Regulation (EU) No 648/2012 is amended as follows:
(1)
in Article 1, paragraph 3 is deleted;
(2)
Article 3 is replaced by the following:
‘Article 3
Intragroup transactions
1. In relation to a non-financial counterparty, an intragroup transaction shall be an OTC derivative contract entered into with another counterparty which is part of the same group provided that the following conditions are met:
(a)
both counterparties are included in the same consolidation on a full basis and they are subject to appropriate centralised risk evaluation, measurement and control procedures; and
(b)
that other counterparty is established in the Union or, if it is established in a third country, that third country is not identified under paragraph 4 or under the delegated acts adopted pursuant to paragraph 5.
2. In relation to a financial counterparty, an intragroup transaction shall be any of the following:
(a)
an OTC derivative contract entered into with another counterparty which is part of the same group, provided that all of the following conditions are met:
(i)
the financial counterparty is established in the Union or, if it is established in a third country, that third country is not identified under paragraph 4 or under the delegated acts adopted pursuant to paragraph 5;
(ii)
the other counterparty is a financial counterparty, a financial holding company, a financial institution or an ancillary services undertaking subject to appropriate prudential requirements;
(iii)
both counterparties are included in the same consolidation on a full basis; and
(iv)
both counterparties are subject to appropriate centralised risk evaluation, measurement and control procedures;
(b)
an OTC derivative contract entered into with another counterparty where both counterparties are part of the same institutional protection scheme, referred to in Article 113(7) of Regulation (EU) No 575/2013, provided that the condition set out in point (a)(ii) of this paragraph is met;
(c)
an OTC derivative contract entered into between credit institutions affiliated to the same central body or between such credit institution and the central body, as referred to in Article 10(1) of Regulation (EU) No 575/2013;
(d)
an OTC derivative contract entered into with a non-financial counterparty which is part of the same group, provided that the following conditions are met:
(i)
both counterparties to the derivative contract are included in the same consolidation on a full basis and they are subject to appropriate centralised risk evaluation, measurement and control procedures; and
(ii)
the non-financial counterparty is established in the Union or, if it is established in a third country, that third country is not identified under paragraph 4 or under the delegated acts adopted pursuant to paragraph 5.
3. For the purposes of this Article, counterparties shall be considered to be included in the same consolidation when both counterparties are any of the following:
(a)
included in a consolidation in accordance with Directive 2013/34/EU of the European Parliament and of the Council ( *1 ) or with the International Financial Reporting Standards (IFRS) adopted pursuant to Regulation (EC) No 1606/2002 or, in relation to a group the parent undertaking of which has its head office in a third country, in accordance with generally accepted accounting principles of a third country determined to be equivalent to IFRS in accordance with Commission Regulation (EC) No 1569/2007 ( *2 ) (or accounting standards of a third country the use of which is permitted in accordance with Article 4 of that Regulation); or
(b)
covered by the same consolidated supervision in accordance with Directive 2013/36/EU or, in relation to a group the parent undertaking of which has its head office in a third country, the same consolidated supervision by a third-country competent authority verified as equivalent to that governed by the principles laid down in Article 127 of that Directive.
4. For the purposes of this Article, transactions with counterparties established in any of the following third countries shall not benefit from any of the exemptions for intragroup transactions:
(a)
where the third country is a high-risk third country, as referred to in Article 29 of Regulation (EU) 2024/1624 of the European Parliament and of the Council ( *3 ) ;
(b)
where the third country is listed in Annex I to the Council conclusions on the revised EU list of non-cooperative jurisdictions for tax purposes in its most up-to-date version.
5. Where appropriate due to identified issues in the legal, supervisory and enforcement arrangements of a third country and where those issues result in increased risks, including counterparty credit risk and legal risk, the Commission is empowered to adopt delegated acts in accordance with Article 82 to supplement this Regulation by identifying the third countries whose entities are not permitted to benefit from any of the exemptions for intragroup transactions despite those third countries not being third countries as referred to in paragraph 4 of this Article.
( *1 ) Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013 on the annual financial statements, consolidated financial statements and related reports of certain types of undertakings, amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC ( OJ L 182, 29.6.2013, p. 19 )."
( *2 ) Commission Regulation (EC) No 1569/2007 of 21 December 2007 establishing a mechanism for the determination of equivalence of accounting standards applied by third country issuers of securities pursuant to Directives 2003/71/EC and 2004/109/EC of the European Parliament and of the Council ( OJ L 340, 22.12.2007, p. 66 )."
( *3 ) Regulation (EU) 2024/1624 of the European Parliament and of the Council of 31 May 2024 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing ( OJ L, 2024/1624, 19.6.2024, ELI: http://data.europa.eu/eli/reg/2024/1624/oj ).’;"
(3)
in Article 4(1), the following subparagraph is added:
‘The obligation to clear all OTC derivative contracts shall not apply to contracts concluded in the situations referred to in the first subparagraph, point (a)(iv), between, on the one side, a financial counterparty that meets the conditions set out in Article 4a(1), second subparagraph, or a non-financial counterparty that meets the conditions set out in Article 10(1), second subparagraph, and, on the other side, a pension scheme arrangement that is established in a third country and that operates on a national basis, provided that it is authorised, supervised and recognised under national law, and where its primary purpose is to provide retirement benefits and it is exempted from the clearing obligation under that national law.’
;
(4)
Article 4a is replaced by the following:
‘Article 4a
Financial counterparties that are subject to the clearing obligation
1. Every 12 months, a financial counterparty taking positions in OTC derivative contracts may calculate the following positions:
(a)
its uncleared positions in accordance with paragraph 3, first subparagraph;
(b)
its aggregate month-end average positions in cleared and uncleared OTC derivative contracts for the previous 12 months (“aggregate positions”) in accordance with paragraph 3, second subparagraph.
Where a financial counterparty:
(a)
does not calculate its uncleared positions, or where the result of the calculation of those uncleared positions under the first subparagraph, point (a), of this paragraph exceeds any of the clearing thresholds specified pursuant to Article 10(4), first subparagraph, point (b); or
(b)
does not calculate its aggregate positions, or where the result of the calculation of those aggregate positions exceeds any of the clearing thresholds specified pursuant to paragraph 4 of this Article;
that financial counterparty shall:
(i)
immediately notify ESMA and the relevant competent authority thereof;
(ii)
establish clearing arrangements within four months of the notification referred to in point (i) of this subparagraph; and
(iii)
become subject to the clearing obligation referred to in Article 4 for all OTC derivative contracts pertaining to any class of OTC derivatives which is subject to the clearing obligation entered into or novated more than four months following the notification referred to in point (i) of this subparagraph.
The financial counterparty may delegate the task to notify ESMA under the second subparagraph, point (i), to any other entity within the group to which that financial counterparty belongs. The financial counterparty remains legally liable for ensuring such notification has been made to ESMA.
2. A financial counterparty that is subject to the clearing obligation referred to in Article 4 or that becomes subject to the clearing obligation in accordance with paragraph 1, second subparagraph, of this Article, shall remain subject to that clearing obligation and shall continue clearing until that financial counterparty demonstrates to the relevant competent authority that its aggregate positions or uncleared positions do not exceed the clearing thresholds specified pursuant to paragraph 4 of this Article or Article 10(4), first subparagraph, point (b).
The financial counterparty shall be able to demonstrate to the relevant competent authority that the calculation of the aggregate positions or uncleared positions, as applicable, do not lead to a systematic underestimation of those aggregate positions or uncleared positions.
3. In calculating the uncleared positions referred to in paragraph 1, first subparagraph, point (a), of this Article the financial counterparty shall include all OTC derivative contracts that are not cleared through a CCP authorised under Article 14 or recognised under Article 25, entered into by that financial counterparty or entered into by other entities within the group to which that financial counterparty belongs.
In calculating the aggregate positions, the financial counterparty shall include all OTC derivative contracts entered into by that financial counterparty or entered into by other entities within the group to which that financial counterparty belongs.
Notwithstanding the first and the second subparagraphs, for UCITS and AIFs, the uncleared positions and the aggregate positions shall be calculated at the level of the fund.
UCITS management companies which manage more than one UCITS and AIFMs which manage more than one AIF shall be able to demonstrate to the relevant competent authority that the calculation of positions at the fund level does not lead to:
(a)
a systematic underestimation of the positions of any of the funds they manage or the positions of the manager; or
(b)
a circumvention of the clearing obligation.
The relevant competent authorities of the financial counterparty and of the other entities within the group shall establish cooperation procedures to ensure the effective calculation of the positions at the group level.
4. ESMA, after having consulted the ESRB and other relevant authorities, shall develop draft regulatory technical standards to specify the value of the clearing thresholds applicable to aggregate positions where necessary to ensure the prudent coverage of financial counterparties under the clearing obligation.
Where ESMA, in accordance with Article 10(4a), reviews the clearing thresholds specified pursuant to Article 10(4), first subparagraph, point (b), ESMA shall also review the clearing threshold specified pursuant to the first subparagraph of this paragraph.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
5. For the purposes of this Article and Article 10, “uncleared position” means the aggregate month-end average position for the previous 12 months in OTC derivative contracts that are not cleared by a CCP authorised under Article 14 or recognised under Article 25.’
;
(5)
the following article is inserted:
‘Article 4b
Post-trade risk reduction services
1. Without prejudice to risk-mitigation techniques under Article 11, the clearing obligation referred to in Article 4(1) shall not apply to an OTC derivative contract that is initiated and concluded as the result of an eligible post-trade risk reduction (“PTRR”) exercise (“PTRR transaction”) carried out pursuant to paragraphs 2 to 4 of this Article.
2. A PTRR transaction shall only be exempted from the clearing obligation referred to in Article 4(1) where:
(a)
the entity performing the PTRR exercise (“PTRR service provider”) complies with the requirements set out under paragraphs 3 and 4 of this Article; and
(b)
each participant in the PTRR exercise complies with the requirements under paragraph 3 of this Article.
3. An eligible PTRR exercise shall:
(a)
be performed by an entity authorised in accordance with Article 7 of the Directive 2014/65/EU that is independent of the counterparties to the OTC derivative contracts included in the PTRR exercise;
(b)
achieve a reduction in risk in each of the portfolios submitted to the PTRR exercise;
(c)
be accepted in full and, as a result, the participants in the PTRR exercise shall not be able to choose which trades to execute under the PTRR exercise;
(d)
be open for participation only to the entities that initially submitted a portfolio to the PTRR exercise;
(e)
be market risk neutral;
(f)
not contribute to price formation;
(g)
take the form of a compression, rebalancing or optimisation exercise or a combination thereof;
(h)
be executed on a bilateral or multilateral basis.
