Order of the Minister of Finance dated April 1, 2009, fixing the conditions for the establishment, organization and operation of the client guarantee fund of the securities market and financial products

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Order of the Minister of Finance dated April 1, 2009, fixing the conditions for the establishment, organization and operation of the client guarantee fund of the securities market and financial products.

The Minister of Finance,
Having regard to Law No. 94-117 of November 14, 1994, reorganizing the financial market and in particular Articles 62 and 68 thereof, as amended and supplemented by subsequent texts and notably Law No. 2005-96 of October 18, 2005 on strengthening the security of financial relations; Orders:

Article 1:
Stock exchange intermediaries shall establish, within the Extraordinary General Assembly of the Tunis Securities Exchange and within a period not exceeding 30 days from the date of publication of this Order, "the client guarantee fund of the securities market and financial products" provided for in Article 62 of Law No. 94-117 of November 14, 1994 cited above. The management of said fund is entrusted to the Tunis Securities Exchange in accordance with the provisions of this Order.

Article 2:
"The client guarantee fund of the securities market and financial products" shall intervene to protect clients against non-commercial risks.
Non-commercial risks, as defined in this Order, are considered to be the failures of a stock exchange intermediary to honor its commitments regarding:

• the return of funds deposited or transferred with it on behalf of its clients under any title,
• the payment of sums following a negotiation of securities that have been subject to an order transmitted in accordance with prevailing regulations,
• the payment of sums following a transaction subject to registration at the Tunis Securities Exchange which have been paid or transferred by its counterparty,
• the delivery of securities following a negotiation,
• the delivery of securities following a transaction subject to registration at the Tunis Securities Exchange which have been delivered by its counterparty,
• the return of securities issued to the public and registered in its clients' accounts.
  The fund intervenes by opinion of the Financial Market Council in accordance with the provisions set forth in Article 5 of this Order.

Article 3:
The Tunis Securities Exchange shall record the resources and uses of "the client guarantee fund of the securities market and financial products" in a separate accounting system and shall invest at least 80% of the sums belonging to the fund in securities issued by the State.

Article 4:
The resources of "the client guarantee fund of the securities market and financial products" originate from:

• 5% of the amount of commissions collected by the Tunis Securities Exchange on stock exchange transactions in the market,
• an annual contribution of 1,000 dinars paid by each stock exchange intermediary before the end of January each year. For the year 2009, this contribution is paid within a period not exceeding one month from the date of the fund's creation,
• the investment income generated by the fund's resources.

Contributions paid to the fund are non-refundable.

Article 5:
"The client guarantee fund of the securities market and financial products" intervenes following an opinion from the College of the Financial Market Council confirming a stock exchange intermediary's failure to honor its commitments as defined in Article 2 of this Order. This opinion is published in the official bulletin of the Financial Market Council and in the official bulletin of the Tunis Securities Exchange. This opinion includes an invitation to clients of the stock exchange intermediary to submit their compensation claims to the Tunis Securities Exchange.

Article 6:
A client of a stock exchange intermediary whose commitments have been breached as defined in Article 2 of this Order and who requests the intervention of "the client guarantee fund of the securities market and financial products" must file with the Tunis Securities Exchange a request for intervention accompanied by all supporting documents necessary to assert its rights, within a period not exceeding three months from the date of publication of the opinion referred to in Article 5 of this Order.

Article 7:
The Tunis Securities Exchange shall rule on the follow-up to claims submitted by clients of the default stock exchange intermediary, within a maximum period of one month from the expiration of the period referred to in Article 6 of this Order. The Tunis Securities Exchange shall transmit to the Financial Market Council a detailed report comprising a statement of claims received as well as the compensations it has decided to grant to claimants by drawing on the resources of "the client guarantee fund of the securities market and financial products" and within the limits set forth in Article 8 of this Order, for claims meeting the fund's intervention conditions. The report of the Tunis Securities Exchange is submitted to the College of the Financial Market Council for opinion, which orders, where applicable, the payment of compensations.

Article 8:
The guarantee of "the client guarantee fund of the securities market and financial products" may not exceed an amount equivalent to two-thirds of its available resources. The amount to be paid is distributed among clients that the Tunis Securities Exchange has decided to compensate pro rata according to each client's rights in the pool of claims eligible for compensation, within a limit of 30,000 dinars per client regardless of the number of their accounts, provided that the total amount paid does not exceed 90% of the amount concerned by the compensation for each client.

Article 9:
The following are ineligible for the guarantee of "the client guarantee fund of the securities market and financial products":

• stock exchange intermediaries for their own rights,
• the directors of the default stock exchange intermediary as well as shareholders holding at least 10% of its capital,
• the subsidiaries of the default stock exchange intermediary,
• spouses, ascendants and descendants of:
  • directors of the default stock exchange intermediary,
  • shareholders holding at least 10% of its capital.

Article 10:
The Tunis Securities Exchange is subrogated, on behalf of "the client guarantee fund of the securities market and financial products" up to the amount of compensation paid, into the rights and actions of the compensated person against the default stock exchange intermediary and, where applicable, against its insurer.

The Tunis Securities Exchange is further, on behalf of said fund, entitled to claim interest calculated at the prevailing legal rate applied in commercial matters as well as recovery costs.
The Tunis Securities Exchange shall inform the Financial Market Council of the results of the subrogation, whatever they may be.

Article 11:
The Tunis Securities Exchange shall transmit quarterly to the Financial Market Council a report on the financial status of "the client guarantee fund of the securities market and financial products" comprising its resources and uses.

Article 12:
The Financial Market Council and the Tunis Securities Exchange are each responsible, within their respective competences, for the execution of this Order, which shall be published in the Official Journal of the Tunisian Republic.

Tunis, April 1, 2009.
The Minister of Finance
Mohamed Rachid Kechiche
Reviewed by
The Prime Minister
Mohamed Ghannouchi