Directive 2002/47/EC of the European Parliament and of the Council of 6 June 2002 on financial collateral arrangements
Date: 2002-06-06
Institutions: Council of the European Union, European Parliament
Subjects: EU Member State, bond, financial control, financial legislation, guarantee

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DIRECTIVE 2002/47/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 6 June 2002

on financial collateral arrangements

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

(4)

Having regard to the Treaty establishing the European
Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Central Bank (2),

Having regard to the opinion of the Economic and Social
Committee (3),

Acting in accordance with the procedure laid down in Article
251 of the Treaty (4),

Whereas:

(1)

(2)

(3)

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 (5) constituted
a milestone in establishing a sound legal framework for
payment and securities settlement systems. Implementa-
tion of that Directive has demonstrated the importance
of limiting systemic risk inherent in such systems stem-
ming from the different influence of several jurisdictions,
and the benefits of common rules in relation to collat-
eral constituted to such systems.

In its communication of 11 May 1999 to the European
Parliament and to the Council on financial services:
financial markets:
implementing the framework for
action plan, the Commission undertook, after consulta-
tion with market experts and national authorities, to
work on further proposals for legislative action on
collateral urging further progress in the field of collat-
eral, beyond Directive 98/26/EC.

A Community regime should be created for the provi-
sion of securities and cash as collateral under both
security interest and title transfer structures including
repurchase agreements (repos). This will contribute to
the integration and cost-efficiency of
the financial
market as well as to the stability of the financial system
in the Community, thereby supporting the freedom to
provide services and the free movement of capital in the
single market in financial services. This Directive focuses
on bilateral financial collateral arrangements.

(1) OJ C 180 E, 26.6.2001, p. 312.
(2) OJ C 196, 12.7.2001, p. 10.
(3) OJ C 48, 21.2.2002, p. 1.
(4) Opinion of the European Parliament of 13 December 2001 (not
yet published in the Official Journal), Council Common Position
of 5 March 2002 (not yet published in the Official Journal) and
Decision of the European Parliament of 15 May 2002.

(5) OJ L 166, 11.6.1998, p. 45.

This Directive is adopted in a European legal context
which consists in particular of the said Directive 98/
26/EC as well as Directive 2001/24/EC of the European
Parliament and of the Council of 4 April 2001 on the
reorganisation and winding up of credit institutions (6),
Directive 2001/17/EC of the European Parliament and of
the Council of 19 March 2001 on the reorganisation
and winding-up of
and
Council Regulation (EC) No 1346/2000 of 29 May 2000
on insolvency proceedings (8). This Directive is in line
with the general pattern of these previous legal acts and
is not opposed to it. Indeed, this Directive complements
these existing legal acts by dealing with further issues
and going beyond them in connection with particular
matters already dealt with by these legal acts.

insurance undertakings (7)

(5)

(6)

(7)

In order to improve the legal certainty of financial collat-
eral arrangements, Member States should ensure that
certain provisions of insolvency law do not apply to
those that would
in particular,
such arrangements,
inhibit the effective realisation of financial collateral or
cast doubt on the validity of current techniques such as
bilateral close-out netting, the provision of additional
collateral in the form of top-up collateral and substitu-
tion of collateral.

This Directive does not address rights which any person
may have in respect of assets provided as financial
collateral, and which arise otherwise than under the
terms of the financial collateral arrangement and other-
wise than on the basis of any legal provision or rule of
law arising by reason of the commencement or contin-
uation of winding-up proceedings or
reorganisation
measures, such as restitution arising from mistake, error
or lack of capacity.

The principle in Directive 98/26/EC, whereby the law
applicable to book entry securities provided as collateral
is the law of the jurisdiction where the relevant register,
account or centralised deposit system is located, should
be extended in order to create legal certainty regarding
the use of such securities held in a cross-border context
and used as financial collateral under the scope of this
Directive.

(8)

The lex rei sitae rule, according to which the applicable
law for determining whether a financial collateral
arrangement is properly perfected and therefore good

(6) OJ L 125, 5.5.2001, p. 15.
(7) OJ L 110, 20.4.2001, p. 28.
(8) OJ L 160, 30.6.2000, p. 1.