4. A PTRR service provider shall:
(a)
comply with the pre-agreed rules of the PTRR exercise, including methods and algorithms in prescheduled cycles, and act in a reasonable, transparent and non-discriminatory manner;
(b)
ensure that entities participating in a PTRR exercise have no influence over the result of the PTRR exercise;
(c)
undertake regular compression exercises where PTRR exercises result in new PTRR transactions;
(d)
keep complete and accurate records of all transactions executed pursuant to a PTRR exercise, including:
(i)
information on transactions entered into as part of the PTRR exercise;
(ii)
transactions resulting from the PTRR exercise either as modified transactions or as new transactions; and
(iii)
the overall change in the risk of the different portfolios included in the PTRR exercise;
(e)
upon request make available, without undue delay, the records referred to in point (d) to the relevant competent authority and to ESMA; and
(f)
monitor the transactions resulting from the PTRR exercise in order to ensure, to the extent possible, that the PTRR exercise does not result in any misuse or circumvention of the clearing obligation.
5. The competent authority which has authorised the PTRR service provider in accordance with Article 7 of Directive 2014/65/EU shall, before a PTRR transaction resulting from a PTRR exercise performed by that PTRR service provider is able to be exempted from the clearing obligation in accordance with paragraph 1, do the following without undue delay:
(a)
notify the name of the PTRR service provider to ESMA; and
(b)
share with ESMA its assessment of how the requirements referred to in paragraphs 3 and 4 are complied with by the PTRR service provider.
The competent authority referred to in the first subparagraph shall, at least on an annual basis, confirm to ESMA that the PTRR service provider continues to comply with the requirements referred to in paragraphs 3 and 4 or that the PTRR service provider is no longer providing PTRR services, as applicable.
ESMA shall transmit the information received under the first and second subparagraphs of this paragraph to the authorities of each Member State with supervisory powers in relation to the clearing obligation referred to in Article 4(1).
The competent authority referred to in the first subparagraph of this paragraph shall, without undue delay, notify ESMA where a PTRR service provider no longer complies with the requirements referred to in paragraphs 3 and 4. Upon such notification, ESMA shall remove the PTRR service provider from the list referred to in the fifth subparagraph of this paragraph. From the date when the PTRR service provider has been removed from that list, PTRR transactions resulting from a PTRR exercise performed by that PTRR service provider shall no longer be exempted from the clearing obligation in accordance with paragraph 1.
ESMA shall, on a yearly basis, publish a list of PTRR service providers notified to ESMA under the first subparagraph, point (a).
6. ESMA shall develop draft regulatory technical standards to further specify the elements and requirements set out in paragraphs 3 and 4 and the following other conditions or characteristics of PTRR exercises:
(a)
what constitutes market risk neutrality in a PTRR exercise;
(b)
the required risk reduction in submitted portfolios;
(c)
the possible inclusion of mixed portfolios containing both cleared and uncleared transactions in the same PTRR exercise and the conditions under which such inclusion would be allowed;
(d)
requirements regarding the management of the PTRR exercise;
(e)
requirements for different types of PTRR services;
(f)
the process for monitoring the application of the exemption granted; and
(g)
the criteria to apply when assessing whether the clearing obligation is circumvented.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’
;
(6)
in Article 6(2), the following point is added:
‘(g)
the proportion, as of the end of the calendar year, of derivatives contracts cleared in CCPs authorised in accordance with Article 14 compared with derivatives contracts cleared in third-country CCPs recognised in accordance with Article 25, presented on an aggregated basis and per asset class.’
;
(7)
the following articles are inserted:
‘Article 7a
Active account
1. Financial counterparties and non-financial counterparties that are subject to the clearing obligation in accordance with Articles 4a and 10 on 24 December 2024, or that become subject to the clearing obligation thereafter, and that exceed the clearing threshold in any of the categories of derivative contracts referred to in paragraph 6 of this Article, in an individual category listed in that paragraph or on aggregate across all categories listed in that paragraph, shall hold, for those categories of derivative contracts referred to in paragraph 6 of this Article, at least one active account at a CCP authorised under Article 14, where clearing services for the derivatives concerned are provided by that CCP, and clear at least a representative number of trades in that active account.
Where a financial counterparty or a non-financial counterparty becomes subject to the obligation to hold an active account in accordance with the first subparagraph, that financial counterparty or non-financial counterparty shall notify ESMA and its relevant competent authority thereof and shall establish such an active account within six months of becoming subject to that obligation.
2. In determining its obligations in relation to paragraph 1, a counterparty belonging to a group subject to consolidated supervision in the Union shall consider all derivative contracts referred to in paragraph 6 that are cleared by that counterparty or by other entities within the group to which that counterparty belongs with the exception of intragroup transactions.
3. Counterparties that become subject to the obligation set out in paragraph 1, first subparagraph, shall ensure that all of the following requirements are met:
(a)
the account is permanently functional, including with legal documentation, IT connectivity and internal processes associated to the account being in place;
(b)
the counterparty has systems and resources available to be operationally able to use the account, even at short notice, for large volumes of the derivative contracts referred to in paragraph 6 of this Article at all times and to be able to receive, in a short period of time, a large flow of transactions from positions held in a clearing service of substantial systemic importance pursuant to Article 25(2c);
(c)
all new trades of the respective counterparty in the derivative contracts referred to in paragraph 6 can be cleared in the account at all times;
(d)
the counterparty clears in the active account trades which are representative of the derivative contracts referred to in paragraph 6 of this Article that are cleared at a clearing service of substantial systemic importance pursuant to Article 25(2c) during the reference period.
4. The representativeness obligation referred to in paragraph 3, point (d), shall be assessed according to the following criteria:
(a)
the different classes of derivative contracts;
(b)
the maturity of the trades;
(c)
the trade sizes.
The representativeness obligation referred to in paragraph 3, point (d), shall not apply to counterparties with a notional clearing volume outstanding of less than EUR 6 billion in the derivative contracts referred to in paragraph 6.
The assessment of the representativeness obligation referred to in paragraph 3, point (d), shall be based on subcategories. For each class of derivative contracts, the number of subcategories shall result from the combination of the different sizes of the trades and the maturity ranges.
The requirements referred to in paragraph 3, points (a), (b) and (c), shall be fulfilled by the counterparty within six months of becoming subject to the obligation set out in paragraph 1 of this Article and that counterparty shall regularly report in accordance with Article 7b. The requirements shall be regularly stress-tested at least once a year.
For the representativeness obligation referred to in paragraph 3, point (d), to be fulfilled, counterparties shall clear, on annual average basis, at least five trades in each of the most relevant subcategories per class of derivative contracts and per reference period defined in accordance with paragraph 8, third subparagraph. Where the resulting number of trades exceeds half of the total trades of that counterparty for the preceding 12 months, the representativeness obligation referred to in paragraph 3, point (d), shall be considered fulfilled where that counterparty clears at least one trade in each of the most relevant subcategories per class of derivative contracts per reference period.
The representativeness obligation referred to in paragraph 3, point (d), shall not apply to the provision of client clearing services. The calculation of the notional clearing volume outstanding of a counterparty referred to in paragraph 8, fourth subparagraph, shall not include its client clearing activities.
5. Financial counterparties and non-financial counterparties that are subject to the obligation referred to in paragraph 1 of this Article and that clear at least 85 % of their derivative contracts belonging to the categories referred to in paragraph 6 of this Article at a CCP authorised under Article 14 shall be exempt from the requirements referred to in paragraph 3, points (a), (b) and (c), of this Article, the requirement referred to in paragraph 4, fourth subparagraph, of this Article and the additional reporting requirement referred to in Article 7b(2).
6. The categories of derivative contracts subject to the obligation referred to in paragraph 1 shall be any of the following:
(a)
interest rate derivatives denominated in euro or Polish zloty;
(b)
short-term interest rate derivatives denominated in euro.
7. Where ESMA undertakes an assessment pursuant to Article 25(2c) and concludes that certain services or activities provided by Tier 2 CCPs are of substantial systemic importance for the Union or for one or more of its Member States, or that services or activities that were previously identified by ESMA as being of substantial systemic importance for the Union or for one or more of its Member States no longer are, the list of contracts subject to the active account obligation may be amended.
In order to amend the list of contracts subject to active account obligations, ESMA, after consulting the ESRB and in agreement with the central banks of issue, shall submit to the Commission a thorough and comprehensive cost-benefit analysis, in line with the quantitative technical assessment specified in Article 25(2c), first subparagraph, point (c), as relevant, including effects on other Union currencies, and assessing the possible effects of extending the active account obligations to the new types of contracts, and an opinion in connection to this assessment. The agreement of the central banks of issue shall only relate to the contracts denominated in the currency that they issue.
Where ESMA undertakes the assessment and issues an opinion concluding that the list of contracts should be amended, the Commission is empowered to adopt a delegated act in accordance with Article 82 to amend the list of derivative contracts under the first subparagraph of this paragraph.
8. ESMA, in cooperation with EBA, EIOPA and the ESRB and after consulting the ESCB, shall develop draft regulatory technical standards to further specify the requirements under paragraph 3, points (a), (b) and (c), of this Article, the conditions of the stress testing thereof and the details of the reporting in accordance with Article 7b. In developing those regulatory technical standards, ESMA shall take into account the size of the portfolios of different counterparties according to the third subparagraph of this paragraph, so that counterparties with more trades in their portfolios are subject to more stringent operational conditions and reporting requirements than counterparties with fewer trades.
Regarding the representativeness obligation referred to in paragraph 3, point (d), ESMA shall specify the different classes of derivative contracts, subject to a limit of three classes, the different maturity ranges, subject to a limit of four maturity ranges, and the different trade size ranges, subject to a limit of three trade size ranges, to ensure the representativeness of the derivative contracts to be cleared through the active accounts.
ESMA shall set the number, which shall not be higher than five, of the most relevant subcategories per class of derivative contracts to be represented in the active account. The most relevant subcategories shall be those containing the highest number of trades during the reference period.
ESMA shall also set the duration of the reference period, which shall not be less than six months for counterparties with a notional clearing volume outstanding of less than EUR 100 billion in the derivative contracts referred to in paragraph 6 and not less than one month for counterparties with a notional clearing volume outstanding of more than EUR 100 billion in the derivative contracts referred to in paragraph 6.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 June 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
9. Competent authorities shall monitor and calculate on an entity, group and aggregate average basis the level of activity in the derivative contracts referred to in paragraph 6 of this Article and shall transmit that information to the Joint Monitoring Mechanism.
