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Ministry of Justice of Ukraine

October 26, 2021

No. 1382/37004

DECISION OF THE NATIONAL COMMISSION ON SECURITIES AND STOCK MARKET OF UKRAINE

of August 19, 2021 No. 665

About approval of Licensed conditions of implementation of professional activity in the capital markets - clearing activities

According to Item 13 parts one of article 8 of the Law of Ukraine "About state regulation of the capital markets and the organized goods markets", to the Law of Ukraine "About the capital markets and the organized goods markets" the National commission on securities and the stock market RESHILA:

1. Approve Licensed conditions of implementation of professional activity in the capital markets - clearing activities which are applied.

2. Determine that  1, of Chapter 8 of the Section II of these Licensed conditions on availability at persons specified in them, certificates the right of implementation of the actions connected with direct implementation of professional activity in the capital markets - clearing activities, and the requirement to availability of the minimum number of the certified specialists are applied to operators of the organized market of regulation of paragraph two of Item 9 of Chapter since January 1, 2022.

Till January 1, 2022 the requirement about availability at them the higher education not below the sixth level according to the National frame of the qualification approved by the resolution of the Cabinet of Ministers of Ukraine of November 23, 2011 No. 1341 is applied to persons specified in paragraph one of this Item (in edition of the resolution of the Cabinet of Ministers of Ukraine of June 25, 2020 No. 519), and/or the second cycle of the higher education of the Frame of qualifications of the European space of the higher education.

3. Determine that the regulation of paragraph two of Item 10 of Chapter 1 of the Section II of these Licensed conditions on availability at persons specified in this Item, the qualification certificate of the specialist in questions of financial accounting of professional participants of the capital markets and the organized goods markets is applied to commodity exchanges since January 1, 2022.

Till January 1, 2022 the requirement about availability at them the higher education not below the fifth level according to the National frame of the qualification approved by the resolution of the Cabinet of Ministers of Ukraine of November 23, 2011 No. 1341 is applied to persons specified in paragraph one of this Item (in edition of the resolution of the Cabinet of Ministers of Ukraine of June 25, 2020 No. 519), and/or the first cycle of the higher education of the Frame of qualifications of the European space of the higher education.

4. Requirements to seed capital of person who intends to perform clearing activities of the central partner, the stipulated in Item 1 Section III of these Licensed conditions are applied:

from the date of entry into force of this decision till December 31, 2023 with 0,25 coefficient;

during the period from January 1, 2024 to December 31, 2025 with 0,5 coefficient;

during the period from January 1, 2026 to December 31, 2027 with 0,75 coefficient.

5. For the purposes of these Licensed conditions to length of service in the capital markets and the organized goods markets, to length of service on executive positions the corresponding length of service of physical person on the leading positions / as specialist of the commodity exchange created according to the Law of Ukraine "About commodity exchange" is equated.

6. Requirements of these Licensed conditions to which there shall correspond licensee when implementing clearing activities of the central partner are not applied to licensees which according to Items 5, of the 6th Section XIII "Final and transitional provisions" of the Law of Ukraine "About the capital markets and the organized goods markets", to Item 5 of the Section VII "Final and transitional provisions" of the Law of Ukraine "About commodity exchanges", have the right based on the license for implementation of clearing activities with determination of obligations to perform clearing activities of the central partner, till January 01, 2023 and/or before receipt of the license for implementation of clearing activities of the central partner according to these Laws.

7. To department of methodology of regulation of professional participants of the security market (Kozlovskaya I.) provide:

submission of this decision on state registration in the Ministry of Justice of Ukraine;

promulgation of this decision on the official website of the National commission on securities and the stock market.

8. This decision becomes effective from the date of its official publication.

9. Control over the implementation of this decision to assign to the member of the National commission on securities and the stock market Baramiya I.

Commission chairman

R. Magomedov

 

It is approved:

Acting as Chairman of Public service
financial monitoring of Ukraine

 

I. Gajewski

Acting as Chairman of the Antimonopoly Committee of Ukraine

N. Buromenskaya

First Deputy Minister of digital transformation of Ukraine

A. Vyskub

Approved by the Decision of the National commission on securities and the stock market of Ukraine of August 19, 2021 No. 665

Licensed conditions of implementation of professional activity in the capital markets - clearing activities

I. General provisions

1. These Licensed conditions establish the requirements obligatory for accomplishment in case of receipt of the license for implementation of professional activity in the capital markets - clearing activities (further - the license), when implementing such activities by clearing organizations, operators of the organized market (including commodity exchanges) both Central Securities Depository and features of combination of these activities with separate types of professional activity in the capital markets and the organized goods markets.

