Arrêté ministériel portant approbation des modifications des règles de la compensation de l'organisme de compensation désigné par Euronext Brussels S.

8 AVRIL 2002. - Arrêté ministériel portant approbation des modifications des règles de la compensation de l'organisme de compensation désigné par Euronext Brussels S.A. - Erratum Ce texte remplace celui paru au Moniteur Belge n° 173 du 28 mai 2002, première édition, page 22890. Le Ministre des Finances, Vu la loi du 6 avril 1995Documents pertinents retrouvés type loi prom. 06/04/1995 pub. 29/05/2012 numac 2012000346 source service public federal interieur Loi organisant la commission parlementaire de concertation prévue à l'article 82 de la Constitution et modifiant les lois coordonnées sur le Conseil d'Etat. - Coordination officieuse en langue allemande fermer relative aux marchés secondaires, au statut des entreprises d'investissement et à leur contrôle, aux intermédiaires et conseillers en placements, modifiée par les lois des 30 janvier 1996, 10 mars 1999, 11 avril 1999 et 12 août 2000, notamment les articles 9, alinéa 7 et 14, 1°; Vu l'arrêté royal du 18 août 1999 mettant en place un système de liquidation et de compensation des opérations conclues sur les marchés organisés à la Bourse ou en dehors de celle-ci et fixant ses règles d'organisation et de fonctionnement et modifiant la loi du 28 avril 1999Documents pertinents retrouvés type loi prom. 28/04/1999 pub. 01/06/1999 numac 1999003307 source ministere des finances Loi visant à transposer la Directive 98/26/CE du 19 mai 1998 concernant le caractère définitif du règlement dans les systèmes de paiement et de règlement des opérations sur titres fermer transposant en droit belge la Directive 98/26/CEE du 19 mai 1998 concernant le caractère définitif du règlement dans les systèmes de paiement et de règlement des opérations sur titres, notamment l'article 3; Vu la décision du Conseil d'administration de Euronext Brussels S.A. du 20 décembre 2000 désignant Clearnet S.A. comme organisme de compensation; Vu la décision du Conseil d'administration de Clearnet S.A. du 6 mars 2002 fixant les modifications des règles de la compensation; Vu l'avis de la Commission bancaire et financière du 27 mars 2002, Arrête : Article 1er.Les modifications des règles de la compensation de Clearnet s.a., qui apparaissent en caractères soulignés dans la version coordonnées des règles annexées au présent arrêté, sont approuvées. Art. 2.Le présent arrêté produit ses effets le premier jour d'utilisation par Clearnet de Clearing 21 pour la compensation des transactions exécutées sur Euronext Brussels. Bruxelles, le 8 avril 2002. D. REYNDERS Bijlagen/Annexes Clearing Rulebook TABLE OF CONTENT Pour la consultation du tableau, voir image TITLE I. - COMMON PROVISIONS CHAPTER 1. - Definitions Article 1.1.0.1 For the purposes of this Clearing Rule Book, the following capitalised terms shall, unless specifically provided otherwise, have the respective meanings set out below : Article 1.1.0.2 « Admission Agreement » : the written agreement entered into between Clearnet and a Clearing Member pursuant to Section 1.4.1 of the Clearing Rule Book. Article 1.1.0.3 « Admission Fee » : the fee that is due once, upon its admission, by the Clearing Member to Clearnet, as communicated by Clearnet. Article 1.1.0.4 « Applicant » : a legal person that wishes to be admitted as a Clearing Member. Article 1.1.0.5 « Associated Trading Member » : any Person that trades on Designated Clearnet Gateways and has entered into a Clearing Agreement with a General Clearing Member. Article 1.1.0.6 « Authorised Representative » : any individual authorised by Clearnet in order to perform clearing functions on Regulated Markets, on the authority or on behalf of a Clearing Member. Article 1.1.0.7 « Business Combination » : a single separate person entity combining one or more Persons that are jointly and severally liable, and form part of, and are generally considered to belong to, the same corporate group of businesses, including, but not limited to, European Economic Interest Groups. Article 1.1.0.8 « Capital » : shareholders'equity determined by Clearnet on the basis of the Capital Adequacy Directive, comprised of core capital (tier 1) and supplementary capital (tier 2). Article 1.1.0.9 « Capital Adequacy Directive » : EU Council Directive 93/6/EEC of March 15, 1993 on the capital adequacy of investment firms and credit institutions. Article 1.1.0.10 « Clearing Agreement » : the agreement referred to in Article 1.4.2.1 which is to be entered into between a General Clearing Member and a Trading Member or an Associated Trading Member. Article 1.1.0.11 « Clearing Day » : any day on which TARGET is open. Article 1.1.0.12 « Clearing Fee » : such fee as is communicated by Clearnet from time to time. Article 1.1.0.13 « Clearing Fund » : the collective system of collateralisation of commitments as set out in Chapter 6. Article 1.1.0.14 « Clearing Member » : a General Clearing Member or an Individual Clearing Member admitted as such by Clearnet, under the conditions set forth in Chapter 4. Article 1.1.0.15 « Clearing Rules » : the rules set forth in the Clearing Rule Book, including all Instructions and Notices thereto, as may be amended from time to time. Article 1.1.0.16 « Clearing Rule Book » : this document as may be amended from time to time. Article 1.1.0.17 « Clearnet » : the commercial name of "Banque Centrale de Compensation", a clearing house as defined by Article 47-I of the French Financial Activity Modernisation Act 96-597 of July 2nd, 1996 (« Loi de modernisation des activités financières » )1 Article L442-1 of the French Monetary and Financial Code (Code Monétaire et Financier) complying with Chapter II of Title IV of the General Rules of the Conseil des Marchés Financiers. Clearnet is incorporated in France and may have branches in other countries in which it operates. Article 1.1.0.18 « Client » : any Person which has opened accounts with respect to the trading of Financial Instruments in the books of a Clearing Member, other than a Trading Member or an Associated Trading Member. Article 1.1.0.19 « Collateral » : any Security, cash, or central bank guarantee, as specified in an Instruction, pledged, granted or transferred outright to Clearnet by the Clearing Member or to the Clearing Member by its Clients, Trading Members or Associated Trading Members, in order to secure the performance of obligations. Article 1.1.0.20 « Commodities Dealer » : Trading Member of a derivative market which is authorised to trade commodities. Article 1.1.0.21 « Competent Authority » : any authority recognised by its home member state as such under the terms of Capital Adequacy Directive or of Investment Services Directive. Article 1.1.0.22 « Credit Institution » : any Credit Institution as defined in Article 1(1) of EU Directive 2000/12/EC of the European Parliament and of the Council of March 20th, 2000 relating to the taking up and pursuit of the business of Credit Institutions. Article 1.1.0.23 « Derivative » : any Financial Instrument of one of the following categories : (i) options and futures contracts in respect of Securities or commodities, including equivalent cash-settled instruments; (ii) warrants or similar Financial Instruments entitling the holder to acquire any Security or basket of Securities or to receive a cash amount determined by reference to a future price or value of such Security or basket. Warrants can also be considered