Without prejudice to the right of Member States to provide for and impose criminal penalties, where a financial or non-financial counterparty is found to be in breach of its obligations under this Article, its competent authority shall, by decision, impose administrative penalties or periodic penalty payments, or request competent judicial authorities to impose penalties or periodic penalty payments, in order to compel that counterparty to put an end to its infringement.
The periodic penalty payment referred to in the second subparagraph shall be effective and proportionate and not exceed a maximum of 3 % of the average daily turnover in the preceding business year. It shall be imposed for each day of delay, and calculated from the date stipulated in the decision imposing the periodic penalty payment.
The periodic penalty payment referred to in the second subparagraph shall be imposed for a maximum period of six months following the notification of the competent authority’s decision. Following the end of that period, the competent authority shall review the measure and extend it if necessary.
10. By 25 June 2026 ESMA, in close cooperation with the ESCB and the ESRB, and after consulting the Joint Monitoring Mechanism, shall assess the effectiveness of this Article in mitigating the financial stability risks for the Union represented by the exposures of Union counterparties to Tier 2 CCPs offering services of substantial systemic importance pursuant to Article 25(2c).
ESMA shall accompany the assessment referred to in the first subparagraph with a report to the European Parliament, the Council and the Commission including a fully reasoned impact assessment on complementing measures, including quantitative thresholds.
Notwithstanding the first subparagraph, ESMA shall submit its assessment and recommendations at any point in time following the receipt of a formal notification by the Joint Monitoring Mechanism, indicating the likely materialisation of financial stability risks for the Union as a result of specific circumstances triggering an event with systemic implications.
Within six months of receiving the ESMA report referred to in the second subparagraph, the Commission shall prepare its own report which may be accompanied, where appropriate, by a legislative proposal.
Article 7b
Monitoring of the active account obligation
1. A financial counterparty or a non-financial counterparty that is subject to the obligation referred to in Article 7a shall calculate its activities and risk exposures in the categories of derivative contracts referred to in paragraph 6 of that Article, and report every six months to its competent authority the information necessary to assess compliance with that obligation. The competent authority shall transmit that information to ESMA without undue delay.
The counterparties referred to in the first subparagraph of this paragraph shall use the information reported under Article 9 where relevant. The reporting shall also include a demonstration to the competent authority that the legal documentation, IT connectivity and internal processes associated to the active accounts are in place.
2. Financial counterparties and non-financial counterparties subject to the obligation referred to in paragraph 1 of this Article which hold, for the derivative contracts referred to in Article 7a(6), accounts at a Tier 2 CCP in addition to active accounts, shall also report every six months to their competent authority information on the resources and systems that they have in place to ensure that the condition referred to in Article 7a(3), point (b), is met. The competent authority shall transmit that information to ESMA without undue delay.
3. The competent authorities referred to in the first paragraph of this Article shall ensure that the financial and non-financial counterparties subject to the obligation referred to in Article 7a take the appropriate steps to fulfil that obligation, including using their supervisory powers under their sectoral legislation, where appropriate, or imposing penalties as referred to in Article 12 where necessary. Competent authorities may require more frequent reporting in particular where, based on the information reported, insufficient steps have been taken to meet the requirements set out in this Regulation as regards active accounts.
Article 7c
Information on the provision of clearing services
1. Clearing members and clients that provide clearing services both at a CCP authorised under Article 14 and at a CCP recognised under Article 25 shall inform their clients, where the offer is available, of the possibility to clear their contracts through a CCP authorised under Article 14.
2. Notwithstanding Article 4(3a), clearing members and clients that provide clearing services to clients shall disclose, in a clear and understandable manner, for each CCP at which they provide clearing services, the fees to be charged to such clients for the provision of clearing services and any other fees charged including fees charged to clients which pass on costs, and other associated costs related to the provision of clearing services.
3. Clearing members and clients that provide clearing services shall provide the information referred to in paragraph 1:
(a)
when they establish a client clearing relationship with a client; and
(b)
at least on a quarterly basis.
4. ESMA, in consultation with EBA, shall develop draft regulatory technical standards to further specify the type of information referred to in paragraph 2.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
Article 7d
Information on clearing activity in CCPs recognised under Article 25
1. Clearing members and clients that clear contracts through a CCP recognised under Article 25 shall report such clearing activity as follows:
(a)
where they are established in the Union but not part of a group subject to consolidated supervision in the Union, they shall report to their competent authorities;
(b)
where they are part of a group subject to consolidated supervision in the Union, the Union parent undertaking of that group shall report such clearing activity on a consolidated basis to its competent authority.
The reports referred to in the first subparagraph shall contain information on the scope of the clearing activity in the recognised CCP on an annual basis specifying:
(a)
the type of financial instruments or non-financial instruments cleared;
(b)
the average values cleared over one year per Union currency and per asset class;
(c)
the amount of margins collected;
(d)
the default fund contributions; and
(e)
the largest payment obligation.
The competent authorities shall promptly transmit the information referred to in the second subparagraph to ESMA and the Joint Monitoring Mechanism.
2. ESMA, in cooperation with EBA, EIOPA and the ESRB and after consulting the members of the ESCB, shall develop draft regulatory technical standards to further specify the content of the information to be reported and the level of detail of the information to be provided in accordance with paragraph 1 of this Article, taking into account the existing reporting channels and the information already available to ESMA under the existing reporting framework, including the reporting obligation under Article 9.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
3. ESMA shall develop draft implementing technical standards to specify the format of the information to be submitted to the competent authority referred to in paragraph 1 taking into account existing reporting channels.
ESMA shall submit the draft implementing technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph of this paragraph in accordance with Article 15 of Regulation (EU) No 1095/2010.
Article 7e
Information on Union CCPs
1. CCPs authorised under Article 14 shall report to ESMA on a monthly basis, via the central database established by ESMA pursuant to Article 17c (the “central database”), at least the following information:
(a)
the values and volumes cleared per currency and per asset class, including the value of positions held by clearing participants;
(b)
the CCP’s investments;
(c)
the CCP’s capital, including dedicated own resources used in the default waterfall as referred to in Article 45(4) of this Regulation, and in Article 9(14) of Regulation (EU) 2021/23;
(d)
the clearing members’ margin requirements, default fund contributions, and contractually committed resources in the default management or in the recovery plans referred to in Article 9 of Regulation (EU) 2021/23;
(e)
the adequacy of the margin and default fund contributions and waterfall resources with regard to Articles 41, 42 and 45;
(f)
the CCP’s available liquid resources and the results of the liquidity stress testing;
(g)
the details of the clearing members, clients holding individually segregated accounts, third parties providing major activities linked to the CCP’s risk management, material liquidity providers connected to the CCP, as well as interoperable and linked CCPs;
(h)
any change that the CCP has directly implemented in accordance with Article 15a.
The members of the college of the CCP referred to in Article 18 shall have access to the information provided in accordance with this Article via the central database.
2. ESMA, in close cooperation with EBA and the ESCB, shall develop draft regulatory technical standards to further specify the details and content of the information to be provided under paragraph 1.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
3. ESMA shall develop draft implementing technical standards to specify the data standards and formats for the information to be reported in accordance with paragraph 1.
ESMA shall submit the draft implementing technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph of this paragraph in accordance with Article 15 of Regulation (EU) No 1095/2010.’
;
(8)
Article 9 is amended as follows:
(a)
in paragraph 1, the following subparagraphs are inserted after the first subparagraph:
‘Financial counterparties, non-financial counterparties and CCPs subject to the reporting obligation shall put in place appropriate procedures and arrangements to ensure the quality of the data they report in accordance with this Article.
Where a non-financial counterparty that is part of a group meets the conditions set out in Article 10(1), second subparagraph, and benefits from the exemption set out in the fifth subparagraph of this paragraph, the Union parent undertaking of that non-financial counterparty shall report the net aggregate positions by class of derivatives of that non-financial counterparty to its competent authority on a weekly basis. For a counterparty established in the Union, the competent authority of the parent undertaking shall share the information with ESMA and with the competent authority of that counterparty.’
;
(b)
in paragraph 1a, the fourth subparagraph is amended as follows:
(i)
point (a) is replaced by the following:
‘(a)
that third-country entity would be qualified as a financial counterparty if it were established in the Union; and’
;
(ii)
point (b) is deleted;
(c)
paragraph 1e is replaced by the following:
‘1e. Counterparties and CCPs that are required to report the details of derivative contracts shall ensure that such details are reported correctly and without duplication, including where the reporting obligation has been delegated in accordance with paragraph 1f.’
;
(d)
the following paragraph is inserted:
‘4a. By 25 December 2025 ESMA, in cooperation with EBA and EIOPA, shall draft guidelines in accordance with Article 16 of Regulation (EU) No 1095/2010 to further specify the procedures and arrangements referred to in the paragraph 1, second subparagraph.’
;
(9)
Article 10 is amended as follows:
(a)
paragraph 1 is amended as follows:
(i)
the first subparagraph is replaced by the following:
‘1. Every 12 months, a non-financial counterparty taking positions in OTC derivative contracts may calculate its uncleared positions in accordance with paragraph 3.’
;
(ii)
in the second subparagraph, the introductory wording is replaced by the following:
‘Where a non-financial counterparty does not calculate its uncleared positions, or where the result of the calculation of those uncleared positions in respect of one or more classes of OTC derivatives exceeds the clearing thresholds specified pursuant to paragraph 4, first subparagraph, point (b), that non-financial counterparty shall:’
;
(b)
paragraphs 2 to 5 are replaced by the following:
‘2. A non-financial counterparty that is subject to the clearing obligation referred to in Article 4 or that becomes subject to the clearing obligation in accordance with paragraph 1, second subparagraph, of this Article, shall remain subject to that obligation and shall continue clearing until that non-financial counterparty demonstrates to the relevant competent authority that its uncleared position does not exceed the clearing threshold specified pursuant to paragraph 4, first subparagraph, point (b), of this Article.
The non-financial counterparty shall be able to demonstrate to the relevant competent authority that the calculation of the uncleared position does not lead to a systematic underestimation of that position.
3. In calculating the uncleared positions referred to in paragraph 1 of this Article, the non-financial counterparty shall include all OTC derivative contracts that are not cleared through a CCP authorised under Article 14 or recognised under Article 25 entered into by the non-financial counterparty which are not objectively measurable as reducing risks directly relating to the commercial activity or treasury financing activity of the non-financial counterparty or of the group to which that non-financial counterparty belongs.
