As a result of the entry into force of the Act of August 5, 2015 amending the laws regulating the conditions for access to certain professions as of November 30, 2015, the profession of commodity exchange broker is no longer a regulated profession. In addition, as a result of the amendment, energy companies that are members of the POLPX have been required to meet a number of obligations, failure to comply with which may result in the revocation of their authorization to maintain accounts or registers of exchange commodities, and thus deprive them of the opportunity to operate directly on the POLPX.
Deregulation of the POLPX brokerage profession
As of November 30, 2015, a commodity exchange broker can become one after taking a dedicated course organized by POLPX and passing an exam with a positive result. Candidates are also required to provide evidence of meeting the requirements of the Commodity Exchange Act of October 26, 2000 and those set by POLPX. Individuals enrolled in the list of commodity exchange brokers at the FSC on November 30, 2015, will retain their qualifications and do not need to take additional examinations.
In addition to deregulation – new obligations for energy companies
Interestingly, in addition to deregulating the stockbroking profession, the amendment law imposed additional obligations on POLPX members. In connection with the amendment of the Commodity Exchange Act, power companies, authorized under Article 9, paragraph 3, subparagraph 4 of the Commodity Exchange Act to be a party to exchange transactions, which have hitherto employed commodity exchange brokers, have been obliged under Article 26 of the Amendment Act to submit the following documents and procedures to the Financial Supervision Commission within 3 months after the entry into force of the Act:
– regulations for supervising the compliance of activities with the law,
– regulations to protect the flow of information constituting professional secrets,
– internal procedures to prevent the introduction of property values derived from illegal or undisclosed sources into financial trading, and
– regulations for managing conflicts of interest.
In addition, an energy company that is a member of the POLPX should submit to the FSA a list of persons who will be employed to perform the activities referred to in Articles 38(2) and 38e of the Commodity Exchange Law (entering into exchange transactions), including the names and surnames, dates and places of birth, places of residence and PESEL numbers of such persons, and if there is no PESEL number, the series and number of the passport or other document confirming identity.
An energy company that is a member of POLPX must also introduce and apply internal regulations specifying how to verify the fulfillment of the requirements set by law for persons conducting transactions on the commodity exchange.
Another important document stipulated in the statutory obligations, is the submission of declarations by persons in charge of brokerage activities that they have no criminal record for acts specified in Article 50b, paragraph 2, item. 2 of the Commodity Exchange Law.
Sanctions for failure to comply with obligations
What is important to emphasize is that failure by an energy company that is a member of POLPX to comply with the above-mentioned obligations within 3 months of the effective date of the amendment to the Commodity Exchange Act will result in the revocation of its authorization to maintain accounts or registers of exchange commodities, i.e. direct operation on POLPX.
New fees
It is also worth noting that Article 26 of the Commodity Exchange Act as amended – introduces a mandatory fee of the equivalent of €750 from an entity holding a permit to maintain accounts and registers of exchange commodities – i.e., for example, an energy company that is a member of POLPX. According to the Decree of the Minister of Finance of December 29, 2015 on fees to cover the costs of supervision of the capital market, the fee is paid by the last day of the third quarter of a given calendar year.
Summary
The amendment, which was intended to be revolutionary in terms of liberalizing the commodity exchange brokerage profession, shifted the burden of verifying the competence of persons conducting exchange transactions to energy companies, which are members of the exchange. In addition, energy companies were required to submit a number of documents required by the Amendment Law. Exceeding the three-month deadline for compliance with this obligation may result in the FSC revoking permission to operate directly on a commodity exchange.
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