as Securities, depending on the local jurisdiction; (iii) any other Financial Instrument, the value of which is determined by reference to prices of Financial Instruments or commodities, interest rates or yields, foreign exchange rates or other indices or measures which, subject to relevant National Regulations, as the Relevant Euronext Market Undertaking may determine to be eligible for trading on a Euronext Market for Derivatives. Article 1.1.0.24 « Designated Clearnet Gateway » : any system, designated as such by a Notice, providing a service for the execution or matching of Transactions which are not concluded on one of Euronext Markets and which may be cleared by Clearnet. Article 1.1.0.25 « Euronext » : the corporate group consisting of Euronext N.V., a corporation (« naamloze vennootschap ») organised under the laws of the Netherlands, and its subsidiaries, or any corporation or entity belonging to such group, as the context requires. Article 1.1.0.26 « Euronext Amsterdam » : Euronext Amsterdam N.V., a corporation (« naamloze vennootschap ») organised under the laws of the Netherlands, operator of a Securities exchange and Derivatives exchange (« houder van een effectenbeurs ») authorised pursuant to Article 22 of the Dutch Securities Markets Supervision Act of 1995 (« Wet toezicht effectenverkeer 1995 »). Article 1.1.0.27 « Euronext Brussels » : Euronext Brussels S.A./N.V., a corporation (« société anonyme »/« naamloze vennootschap ») organised under the laws of Belgium, operator of a Securities exchange authorised by Article 7, § 2, 9, of the Belgian Law of April 6th, 1995 on securities markets (« Loi relative aux marchés secondaires, au statut des entreprises d'investissement et à leur contrôle, aux intermédiaires et conseillers en placements » /« Wet inzake de secundaire markten, het statuut van en het toezicht op de beleggingsondernemingen, de bemiddelaars en beleggingsadviseurs »). Article 1.1.0.28 « Euronext Market » : any market for Financial Instruments operated by any Euronext Market Undertaking. Article 1.1.0.29 « Euronext Market Undertakings » : Euronext Amsterdam, Euronext Brussels and Euronext Paris, collectively. Article 1.1.0.30 « Euronext Paris » : Euronext Paris S.A., a corporation (« société anonyme ») organised under the laws of France, authorised as a market undertaking (« entreprise de marché ») within the meaning of Article 40 of the French Activity Modernisation Act n° 96-597 of July 2, 1996 (« Loi de modernisation des activités financières »). L. 441-1 of The French Monetary and Financial Code (Code Monétaire et Financier). Article 1.1.0.31 « Financial Instrument » : any Security or Derivative. Article 1.1.0.32 « General Clearing Member » : a Clearing Member authorised to clear Transactions which have been dealt for its own account, or allocated to it, or have been dealt for the account of Clients, Trading Members or Associated Trading Member. Article 1.1.0.33 « Home State » : the State in which a Person has its registered office or, absent a registered office, its head office or, in the case of an individual, the State in which such individual has its principal place of business. Article 1.1.0.34 « Implementation Date » : The date specified by Clearnet in a Notice for full implementation of the IT clearing system "Clearing 21" Article 1.1.0.35 « Individual Clearing Member » : a Clearing Member authorised to clear Transactions which have been dealt for its own account, or allocated to it or have been dealt for the account of its Clients. Article 1.1.0.36 « Initial Margin » : the amount calculated by Clearnet to cover the risk resulting from a Clearing Member's Open Positions in Financial Instruments as a result of Transactions registered with Clearnet in the name of such Clearing Member. Article 1.1.0.37 « Instruction » : any document issued as such by Clearnet, as amended from time to time, whereby the provisions of this Clearing Rule Book are interpreted or implemented and which is binding upon Clearing Members generally or to any category of Clearing Members in particular. Article 1.1.0.38 « Investment Services Directive » : EU Council Directive 93/22/EEC of May 10, 1993 on investment services in the securities field. Article 1.1.0.39 « IPU » or « Index Participation Unit » : a dematerialised tradable Financial Instrument based on an underlying index. The holder of an IPU has an optional right either to receive the counter-value of the exercised IPU in cash or, as appropriate, to receive all the underlying Financial Instruments which are the constituent elements of the underlying index. Article 1.1.0.40 « Letter of Credit » : a letter of credit issued by a Credit Institution (garantie à première demande), which shall substantially be in the form of the model of the letter of credit agreement issued by the International Chamber of Commerce (« ICC »), as amended from time to time, or in the form of the model issued by Clearnet in an Instruction. Article 1.1.0.41 « Local Part » : Title II and/or III and/or IV of the Clearing Rule Book as the context requires. Article 1.1.0.42 « Margin » : Initial Margin and Variation Margin, calculated daily by Clearnet for each Clearing Member on the basis of this Clearing Rule Book. Article 1.1.0.43 « Member State » : any of the Member States of the European Economic Area. Article 1.1.0.44 « National Regulations » : any and all laws and regulations applicable in the jurisdiction of the Relevant Euronext Market Undertaking. Article 1.1.0.45 « Notice » : any document issued as such by Clearnet, as amended from time to time, informing Clearing Members generally, or a particular category of Clearing Members, of specific matters of relevance with respect to the proper functioning of the clearing of Transactions and which is binding upon such Clearing Members. Unless stated otherwise in the Clearing Rule Book, Notices may only cover issues of technical and operational nature, implementing the main principles laid down in the Clearing Rule Book or in an Instruction. Article 1.1.0.46 « Off-Exchange Transaction » : Transactions, including Prof Trades, not concluded on a Regulated Market, between a buyer and a seller that can be Clearing Members, Trading Members or Associated Trading Members. Article 1.1.0.47 « Open Position » : all the obligations of a Clearing Member vis-à-vis Clearnet, either to deliver or pay for Financial Instruments which have not yet been met, either in full or in part. Article 1.1.0.48 « Person » : any individual, legal entity, corporation, partnership, association, trust or entity as the context admits or requires. Article 1.1.0.49 « Product Group » : all products of a particular category of Financial Instruments and in particular : Securities, Derivatives and any Financial Instruments traded through Designated Clearnet Gateways. Article 1.1.0.50 « Prof Trades » : Transactions in Derivatives between two Clearing Members with the same contract specifications as the Euronext Market specifications for Derivatives, which are not traded on a Regulated Market but may be cleared by Clearnet in accordance with the terms of an Instruction issued by Clearnet. Article 1.1.0.51 « Regulated Market » : any organised market for Financial Instruments specified as such in the list published by the European Commission in accordance with Article 16 of the Investment Services Directive. Article 1.1.0.52 « Relevant Euronext Market Undertaking » : the Euronext Market Undertaking which has admitted the relevant