4. ESMA, after having consulted the ESRB and other relevant authorities, shall develop draft regulatory technical standards to specify:
(a)
the criteria for establishing which OTC derivative contracts are objectively measurable as reducing risks directly relating to the commercial activity or treasury financing activity referred to in paragraph 3;
(b)
the values of the clearing thresholds for uncleared positions, which are determined taking into account the calculation methodology set out in paragraph 3 of this Article and Article 4a(3), the systemic relevance of the sum of net positions and exposures per counterparty and per class of OTC derivatives; and
(c)
the mechanisms triggering a review of the values of the clearing thresholds, following significant price fluctuations in the underlying class of OTC derivatives or a significant increase of financial stability risks.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
4a. ESMA, in consultation with the ESRB, shall review the clearing thresholds referred to in paragraph 4, first subparagraph, point (b), of this Article and in Article 4a(4), taking into account, in particular, the interconnectedness of financial counterparties and the need to ensure the prudent coverage of financial counterparties under the clearing obligation. That review shall be conducted at least every two years, or earlier where necessary or where required under the mechanisms established under paragraph 4, first subparagraph, point (c). As a result of that review, ESMA may, in the regulatory technical standards adopted pursuant to paragraph 4, propose changes to the thresholds specified in the first subparagraph, point (b), of that paragraph. When reviewing the clearing thresholds, ESMA shall consider whether the classes of OTC derivatives, for which a clearing threshold has been set, are still the relevant classes of OTC derivatives or if new classes should be introduced.
That periodic review shall be accompanied by a report by ESMA on the subject.
4b. The relevant competent authorities of the non-financial counterparty and of the other entities within the group shall establish cooperation procedures to ensure the effective calculation of the positions and evaluate and assess the level of exposure in OTC derivative contracts at group level.
5. Each Member State shall designate an authority responsible for ensuring that the obligations of non-financial counterparties under this Regulation are met. That authority, in cooperation with the authorities responsible for the other entities of the group, shall report to ESMA at least every two years, and more frequently where an emergency situation is identified under Article 24, on the outcome of the assessment of the level of exposure in OTC derivatives of the non-financial counterparties for which it is responsible. The authority responsible for the Union parent undertaking of the group to which the non-financial counterparty belongs shall report to ESMA, at least every two years, on the outcome of the assessment of the level of exposure in OTC derivatives of the group.
At least every two years from 24 December 2024, ESMA shall present a report to the European Parliament, the Council and the Commission on the activities of Union non-financial counterparties in OTC derivatives, identifying areas where there is a lack of convergence and coherence in the application of this Regulation as well as potential risks to the financial stability of the Union.’
;
(10)
Article 11 is amended as follows:
(a)
in paragraph 2, the following subparagraph is added:
‘A non-financial counterparty that becomes subject to the obligations laid down in the first subparagraph of this paragraph shall establish the necessary arrangements to comply with those obligations within four months of the notification referred to in Article 10(1), second subparagraph, point (a). A non-financial counterparty shall be exempted from those obligations for contracts entered into during the four months following that notification.’
;
(b)
in paragraph 3, the following subparagraphs are added:
‘A non-financial counterparty that becomes subject to the obligations set out in the first subparagraph of this paragraph shall establish the necessary arrangements to comply with those obligations within four months of the notification referred to in Article 10(1), second subparagraph, point (a). A non-financial counterparty shall be exempted from those obligations for contracts entered into during the four months following that notification.
Financial counterparties and non-financial counterparties referred to in Article 10(1) shall apply for authorisation from their competent authorities before using, or adopting a change to, a model for initial margin calculation with regard to the risk-management procedures laid down in the first subparagraph of this paragraph. When applying for authorisation, those counterparties shall provide their competent authorities, via the central database, with all relevant information regarding those risk-management procedures. Those competent authorities shall grant or refuse such authorisation within six months of receipt of the application for a new model or within three months of receipt of the application for a change to an already authorised model.
Where the model referred to in the third subparagraph of this paragraph is based on a pro forma model, the counterparty shall apply to EBA for the validation of that model and shall provide EBA with all relevant information referred to in that subparagraph via the central database. In addition, the counterparty shall provide EBA with the information on the outstanding notional amount referred to in paragraph 12a of this Article via the central database.
Where the model referred to in the third subparagraph of this paragraph is based on a pro forma model, the competent authorities may grant the authorisation only where the pro forma model has been validated by EBA.
EBA, in cooperation with ESMA and EIOPA, may issue guidelines or recommendations with a view to ensuring the uniform application and authorisation process of the risk-management procedures referred to in the first subparagraph of this paragraph in accordance with the procedure laid down in Article 16 of Regulation (EU) No 1095/2010.’
;
(c)
the following paragraph is inserted:
‘3a. By way of derogation from paragraph 3, single stock options and equity index options not cleared by a CCP shall not be subject to risk-management procedures requiring the timely, accurate and appropriately segregated exchange of collateral.
For the purpose of the first subparagraph of this paragraph, ESMA, in cooperation with EBA and EIOPA, shall monitor:
(a)
regulatory developments in third-country jurisdictions in relation to the treatment of single stock options and equity index options;
(b)
the impact of the derogation laid down in the first subparagraph on the financial stability of the Union or of one or more of its Member States; and
(c)
the development of exposures in single stock options and equity index options not cleared by a CCP.
At least every three years from 24 December 2024, ESMA, in cooperation with EBA and EIOPA, shall report to the Commission the findings resulting from its monitoring referred to in the second subparagraph.
Within one year of the date of receipt of the report referred to in the third subparagraph, the Commission shall assess whether:
(a)
international developments have led to more convergence in the treatment of single stock options and equity index options; and
(b)
the derogation laid down in the first subparagraph endangers the financial stability of the Union or of one or more of its Member States.
The Commission is empowered to adopt a delegated act in accordance with Article 82 to amend this Regulation by revoking the derogation laid down in the first subparagraph following an adaptation period. The adaptation period shall not exceed two years.’
;
(d)
the following paragraph is inserted:
‘12a. EBA shall set up a central validation function for the elements and general aspects of pro forma models, and changes thereto, used or to be used by financial counterparties and non-financial counterparties referred to in Article 10 for the purpose of complying with the requirements set out in paragraph 3 of this Article. EBA shall collect feedback from ESMA, EIOPA, and the competent authorities responsible for the supervision of counterparties using the pro forma models subject to validation, including on the performance of those pro forma models, and shall coordinate their views with the aim of developing consensus on the elements and general aspects of pro forma models. EBA shall serve as the main point of contact for discussions with market participants and developers of those pro forma models.
In its role as a central validator, EBA shall validate the elements and general aspects of those pro forma models, including their calibration, design and coverage of instruments, asset classes and risk factors. EBA shall grant or refuse such validation within six months of receipt of the application for validation referred to in paragraph 3, fourth subparagraph, for a new pro forma model and within three months of receipt of the application for a change to an already validated model. To facilitate EBA’s validation work, developers of pro forma models shall, upon EBA’s request, submit to EBA all the necessary information and documentation.
EBA shall assist the competent authorities in their authorisation processes regarding the general aspects of the implementation of the models under paragraph 3. To that end, EBA shall prepare a yearly report on the relevant aspects of its validation work, including the verification of the calibration of the models under the second subparagraph of this paragraph and the analysis of the issues reported. Where it deems it necessary, EBA shall issue, in cooperation with ESMA and EIOPA, recommendations in accordance with Article 16 of Regulation (EU) No 1093/2010 addressed to those competent authorities. In order to assist EBA in drafting the reports and recommendations, competent authorities shall provide EBA, upon its request, with the information collected during their initial and ongoing entity-level authorisation process of the models under paragraph 3, or changes thereto.
Competent authorities shall be solely responsible for authorising the use of the models under paragraph 3, or changes thereto, at the supervised entity level.
EBA shall charge an annual fee, per pro forma model, to financial counterparties and non-financial counterparties referred to in Article 10(1) using the pro forma models validated by EBA under the second subparagraph of this paragraph. Competent authorities shall report to EBA the financial counterparties and non-financial counterparties that implement models subject to the validation process under the first subparagraph. The fee shall be proportionate to the monthly average outstanding notional amount of non-centrally cleared OTC derivatives over the last 12 months of the counterparties concerned using the pro forma models validated by EBA and shall be assigned to cover all costs incurred by EBA for the performance of its tasks in accordance with the first subparagraph.
For the purposes of this Article, “pro forma model” means an initial margin model established, published, and revised through market-led initiatives.
The Commission is empowered to adopt a delegated act in accordance with Article 82 to supplement this Regulation by setting out:
(a)
the method for the determination of the amount of the fees; and
(b)
the modalities of the payment of the fees.’
;
(e)
paragraph 15 is amended as follows:
(i)
in the first subparagraph, point (aa) is replaced by the following:
‘(aa)
the supervisory procedures, to ensure initial and ongoing validation of the risk-management procedures referred to in paragraph 3 applied by credit institutions authorised in accordance with Directive 2013/36/EU and investment firms authorised in accordance with Directive 2014/65/EU that have, or belong to a group that has, a monthly average outstanding notional amount of non-centrally cleared OTC derivatives of at least EUR 750 billion, calculated in accordance with the regulatory technical standards to be developed by the ESAs in accordance with this paragraph.’
;
(ii)
the fourth subparagraph is replaced by the following:
‘EBA, in cooperation with ESMA, shall submit the draft regulatory technical standards referred to in the first subparagraph, point (aa), to the Commission by 25 December 2025.’
;
(11)
Article 12 is amended as follows:
(a)
the following paragraph is inserted:
‘1a. Without prejudice to paragraph 1 of this Article and to the right of Member States to provide for and impose criminal penalties, the competent authority shall, by decision, impose administrative penalties or periodic penalty payments, or request competent judicial authorities to impose penalties or periodic penalty payments, on the entities subject to the reporting obligation pursuant to Article 9 where the details reported repeatedly contain systematic manifest errors.
The periodic penalty payment referred to in the first subparagraph shall not exceed a maximum of 1 % of the average daily turnover for the preceding business year which, in the case of an ongoing infringement, the entity shall be obliged to pay for every day that the infringement continues, until compliance with the obligation is established or restored. The periodic penalty payment may be imposed for a maximum period of six months from the date set out in the decision of the competent authority requiring the termination of an infringement and imposing the periodic penalty payment.’
;
(b)
the following paragraphs are added:
‘4. By way of derogation from paragraphs 1 and 1a, where the legal system of a Member State does not provide for administrative penalties, this Article may be applied in such a manner that the penalty is initiated by the competent authority and imposed by judicial authorities, while ensuring that those legal remedies are effective and have an equivalent effect to the administrative penalties imposed by competent authorities. In any event, the penalties imposed shall be effective, proportionate and dissuasive. Those Member States shall notify to the Commission the provisions of their laws which they adopt pursuant to this paragraph by 24 December 2024 and, without delay, any subsequent amending law or amendment affecting them.