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(9)

(10)

against third parties is the law of the country where the
financial collateral is located, is currently recognised by
all Member States. Without affecting the application of
this Directive to directly-held securities, the location of
book entry securities provided as financial collateral and
held through one or more intermediaries should be
determined. If the collateral taker has a valid and effec-
tive collateral arrangement according to the governing
law of the country in which the relevant account is
maintained, then the validity against any competing title
or interest and the enforceability of the collateral should
be governed solely by the law of that country, thus
preventing legal uncertainty as a result of other unfore-
seen legislation.

the scope of

In order to limit the administrative burdens for parties
using financial collateral under
this
Directive,
the only perfection requirement which
national law may impose in respect of financial collat-
eral should be that the financial collateral is delivered,
transferred, held, registered or otherwise designated so as
to be in the possession or under the control of the
collateral taker or of a person acting on the collateral
taker's behalf while not excluding collateral techniques
where the collateral provider is allowed to substitute
collateral or to withdraw excess collateral.

For the same reasons, the creation, validity, perfection,
enforceability or admissibility in evidence of a financial
collateral arrangement, or the provision of
financial
collateral under a financial
collateral arrangement,
should not be made dependent on the performance of
any formal act such as the execution of any document in
a specific form or in a particular manner, the making of
any filing with an official or public body or registration
in a public register, advertisement in a newspaper or
journal, in an official register or publication or in any
other matter, notification to a public officer or the
provision of evidence in a particular form as to the date
of execution of a document or instrument, the amount
of the relevant financial obligations or any other matter.
This Directive must however provide a balance between
market efficiency and the safety of the parties to the
arrangement and third parties, thereby avoiding inter alia
the risk of
fraud. This balance should be achieved
through the scope of this Directive covering only those
financial collateral arrangements which provide for some
form of dispossession, i.e. the provision of the financial
collateral, and where the provision of
the financial
collateral can be evidenced in writing or in a durable
medium, ensuring thereby the traceability of that collat-
eral. For the purpose of this Directive, acts required
under the law of a Member State as conditions for
transferring or creating a security interest on financial
instruments, other than book entry securities, such as
endorsement in the case of instruments to order, or

recording on the issuer's register in the case of registered
instruments, should not be considered as formal acts.

(11) Moreover, this Directive should protect only financial
collateral arrangements which can be evidenced. Such
evidence can be given in writing or in any other legally
enforceable manner provided by the law which is applic-
able to the financial collateral arrangement.

(12)

(13)

(14)

(15)

the use of

limitation of

The simplification of
financial collateral
administrative burdens
through the
promotes the efficiency of the cross-border operations of
the European Central Bank and the national central
banks of Member States participating in the economic
and monetary union, necessary for the implementation
of
the
the common monetary policy. Furthermore,
provision of
financial collateral
arrangements from some rules of insolvency law in addi-
tion supports the wider aspect of the common monetary
policy, where the participants in the money market
balance the overall amount of liquidity in the market
among themselves, by cross-border transactions backed
by collateral.

limited protection of

This Directive seeks to protect the validity of financial
collateral arrangements which are based upon the
transfer of the full ownership of the financial collateral,
such as by eliminating the so-called re-characterisation
of
(including
such financial collateral arrangements
repurchase agreements) as security interests.

The enforceability of bilateral close-out netting should
be protected, not only as an enforcement mechanism for
title transfer financial collateral arrangements including
repurchase agreements but more widely, where close-out
netting forms part of a financial collateral arrangement.
Sound risk management practices commonly used in the
financial market should be protected by enabling partici-
pants to manage and reduce their credit exposures
arising from all kinds of financial transactions on a net
basis, where the credit exposure is calculated by
combining the estimated current exposures under all
outstanding transactions with a counterparty, setting off
reciprocal items to produce a single aggregated amount
that is compared with the current value of the collateral.

requirements under national

This Directive should be without prejudice to any
restrictions or
law on
bringing into account claims, on obligations to set-off,
or on netting, for example relating to their reciprocity or
the fact that they have been concluded prior to when the
collateral taker knew or ought to have known of the
commencement (or of any mandatory legal act leading
to the commencement) of winding-up proceedings or
reorganisation measures in respect of
the collateral
provider.