2. In these Licensed conditions terms are used in such values:

continuous rendering services - provision of services without variation from requirements to rendering the services determined by internal documents of the licensee and/or its contract with clients;

the separate division of the applicant/licensee - branch, other division of the legal entity which is located out of its location and performs everything or part of its functions concerning implementation of clearing activities and/or professional activity in the capital markets and/or the organized goods markets (in case of combination of clearing activities with separate types of professional activity in the capital markets and/or the organized goods markets), except specialized structural division;

the applicant - the legal entity created by the legislation of Ukraine which intends to perform clearing activities also submits to NKTsBFR the application and the relevant documents for receipt of the license;

the leading officials are persons performing executive functions, and the faces performing supervising functions;

the head of the applicant/licensee - person who performs function of sole executive body or the chairman of collegiate executive body of the applicant/licensee;

the key participant in structure of property of the legal entity or applicant/licensee (further - the key participant) - any physical person owning share in the authorized capital (shares) of such legal entity, the legal entity who owns share (block of shares) in the amount of 2 and more percent in the authorized capital of such legal entity, and at the same time:

if the legal entity has more than 20 participants - physical persons, then 20 participants - physical persons which shares are the greatest are considered as key members of the legal entity;

if identical by the size of share (blocks of shares) in the authorized capital of the legal entity belong to more than 20 participants - physical persons, then all physical persons which own shares (block of shares) in the amount of 2 and more percent in the authorized capital of such legal entity are considered as key members of the legal entity;

it is considered that the public company has no key participants;

the licensee - the legal entity created by the legislation of Ukraine which has the license obtained in the procedure established by the legislation;

the mediated essential participation - ownership in the applicant/licensee which comes if person or group of persons directly or indirectly owns share (shares) in the authorized capital of one or several legal entities in structure of property of the legal entity of the applicant/licensee, in such size which provides opportunity to control through this person (these persons) of 10 and more percent of the authorized capital of the applicant/licensee;

persons who perform supervising functions - the chairman and members of the supervisory board (or other body responsible for implementation of supervision of the legal entity according to internal documents of the licensee), other persons who have powers on determination of strategy, the purposes and general activity of the legal entity watch process of acceptance of management decisions and control this process;

officials of internal control system - the division managers performing functions on risk management, internal audit and komplayens and/or individuals who perform functions of the risk manager, komplayens-manager and internal auditor;

the direct owner of the applicant/licensee - person who is owner of share (shares) in the authorized capital of the applicant/licensee;

the room - the part of unobstructed capacity of the building limited to construction elements with possibility of entrance and exit which is used by the licensee (including its isolated and/or specialized structural divisions) when implementing clearing activities;

the public company is:

public joint stock company;

the foreign legal entity who is the issuer of the shares admitted to trading on at least one of the following controlled markets:

New York Stock Exchange (NYSE);

Hong Kong Exchanges and Clearing;

London Stock Exchange (LSE);

Japan Exchange Group;

the controlled markets entering into Nasdaq, Inc.;

the controlled markets of the country entering the European Union and Switzerland;

the certified specialist - physical person addressed to which the certificate of NKTsBFR on the right of making of actions which are directly connected with implementation of professional activity in the capital markets which effective period did not expire is issued;

the systemic risk - risk that event, action or number of events or actions can have the investigation considerable failures in work of person performing clearing activities, and as a result - in work of real production sector, and also can do harm to large number of members of the capital markets and the organized goods markets;

the specialized structural division of the applicant/licensee - department, management, department, the sector which is integral part of internal organizational structure of the applicant/licensee or its separate division and has other location, than the licensee or its separate division;

length of service on executive positions - length of service as the leading official and/or as deputy of the leading official of the professional participant of the capital markets and the organized goods markets, and/or as the head and/or the deputy manager of separate, specialized structural and/or functional division of the professional participant of the capital markets and the organized goods markets, and/or to positions of public service categories B in State commission on securities and the stock market and/or NKTsBFR, and/or to positions of the Chairman or member of such commission are not lower;

length of service in the capital markets and the organized goods markets is general length of service of physical person:

on the leading positions / as specialist of the subject of the managing performing professional activity in the capital markets and the organized goods markets;

and/or on the leading positions / as specialist in associations (associations) of persons which perform professional activity in the capital markets and/or the organized goods markets;

and/or positions of public service in State commission on securities and the stock market and/or NKTsBFR and/or to positions of the Chairman or member of such commission.

  The terms "goodwill", "clearing", "clearing activities with determination of obligations", "clearing activities of the central partner", "clearing organization", "operator of multilateral trading floor (further-the operator of MTP)", "operator of organized trading floor (further-the operator of OTP)", "person who performs executive functions", "person performing managerial functions", "official channel of communication", "officials of the professional participant of the capital markets and organized goods markets", "original capital", "professional activity in the organized goods markets", "professional activity in the capital markets", "professional participants of the organized goods markets", "system of clearing accounting", "risk management system and guarantees of person performing clearing activities", "members of the capital markets" are used in values, determined by the Law of Ukraine "About the capital markets and the organized goods markets".

The terms "essential participation", "controller", "control" are used in the values determined by the Law of Ukraine "About financial services and state regulation of the markets of financial services".

The terms "chain of ownership of corporate laws of the legal entity" and "structure of property of the legal entity" are used in the values determined by the Law of Ukraine "About banks and banking activity".

The terms "final beneficial owner" and "trust" are used in the values determined by the Law of Ukraine "About prevention and counteraction of legalization (washing) of income gained in the criminal way, to financing of terrorism and financing of distribution of weapons of mass destruction".

The term "force majeur circumstances" is used in the value determined by the Law of Ukraine "About Chambers of Commerce and Industry in Ukraine".

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