Financial Instrument to listing or trading on a Euronext Market, or with which the relevant application for admission to listing or trading is pending, as the case may be. Article 1.1.0.53 « Security » : any Financial Instrument of one of the following categories : (i) shares or other equity securities of corporations; (ii) certificates or depositary receipts in respect of such shares or other equity securities; (iii) bonds or other debt securities, whether or not convertible into shares or other equity securities; (iv) warrants or similar Financial Instruments entitling the holder to acquire any Security or basket of Securities or to receive a cash amount determined by reference to a future price or value of such Security or basket. Warrants can also be considered as Derivatives, depending on the local jurisdiction; (v) units in collective investment undertakings; (vi) any other Financial Instruments which, subject to relevant National Regulations, the Relevant Euronext Market Undertakings may decide to be eligible for trading on a Euronext Market for Securities. Article 1.1.0.54 « Systems and Operations » : all parts and components of the technical system of the Clearing Member, including hardware and software that is operated and maintained by or on behalf of a Clearing Member to clear Transactions together with the procedures that are in place to operate such system, including risk management provisions. Article 1.1.0.55 « Trading Member » : any Person which has been admitted as member on a Regulated Market in one or both capacity of broker/dealer, and whose membership has not been terminated. Article 1.1.0.56 « Transaction(s) » : any purchase, sale or exchange of Financial Instruments, including a repurchase agreement or a securities loan or a buy and sell-back, and the terms "buyer" and "seller" used in this Clearing Rule Book shall be construed accordingly. Article 1.1.0.57 « Transfer Date » : the day when the assets and liabilities of the former Clearing Houses (BXS Clearing, AEX Effectenclearing, AEX Optieclearing) are transferred to Clearnet. Article 1.1.0.58 « Transition Period » : the period starting from the Transfer Date up to December 31st 2002, or such earlier date as may be determined by Clearnet in a Notice. Article 1.1.0.59 « Variation Margin » : the amount calculated by Clearnet resulting from the daily revaluation to the market price of Clearing Member's Open Positions. CHAPTER 2. - General provisions Section 1.2.1. - General Article 1.2.1.1 References to any law, regulation or directive shall be construed as those in force from time to time. Article 1.2.1.2 Chapter or Section headings in this Clearing Rule Book or in the Instructions are for ease of reference only; they are not part of the content of the relevant Chapter or Section and may not in any way affect the interpretation thereof. Article 1.2.1.3 Capitalised terms used in this Clearing Rule Book shall be construed to be of such number as the context admits or requires. Article 1.2.1.4 Capitalised terms defined in Chapter 1 and used but not otherwise defined in Instructions or in other communications of Clearnet shall have the same meaning as set forth in Chapter 1. Section 1.2.2. - Fees Article 1.2.2.1 Clearing Members shall pay to Clearnet Admission Fees and Clearing Fees. Section 1.2.3. - Governing Law Article 1.2.3.1 The Clearing Rules shall be governed by and construed in accordance with the laws of France unless explicitly stated otherwise. Section 1.2.4. -Settlement of disputes Article 1.2.4.1 Any dispute between Clearnet and a Clearing Member that may arise under any of the Rules of the Admission Agreement shall be directy referred to arbitration and finaly settled in accordance with the Rules of Arbitration of Euro Arbitration. This provision will be applicable at a date and under conditions set out in an Instruction the Clearing Rules shall be finally settled in accordance with the French courts or arbitration center referred to in the Admission Agreement. Article 1.2.4.2 Each Clearing member agrees that any dispute between a Clearing Member and a Client or a Trading Member or an Associated Trading that may arise in relation to one or more Transactions shall be settled in accordance with the Rules of Arbitration of EuroArbitration if the Client or Trading Member or Associated Trading Member so requests, at any time before the matter is referred to a court (other than through summary proceedings for interim relief). This provision will be applicable at a date and under conditions set out in an Instruction Section 1.2.5. - Currency Article 1.2.5.1 If a specific currency is replaced by another currency, such as the euro for example, in pursuance of the amendment of existing legislation or the coming into effect of new legislation, the clearing of all the financial obligations of Clearing Members arising under these Clearing Rules and which are denominated in the currency that is replaced shall take place in the substitute currency as from the effective date of such replacement. Article 1.2.5.2 If substitution of a specific currency involves a period of transition, clearing by Clearing Members during this period of transition will take place in the currency as specified by Clearnet by Notice. Article 1.2.5.3 If necessary, Clearnet shall establish the conversion rate of the substitute currency and the currency due to be replaced as well as the applicable rounding rules, subject to the applicable laws and regulations. Section 1.2.6. - Local time Article 1.2.6.1 Where reference is made in the Clearing Rules to a time or deadline, it shall be understood to mean the Central European Time (CET). Section 1.2.7. - Local Parts Article 1.2.7.1 The provisions set out in the Local Parts apply in addition to, and not in lieu of, the provisions contained in Title I to the Dutch, Belgian and French Clearing Members respectively. Article 1.2.7.2 In case of any inconsistency between the provisions set out in Title I and the Local Parts, the latter provisions will prevail. CHAPTER 3. - Legal framework Section 1.3.1. - Scope of Clearnet activities Article 1.3.1.1 Transactions executed on any Regulated Market or executed or matched on any Designated Clearnet Gateway may be cleared by Clearnet if Clearnet has signed an agreement with the operator of the Regulated Market or Designated Clearnet Gateways. Article 1.3.1.2 Where so specified in a Notice, Clearnet can also clear Off-Exchange Transactions that are not executed on a Designated Clearnet Gateway. Section 1.3.2. - Decisions of Clearnet Article 1.3.2.1 This Clearing Rule Book sets out the principles and general conditions governing the organisation and operation of the clearing activities of Clearnet. Article 1.3.2.2 General or specific decisions which are provided by the Clearing Rule Book to fall within the authority of Clearnet shall be adopted in accordance with the conditions established by the board of directors of Clearnet. Article 1.3.2.3 The Clearing Rule Book shall be implemented and interpreted through Instructions and by Notices, issued by Clearnet and published in accordance with Section 1.3.3. Instructions and Notices shall not be used to amend the principles set out in the Clearing Rule Book. Article 1.3.2.4 The Clearing Rule Book may be modified from time to time by decision adopted by Clearnet. Clearing Members will be informed of each change in writing or by such other means as may be specified by Clearnet. Such modifications shall