5. ESMA, in cooperation with EBA, EIOPA and the ESRB, shall develop draft regulatory technical standards to specify what constitutes systematic manifest errors as referred to in the paragraph 1a.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’
;
(12)
Article 13 is replaced by the following:
‘Article 13
Mechanism to avoid duplicative or conflicting rules with regard to OTC derivative contracts not cleared by a CCP
1. The Commission shall be assisted by the ESAs in monitoring the international application of principles laid down in Article 11, in particular with regard to potential duplicative or conflicting requirements on market participants, and recommend possible action.
2. The Commission may adopt implementing acts declaring that the legal, supervisory and enforcement arrangements of a third country:
(a)
are equivalent to the requirements laid down in Article 11;
(b)
ensure protection of professional secrecy that is equivalent to that set out in Article 83; and
(c)
are being applied effectively and enforced in an equitable and non-distortive manner so as to ensure effective supervision and enforcement in that third country.
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 86(2).
3. An implementing act on equivalence as referred to in paragraph 2 shall imply that counterparties entering into an OTC derivative contract not cleared by a CCP subject to this Regulation shall be deemed to have fulfilled the obligations contained in Article 11 where at least one of the counterparties is subject to the requirements which are considered equivalent under that implementing act on equivalence.’
;
(13)
Article 14 is amended as follows:
(a)
paragraph 3 is replaced by the following:
‘3. The authorisation referred to in paragraph 1 shall be granted for services and activities linked to clearing and shall specify the services or activities for which the CCP is authorised to provide or perform clearing services, including the classes of derivatives, securities, other financial instruments or non-financial instruments covered by such authorisation.
An entity applying for authorisation as a CCP to clear financial instruments shall include in its application the classes of non-financial instruments suitable for clearing that such CCP intends to clear.’
;
(b)
the following paragraphs are added:
‘6. ESMA, in close cooperation with the ESCB, shall develop draft regulatory technical standards to specify the list of required documents that are to accompany an application for authorisation as referred to in paragraph 1 and to specify the information that such documents are to contain with a view to demonstrating that the applicant CCP complies with all relevant requirements of this Regulation.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
7. ESMA shall develop draft implementing technical standards to specify the electronic format of the application for authorisation referred to in paragraph 1 of this Article to be submitted to the central database.
ESMA shall submit the draft implementing technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph of this paragraph in accordance with Article 15 of Regulation (EU) No 1095/2010.’
;
(14)
Article 15 is amended as follows:
(a)
paragraph 1 is replaced by the following:
‘1. A CCP that intends to extend its business to additional services or activities, including to non-financial instruments suitable to be centrally cleared at an authorised CCP, not covered by the existing authorisation shall submit an application for an extension of that authorisation to additional clearing services or activities in one or more classes of derivatives, securities, other financial instruments or non-financial instruments, to the CCP’s competent authority, unless such an extension of activities or services is exempted from authorisation under Article 15a.
The extension of authorisation shall be made in accordance with either the procedure set out in Article 17 or the procedure set out in Article 17a, as applicable.’
;
(b)
paragraph 3 is replaced by the following:
‘3. ESMA, in close cooperation with the ESCB, shall develop draft regulatory technical standards to specify the lists of required documents that shall accompany an application for an extension of authorisation pursuant to paragraph 1 and to specify the information that such documents shall contain. The lists of required documents and information shall be relevant and proportionate to the nature of the extension of authorisation procedures referred in paragraph 1, with a view to demonstrating that the CCP meets all relevant requirements of this Regulation.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’
;
(c)
the following paragraph is added:
‘4. ESMA shall develop draft implementing technical standards to specify the electronic format of the application for an extension of the authorisation referred to in paragraph 1 of this Article to be submitted via the central database.
ESMA shall submit the draft implementing technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph of this paragraph in accordance with Article 15 of Regulation (EU) No 1095/2010.’
;
(15)
the following article is inserted:
‘Article 15a
Exemption from authorisation of an extension of clearing services or activities
1. Notwithstanding Article 15, a CCP that intends to extend its business to include an additional service or activity not covered by its existing authorisation shall not be required to be authorised for such an extension where that additional service or activity would not have a material impact on the CCP’s risk profile.
The CCP shall notify the registered recipients via the central database where it decides to make use of the exemption provided for in the first subparagraph of this paragraph, including the service or activity it intends to provide.
The changes implemented by a CCP in accordance with this Article shall be subject to review and evaluation in accordance with Article 21.
ESMA may review the provision of clearing services and activities and report to the college referred to in Article 18 and to the Commission on the risks arising from CCPs’ provision of services and activities pursuant to this Article and on their appropriateness.
2. ESMA, in close cooperation with the members of the ESCB, shall develop draft regulatory technical standards to further specify:
(a)
the type of extension of clearing services or activities that would not have a material impact on a CCP’s risk profile; and
(b)
the frequency with which a CCP shall notify the use of the exemption referred to in paragraph 1, which shall not exceed once every three months.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’
;
(16)
Article 17 is amended as follows:
(a)
paragraphs 1 to 4 are replaced by the following:
‘1. The applicant CCP shall submit an application for authorisation as referred to in Article 14(1) or an application for an extension of an existing authorisation as referred to in Article 15(1) in an electronic format via the central database. The application shall be immediately shared via that central database with the CCP’s competent authority, ESMA and the college referred to in Article 18.
The applicant CCP shall provide all information necessary to demonstrate that it has established, at the time of the initial authorisation, all the necessary arrangements to meet the requirements laid down in this Regulation. Where a CCP is applying for an extension of an existing authorisation pursuant to Article 15, it shall provide all information necessary to demonstrate that, at the time such an extension is granted, it will have established all additional arrangements to meet any requirements laid down in this Regulation in respect of such an extension.
In accordance with Article 17c, an acknowledgement of receipt of the application shall be sent via the central database within two working days of submission of that application under the first subparagraph of this paragraph.
2. The CCP’s competent authority shall, following the acknowledgement of receipt referred to in paragraph 1, third subparagraph, notify the applicant CCP whether the application contains the documents and information required.
The notification shall be sent within:
(a)
20 working days of the acknowledgment of the receipt, where the applicant CCP has applied for an authorisation pursuant to Article 14(1); or
(b)
10 working days of the acknowledgment of the receipt, where the applicant CCP has applied for an extension of an existing authorisation pursuant to Article 15(1).
Where, during the applicable period specified under the second subparagraph of this paragraph, the CCP’s competent authority decides that not all documents or information required pursuant to Article 14(6) and (7) or Article 15(3) and (4) have been submitted, it shall request the applicant CCP to submit such additional documents or information, via the central database. The application for authorisation or the application for the extension of authorisation shall be rejected where the CCP’s competent authority decides that the applicant CCP has failed to comply with any such request. The CCP’s competent authority shall inform the CCP thereof via the central database.
3. The CCP’s competent authority shall conduct a risk assessment of the CCP’s compliance with the relevant requirements laid down in this Regulation within the period specified under the second subparagraph (the “risk assessment period”).
The risk assessment shall be carried out within:
(a)
80 working days of the confirmation set out in paragraph 2, second subparagraph, point (a), where an application is made under Article 14(1); or
(b)
40 working days of the confirmation set out in paragraph 2, second subparagraph, point (b), where an application is made under Article 15(1).
By the end of the risk assessment period, the CCP’s competent authority shall submit its draft decision and report to ESMA and the college referred to in Article 18 via the central database.
Following receipt of the draft decision and report referred to in the third subparagraph of this paragraph, and on the basis of the findings therein, the college referred to in Article 18 shall within 15 working days adopt an opinion pursuant to Article 19 determining whether the applicant CCP complies with the requirements laid down in this Regulation and transmit it to the CCP’s competent authority and ESMA in an electronic format via the central database.
The college referred to in Article 18 may include in its opinion any conditions or recommendations it considers necessary to mitigate any shortcomings in the CCP’s risk management.
Following receipt of the draft decision and report referred to in the third subparagraph of this paragraph, ESMA shall within 15 working days adopt an opinion determining whether the applicant CCP complies with the requirements laid down in this Regulation in accordance with Article 23a(1), point (e), Article 23a(2), and Article 24a(7), first subparagraph, point (bc), and transmit it to the CCP’s competent authority and the college referred to in Article 18.
ESMA may include in its opinion any conditions or recommendations it considers necessary to mitigate any shortcomings in the CCP’s risk management in relation to identified cross-border risks or risks to the financial stability of the Union.
3a. Without prejudice to the opinion referred to in paragraph 3, sixth subparagraph, of this Article, following receipt of the draft decision and report referred to in paragraph 3, third subparagraph, of this Article, ESMA may also provide an opinion in accordance with Article 23a and Article 24a(7) on that draft decision to the competent authority where necessary to promote a consistent and coherent application of a relevant article, within 15 working days of receipt of the draft decision.
Where the draft decision submitted to ESMA in accordance with paragraph 3 of this Article shows a lack of convergence or coherence in the application of this Regulation, ESMA shall issue guidelines or recommendations to promote the necessary consistency or coherence in the application of this Regulation pursuant to Article 16 of Regulation (EU) No 1095/2010.
The adopted opinions of ESMA and the college referred to in Article 18 shall be submitted in an electronic format via the central database, to the respective recipients.
3b. During the risk assessment period, the CCP’s competent authority, through the central database:
(a)
may submit questions to, and request complementary information from, the applicant CCP;
(b)
shall coordinate and submit questions from ESMA or any member of the college referred to in Article 18 to the applicant CCP; and
(c)
shall share with ESMA and the members of the college referred to in Article 18 all answers provided by the applicant CCP.
Where the CCP’s competent authority has not provided the requested information to ESMA or any member of the college referred to in Article 18 within 10 working days of submission of the request, ESMA or any member of that college referred to in Article 18 may submit its request directly to the CCP via the central database.
Where the applicant CCP has not responded to the questions referred to in the first subparagraph within the deadline set by the authority requesting the information, the CCP’s competent authority, after consulting the requesting authority, may decide to extend once the relevant risk assessment period by a maximum of 10 working days in total if, in its view or in the view of the requesting authority, any of the questions is material for the assessment. The competent authority shall inform the applicant CCP, via the central database, of the extension provided. The competent authority may take a decision on the application in the absence of the CCP’s response.
