(1) Where the development of a central counterparty's assets, finances, or earnings, or other circumstances, justify the assumption that the central counterparty will be unable to permanently meet the requirements under Article 41, 42, 43, 44, 46, or 47 of Regulation (EU) No 648/2012, in each case also in conjunction with the regulatory technical standards issued for their more detailed design, the Federal Institute may order the central counterparty to take measures to improve its financial endowment and liquidity, in particular
1. the submission of a reasoned account of the development of its material business activities over a period of at least three years, including projected balance sheets and projected profit and loss accounts,
2. measures to better shield against or reduce the risks identified by the central counterparty as material, and the risk concentrations connected with them, and reporting to the Federal Institute and the Deutsche Bundesbank, which should also report on concepts for exiting individual business areas or divesting parts of the central counterparty,
3. the submission of a report on suitable measures for complying with the margin requirements, the scale of the default fund, the other financial resources, liquidity, the collateral requirements, and the investment policy, or
4. the submission to the Federal Institute and the Deutsche Bundesbank of a concept for averting a possible danger, corresponding to section 35(2), point 4. The assumption that the central counterparty will permanently be unable to meet the requirements is generally justified where
1. the margins
a) are, on at least one day in two reporting periods under section 53j(1) within a calendar year, insufficient to cover losses with at least 99 percent of the changes in exposures over the time horizon determined under Article 41(1) of Regulation (EU) No 648/2012, also in conjunction with regulatory technical standards under paragraph 5 thereof, or
b) do not, at least on a daily basis, fully cover all risks vis-à-vis all clearing members and the other central counterparties with which interoperability arrangements exist,
2. the default fund does not reach the minimum amount under Article 42(1), second sentence, of Regulation (EU) No 648/2012 in two reporting periods under section 53j(1) within a calendar year,
3. the default fund and the other financial resources are insufficient, on two reporting dates under section 53j(1) within a calendar year, to cover a default of the two clearing members determined under Article 43(2) of Regulation (EU) No 648/2012,
4. the credit lines or similar facilities available to cover liquidity needs under Article 44(1) of Regulation (EU) No 648/2012, also in conjunction with regulatory technical standards under paragraph 2 thereof, are insufficient, on two reporting dates under section 53j(1), to cover the liquidity risk relating to the default of at least the two clearing members vis-à-vis which the central counterparty has the largest open positions,
5. the central counterparty has, in two reporting periods under section 53j(1), in each case received more than 3 percent of total collateral without observing the requirements under Article 46(1) of Regulation (EU) No 648/2012, also in conjunction with regulatory technical standards under paragraph 3 thereof, or
6. the central counterparty has, in two reporting periods under section 53j(1), in each case invested more than 3 percent of total collateral without observing the requirements under Article 47(1) of Regulation (EU) No 648/2012, also in conjunction with regulatory technical standards under paragraph 8 thereof.
(2) In place of the measures under subsection (1), first sentence, or together with them, the Federal Institute may order measures under subsection (3), first sentence, points 1 to 7, where the measures under subsection (1), first sentence, do not offer sufficient assurance of sustainably securing compliance with the requirements under Article 41, 42, 43, 44, 46, or 47 of Regulation (EU) No 648/2012, in each case also in conjunction with the regulatory technical standards issued for their more detailed design; subsection (4) applies correspondingly in this regard.