become effective and binding on all Clearing Members upon publication thereof by Clearnet or at such subsequent date as is specified in such publication. Article 1.3.2.5 If any modification of the Clearing Rules, other than a modification required by European Community or national law, materially adversely affects the rights or obligations of the Clearing Members generally or of any category of Clearing Members, then any Clearing Member so affected may terminate its membership by notification in writing given to Clearnet within 10 Clearing Days from the date of publication of the relevant modification. Section 1.3.3. - Publication Article 1.3.3.1 Clearnet shall ensure publication of the Clearing Rulebook, Instructions, Notices and other decisions of general application to its Clearing Members or to the relevant category of Clearing Members through dissemination via posting on its website, publication in its weekly bulletin or individual notification as appropriate. Section 1.3.4. - General Obligations of Clearnet Article 1.3.4.1 In accordance with this Clearing Rule Book, Clearnet registers Transactions, supervises the positions of its Clearing Members, calculates the associated risk, calls Margins to cover this risk, guarantees the proper settlement of positions as central counterparty, manages the default procedures, transmits settlement instructions to the settlement provider and performs all other functions specified by the Clearing Rules. Section 1.3.5. - Central Counterparty Article 1.3.5.1 Clearnet acts as a central counterparty between the Clearing Member of the buyer and the Clearing Member of the seller. Article 1.3.5.2 From the matching of the Transaction, Clearnet guarantees that the Transaction will be registered in the clearing system forthwith unless otherwise provided in a Notice. Clearnet will not be liable if a Transaction is not registered or is improperly registered in the clearing system in case of third party's fault or force majeure. Article 1.3.5.3 Upon registration by Clearnet of a Transaction submitted to it by or on behalf of its original counterparties, the original Transaction is novated and Clearnet therefore becomes exclusively entitled to the rights and subject to the obligations arising under the Transaction in place of each of the original counterparties. Article 1.3.5.4 Submission by the original counterparties of a Transaction for clearing by Clearnet signifies the acceptance by the two original counterparties of the novation. Article 1.3.5.5 Novation takes place with respect to individual gross obligations of each Clearing Member. At the end of the trading day or at another time as may be published in a Notice, Clearnet aggregates individual registered gross obligations with respect to payment of cash or delivery of Securities, into net payment and delivery obligations. Section 1.3.6. - Clearnet's guarantee Article 1.3.6.1 Upon registration, Clearnet guarantees each Clearing Member the final settlement of netted Open Positions registered in its name, subject to the timely performance by such Clearing Member of its own obligations. Article 1.3.6.2 If the market in a given Financial Instrument does not allow delivery of the instruments concerned, Clearnet can decide that a cach amount determined by it will be paid in lieu of delivery, or that, depending on the type of asset or Financial Instrument involved, another asset or Financial Instrument can be delivered in substitution. If Clearnet is unable to deliver a given Financial Instrument, pursuant to the market conditions, Clearnet will so notify the relevant Clearing Member. In such case, Clearnet will pay a cash amount in lieu of delivery. The amount will be calculated on the basis of the market price of the Financial Instrument according a formula and method of calculation to be specified in an Instruction. Where a corporate event makes the delivery of Securities impossible, Clearnet may deliver other Securities in substitution under the conditions specified in an Instruction. Article 1.3.6.3 For net Open Positions settled through payment of a price difference, the Clearnet guarantee applies to such difference. Article 1.3.6.4 The guarantee covers : - for Transactions in Securities : the payment of cash and the delivery of the Securities; the Local Parts set out the circumstances in which Clearnet may perform its delivery obligation at a later time than the time originally specified for the relevant Transaction. - for Transactions in option contracts : * payment of option premia pursuant to Transactions and of cash amounts resulting from exercise and assignment; * payment of cash and delivery pursuant to the settlement of positions in the underlying Financial Instruments or asset resulting from exercise and assignments; - for Transactions in futures contracts (including commodities) : payment of Variation Margin and, in the case of deliverable financial futures, delivery of assets or Financial Instruments versus payment. - for Transactions in IPUs : * payment of the dividend equivalent * payment of premia pursuant to Transactions and of cash amounts resulting from exercise and assignments. CHAPTER 4. - Membership Section 1.4.1. - Admission of clearing members A. - STATUS Article 1.4.1.1 A Clearing Member is a legal person admitted as such by Clearnet and authorised, subject to the Clearing Rules, to submit Transactions for registration, pursuant to an Admission Agreement between Clearnet and itself. Article 1.4.1.2 The following entities are eligible to become a Clearing Member : - Legal persons authorised to become members of Regulated Markets; - Credit Institutions whose program of activity for clearing has been approved by their national Competent Authority or which are duly authorised by their Competent Authority to provide clearing activities; - Legal persons, whose principal or sole object is the clearing of Financial Instruments, duly authorised by their national Competent Authority. 1. Credit institutions established in France;2. Investment firms established in France;3. Legal persons whose members or shareholders have unlimited joint and several liability for their debts and obligations, provided that such members or shareholders are institutions or firms mentioned under 1 and/or 2 above;4. Legal persons established in France and whose principal or sole object is the clearing of Financial Instruments;5. Credit institutions, investment firms and legal persons whose principal or sole object is the clearing of Financial Instruments, that are established outside France, under prior approval of the Conseil des Marchés Financiers.An agreement between the Conseil des Marchés Financiers and (an)other Competent Authority(ies) may provide for an exemption from prior authorisation for a category of entities. Such entities must be under their home country Competent Authority's supervision. Article 1.4.1.3 A Clearing Member can operate as : Individual Clearing Member; or General Clearing Member. The admission application specifies, inter alia, the Product Group and the membership category under which the Clearing Member is authorised to clear. B. - APPLICATION PROCEDURE Article 1.4.1.4 The items to be included in the admission application are specified in an Instruction. The Admission Agreement is concluded on the basis of the identity of the relevant Clearing Member and so cannot be assigned or transferred without Clearnet's prior written approval. Article 1.4.1.5 Clearnet shall examine