3c. Within 10 working days of receipt of the opinions of ESMA and of the college referred to in Article 18, adopted under paragraph 3, fourth and sixth subparagraphs, respectively, of this Article, and, where issued, the opinion of ESMA adopted under paragraph 3a, first subparagraph, of this Article, the CCP’s competent authority shall adopt its decision and transmit it to ESMA and the college referred to in Article 18 via the central database.
Where the decision of the CCP’s competent authority does not reflect the opinion of the college referred to in Article 18, including any conditions or recommendations contained therein, it shall contain a fully reasoned explanation of any significant deviation from that opinion or conditions or recommendations.
Where the CCP’s competent authority does not comply or does not intend to comply with an opinion of ESMA or with any conditions or recommendations included therein, ESMA shall inform the Board of Supervisors in accordance with Article 24a. The information shall also include the reasoning from the CCP’s competent authority for non-compliance or for its intention not to comply.
4. The CCP’s competent authority shall, after duly considering the opinions of ESMA and of the college provided for in paragraphs 3 and 3a of this Article, including any conditions or recommendations contained therein, decide to grant authorisation as referred to in Article 14 and Article 15(1), second subparagraph, only where it is fully satisfied that the applicant CCP:
(a)
complies with the requirements laid down in this Regulation, including, where applicable, for the provision of clearing services or activities for non-financial instruments; and
(b)
is notified as a system pursuant to Directive 98/26/EC.
Where a CCP applies for an extension of an existing authorisation pursuant to Article 15, ESMA, the college referred to in Article 18 and the CCP’s competent authority may rely on part of the assessment previously made pursuant to this Article to the extent that the application for extension will not result in a change or otherwise affect the previous assessment for that part. The CCP shall confirm to the CCP’s competent authority that there is no change to the underlying facts of that part of the assessment.
The applicant CCP shall not be authorised where:
(a)
the CCP’s competent authority has decided not to grant the authorisation; or
(b)
all members of the college referred to in Article 18, excluding the authorities of the Member State where the applicant CCP is established, reach a joint opinion by mutual agreement, pursuant to Article 19(1), that the applicant CCP is not to be authorised.
The joint opinion referred to in the third subparagraph, point (b), of this paragraph, shall state in writing the full and detailed reasons why the college referred to in Article 18 considers that the requirements laid down in this Regulation or in other Union law are not met.
Where such a joint opinion has not been reached by mutual agreement and a majority of two-thirds of the members of the college referred to in Article 18 have expressed a negative opinion, any of the competent authorities concerned, based on that majority, may, within 30 calendar days of the adoption of that negative opinion, refer the matter to ESMA in accordance with Article 19 of Regulation (EU) No 1095/2010.
The decision to refer the matter to ESMA shall state in writing the full and detailed reasons for which the relevant members of the college referred to in Article 18 consider that the requirements laid down in this Regulation or other Union law are not met. In that case, the CCP’s competent authority shall defer its decision on authorisation and await any decision on authorisation that ESMA may take in accordance with Article 19(3) of Regulation (EU) No 1095/2010. The CCP’s competent authority shall take its decision in conformity with ESMA’s decision. The matter shall not be referred to ESMA after the end of the 30-day period referred to in the fifth subparagraph of this paragraph.
Where all members of the college referred to in Article 18, excluding the authorities of the Member State where the applicant CCP is established, reach a joint opinion by mutual agreement, pursuant to Article 19(1), that the applicant CCP is not to be authorised, the CCP’s competent authority may refer the matter to ESMA in accordance with Article 19 of Regulation (EU) No 1095/2010.
The competent authority of the Member State where the CCP is established shall transmit the decision to the other competent authorities concerned.
The competent authority shall, without undue delay after taking a decision whether to grant or refuse authorisation under paragraph 3c, inform the applicant CCP in writing of its decision via the central database, together with a fully reasoned explanation.’
;
(b)
paragraph 7 is deleted;
(17)
the following articles are inserted:
‘Article 17a
Accelerated procedure for authorisation of an extension of authorisation
1. An accelerated procedure for authorisation of an extension of authorisation shall apply where a CCP intends to extend its business to additional services or activities as referred to in Article 15 and where such extension fulfils all of the following conditions:
(a)
it does not result in the CCP needing to adapt significantly its operational structure at any point in the contract cycle;
(b)
it does not include offering the clearing of contracts that cannot be liquidated in the same manner as or together with contracts already cleared by the CCP;
(c)
it does not result in the CCP needing to take into account material new contract specifications;
(d)
it does not result in the introduction of material new risks or significantly increase the CCP’s risk profile;
(e)
it does not include offering a new settlement or delivery mechanism or service which involves establishing links with a different securities settlement system, central securities depository or payment system which the CCP did not previously use.
2. A CCP that submits an application for an extension of its existing authorisation to additional clearing services or activities pursuant to the accelerated procedure set out in this Article, shall demonstrate that the proposed extension of its business to additional clearing services or activities qualifies to be assessed under such procedure.
The CCP shall submit its application for an extension in an electronic format via the central database and shall provide all information, pursuant to Article 15(3) and (4), necessary to demonstrate that it has established, at the time of authorisation, all necessary arrangements to meet the relevant requirements laid down in this Regulation. In accordance with Article 17c, an acknowledgement of receipt of the application shall be sent via the central database, within two working days of submission of that application.
3. Within 15 working days of acknowledgment of receipt of an application pursuant to paragraph 2 of this Article, the CCP’s competent authority shall, after considering the input from ESMA and the college referred to in Article 18, decide:
(a)
whether the application qualifies to be assessed under the accelerated procedure set out in this Article; and
(b)
where the application qualifies to be assessed under the accelerated procedure set out in this Article, whether to:
(i)
grant the extension of the authorisation where the CCP complies with this Regulation; or
(ii)
refuse the extension of the authorisation where the CCP does not comply with this Regulation.
Where a CCP applies for an extension of authorisation pursuant to Article 15, the CCP’s competent authority may rely on part of the assessment previously made pursuant to this Article to the extent that the application for extension will not result in a change or otherwise affect the previous assessment for that part. The CCP shall confirm to the CCP’s competent authority that there is no change to the underlying facts of that part of the assessment.
Where the competent authority has decided that the extension of authorisation does not qualify to be assessed under the accelerated procedure, the CCP’s application shall be rejected.
Where the competent authority has decided not to grant the extension of authorisation, the extension of the authorisation shall be refused.
4. The CCP’s competent authority shall notify the applicant CCP in writing, via the central database, within the timeframe stated in paragraph 3, of its decision under that paragraph.
5. ESMA, in close cooperation with the ESCB, shall develop draft regulatory technical standards to further specify the conditions referred to in paragraph 1, points (a) to (e) of this Article, and to specify the procedure for consulting ESMA and the college referred to in Article 18 in accordance with paragraph 3 of this Article on whether or not those conditions are fulfilled.
In further specifying the conditions pursuant to the first subparagraph, ESMA shall set the methodology to use and the parameters to apply for deciding when a condition is considered to have been fulfilled. ESMA shall also list and specify whether there are typical extensions of services and activities that could be considered in principle to fall under the accelerated procedure set out in this Article.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
Article 17b
Procedure for adopting decisions, reports or other measures
1. A CCP’s competent authority shall submit in electronic format via the central database a request for an opinion:
(a)
by ESMA, pursuant to Article 23a(2), where the CCP’s competent authority intends to adopt a decision, report or other measure in relation to Articles 7, 8, 20, 21, 29 to 33, 35, 36, 37, 41 and 54;
(b)
by the college referred to in Article 18, pursuant to Article 19, where the CCP’s competent authority intends to adopt a decision, report or other measure in relation to Articles 20, 21, 30, 31, 32, 35, 37, 41, 49, 51 and 54.
The request for an opinion referred to in the first subparagraph of this paragraph, together with all relevant documents, shall be shared immediately with ESMA and with the college referred to in Article 18.
2. Unless otherwise specified under a relevant article, the CCP’s competent authority shall, within 30 working days of submitting the request referred to in paragraph 1, assess the CCP’s compliance with the respective requirements. By the end of that assessment period, the CCP’s competent authority shall transmit its respective draft decision, report or other measure to ESMA and the college referred to in Article 18.
3. Unless otherwise specified under a relevant article, following the receipt of both the request for an opinion referred to in paragraph 1 and the draft decisions, reports or other measures referred to in paragraph 2:
(a)
ESMA shall, with respect to Article 20, adopt an opinion assessing the CCP’s compliance with the respective requirements in accordance with Article 23a(1), point (e), Article 23a(2) and Article 24a(7), first subparagraph, point (bc); ESMA shall transmit its opinion to the CCP’s competent authority and the college referred to in Article 18; ESMA may include in its opinion any conditions or recommendations it considers necessary to mitigate any shortcomings in the CCP’s risk management, in relation to identified cross-border risks or risks to the financial stability of the Union; ESMA shall also, with respect to Articles 21 and 37, adopt an opinion in accordance with those Articles and in accordance with Article 23a(2) and Article 24a(7), first subparagraph, point (bc), and ESMA may include in its opinion any conditions or recommendations it considers necessary;
(b)
ESMA may, with respect to Articles 7, 8, 29 to 33, 35, 36, 41, and 54, adopt an opinion in accordance with Article 23a and Article 24a(7), first subparagraph, point (bc), on that draft decision, report or other measure where necessary to promote a consistent and coherent application of a relevant article; and
(c)
the college referred to in Article 18 shall adopt an opinion pursuant to Article 19 assessing the CCP’s compliance with the respective requirements and transmit it to the CCP’s competent authority and ESMA; the opinion of that college may include conditions or recommendations that it considers necessary to mitigate any shortcomings in the CCP’s risk management.
For the purpose of the first subparagraph, point (b), of this paragraph, where the draft decision, report or other measure submitted to ESMA in accordance with that point shows a lack of convergence or coherence in the application of this Regulation, ESMA shall issue guidelines or recommendations to promote the necessary consistency or coherence in the application of this Regulation pursuant to Article 16 of Regulation (EU) No 1095/2010. Where ESMA adopts an opinion in accordance with point (b), the competent authority shall give it due consideration and shall inform ESMA of any subsequent action or inaction thereto.
ESMA and the college referred to in Article 18 shall each adopt their opinions within the deadline provided by the CCP’s competent authority, which shall be at least 15 working days following the receipt of the relevant documents under paragraph 2 of this Article.
4. Within 10 working days of receipt of the opinions of ESMA and of the college referred to in Article 18 and, where issued, the opinion of ESMA adopted under paragraph 3, first subparagraph, point (b), of this Article, or within the relevant period where otherwise specified in this Regulation, the CCP’s competent authority shall, after duly considering the opinions of ESMA and of the college, including any conditions or recommendations contained therein, adopt its decision, report or other measure as required under a relevant article and transmit it to ESMA and the college.