(3) Where, in the case of a central counterparty, the financial resources do not meet the requirements under Article 41, 42, or 43 of Regulation (EU) No 648/2012, in each case also in conjunction with the regulatory technical standards issued for their more detailed design, or the requirements under section 45b(1), second sentence, the liquidity does not meet the requirements under Article 44 of Regulation (EU) No 648/2012, also in conjunction with regulatory technical standards under paragraph 2 thereof, the collateral received does not meet the requirements under Article 46 of Regulation (EU) No 648/2012, also in conjunction with regulatory technical standards under paragraph 3 thereof, or the investment of funds does not meet the requirements under Article 47 of Regulation (EU) No 648/2012, also in conjunction with regulatory technical standards under paragraph 8 thereof, the Federal Institute may
1. prohibit or restrict withdrawals by the owners or shareholders and the distribution of profits,
2. prohibit or restrict balance-sheet measures serving to offset a net loss for the year that has arisen or to show a balance sheet profit,
3. order that the payment of any type of return on own funds instruments lapses, in whole or in part, without replacement, where the returns are not fully covered by a net profit achieved for the year,
4. order the central counterparty to take measures to reduce risks, insofar as these arise from particular types of transactions and products or the use of particular systems,
5. prohibit the payment of variable remuneration components or restrict it to a specified proportion of annual results; this does not apply to variable remuneration components agreed by collective bargaining agreement or, within the scope of application of a collective bargaining agreement, by agreement of the parties to the employment contract on the application of the collective bargaining provisions, or on the basis of a collective bargaining agreement in a works or service agreement,
6. order the central counterparty to restrict to a specified proportion of annual results, or to cancel entirely, the total annual amount it provides for the variable remuneration of all managers and employees (total amount of variable remuneration); this does not apply to variable remuneration components agreed by collective bargaining agreement or, within the scope of application of a collective bargaining agreement, by agreement of the parties to the employment contract on the application of the collective bargaining provisions, or on the basis of a collective bargaining agreement in a works or service agreement, or
7. order the central counterparty to set out how and within what period it will sustainably restore its financial resources or its liquidity (restructuring plan for the central counterparty), and to report to the Federal Institute and the Deutsche Bundesbank at regular intervals on the progress of these measures. The restructuring plan under the first sentence, point 7, must be transparent, plausible, and reasoned. It must name concrete goals, interim goals, and deadlines for implementing the measures set out, which can be reviewed by the Federal Institute. The Federal Institute may at any time inspect the central counterparty's restructuring plan and the related documents. The Federal Institute may require the central counterparty's restructuring plan to be amended, and issue requirements to this end, where it considers the stated goals, interim goals, and implementation deadlines insufficient, or where the central counterparty does not comply with them.
(4) The Federal Institute may issue the orders named in subsection (3) only once the central counterparty has failed to remedy the deficiency within a period to be determined by the Federal Institute. Insofar as this is necessary to prevent a deterioration of the central counterparty's financial resources or liquidity expected in the short term, or measures under subsection (1), first sentence, have already been taken, such orders are also permissible without a prior warning setting a deadline. Resolutions on the distribution of profits are void insofar as they conflict with an order under subsection (3). Insofar as provisions in contracts concerning own funds instruments conflict with an order under subsection (3), no rights may be derived from them. After, or together with, a prohibition of the payment of variable remuneration components under subsection (3), first sentence, point 5, the Federal Institute may order that the claims to the grant of variable remuneration components lapse, in whole or in part, where
1. the central counterparty, at or after a prohibition of payment, makes use of financial assistance from the Restructuring Fund or the Financial Market Stabilisation Fund and, in the case of a subsequent order, the conditions for the prohibition of payment had not ceased to apply by that time, or had ceased to apply solely on account of this assistance,
2. at or after a prohibition of payment, an order of the Federal Institute under subsection (3), first sentence, points 1 to 4, 6, or 7, is made or already exists, or
3. at or after a prohibition of payment, measures under section 46 or a resolution order within the meaning of section 77 of the Recovery and Resolution Act are taken. An order under the fifth sentence may in particular also be issued where
1. the claims to the grant of variable remuneration components arose on the basis of provisions of a central counterparty's remuneration system that conflict with the supervisory requirements of Regulation (EU) No 648/2012 for remuneration systems that are appropriate, transparent, and oriented towards the sustainable development of the central counterparty, or
2. it is to be assumed that, without the grant of financial assistance from the Restructuring Fund or the Financial Market Stabilisation Fund, the central counterparty would not have been able to grant the variable remuneration components; where it is to be assumed that the central counterparty could have granted part of the variable remuneration components, the variable remuneration components must be appropriately reduced. The fifth and sixth sentences do not apply insofar as the claims to the grant of variable remuneration arose before 16 February 2013. Central counterparties must take account of the power to issue orders under subsection (3), first sentence, points 5 or 6, and of the rule in the first sentence, in corresponding contractual arrangements with their managers and employees. Insofar as contractual arrangements on the grant of variable remuneration conflict with an order under subsection (3), first sentence, points 5 or 6, no rights may be derived from them.
(5) Resolutions on the distribution of profits are also void insofar as they conflict with an order under Article 45a(1), letter a, of Regulation (EU) No 648/2012. Central counterparties must take account of the power to issue orders under Article 45a(1), letter c, of Regulation (EU) No 648/2012 in corresponding contractual arrangements with their managers and employees.
2.
Central securities depositories