the information in the admission application and inform the Applicant of its admission decision by ordinary mail within one month following the date of receipt of all documents to be included in the application. Should the information contained in the application be incomplete or unsatisfactory, Clearnet shall have the right to require additional information from the Applicant. The period within which the applicant must be informed of the decision of Clearnet shall run from the receipt of the complete admission application, including any additional information required by Clearnet. Article 1.4.1.6 In the case of the approval of an application, Clearnet may impose conditions or limitations on the exercise of certain rights under these Clearing Rules provided that such conditions or limitations are imposed without discrimination. Article 1.4.1.7 Whilst the application is pending, the Applicant must notify Clearnet in advance in writing of every change in the data supplied with the application and of facts and circumstances concerning the Applicant which may be of importance in the context of the application or of the ability of the Applicant to perform its obligations under the Clearing Rules and the orderly conduct of its activities as a Clearing Member. Article 1.4.1.8 If Clearnet has not made a decision on a particular application within one month following the date on which the complete application was filed with Clearnet, Clearnet shall be deemed to have rejected the application. Article 1.4.1.9 Clearnet may refuse an admission to membership if it considers that such admission may adversely affect the operation of the clearing and settlement system, or when the applicant does not comply with its obligations resulting from its admission to another clearing house or central securities depository. On the request of the Applicant that was not admitted, Clearnet shall duly motivate its decision within one month after the request. Any Applicant facing a refusal decision from Clearnet is able to contest such decision before an appeal comity. The appeal procedure and the constitution of such comity are set out in an Instruction. Article 1.4.1.10 If the Applicant has been approved as a Clearing Member, it shall before commencing operations : - return the signed Admission Agreement signifying its acceptance of the Clearing Rules as a contracting party; pay to Clearnet its Admission Fee. Article 1.4.1.11 A Clearing Member must commence operations within six months after admission, unless Clearnet grants an extension. Failing this, the admission decision shall be automatically revoked and any new admission will require compliance with the provisions of this Section. Section 1.4.2. - Specific requirements A. - ORGANISATIONAL REQUIREMENTS Article 1.4.2.1 A General Clearing Member who clears Transactions for one or more Trading Members or Associated Trading Members must have signed a Clearing Agreement with each such Trading Member or Associated Trading Member. The provisions which are required to be included in the Clearing Agreement are outlined in an Instruction and include provisions on the reciprocal obligations of the (Associated) Trading Member and the Clearing Member, the terms for Margin calls by the Clearing Member on the (Associated) Trading Member, the methods by which Transactions are registered, the applicable law, and the procedure to be followed in the event of default of one of the signatories. A General Clearing Member may only enter into a Clearing Agreement with a (Associated) Trading Member which has not yet entered into a Clearing Agreement with another General Clearing Member for that Product Group or for Financial Instruments trades on the same Euronext Market clearing segment as specified in an Instruction. Article 1.4.2.2 The Clearing Agreement to be entered into by a General Clearing Member shall be submitted for prior approval to Clearnet of the mandatory provisions mentioned in article 1.4.2.1. If Clearnet deems changes or additions to the Clearing Agreement submitted to it appropriate, it will inform the General Clearing Member which shall make the required amendments. Clearnet may stipulate that approval of the Clearing Agreement is valid for a specific period only. Article 1.4.2.3 Clearnet shall not be liable for any damage arising from the Clearing Agreement, whether sustained by the General Clearing Member or by a third party. The General Clearing Member shall comply with the Clearing Agreement as approved by Clearnet. Any amendment to the provisions required by Clearnet to be included in the Clearing Agreement shall be subject to prior approval by Clearnet. Article 1.4.2.4 Any Applicant wishing to be admitted as a Clearing Member by Clearnet should satisfy the following conditions : a) be validly incorporated;b) undertake to accept the Clearing Rules by executing the Admission Agreement.c) be the subject of supervision by its Competent Authorities, or of comparable local supervision, if the Applicant was incorporated outside the Euronext countries; d) meet the financial requirements as determined by Clearnet from time to time and specified in Section 1.4.2, and also meet any further requirements as to liquidity and/or solvency as may be set by Clearnet; e) meet the quality requirements as specified in an Instruction;f) satisfy Clearnet that it has sufficient expertise in relation to clearing activities, that its technical systems and related organisational structure are operationally reliable and that its risk management policy is adequate; g) ensure that the persons who represent the Applicant fulfil the requirements of expertise and ability determined by Clearnet in Articles 1.4.2.6 to 1.4.2.8, and ensure that its organisation and the persons competent to take decisions will be accessible to Clearnet during working hours of every Clearing Day; h) submit details of duly existing accounts for the purposes of payment of cash amounts and deliveries of Financial Instruments, as well as evidence that a power of attorney has been issued in favour of Clearnet to allow the debiting or crediting of such accounts for the settlement of Transactions cleared by Clearnet; i) irrevocably authorise such persons as may be specified by Clearnet under the conditions set out in article 1.4.3.15, to inspect its facilities, interview its staff, audit its Systems and Operations, check the proposed procedures (as recorded in writing) and inspect its books, papers and other data, for the purpose of determining whether the Clearing Rules are being properly complied with; j) where it is incorporated outside the EEA, satisfy Clearnet, by providing a legal opinion from a local counsel, that its domestic law system will not inhibit the ability of Clearnet to act effectively under these Clearing Rules;k) satisfy such other requirements as may be imposed by Clearnet generally or for a category of Clearing Members. Article 1.4.2.5 Applicants that are not established under the laws of France, Belgium or the Netherlands, or any other country that may be specified by Clearnet are obliged to provide Clearnet, at their earliest convenience, with all relevant information on rules and regulations that are in force in their Home State, which deal with clearing activities, and especially those rules and regulations that concern the registration of Transactions and the resolution of delivery fails between Clearing Members and their Clients. B. - Authorised Representatives Article 1.4.2.6 