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(16)

(17)

(18)

(19)

The sound market practice favoured by regulators
whereby participants in the financial market use top-up
financial collateral arrangements to manage and limit
their credit risk to each other by mark-to-market calcula-
tions of the current market value of the credit exposure
and the value of the financial collateral and accordingly
ask for top-up financial collateral or return the surplus
of financial collateral should be protected against certain
automatic avoidance rules. The same applies to the
possibility of substituting for assets provided as financial
collateral other assets of the same value. The intention is
merely that
top-up or substitution
financial collateral cannot be questioned on the sole
basis
financial obligations existed
before that financial collateral was provided, or that the
financial collateral was provided during a prescribed
period. However, this does not prejudice the possibility
of questioning under national law the financial collateral
arrangement and the provision of financial collateral as
part of the initial provision, top-up or substitution of
financial collateral,
for example where this has been
intentionally done to the detriment of the other creditors
(this covers inter alia actions based on fraud or similar
avoidance rules which may apply in a prescribed period).

the provision of

the relevant

that

financial

collateral

a party to a

This Directive provides for rapid and non-formalistic
enforcement procedures in order to safeguard financial
stability and limit contagion effects in case of a default
arrangement.
of
However, this Directive balances the latter objectives
with the protection of the collateral provider and third
parties by explicitly confirming the possibility for
Member States to keep or introduce in their national
legislation an a posteriori control which the Courts can
exercise in relation to the realisation or valuation of
financial collateral and the calculation of the relevant
financial obligations. Such control should allow for the
judicial authorities to verify that the realisation or valua-
tion has been conducted in a commercially reasonable
manner.

It should be possible to provide cash as collateral under
both title transfer and secured structures respectively
protected by the recognition of netting or by the pledge
of cash collateral. Cash refers only to money which is
represented by a credit to an account, or similar claims
on repayment of money (such as money market
deposits), thus explicitly excluding banknotes.

This Directive provides for a right of use in case of
security
arrangements, which
increases liquidity in the financial market stemming
reuse
‘pledged’
from such reuse of

securities. This

collateral

financial

(20)

(21)

(22)

however should be without prejudice to national legisla-
tion about separation of assets and unfair treatment of
creditors.

This Directive does not prejudice the operation and
effect of the contractual terms of financial instruments
provided as financial collateral, such as rights and obli-
gations and other conditions contained in the terms of
issue and any other rights and obligations and other
conditions which apply between the issuers and holders
of such instruments.

This Act complies with the fundamental rights and
follows the principles laid down in particular in the
Charter of Fundamental Rights of the European Union.

Since the objective of the proposed action, namely to
create a minimum regime relating to the use of financial
collateral, cannot be sufficiently achieved by the Member
States and can therefore, by reason of the scale and
effects of the action, be better achieved at Community
level, the Community may adopt measures, in accord-
ance with the principle of subsidiarity as set out in
Article 5 of the Treaty. In accordance with the principle
of proportionality, as
this
set out
Directive does not go beyond what is necessary in order
to achieve that objective,

in that Article,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter and scope

1.
This Directive lays down a Community regime applicable
to financial collateral arrangements which satisfy the require-
ments set out in paragraphs 2 and 5 and to financial collateral
in accordance with the conditions set out in paragraphs 4 and
5.

The collateral taker and the collateral provider must each

2.
belong to one of the following categories:

(a) a public authority (excluding publicly guaranteed undertak-
ings unless they fall under points (b) to (e)) including:

(i) public sector bodies of Member States charged with or
intervening in the management of public debt, and

(ii) public sector bodies of Member States authorised to

hold accounts for customers;

(b) a central bank, the European Central Bank, the Bank for
International Settlements, a multilateral development bank
as defined in Article 1(19) of Directive 2000/12/EC of the
European Parliament and of the Council of 20 March 2000
relating to the taking up and pursuit of the business of
credit institutions (1), the International Monetary Fund and
the European Investment Bank;

(1) OJ L 126, 26.5.2000, p. 1. Directive as amended by Directive

2000/28/EC (OJ L 275, 27.10.2000, p. 37).

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(c) a financial
including:

institution subject

to prudential supervision

If they make use of this option Member States shall inform the
Commission which shall
inform the other Member States
thereof.