Where the decision, report or other measure does not reflect an opinion of ESMA or of the college referred to in Article 18, including any conditions or recommendations contained therein, it shall contain full reasons and an explanation of any significant deviation from that opinion or those conditions or recommendations.
For the purpose of paragraph 3, first subparagraph, points (a) and (b), of this Article, where the CCP’s competent authority does not comply or does not intend to comply with the opinion of ESMA or with any conditions or recommendations included therein, ESMA shall inform its Board of Supervisors in accordance with Article 24a. The information shall also include the reasoning from the CCP’s competent authority for non-compliance or for its intention not to comply.
The CCP’s competent authority shall adopt its decisions, reports or other measures in accordance with the relevant Articles set out in paragraph 1 of this Article.
Article 17c
Central database
1. ESMA shall establish and maintain a central database providing access to the CCP’s competent authority and ESMA (“registered recipients”), as well as to the members of the college referred to in Article 18 for the relevant CCP where required under a relevant article, to all documents registered within the database for the CCP, and to the other recipients identified under this Regulation. ESMA shall ensure that the central database performs the functions under this Article.
ESMA shall announce the establishment of the central database on its website.
2. A CCP shall submit the applications referred to in Article 14, Article 15(1), second subparagraph, Article 49 and Article 49a via the central database. An acknowledgement of receipt shall be sent via the central database within two working days of submission of the application.
A CCP shall upload to the central database promptly all documents it is required to provide under the authorisation processes referred to in Articles 14 and 15 or validation processes referred to in Articles 49 and 49a, as applicable. The registered recipients shall upload promptly all documents they receive from the CCP in relation to an application referred to in the first subparagraph of this paragraph unless the CCP has already uploaded such documents.
A CCP shall have access to the central database as regards the documents it submitted to that central database or the documents transmitted to the CCP through that central database by any of the registered recipients or the college referred to in Article 18.
3. The competent authority shall submit its request for an opinion as referred to in Article 17b via the central database.
4. Questions submitted to, or information requested from, a CCP by ESMA, the CCP’s competent authority or the members of the college referred to in Article 18 during periods for assessment under Articles 17, 17a, 17b, 49 and 49a shall be submitted and answered by the CCP via the central database.
5. The CCP’s competent authority shall notify the CCP concerned via the central database where a decision, report or other measure has been taken, as applicable, pursuant to Articles 14, 15, 15a, 17, 17a, 17b, 20, 21, 30 to 33, 35, 37, 41, 49, 49a, 51 and 54 and of any decisions that the CCP’s competent authority voluntarily decides to share with the CCP via the central database.
6. The central database shall be designed to automatically inform the registered recipients when changes have been made to its content, including the uploading, deletion or replacement of documents, submission of questions and requests for information.
7. Members of the CCP Supervisory Committee shall have access to the central database for the performance of their tasks pursuant to Article 24a(7). The Chair of the CCP Supervisory Committee may limit access to some of the documents for the members of the CCP Supervisory Committee referred to in Article 24a(2), point (c) and point (d)(ii), where justified based on confidentiality concerns.’
;
(18)
Article 18 is amended as follows:
(a)
paragraph 1 is replaced by the following:
‘1. Within 30 calendar days of the submission of the notification referred to in Article 17(2), second subparagraph, point (a), the CCP’s competent authority shall establish a college to facilitate the exercise of the tasks referred to in Articles 15, 17, 17a, 20, 21, 30, 31, 32, 35, 37, 41, 49, 51 and 54. That college shall be co-chaired and managed by the competent authority and any of the independent members of the CCP Supervisory Committee referred to in Article 24a(2), point (b) (the “co-chairs”).’
;
(b)
in paragraph 4, the second subparagraph is replaced by the following:
‘The co-chairs shall decide the dates of the college meetings and establish the agenda of such meetings.
In order to facilitate the performance of the tasks assigned to colleges pursuant to the first subparagraph of this paragraph, members of the college referred to in paragraph 2 shall be entitled to contribute to the setting of the agenda of the college meetings, in particular by adding points to the agenda of a meeting taking into consideration the outcome of the work carried out by the Joint Monitoring Mechanism.’
;
(c)
in paragraph 5, the third subparagraph is replaced by the following:
‘The agreement may also determine tasks to be entrusted to the CCP’s competent authority, ESMA or another member of the college. In the event of a disagreement between the co-chairs, the final decision shall be taken by the competent authority, who shall provide ESMA with a reasoned explanation of its decision.’
;
(19)
Article 19 is amended as follows:
(a)
paragraph 1 is replaced by the following:
‘1. Where the college referred to in Article 18 is required to give an opinion pursuant to this Regulation, it shall reach a joint opinion determining whether the CCP complies with the requirements laid down in this Regulation.
Without prejudice to Article 17(4), third subparagraph, point (b), if no joint opinion is reached in accordance with the first subparagraph of this paragraph, the college referred to in Article 18 shall adopt a majority opinion within the same period.’
;
(b)
paragraph 4 is deleted;
(20)
Article 20 is replaced by the following:
‘Article 20
Withdrawal of authorisation
1. Without prejudice to Article 22(3), a CCP’s competent authority shall withdraw authorisation, in full or in part, where the CCP:
(a)
has not made use of the authorisation within 12 months;
(b)
has not made use of an authorisation for a clearing service or activity in a class of derivatives, securities, other financial instruments or non-financial instruments, within 12 months of the date when the authorisation was granted or of the date when the CCP last offered such clearing service or activity;
(c)
expressly renounces the authorisation;
(d)
has provided no services or performed no activity for the preceding 12 months in a class of derivatives, securities, other financial instruments or non-financial instruments covered by an authorisation;
(e)
has obtained authorisation by making false statements or by any other irregular means;
(f)
is no longer in compliance with the conditions under which authorisation was granted and has not taken the remedial action within the set timeframe; or
(g)
has seriously and systematically infringed any of the requirements laid down in this Regulation.
2. Where the CCP’s competent authority withdraws the authorisation of the CCP pursuant to paragraph 1, it may limit such withdrawal of authorisation to a particular clearing service or activity in one or more classes of derivatives, securities, other financial instruments or non-financial instruments.
3. Before the CCP’s competent authority takes a decision to withdraw the authorisation of the CCP in full or in part, including for one or more clearing services or activities in one or more classes of derivatives, securities, other financial instruments or non-financial instruments under paragraph 1, it shall, in accordance with Article 17b, request the opinion of ESMA and the college referred to in Article 18 on the necessity of withdrawing the authorisation, in full or in part, of the CCP, except where a decision is required urgently.
4. ESMA or any member of the college referred to in Article 18 may, at any time, request that the CCP’s competent authority examine whether the CCP remains in compliance with the conditions under which the authorisation was granted.
5. Where the CCP’s competent authority takes a decision to withdraw the authorisation of the CCP in full or in part, including for one or more clearing services or activities in one or more classes of derivatives, securities, other financial instruments or non-financial instruments, that decision shall take effect throughout the Union and the CCP’s competent authority shall inform the CCP, via the central database, without undue delay.’
;
(21)
in Article 21, paragraphs 1 to 4 are replaced by the following:
‘1. The competent authorities referred to in Article 22 shall do at least all of the following in relation to a CCP:
(a)
review the arrangements, strategies, processes and mechanisms implemented by the CCP to comply with this Regulation;
(b)
review the services or activities provided by the CCP, in particular services or activities provided following the application of an accelerated procedure pursuant to Article 17a or 49a;
(c)
evaluate the risks, including financial and operational risks, to which the CCP is, or might be, exposed;
(d)
review the changes implemented by the CCP in accordance with Article 15a.
2. The review and evaluation referred to in paragraph 1 shall cover all requirements on CCPs laid down in this Regulation. The CCP’s competent authority may request ESMA’s assistance in any of its supervisory activities including those listed in paragraph 1.
3. The competent authorities shall, after having considered the input of ESMA and the college referred to in Article 18, establish the frequency and depth of the review and evaluation referred to in paragraph 1 of this Article, having particular regard to the size, systemic importance, nature, scale, complexity of the activities and interconnectedness with other financial market infrastructures of the CCPs concerned and to the supervisory priorities established by ESMA in accordance with Article 24a(7), first subparagraph, point (ba). The competent authorities shall update the review and evaluation at least on an annual basis.
CCPs shall be subject to on-site inspections by the CCP’s competent authority at least annually. The CCP’s competent authority shall inform ESMA of any planned on-site inspection one month before such inspection is due to take place, unless the decision to conduct an on-site inspection is taken in an emergency, in which case the CCP’s competent authority shall inform ESMA as soon as that decision is taken. ESMA may request to be invited to on-site inspections.
Where, following a request by ESMA pursuant to the second subparagraph, the CCP’s competent authority refuses to invite ESMA to an on-site inspection, it shall provide a reasoned explanation for such refusal.
Without prejudice to the second and third subparagraphs, the CCP’s competent authority shall forward to ESMA and the members of the college referred to in Article 18 any relevant information received from the CCP in relation to all on-site inspections it carries out.
4. The CCP’s competent authority shall regularly, and at least annually, submit a report to ESMA and the college referred to in Article 18 on the assessment and the results of the review and evaluation referred to in paragraph 1, including whether the CCP’s competent authority has requested any remedial action or imposed penalties.
The report shall cover a calendar year and shall be submitted to ESMA and the college referred to in Article 18 by 30 March of the following calendar year. That report shall be subject to an opinion of the college referred to in Article 18 pursuant to Article 19 and an opinion of ESMA pursuant to Article 24a(7), first subparagraph, point (bc), issued in accordance with the procedure set out in Article 17b.
ESMA may request to hold an ad hoc meeting with the CCP and its competent authority. ESMA may request such a meeting in any of the following cases:
(a)
where there is an emergency situation under Article 24;
(b)
where ESMA has identified material concerns regarding the CCP’s compliance with the requirements of this Regulation;
(c)
where ESMA considers that the activity of the CCP could have an adverse cross-border impact on its clearing members or on their clients.
The college referred to in Article 18 shall be informed that a meeting will be held and shall receive a summary of the main outcomes of that meeting.
4a. ESMA may require competent authorities to provide it with the necessary information to carry out its tasks pursuant to this Article in accordance with the procedure set out in Article 35 of Regulation (EU) No 1095/2010.’