All individuals who wish to perform clearing functions on Regulated Markets under the authority or on behalf of a Clearing Member must be authorised by Clearnet. Clearnet grants such authorisation upon the terms and subject to the conditions specified in an Instruction. Article 1.4.2.7 Before granting the authorisation, Clearnet will assess the applicant's professional knowledge and ability, if necessary by means of an examination. Clearnet may revoke or suspend the authorisation in the circumstances specified in the Instruction referred to in Article 1.4.2.6. Article 1.4.2.8 The Clearing Member shall provide Clearnet with a list of persons whose activities require such authorisation. Applications for authorisation are submitted by the Clearing Member, which is responsible for their proper submission. Article 1.4.2.9 A Clearing Member cannot disavow the acts or omissions of any person acting or appearing to act on its behalf on the basis that such person was not duly authorised. C. - FINANCIAL REQUIREMENTS Article 1.4.2.10 In order to clear Transactions dealt on a Regulated Market, an Individual Clearing Member must at all times maintain a Capital of at least EUR 10 million. If the Clearing Member is not able to fulfil this requirement, a guarantee may be accepted in the conditions set forth below to cover the shortfall. Article 1.4.2.11 An Individual Clearing Member with Capital between EUR 5 and EUR 10 million, must provide a Letter of Credit in favour of Clearnet to cover the shortfall, unless such Clearing Member can demonstrate, in a manner which is acceptable to Clearnet, a guarantee of one or more group company covering its obligations under these Clearing Rules. In either case the identity of the issuer must be satisfactory to Clearnet. In the latter case, the form and substance of the guarantee must be satisfactory and the level of Capital is assessed on a consolidated basis. Article 1.4.2.12 In order to clear Transactions dealt on a Regulated Market, a General Clearing Member must at all times maintain a Capital of at least EUR 25 million. The required amount increases, depending on the number of Trading Members cleared by the General Clearing Member, as follows : - EUR 30 million from the tenth Trading Member cleared, - EUR 33.75 million from the fifteenth Trading Member cleared, - EUR 37.5 million from the twentieth Trading Member cleared and above. If the Clearing Member is not able to fulfil this requirement, a guarantee may be accepted in the conditions set forth below to cover the shortfall. Article 1.4.2.13 A General Clearing Member with a Capital below the amounts stipulated in Article 1.4.2.12, but in excess of EUR 15 million, must provide a Letter of Credit in favour of Clearnet to cover the shortfall, unless such Clearing Member can demonstrate, in a manner which is acceptable to Clearnet, a guarantee of one or more group company covering its obligations under these Clearing Rules. In either case the identity of the issuer must be satisfactory to Clearnet. In the latter case, the form and substance of the guarantee must be satisfactory and the level of Capital is assessed on a consolidated basis. Article 1.4.2.14 The requirements set out in Sub-Section C of this Section shall also be applicable to Clearing Members clearing Prof Trades. Clearnet can also apply the provisions of this Section to the Members clearing Transactions in Financial Instruments executed on a market which does not have the status of Regulated Market if all Financial Instruments may be traded on that market are traded elsewhere on a Regulated Market. Article 1.4.2.15 Any Letters of Credit that have been issued by a Clearing Member in favour of Clearnet to cover the obligations of another Clearing Member, pursuant to Articles 1.4.2.11 and 1.4.2.13, shall reduce the issuer's Capital pro tanto. Article 1.4.2.16 In the case of Business Combinations, the minimum Capital shall be determined by adding the Capital of each Person in such combination which is jointly and severally liable, and subtracting any cross-shareholdings between such Persons. The total Capital must at all times be at least equivalent to the minimum amounts set forth in these Clearing Rules. Article 1.4.2.17 A Clearing Member whose Capital at any point falls below the required amount is obliged to immediately ensure it is brought back up to the minimum requirement, without prejudice to the powers of Clearnet specified in Section 1.4.4. D. - LOCATION OF OFFICES Article 1.4.2.18 A Clearing Member may locate the human and technical resources needed to carry on its clearing and back office activities wherever it chooses, provided that it can satisfy Clearnet that such activities are carried out in a country in which on-site inspections by or on behalf of Clearnet are practicable and permitted by applicable laws and regulations. In any case, the head office and the registered office of the Clearing Member must be located in the same member state as provided in the Directive 95/26/EC which applies to all financial undertakings. Article 1.4.2.19 A Clearing Member may subcontract all or part of its clearing activities, to another Clearing Member, or to a company in the same group with the prior authorisation of Clearnet, provided that such arrangements shall not relieve the subcontracting Clearing Member of any of its obligations under these Clearing Rules. The request for authorisation must give all appropriate details as to the organisation, structure and procedures of the subcontractor and as to the means of control and supervision available to the subcontracting Clearing member. Article 1.4.2.20 Clearnet may require from a subcontractor the same information as may be required from a Clearing Member pursuant to these Clearing Rules. To that effect Clearnet may require in advance a written undertaking by the subcontractor which will include a provision authorising Clearnet and any Person acting on its behalf to perform inspections at the premises in which the clearing activities actually take place. Article 1.4.2.21 A Clearing Member that relies on an outside contractor to operate its information systems agrees to inform Clearnet of the control mechanisms pertaining to the hardware and software used or made available by the contractor. Such communications do not constitute approval by Clearnet; neither do they relieve the Clearing Member of any of its obligations under these Rules. The Clearing Member alone is answerable to the Clearnet for the proper execution of operations. Section 1.4.3. - Other continuing obligations A. - GENERAL Article 1.4.3.1 Clearing Members shall at all times comply with the requirements set out in Section 1.4.2 and any additional conditions and limitations imposed upon admission and with any other stipulation of these Clearing Rules. In particular, they must pay any Clearing Fees and contribute to the Clearing Fund as set forth in Chapter 6 of this Title. Article 1.4.3.2 Clearing Members must ensure that they are able to effect the settlement of Financial Instruments irrespective of the currency in which they are settled. Article 1.4.3.3 Clearnet may furnish, within the limits of the statutory provisions applicable, any information provided to it to exchanges, clearing organisations and Competent Authorities to the extent that these exchanges, clearing organisations and Competent Authorities are responsible for the organisation of markets, the clearing, settlement or the supervision of other