Decision on the Documentation Accompanying the Notice of Intention to Apply the Exemption from Reporting Obligations under Article 9(1) of Regulation (EU) No 648/2012 for Intragroup Transactions

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Based on Article 9(1) of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories, Article 4(1)(2), and Article 14(2) of the Act on the Implementation of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (Official Gazette No. 54/13), as well as Article 15(1) of the Act on the Croatian Financial Services Supervisory Agency (Official Gazette Nos. 140/05 and 12/12), the Croatian Financial Services Supervisory Agency adopted the following at its meeting on 25 July 2019:

DECISION on the Documentation Accompanying the Notice of Intention to Apply the Exemption from Reporting Obligations under Article 9(1) of Regulation (EU) No 648/2012 for Intragroup Transactions

Purpose and Scope of Application
Article 1
This Decision:
a) prescribes the list of documentation that must be attached to the notice of intention to apply an intragroup exemption from reporting obligations for OTC derivative transactions under Article 9(1) of Regulation (EU) No 648/2012, which Hanfa requires to assess whether transactions between contracting parties meet the conditions set out in Article 9(1) of Regulation (EU) No 648/2012, or whether the application of the exemption is permitted; b) prescribes the format of the notice referred to in point a) of this Article, as well as the method of submitting such notice or request to Hanfa as the competent authority; c) clarifies the application of time limits under Article 9(1) of Regulation (EU) No 648/2012.

Definitions
Article 2.
(1) For the purposes of this Decision, certain terms have the following meanings:

1. Regulation (EU) No 648/2012 means Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories.
2. Act means the Act on the Implementation of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (Official Gazette No. 54/13).
3. Hanfa means the Croatian Financial Services Supervisory Agency, whose competences and scope of work are prescribed by the Act on the Croatian Financial Services Supervisory Agency and this Act.
4. Group means a group of undertakings as defined in Article 2(16) of Regulation (EU) No 648/2012.
5. Intragroup transaction means an OTC derivative contract concluded with another contracting party that forms part of the same group, as defined in Article 9(1) of Regulation (EU) No 648/2012.
6. Form means the Form for Submitting a Notice of Intention to Apply the Exemption under Article 9(1) of Regulation (EU) No 648/2012.
   (2) Other terms used in this Decision have the same meaning as those used in Regulation (EU) No 648/2012 and the Act.

Obligors and Collective Requirement
Article 3.
(1) The notice referred to in Article 1(a) of this Decision is submitted by Hanfa-supervised entities when the other contracting party in an intragroup transaction has its place of business in the Republic of Croatia, another Member State, or a third country.
(2) A collective notice may also be submitted to Hanfa when a supervised entity intends to apply the exemption with multiple contracting parties in a group, whereby if one or more of such contracting parties are also Hanfa-supervised entities, the receipt of the notice by the submitting supervised entity shall be deemed as the receipt of the notice for its contracting party Hanfa-supervised entities, provided that the authorized persons of the contracting parties subject to the collective notice countersign the summary notice referred to in Article 4 of this Decision.

Documentation Submitted with the Notice
Article 4.
(1) Hanfa-supervised entities submitting the notice referred to in Article 1(a) of this Decision must submit the following documentation:
a) a summary notice in written form containing:

• the name of the supervised entity,
• a list of contracting parties in intragroup transactions to which the exemption will apply,
• the planned start date of application of the exemption,
• the identification mark of the Form (Hanfa-supervised entity's OIB and registration date, in the format: OIB_yyyy-mm-dd),
• the first name, surname, position, and signature of the authorized person,
• if a collective notice is submitted, the first name, surname, position, and countersignature of authorized persons of other contracting parties for which the notice is submitted,
• a declaration that the parent undertaking of the group is not a financial counterparty;
  b) the completed Form from the annexes to this Decision.
  (2) The authorized person signing the summary notice referred to in paragraph 1(a) of this Article must be identical to the signatory of the statement of responsibility in Part E of the Form.

Method of Submitting the Notice
Article 5.
(1) The documentation referred to in Article 4 of this Decision is submitted as follows:

• a scanned version of the summary notice is sent to Hanfa electronically, with reference to the Hanfa sector supervising the relevant supervised entity;
• the Form is completed electronically and sent to Hanfa electronically, together with the scanned version of the summary notice.
  (2) The documentation referred to in Article 4 of this Decision is submitted in the manner prescribed by Hanfa's Decision on the Method of Submitting Notices pursuant to Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories.

Time Limits and Conditions for Application of the Exemption
Article 6.
(1) Hanfa will notify the supervised entity within the time limit prescribed by Article 9(1) of Regulation (EU) No 648/2012 whether the application of the exemption is permitted, whereby it shall be deemed that the application is permitted if Hanfa does not notify the supervised entity within those time limits, unless the competent authority of the other contracting party of the supervised entity objects to the use of the exemption. (2) If Hanfa, upon reviewing the submitted documentation, determines that the application of the exemption under Article 9(1) of Regulation (EU) No 648/2012 would not be permitted, it will notify the supervised entity and the competent authority of the other contracting party to which the intragroup exemption applies, in writing, of its objection within the time limit set out in paragraph 1 of this Article, in which case it is deemed that the supervised entity cannot use the exemption. (3) If a Hanfa-supervised entity does not submit the documentation referred to in Article 4 of this Decision or submits incomplete documentation, Hanfa will call on it to complete the documentation within the time limit set out in paragraph 1 of this Article. Within that time limit, Hanfa may request additional explanations or documents necessary to assess the permissibility of applying the exemption. (4) If a Hanfa-supervised entity does not submit the requested documentation, Hanfa will notify the supervised entity and the competent authority of the other contracting party to which the intragroup exemption applies, in writing, of its objection within the time limit set out in paragraph 1 of this Article, in which case it is deemed that the supervised entity cannot use the exemption. In this case, Hanfa's objection does not affect the right of the supervised entity to submit a new notice under Article 1(a) of this Decision, together with all required documentation. (5) When assessing the criteria as to whether both other contracting parties are fully included in the same consolidation, the criteria set out in Article 3(3) of Regulation (EU) No 648/2012 apply. (6) When assessing the criteria as to whether both other contracting parties are subject to appropriate centralized risk assessment and risk measurement and control procedures, the same criteria as in Article 3 of Regulation (EU) No 648/2012 apply, and in the case of third countries, without applying the criterion that the European Commission has adopted an implementing act pursuant to Article 13(2) of Regulation (EU) No 648/2012 regarding that third country.

Truthfulness, Accuracy and Completeness of Data
Article 7.
(1) The signatory of the statement of responsibility in Part E of the Form is fully responsible for the truthfulness, accuracy and completeness of the submitted data.
(2) Hanfa is authorized to request additional evidence from the supervised entity confirming the truthfulness, accuracy and completeness of the submitted data, including certificates and statements from other competent domestic or foreign authorities.

Transitional and Final Provisions
Article 8.
(1) This Decision shall be published on Hanfa's website.
(2) This Decision enters into force on the day of its adoption.

CLASS: 011-02/19-01/05
REFERENCE NO.: 326-01-70-19-01
In Zagreb, 25 July 2019.

CHAIRMAN OF THE BOARD dr. sc. Ante Žigman

Annex:

• Notice of Intention to Apply the Exemption under Article 9(1) of Regulation (EU) No 648/2012

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