph (c) of the definition of “transfer order” are made.
(3) If the Bank decides to treat a person as a participant, or to treat persons belonging to a class of persons as participants, in a designated system in accordance with paragraph (1), it shall give written notice of its decision to the operator of the system.
(4) An indirect participant shall be taken to be a participant in a designated system only if so doing is justified on the grounds of systemic risk.
(5) An indirect participant’s being taken to be a participant in a designated system under paragraph (4) does not limit the responsibility of the participant through which the indirect participant passes transfer orders to the designated system.
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paragraphs: (1) A transfer order that has entered a designated system is legally enforceable and binding on participants and third parties even if insolvency proceedings against a participant are commenced if (but only if) the transfer order entered the system before the commencement of the proceedings.
(2) Netting is legally enforceable and binding on participants and third parties even if insolvency proceedings against a participant are commenced if (but only if) the transfer orders to which the netting relates were entered into the system before the commencement of the proceedings.
(3) Paragraphs (1) and (2) have effect even in the case of insolvency proceedings against a participant in an interoperable system or against the system operator of an interoperable system which is not a participant.
(4) If
(a) a transfer order entered a designated system after the commencement of insolvency proceedings against a participant in the system, and
(b) the order is executed on the business day (as defined by the rules of the designated system) on which those insolvency proceedings commenced,
(5) No law, regulation, rule or practice on the setting aside of contracts and transactions entered into before the commencement of insolvency proceedings against a participant in a designated system has the effect of unwinding a netting.
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paragraphs: (1) The rules of a designated system shall
(a) specify the moment at which a transfer order is to be considered to have been entered into the system,
(b) specify the moment after which a transfer order may not be revoked by a participant or any third party, and
(c) prohibit the revocation by a participant or any third party of a transfer order from the moment specified in accordance with paragraph (b).
(2) In the case of interoperable systems, the rules of each system shall specify the moment of entry into that system in such a way as to ensure, as far as possible, that the rules of all the interoperable systems are coordinated in this regard. Unless expressly provided for by the rules of all the interoperable systems concerned, each system’s rules on the moment of entry are not affected by the rules of any other system with which it is interoperable.
(3) In the case of interoperable systems, the rules of each system shall specify the moment of irrevocability from that system in such a way as to ensure, so far as possible, that the rules of all the interoperable systems are coordinated in this regard. Unless expressly provided for by the rules of all the interoperable systems concerned, each system’s rules on the moment of irrevocability are not affected by the rules of any other system with which it is interoperable.
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paragraphs: (1) The Bank is the appropriate authority in the State for the purposes of Article 6.2 of the Directive.
(2) Where a participant in a designated system is a body corporate, the Court shall notify the Bank immediately after making an order for
(a) the appointment of an examiner in respect of the participant, or
(b) the compulsory winding-up of the participant.
(3) Where a participant in a designated system is not a body corporate, the Court shall notify the Bank immediately after making an order
(a) adjudicating the participant bankrupt,
(b) if the participant has died insolvent, for the administration in bankruptcy of the participant’s estate, or
(c) for an arrangement under the control of the Court that involves the protection, by court order, of the participant’s person and property from any action or other process.
(4) Where a participant in a designated system is a body corporate, if the participant becomes subject to a creditors’ or members’ voluntary winding-up, the participant shall notify the Bank immediately after the members have passed a resolution for that winding up.
(5) Immediately after receiving a notification under any of paragraphs (1) to (4), the Bank shall notify the appropriate authorities in the other Member States of the order or the passing of the resolution.
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paragraphs: (1) No law of the State relating to insolvency or insolvency proceedings invalidates or otherwise affects
(a) the rights and obligations of a participant arising from participation in a designated system before the commencement of insolvency proceedings against the participant,
(b) a transfer order or a disposition of property made under such an order,
(c) the default arrangements of a designated system, or an action taken under those arrangements, or
(d) the rules of a designated system as to the settlement of transfer orders not dealt with under the system’s default arrangements,
(e) the provision of collateral security,
(f) a contract, scheme or arrangement that provides for realising, or any action taken to realise, collateral security in connection with
(i) participation in a designated system otherwise than under its default arrangements, or
(ii) the operations of a central bank,
(g) any disposition of property as result of a contract, scheme or arrangement, or an action, referred to in subparagraph (f).