activities of Clearing Members. Before furnishing the information, Clearnet may ask that the exchange, clearing organisation or Competent Authorities concerned to confirm that the information will be treated in confidence and that it will not be used for any purpose other than that for which it has been furnished. Notwithstanding such confirmation, the excahnge, clearing organisation or Competent Authorities concerned shall have the right to provide the information furnished by Clearnet to third parties if it is legally empowered or obliged to do se. Where the Clearing Member is also a member of an exchange or clearing house with whom Clearnet has entered into an agreement to clear Transactions or to grant mutual access, Clearnet may likewise, and under the same terms, pass any such information to such exchange or clearing house. B. - INFORMATION Article 1.4.3.4 The Clearing Member shall respond to all requests for information from Clearnet concerning its clearing activities and exposure to general and financial risks (Transactions, positions, fails, Clients, etc.). B1. - FINANCIAL INFORMATION Article 1.4.3.5 Clearing Members must send the following information to Clearnet : * Annually : - audited financial statements - balance sheet, profit and loss account, and notes to the annual financial statements; - audited consolidated financial statements - balance sheet, profit and loss account, and notes to the financial statements; * At the intervals required by the Competent Authority or by the regulations of the Home State or at other intervals accepted by Clearnet : - interim balance sheet; - profit and loss account; - documents concerning prudential supervision of market risks, prepared on a consolidated or unconsolidated basis, - statements concerning core capital (tier 1) and supplementary capital (tier 2) as defined by the said authority or regulations. Article 1.4.3.6 Clearing Members shall send Clearnet an annual update to a questionnaire relating to, inter alia : - the ownership of the Clearing Member's Capital, and a group organisation chart, - an updated description of the technical resources and personnel that are assigned to clearing functions, - a description of the structure and procedures in place, particularly in regard to the audit and back office functions. B2. - COMPLEMENTARY INFORMATION Article 1.4.3.7 A Clearing Member must notify Clearnet in advance in writing of every change in the data supplied in its application for admission and of any facts and circumstances concerning the Clearing Member which may significantly affect the exercise of its duties or the orderly conduct of its activities as a Clearing Member. Such developments without limitation include in particular : - those which could or are likely to result in the Clearing Member no longer being able to comply with its obligations under these Clearing Rules, - any significant change in its financial situation, in particular where shareholders' equity or Letters of Credit have declined by more than 10 % compared with the amounts previously reported or if shareholders' equity and Letters of Credit fall below the amount specified in Sub-Section C of Section 1.4.2 of these Rules, - any other change which has or could have a significant impact on their financial position, reliability or operations, - any change in their legal status or structure, including change of address, office or object under their Articles of Association, - changes in the power of control (shareholders) over their business with respect to the appointment and dismissal of their personnel, changes in the composition of their management or executive bodies, in their accounting system or organisation, in the holders of a qualified participating interest in their business, in the participating interests they hold or the joint ventures or alliances they have entered into, - any event occurring between the reporting dates set out in Article 1.4.3.6 that would significantly reduce the Clearing Members' Capital. The obligation to notify becomes effective at the time the Clearing Member anticipates or becomes aware of the events, or, if earlier, at the time at which the Clearing Member ought reasonably to have anticipated or become so aware. Article 1.4.3.8 Clearing Members shall send Clearnet a copy of all injunctions, formal notifications or sanctions imposed on it them by any Competent Authority regarding any event that could be relevant for Clearnet. Article 1.4.3.9 The obligation of Clearing Members to provide information also covers information about their Clients (including physical persons), including personal particulars concerning the identity, trading activities and positions of Clients. Clearnet shall have the right to furnish this information to the same persons as mentioned in Article 1.4.3.3 and on the same terms. C. - RECORD KEEPING Article 1.4.3.10 Clearing Members must keep accurate and full accounting records of all the Transactions they have entered into. These accounting records should, where applicable, disclose at least the following particulars : - the Trading Member on the relevant market with which a Clearing Agreement has been entered into; - in respect of each Trading Member on the relevant market with which a Clearing Agreement has been entered into, all the rights and obligations arising from the Transactions entered into by a General Clearing Member for the account of the Trading Member concerned; - any further requirements as may be specified by Clearnet. Article 1.4.3.11 The Clearing Member is required to keep all data relating to its clearing activity for at least five years and must make the data available to Clearnet upon demand throughout that period. D - Investigation Article 1.4.3.12 The Clearing Member authorises Clearnet to request all relevant information regarding its payment-delivery commitments in the payment and settlement systems used by Clearnet, either directly or through another organisation. Article 1.4.3.13 The Clearing Member agrees to submit to inspections by Clearnet on its clearing activity, whether on the latter's initiative or at the request of a national Competent Authority, and to respond to all requests by Clearnet for information on a regular or exceptional basis. It will only decline to provide the required information where it is prevented from doing so by a mandatory provision of law. Article 1.4.3.14 The Clearing Member authorises Clearnet, or any person or entity that has been duly designated, to make an audit of its Systems and Operations. Further, it undertakes to provide all information needed to complete such an audit. Clearnet reserves the right, upon completion of the audit, to require any modifications that may prove necessary. The Clearing Member hereby agrees to implement such modifications as soon as possible. Article 1.4.3.15 For the purpose of this Clearing Rule Book, Clearnet may delegate its investigation powers to any suitable body which it shall see fit. Where there is any such delegation, Clearnet will ensure the confidentiality of any information provided by the Clearing Member. Section 1.4.4. - Suspension and revocation of Membership Article 1.4.4.1 Without prejudice to the possible applicability of the provisions set out in Chapter 7 of this Title I, if Clearnet is of the opinion that specific developments could or are likely to result in a situation in which a Clearing Member no longer satisfies one or more of the requirements set in Section 1.4.2, or