(i) a credit

institution as defined in Article 1(1) of
Directive 2000/12/EC, including the institutions listed
in Article 2(3) of that Directive;

(ii) an investment

firm as defined in Article 1(2) of
Council Directive 93/22/EEC of 10 May 1993 on
investment services in the securities field (1);

(iii) a financial

institution as defined in Article 1(5) of

Directive 2000/12/EC;

(iv) an insurance undertaking as defined in Article 1(a) of
Council Directive 92/49/EEC of 18 June 1992 on the
coordination of laws, regulations and administrative
provisions relating to direct insurance other than life
assurance (2) and a life assurance undertaking as
defined in Article 1(a) of Council Directive 92/96/EEC
of 10 November 1992 on the coordination of laws,
regulations and administrative provisions relating to
direct life assurance (3);

(v) 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 on the
coordination of laws, regulations and administrative
collective
relating to undertakings
provisions
investment in transferable securities (UCITS) (4);

for

(vi) a management company as defined in Article 1a(2) of

Directive 85/611/EEC;

(d) a central counterparty, settlement agent or clearing house,
as defined respectively in Article 2(c),
(d) and (e) of
Directive 98/26/EC, including similar institutions regulated
under national
law acting in the futures, options and
derivatives markets to the extent not covered by that
Directive, and a person, other than a 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 any institution
as defined in points (a) to (d);

(e) a person other than a natural person, including unincor-
porated firms and partnerships, provided that the other
party is an institution as defined in points (a) to (d).

3. Member States may exclude from the scope of
this
Directive financial collateral arrangements where one of the
parties is a person mentioned in paragraph 2(e).

(1) OJ L 141, 11.6.1993, p. 27. Directive as last amended by Direc-
tive 2000/64/EC of the European Parliament and of the Council
(OJ L 290, 17.11.2000, p. 27).

(2) OJ L 228, 11.8.1992, p. 1. Directive as last amended by Direc-
tive 2000/64/EC of the European Parliament and of the Council.
(3) OJ L 360, 9.12.1992, p. 1. Directive as last amended by Direc-
tive 2000/64/EC of the European Parliament and of the Council.
(4) OJ L 375, 31.12.1985, p. 3. Directive as last amended by Direc-
tive 2001/108/EC of the European Parliament and of the Council.
(OJ L 41, 13.2.2002, p. 35).

4.

(a) The financial collateral to be provided must consist of

cash or financial

instruments.

(b) Member States may exclude from the scope of this
Directive financial collateral consisting of the collateral
provider's own shares, shares in affiliated undertakings
within the meaning of seventh Council Directive 83/
1983
349/EEC of
consolidated
accounts (5),
in undertakings whose
exclusive purpose is to own means of production that
are essential for the collateral provider's business or to
own real property.

June
shares

13
and

on

This Directive applies to financial collateral once it has
that provision can be evidenced in

5.
been provided and if
writing.

The evidencing of the provision of financial collateral must
allow for the identification of the financial collateral to which it
applies. For this purpose, it is sufficient to prove that the book
entry securities collateral has been credited to, or forms a credit
in, the relevant account and that the cash collateral has been
credited to, or forms a credit in, a designated account.

This Directive applies to financial collateral arrangements if
that arrangement can be evidenced in writing or in a legally
equivalent manner.

Article 2

Definitions

1.

For the purpose of this Directive:

(a) ‘financial collateral arrangement’ means a title transfer
financial collateral arrangement or a security financial
collateral arrangement whether or not these are covered by
a master agreement or general terms and conditions;

(b) ‘title transfer financial collateral arrangement’ means an
including repurchase agreements, under
arrangement,
which a collateral provider transfers full ownership of
financial collateral to a collateral taker for the purpose of
securing or otherwise covering the performance of rele-
vant financial obligations;

(c) ‘security

financial

collateral

arrangement’ means

an
arrangement under which a collateral provider provides
financial collateral by way of security in favour of, or to, a
collateral taker, and where the full ownership of the finan-
cial collateral remains with the collateral provider when
the security right is established;

(5) OJ L 193, 18.7.1983, p. 1. Directive as last amended by Direc-
tive 2001/65/EC of the European Parliament and of the Council
(OJ L 283, 27.10.2001, p. 28).