(2) The powers of a liquidator, provisional liquidator or examiner, the Official Assignee, or a trustee in bankruptcy or other insolvency official appointed under a law of the State, and the powers of a court under a law of the State relating to insolvency or insolvency proceedings, may not be exercised so as to prevent or interfere with
(a) the settlement, in accordance with the rules of a designated system, of a transfer order not dealt with under the system’s default arrangements,
(b) action taken under a designated system’s default arrangements, or
(c) action taken to realise collateral security in connection with
(i) participation in a designated system otherwise than under the system’s default arrangements, or
(ii) the operations of a central bank.
(3) Paragraph (2) also applies as regards the rights and obligations of—
(a) a participant in an interoperable system, or
(b) a system operator of an interoperable system which is not a participant.
(4) Insolvency proceedings shall not have retroactive effects on the rights and obligations of a participant arising from, or in connection with, its participation in a system before the moment of opening of such proceedings.
(5) Paragraph (4) also applies as regards the rights and obligations of a participant in an interoperable system, or of a system operator of an interoperable system which is not a participant.
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paragraphs: (1) Subject to Regulation 9, if insolvency proceedings are commenced against a person who participates, or has participated, in a system designated for the purposes of the Settlement Finality Directive, any question that
(a) relates to the rights and obligations arising from, or in connection with, that participation, and
(b) falls to be determined by a court in the State,
(2) If an equivalent overseas order is subject to the insolvency law of the State, these Regulations apply to and in relation to that order in the same way as they apply to and in relation to a transfer order.
(3) If an equivalent overseas security is subject to the insolvency law of the State, these Regulations apply to and in relation to that security in the same way as they apply to and in relation to a collateral security connected with a designated system.
(4) In this Regulation—
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paragraphs: (1) Notwithstanding the provisions of any other enactment, the rights of—
(a) a system operator or a participant to collateral security provided to it in connection with a system or any interoperable system, and
(b) a central bank to collateral security provided to it,
(i) the participant (whether in the system concerned or in an interoperable system),
(ii) the system operator of an interoperable system which is not a participant,
(iii) the counterparty to a central bank, or
(iv) any third party which provided the collateral security.
(2) Collateral security referred to in paragraph (1) may be realised for the satisfaction of rights referred to in that paragraph.
(3) If—
(a) securities are provided as collateral security to any one or more of a participant, a system operator or a central bank, and
(b) the right of the participant, system operator or central bank with respect to the securities is legally recorded in a register, account or centralised deposit system located in a Member State,
(4) Without prejudice to the generality of paragraphs (1) and (3) and for the avoidance of doubt, a claim of a participant or a central bank to collateral security referred to in this Regulation has, and shall be taken always to have had, priority over any claim of any other person to that collateral security including, without limitation, in an insolvency proceeding and including, without limitation, any claim—
(a) for costs, charges and expenses referred to in sections 244 and 281 of the Companies Act 1963 (No. 33 of 1963),
(b) for remuneration, costs, expenses and liabilities referred to in section 29 of the Companies (Amendment) Act 1990 (No. 27 of 1990),
(c) for debts referred to in section 285(2) of the Companies Act 1963 , and
(d) of the Revenue Commissioners pursuant to section 571, 1001 or 1002 of the Taxes Consolidation Act 1997 (No. 39 of 1997),
(5) In this Regulation—
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paragraphs: The operator of a designated system shall, on designation of the system, notify the Bank of the participants in the system, including any possible indirect participants, and shall immediately notify it of any change of participants in the system.
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paragraphs: An institution shall, on being requested to do so by a person who claims to have a legitimate interest in the designated systems in which the institution is a participant, provide the person with information about the main rules governing the functioning of that system.
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paragraphs: (1) The commencement of insolvency proceedings against a participant or a system operator of an interoperable system does not prevent funds or securities available on the settlement account of that participant from being used to fulfil that participant’s obligations in the system or in an interoperable system on the business day of the opening of the insolvency proceedings.
(2) In the case referred to in paragraph (1), the participant’s credit facility connected to the system may be used against available, existing collateral security to fulfil the participant’s obligations in the system or in an interoperable system.
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paragraphs: The European Communities (Settlement Finality) Regulations 2008 ( S.I. No. 88 of 2008 ) are revoked.
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paragraphs: (1) A system shall be taken to be a designated system for the purposes of these Regulations if—
(a) the Minister had, before the commencement of these Regulations, designated the system as a relevant system within the meaning of the European Communities (Settlement Finality) Regulations 2008 ( S.I. No. 88 of 2008 ), and
(b) that designation had not been revoked before that commencement.
(2) A transfer order which entered a system referred to in paragraph (1) before the commencement of these Regulations but is settled after that commencement shall be taken to be a transfer order for the purposes of these Regulations.