endangers the proper functioning of the clearing system, or can no longer comply with its obligations under these Clearing Rules, Clearnet may : - suspend or revoke its membership, - refuse to register Transactions, - submit registration of Transactions to specific conditions, or impose additional conditions which Clearnet deems appropriate in the circumstances and notifies in writing to the Clearing Member. Article 1.4.4.2 Before exercising any such power, however, Clearnet may, without any commitment on its part, enter into consultations with the Clearing Member, which may result in Clearnet specifying the latest date and time limit on which the Clearing Member must have remedied the situation. Article 1.4.4.3 In any event, Clearnet can decide the temporary suspension of the Clearing Member's activities, or revoke its membership as a Clearing Member, with immediate effect without any further act or notification being required. Article 1.4.4.4 When a Clearing Member's membership is suspended, Clearnet shall suspend the registration of any new Transactions in the Clearing Member's name. However, Clearnet may decide, in view of the particular circumstances to only suspend the registration of a new Transaction increasing the Clearing Member's Open Position. The Clearing Member will continue to be required to provide Collateral and settle netted Open Positions as they fall due. Article 1.4.4.5 When a Clearing Member's membership is revoked, Clearnet shall discontinue registration of any new Transactions in the Clearing Member's name and transfer to another Clearing Member or liquidate the Clearing Member's Open Position(s). Article 1.4.4.6 Suspension or revocation of membership shall be promptly notified to the Clearing Members by publication in a Clearnet Notice. Clearnet will also promptly notify the Competent Authorities and the operator of the markets concerned. Article 1.4.4.7 In addition to the foregoing, Clearnet shall have the right at any time to terminate in writing a Clearing Member's membership, subject to a period of notice which is reasonable in the circumstances. The Clearing Member will be informed of the reason for the termination. Section 1.4.5. - Withdrawal of Membership Article 1.4.5.1 A Clearing Member shall have the right at all times to terminate its membership as a Clearing Member as specified in the Admission Agreement. Article 1.4.5.2 The announcement of termination of membership does not relieve a Clearing Member from any of its obligations arising from Transactions entered into prior to such announcement. When the Clearing Member shall have satisfied all of his obligations vis-à-vis Clearnet, the latter will refund any remaining cash and Collateral belonging to the Clearing Member in question, including its contribution to the Clearing Funds. Section 1.4.6. - Transitional provisions A. - GRAND FATHER CLAUSE Article 1.4.6.1 As of the Transfer Date, all Clearing Members of BXS Clearing, AEX - Effectenclearing and AEX - Optieclearing, duly authorised at that time are automatically admitted to membership of Clearnet as Individual or General Clearing Member, in the relevant Product Group(s). For that purpose, they have to sign an appropriate Admission Agreement with Clearnet. At the same time Clearnet becomes automatically the central counterparty of all the Open Positions of such Clearing Members and the beneficiary of all associated Collateral. Article 1.4.6.2 As of the Transfer Date, upon notification as provided below, Clearnet will automatically grant an authorisation to all individuals, duly authorised at that date by BXS Clearing, AEX - Effectenclearing and AEX - Optieclearing, carrying out clearing functions for Clearing Members, subject only to the relevant Clearing Members notifying Clearnet the names of individuals concerned by this provision within 3 months after the Transfer Date. B. - TRANSITION PERIOD Article 1.4.6.3 From the Transfer Date until December 31st, 2002, existing Clearing Members which do not meet the status, the organisational or financial requirements as set out in these Clearing Rules, are allowed to carry on their business exclusively for the clearing of Financial Instruments that they have been authorised previously, on the basis set out below. Article 1.4.6.4 Any such Clearing Member, which wants to carry on its clearing business after the Implementation Date, must commit to fulfilling the financial requirements set out in Sub-Section C of Section 1.4.2 of this Clearing Rule Book before December 31st, 2002 at the latest. For that purpose it will submit to Clearnet for approval a financial forecast to show how it will be able to meet the financial requirements. This forecast must be submitted to Clearnet as soon as possible after the Transfer Date and not later than the Implementation Date. An Instruction sets out the main criteria which Clearnet will take into account to approve or not such forecast. Article 1.4.6.5 If Clearnet approves the financial forecast, the Clearing Member is automatically authorised, at the Implementation Date, to clear all Transactions executed on any Euronext Markets. Article 1.4.6.6 After the approval of the forecast by Clearnet, and as long as the Clearing Member's Capital is still below the level which would otherwise be required, the Clearing Member shall report its Capital to Clearnet on a quarterly basis and have to cover its risks by : - either providing Clearnet with a Letter of Credit covering the amount which Clearnet deems appropriate, or - paying an « extra individualised margin » which should equal the difference between the calculated margin and a stress calculated margin. The stress calculation should be determined once a month, based on the highest risk exposure of the previous month. The extra individualised margin should be maximised with the difference between the required level of Capital and the present Capital of that Clearing Member. Article 1.4.6.7 If Clearnet does not approve the financial forecast, or if the Clearing Member considers that it will not be able to fulfil the financial requirement set out in Sub-Section C of Section 1.4.2 of this Clearing Rule Book at the latest on December 31st, 2002, or if the Clearing Member fails to perform in accordance to the forecast, Clearnet may revoke the membership. All the Open Positions and associated Collateral of such Clearing Member, will be transferred at the same time to a General Clearing Member designated by such Clearing Member. Article.1.4.6.8 From Transfer Date until they fulfil the financial requirements set out in these Clearing Rules, the Clearing Members, must comply either with the financial requirements defined in the Local Parts or with the financial requirements that were in force at December 31st, 2000 and that were applicable to the membership category they belonged to at the same date. Clearing Members that satisfy the financial requirements set out in Sub-Section C of Section 1.4.2 of this Clearing Rule Book, either at the effective date of this Clearing Rule Book or in due course, must continuously observe the new obligations defined above. Article 1.4.6.9 As of January 1st, 2003 all Clearing Members have to comply with the above mentioned status, organisational and financial requirements. CHAPTER 5. - Margin requirements and risk supervision Section 1.5.1. - Margin Article 1.5.1.1 Initial Margins as well as Variation Margins are called to protect Clearnet against Clearing Member default. Clearnet s …