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(d) ‘cash’ means money credited to an account

in any
currency, or similar claims for the repayment of money,
such as money market deposits;

trative or judicial authorities, including where the collec-
tive proceedings are terminated by a composition or other
analogous measure, whether or not they are founded on
insolvency or are voluntary or compulsory;

(e) ‘financial

instruments’ means shares in companies and
other securities equivalent to shares in companies and
bonds and other forms of debt instruments if these are
negotiable on the capital market, and any other securities
which are normally dealt in and which give the right to
acquire any such shares, bonds or other securities by
subscription, purchase or exchange or which give rise to a
(excluding instruments of payment),
cash settlement
including units
in collective investment undertakings,
money market instruments and claims relating to or rights
in or in respect of any of the foregoing;

(f) ‘relevant financial obligations’ means the obligations which
are secured by a financial collateral arrangement and
which give a right to cash settlement and/or delivery of
financial

instruments.

Relevant financial obligations may consist of or include:

(i) present or future, actual or contingent or prospective
obligations (including such obligations arising under a
master agreement or similar arrangement);

(ii) obligations owed to the collateral taker by a person

other than the collateral provider; or

(iii) obligations of a specified class or kind arising from

time to time;

(g) ‘book entry securities collateral’ means financial collateral
provided under a financial collateral arrangement which
consists of
to which is
evidenced by entries in a register or account maintained by
or on behalf of an intermediary;

instruments,

financial

title

(h) ‘relevant account’ means in relation to book entry securi-
ties collateral which is subject to a financial collateral
arrangement, the register or account — which may be
maintained by the collateral taker — in which the entries
are made by which that book entry securities collateral is
provided to the collateral taker;

(i) ‘equivalent collateral’:

(i) in relation to cash, means a payment of the same

amount and in the same currency;

(ii) in relation to financial

instruments, means financial
instruments of the same issuer or debtor, forming part
of the same issue or class and of the same nominal
amount, currency and description or, where a financial
collateral arrangement provides for the transfer of
other assets following the occurrence of any event
relating to or affecting any financial
instruments
provided as financial collateral, those other assets;

(j) ‘winding-up proceedings’ means collective proceedings
involving realisation of the assets and distribution of the
proceeds among the creditors, shareholders or members as
appropriate, which involve any intervention by adminis-

(k) ‘reorganisation measures’ means measures which involve
any intervention by administrative or judicial authorities
which are intended to preserve or restore the financial
third
situation and which affect pre-existing rights of
parties, including but not limited to measures involving a
suspension of payments, suspension of enforcement meas-
ures or reduction of claims;

(l) ‘enforcement event’ means an event of default or any
similar event as agreed between the parties on the occur-
rence of which, under the terms of a financial collateral
arrangement or by operation of law, the collateral taker is
entitled to realise or appropriate financial collateral or a
close-out netting provision comes into effect;

(m) ‘right of use’ means the right of the collateral taker to use
and dispose of
financial collateral provided under a
security financial collateral arrangement as the owner of it
in accordance with the terms of the security financial
collateral arrangement;

(n) ‘close-out netting provision’ means a provision of a finan-
cial collateral arrangement, or of an arrangement of which
a financial collateral arrangement forms part, or, in the
absence of any such provision, any statutory rule by
which, on the occurrence of an enforcement event,
whether through the operation of netting or set-off or
otherwise:

(i) the obligations of the parties are accelerated so as to
be immediately due and expressed as an obligation to
pay an amount representing their estimated current
value, or are terminated and replaced by an obligation
to pay such an amount; and/or

(ii) an account is taken of what is due from each party to
the other in respect of such obligations, and a net sum
equal to the balance of the account is payable by the
party from whom the larger amount is due to the
other party.

2.
References in this Directive to financial collateral being
‘provided’, or to the ‘provision’ of financial collateral, are to the
financial collateral being delivered, transferred, held, registered
or otherwise designated so as to be in the possession or under
the control of the collateral taker or of a person acting on the
collateral taker's behalf. Any right of substitution or to with-
draw excess financial collateral
the collateral
provider shall not prejudice the financial collateral having been
provided to the collateral taker as mentioned in this Directive.

in favour of

References in this Directive to ‘writing’ include recording

3.
by electronic means and any other durable medium.

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Article 3

(d) any additional time period must have elapsed.

Formal requirements

1. Member States shall not require that the creation, validity,
perfection, enforceability or admissibility in evidence of a
financial collateral arrangement or the provision of financial
collateral under a financial collateral arrangement be dependent
on the performance of any formal act.

