Subject Matter
Cash penalties: calculation
Question
(a) Is bilateral netting followed by aggregation of the amounts resulting in one credit and one debit amount per CSD participant in line with Article 17 of the RTS on settlement discipline?
(b) Which rate should be applied (the securities rate or the cash rate) for the calculation of cash penalties in accordance with Article 7(2) of CSDR and Articles 2 and 3 of the Commission Delegated Regulation (EU) 2017/389?
(c) Should cash penalties be applied to settlement fails in the case of receive free of payment (‘RFP’) settlement instructions, receive with payment (‘RWP’) settlement instructions, or crediting payment free of delivery (‘CPFOD’) settlement instructions (as referred to in Article 13(1)(g) of the RTS on Settlement Discipline), which are put on hold?
(d) When should penalty rates for financial instruments traded on SME growth markets apply, as set out in the Annex to the Commission Delegated Regulation (EU) 2017/389?
(e) Should the net amounts of cash penalties referred to in Article 17 of the RTS on settlement discipline be calculated and communicated only in Euros to the CSD participants?
(f) Article 3(2) of Commission Delegated Regulation 2017/389 provides that “The reference price referred to in paragraph 1 shall be used to calculate the level of cash penalties for all settlement fails, irrespective of whether the settlement fail is due to a lack of securities or cash.” What should be the basis for calculating cash penalties in cases where the settlement instruction does not include any securities or when its security component is not related to its cash component (e.g. when two separate and opposite transactions between two participants result in a settlement instruction that consists in a delivery with payment or a payment free of delivery)?
(g) Is it admissible for Member States or CSDs to apply cash penalties rates that would differ from the penalty rates set in Commission Delegated Regulation (EU) 2017/389?
(h) Should cash penalties be applied from the intended settlement date (ISD) to new settlement instructions that are entered into a securities settlement system to replace failed instructions if penalties have already been applied to such settlement instructions between the ISD and the date on which the new instructions are entered into the securities settlement system?
Level 1 Regulation
Central Securities Depositories Regulation (CSDR) Regulation (EU) No 909/2014- PTR- CSDR