2.
Paragraph 1 is without prejudice to the application of this
Directive to financial collateral only once it has been provided
and if that provision can be evidenced in writing and where the
financial collateral arrangement can be evidenced in writing or
in a legally equivalent manner.

5. Member States shall ensure that a financial collateral
in accordance with its terms
arrangement can take effect
continuation of
notwithstanding the
winding-up proceedings or reorganisation measures in respect
of the collateral provider or collateral taker.

commencement or

This Article and Articles 5, 6 and 7 shall be without
6.
prejudice to any requirements under national law to the effect
that the realisation or valuation of financial collateral and the
calculation of
financial obligations must be
conducted in a commercially reasonable manner.

the relevant

Article 4

Article 5

Enforcement of financial collateral arrangements

Right of use of financial collateral under security financial
collateral arrangements

1. Member States shall ensure that on the occurrence of an
enforcement event, the collateral taker shall be able to realise in
the following manners, any financial collateral provided under,
and subject to the terms agreed in, a security financial collateral
arrangement:

1.
If and to the extent that the terms of a security financial
collateral arrangement so provide, Member States shall ensure
that the collateral taker is entitled to exercise a right of use in
relation to financial collateral provided under the security
financial collateral arrangement.

(a) financial

instruments by sale or appropriation and by
setting off their value against, or applying their value in
discharge of, the relevant financial obligations;

(b) cash by setting off the amount against or applying it in

discharge of the relevant financial obligations.

2.

Appropriation is possible only if:

(a) this has been agreed by the parties in the security financial

collateral arrangement; and

(b) the parties have agreed in the security financial collateral
arrangement on the valuation of the financial instruments.

2. Where a collateral
taker exercises a right of use, he
thereby incurs an obligation to transfer equivalent collateral to
replace the original financial collateral at the latest on the due
date for the performance of the relevant financial obligations
covered by the security financial collateral arrangement.

the relevant

Alternatively, the collateral taker shall, on the due date for the
performance of
financial obligations, either
transfer equivalent collateral, or, if and to the extent that the
terms of a security financial collateral arrangement so provide,
set off the value of the equivalent collateral against or apply it
in discharge of the relevant financial obligations.

3. Member States which do not allow appropriation on 27
June 2002 are not obliged to recognise it.

If they make use of this option, Member States shall inform the
Commission which in turn shall
inform the other Member
States thereof.

3.
The equivalent collateral transferred in discharge of an
obligation as described in paragraph 2, first subparagraph, shall
be subject to the same security financial collateral agreement to
which the original financial collateral was subject and shall be
treated as having been provided under the security financial
collateral arrangement at the same time as the original financial
collateral was first provided.

4.
The manners of realising the financial collateral referred
to in paragraph 1 shall, subject to the terms agreed in the
security financial collateral arrangement, be without any
requirement to the effect that:

(a) prior notice of the intention to realise must have been

given;

(b) the terms of the realisation be approved by any court,

public officer or other person;

(c) the realisation be conducted by public auction or in any

other prescribed manner; or

the use of

4. Member States shall ensure that
financial
collateral by the collateral taker according to this Article does
not render invalid or unenforceable the rights of the collateral
taker under the security financial collateral arrangement in
relation to the financial collateral transferred by the collateral
taker in discharge of an obligation as described in paragraph 2,
first subparagraph.

If an enforcement event occurs while an obligation as
5.
described
subparagraph remains
outstanding, the obligation may be the subject of a close-out
netting provision.

in paragraph 2 first

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Article 6

Recognition of title transfer financial collateral arrange-
ments

1. Member States shall ensure that a title transfer financial
collateral arrangement can take effect in accordance with its
terms.

2.
If an enforcement event occurs while any obligation of
the collateral taker to transfer equivalent collateral under a title
transfer financial collateral arrangement remains outstanding,
the obligation may be the subject of a close-out netting provi-
sion.

Article 7

Recognition of close-out netting provisions

1. Member States shall ensure that a close-out netting provi-
sion can take effect in accordance with its terms:

(a) notwithstanding the commencement or continuation of
winding-up proceedings or
reorganisation measures in
respect of the collateral provider and/or the collateral taker;
and/or

(b) notwithstanding any purported assignment,

judicial or
other attachment or other disposition of or in respect of
such rights.

2. Member States shall ensure that
the operation of a
close-out netting provision may not be subject to any of the
requirements that are mentioned in Article 4(4), unless other-
wise agreed by the parties.

Article 8

Certain insolvency provisions disapplied

1. Member States shall ensure that a financial collateral
arrangement, as well as the provision of financial collateral
under such arrangement, may not be declared invalid or void
or be reversed on the sole basis that the financial collateral
arrangement has come into existence, or the financial collateral
has been provided:

(a) on the day of the commencement of winding-up proceed-
ings or reorganisation measures, but prior to the order or
decree making that commencement; or

(b) in a prescribed period prior to, and defined by reference to,
the commencement of such proceedings or measures or by
reference to the making of any order or decree or the
taking of any other action or occurrence of any other event
in the course of such proceedings or measures.

2. Member States shall ensure that where a financial collat-
eral arrangement or a relevant financial obligation has come
into existence, or financial collateral has been provided on the
the commencement of,
day of, but after the moment of

winding-up proceedings or reorganisation measures, it shall be
legally enforceable and binding on third parties if the collateral
taker can prove that he was not aware, nor should have been
aware, of the commencement of such proceedings or measures.

3. Where a financial collateral arrangement contains:

(a) an obligation to provide financial collateral or additional
financial collateral in order to take account of changes in
the value of the financial collateral or in the amount of the
relevant financial obligations, or

(b) a right to withdraw financial collateral on providing, by
financial collateral of

way of substitution or exchange,
substantially the same value,

Member States shall ensure that the provision of
financial
collateral, additional financial collateral or substitute or replace-
ment financial collateral under such an obligation or right shall
not be treated as invalid or reversed or declared void on the
sole basis that:

(i) such provision was made on the day of the commencement
of winding-up proceedings or reorganisation measures, but
prior to the order or decree making that commencement or
in a prescribed period prior to, and defined by reference to,
the commencement of winding-up proceedings or reorga-
nisation measures or by reference to the making of any
order or decree or the taking of any other action or occur-
rence of any other event in the course of such proceedings
or measures; and/or

(ii) the relevant financial obligations were incurred prior to the
date of the provision of the financial collateral, additional
financial collateral or substitute or replacement financial
collateral.

4. Without prejudice to paragraphs 1, 2 and 3,
this
Directive leaves unaffected the general rules of national insol-
vency law in relation to the voidance of transactions entered
into during the prescribed period referred to in paragraph 1(b)
and in paragraph 3(i).

Article 9

Conflict of laws

1.
Any question with respect to any of the matters specified
in paragraph 2 arising in relation to book entry securities
collateral shall be governed by the law of the country in which
the relevant account is maintained. The reference to the law of
a country is a reference to its domestic law, disregarding any
rule under which, in deciding the relevant question, reference
should be made to the law of another country.

2.

The matters referred to in paragraph 1 are:

(a) the legal nature and proprietary effects of book entry secur-

ities collateral;

L 168/50

EN

Official Journal of the European Communities

27.6.2002

(b) the requirements

for perfecting a financial collateral
arrangement relating to book entry securities collateral and
the provision of book entry securities collateral under such
an arrangement, and more generally the completion of the
steps necessary to render such an arrangement and provi-
sion effective against third parties;

(c) whether a person's title to or interest in such book entry
securities collateral is overridden by or subordinated to a
competing title or interest, or a good faith acquisition has
occurred;

(d) the steps required for the realisation of book entry securi-
ties collateral following the occurrence of an enforcement
event.

Article 10

Report by the Commission

later than 27 December 2006,

Not
the Commission shall
present a report to the European Parliament and the Council
on the application of
in particular on the
this Directive,
application of Article 1(3), Article 4(3) and Article 5, accompa-
nied where appropriate by proposals for its revision.

Article 11

Implementation

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this

Directive by 27 December 2003 at the latest. They shall forth-
with inform the Commission thereof.

those provisions,

When Member States adopt
they shall
contain a reference to this Directive or be accompanied by
such reference on the occasion of their official publication.
Member States shall determine how such reference is to be
made.

Article 12

Entry into force

This Directive shall enter into force on the day of its publica-
tion in the Official Journal of the European Communities.

Article 13

Addressees

This Directive is addressed to the Member States.

Done at Brussels, 6 June 2002.

For the European Parliament

For the Council

The President

The President

P. COX

A. M. BIRULÉS Y BERTRÁN