;
(22)
Article 23a is replaced by the following:
‘Article 23a
Supervisory cooperation between competent authorities and ESMA with regards to authorised CCPs
1. ESMA shall fulfil a coordination role between competent authorities and across colleges to:
(a)
build a common supervisory culture and consistent supervisory practices;
(b)
ensure uniform procedures and consistent approaches;
(c)
strengthen consistency in supervisory outcomes, in particular with regard to supervisory areas which have a cross-border dimension or a possible cross-border impact;
(d)
strengthen coordination in emergency situations in accordance with Article 24;
(e)
assess risks when providing opinions to competent authorities pursuant to paragraph 2 on CCPs’ compliance with the requirements of this Regulation in relation to identified cross-border risks or risks to the financial stability of the Union, and providing recommendations as to how a CCP shall mitigate such risks.
2. Competent authorities shall submit their draft decisions, reports or other measures to ESMA for its opinion before adopting any act or measure pursuant to Articles 7, 8 and 14, Article 15(1), second subparagraph, Article 21, Articles 29 to 33, and Articles 35, 36, 37, 41, 54 and, except where a decision is required urgently, Article 20.
Competent authorities may also submit draft decisions to ESMA for its opinion before adopting any other act or measure in accordance with their duties under Article 22(1).’
;
(23)
the following article is inserted:
‘Article 23b
Joint Monitoring Mechanism
1. ESMA shall establish a Joint Monitoring Mechanism for the exercise of the tasks referred to in paragraph 2.
The Joint Monitoring Mechanism shall be composed of:
(a)
representatives of ESMA;
(b)
representatives of EBA and EIOPA;
(c)
representatives of the ESRB, the ECB and the ECB in the framework of the tasks concerning the prudential supervision of credit institutions within the single supervisory mechanism conferred upon it in accordance with Regulation (EU) No 1024/2013; and
(d)
representatives of the central banks of issue of currencies, other than the euro, in which the derivative contracts referred to in Article 7a(6) are denominated.
In addition to the entities referred to in the second subparagraph of this paragraph, the central banks of issue of the currencies of denomination of the derivative contracts referred to in Article 7a(6), other than those listed in point (d) of that second subparagraph, the national competent authorities supervising the obligation under Article 7a, limited to one per Member State, and the Commission may also participate in the Joint Monitoring Mechanism as observers.
ESMA shall manage and chair the meetings of the Joint Monitoring Mechanism. The Chair of the Joint Monitoring Mechanism may, upon the request of the other members of the Joint Monitoring Mechanism or on the Chair’s own initiative, invite other authorities to participate in the meetings when relevant to the topics to be discussed.
2. The Joint Monitoring Mechanism shall:
(a)
monitor the implementation at aggregate Union level of the requirements set out in Articles 7a and 7c, including all of the following:
(i)
the overall exposures and reduction of exposures to substantially systemically important clearing services identified pursuant to Article 25(2c);
(ii)
developments related to clearing in CCPs authorised under Article 14 and access to clearing by clients to such CCPs, including fees charged by such CCPs for establishing accounts pursuant to Article 7a and any fees charged by clearing members to their clients for establishing accounts and undertaking clearing pursuant to Article 7a;
(iii)
other significant developments in clearing practices having an impact on the level of clearing at CCPs authorised under Article 14;
(b)
monitor the cross-border implications of client clearing relationships, including portability and clearing members’ and clients’ interdependencies and interactions with other financial market infrastructures;
(c)
contribute to the development of Union-wide assessments of the resilience of CCPs focussing on liquidity, credit and operational risks concerning CCPs, clearing members and clients;
(d)
identify concentration risks, in particular in client clearing, due to the integration of Union financial markets, including where several CCPs, clearing members or clients use the same service providers;
(e)
monitor the effectiveness of the measures aimed at improving the attractiveness of Union CCPs, encouraging clearing at Union CCPs and enhancing the monitoring of cross-border risks.
The bodies participating in the Joint Monitoring Mechanism, the college referred to in Article 18 and national competent authorities shall cooperate and share the information necessary to carry out the tasks referred to in the first subparagraph of this paragraph.
Where that information is not available to the Joint Monitoring Mechanism, including the information referred to in Article 7a(9), the relevant competent authority of authorised CCPs, their clearing members and their clients shall provide the necessary information enabling ESMA and the other bodies participating in the Joint Monitoring Mechanism to perform the tasks referred to in the first subparagraph of this paragraph.
3. Where a relevant competent authority does not have the requested information, it shall require authorised CCPs, their clearing members or their clients to provide that information. The relevant competent authority shall forward such information to ESMA without undue delay.
4. Subject to the agreement of the relevant competent authority, ESMA may also request the information directly from the relevant entity. ESMA shall forward all information received from that entity to the relevant competent authority without undue delay.
5. Information requests to CCPs shall be exchanged via the central database.
6. ESMA shall, in cooperation with the other bodies participating in the Joint Monitoring Mechanism, submit an annual report to the European Parliament, the Council and the Commission on the results of its activities under paragraph 2.
The report referred to in the first subparagraph may include recommendations for potential Union-level actions to address identified horizontal risks.
7. ESMA shall act in accordance with Article 17 of Regulation (EU) No 1095/2010 in the event that, on the basis of the information received as part of the Joint Monitoring Mechanism and following the discussions held therein, ESMA:
(a)
considers that competent authorities fail to ensure clearing members’ and clients’ compliance with the requirements set out in Article 7a; or
(b)
identifies a risk to the financial stability of the Union due to an alleged breach or non-application of Union law.
Before acting in accordance with the first subparagraph of this paragraph, ESMA may issue guidelines or recommendations pursuant to Article 16 of Regulation (EU) No 1095/2010.
8. Where ESMA, on the basis of the information received as part of the Joint Monitoring Mechanism and following the discussions held therein, considers that compliance with the requirements set out in Article 7a does not effectively ensure the reduction of Union clearing members’ and clients’ excessive exposure to Tier 2 CCPs, it shall review the regulatory technical standards referred to in Article 7a(8) and, where necessary, set an appropriate adaptation period not exceeding 12 months.’
;
(24)
Article 24 is replaced by the following:
‘Article 24
Emergency situations
1. The CCP’s competent authority or any other relevant authority shall inform ESMA, the college referred to in Article 18, the relevant members of the ESCB, the Commission and other relevant authorities without undue delay of any emergency situation relating to a CCP, including:
(a)
situations or events which impact, or are likely to impact, the prudential or financial soundness or the resilience of CCPs authorised in accordance with Article 14, their clearing members or their clients;
(b)
where a CCP intends to activate its recovery plan pursuant to Article 9 of Regulation (EU) 2021/23, a competent authority has taken an early intervention measure pursuant to Article 18 of that Regulation or a competent authority has required a total or partial removal of the senior management or board of the CCP pursuant to Article 19 of that Regulation;
(c)
where there are developments in financial markets, or other markets where the CCP provides clearing services, which may have an adverse effect on market liquidity, the transmission of monetary policy, the smooth operation of payment systems or the stability of the financial system in any of the Member States where the CCP or one of its clearing members are established.
2. In an emergency situation, information shall be provided and updated without undue delay to enable the members of the college referred to in Article 18 to analyse the impact of that emergency situation in particular on their clearing members and their clients. The members of the college referred to in Article 18 may forward the information to the public bodies responsible for the financial stability of their markets, subject to the obligation of professional secrecy set out in Article 83. The obligation of professional secrecy in accordance with Article 83 shall apply to those bodies receiving that information.
3. In the event of an emergency situation at one or more CCPs that has or is likely to have destabilising effects on cross-border markets, ESMA shall coordinate competent authorities, the resolution authorities designated pursuant to Article 3(1) of Regulation (EU) 2021/23 and the colleges referred to in Article 18 of this Regulation to build a coordinated response to emergency situations relating to a CCP and ensure effective information sharing among competent authorities, the colleges referred to in Article 18 of this Regulation and resolution authorities.
4. In an emergency situation, except where a resolution authority is taking or has taken a resolution action in relation to a CCP pursuant to Article 21 of Regulation (EU) 2021/23, ad hoc meetings of the CCP Supervisory Committee, to coordinate the responses of competent authorities:
(a)
may be convened by the Chair of the CCP Supervisory Committee;
(b)
shall be convened by the Chair of the CCP Supervisory Committee, upon the request of two members of the CCP Supervisory Committee.
5. Any of the following authorities shall also be invited to the ad hoc meeting referred to in paragraph 4, where relevant, having regard to the issues to be discussed at that meeting:
(a)
the relevant central banks of issue;
(b)
the relevant competent authorities for the supervision of clearing members, including, where relevant, the ECB in the framework of the tasks concerning the prudential supervision of credit institutions within the single supervisory mechanism conferred upon it in accordance with Regulation (EU) No 1024/2013;
(c)
the relevant competent authorities for the supervision of trading venues;
(d)
the relevant competent authorities for the supervision of clients where they are known;
(e)
the relevant resolution authorities designated pursuant to Article 3(1) of Regulation (EU) 2021/23;
(f)
any member of the college referred to in Article 18, that is not already covered by points (a) to (d) of this paragraph.
6. Where an ad hoc meeting of the CCP Supervisory Committee is convened pursuant to paragraph 4, the Chair of that Committee shall inform EBA, EIOPA, the ESRB, the Single Resolution Board established under Regulation (EU) No 806/2014 of the European Parliament and of the Council ( *4 ) and the Commission thereof who shall also be invited to participate in that meeting upon their request.
Where a meeting is held following an emergency situation as specified in paragraph 1, point (c), the Chair of the CCP Supervisory Committee shall invite the relevant central banks of issue to participate in that meeting.
7. ESMA may require all relevant competent authorities to provide it with the necessary information to carry out its coordination function provided for in this Article.
Where a relevant competent authority has the requested information, it shall forward it to ESMA without undue delay.
Where a relevant competent authority does not have the requested information, it shall require the CCPs authorised in accordance with Article 14, their clearing members or their clients, connected financial market infrastructures or related third parties to whom those CCPs have outsourced operational functions or activities, as relevant and applicable, to provide it with that information, and shall inform ESMA thereof. Once the relevant competent authority receives the requested information, it shall forward it to ESMA without undue delay.
Instead of requiring the information referred to in the third subparagraph, the relevant competent authority may allow ESMA to require that information directly from the relevant entity. ESMA shall forward all information received from that entity to the relevant competent authority without undue delay.
Where ESMA has not received the information it required in accordance with the first subparagraph within 48 hours, it may, by simple request, require authorised CCPs, their clearing members and their clients, connected financial market infrastructures and related third parties to whom those CCPs have outsourced operational functions or activities to provide it with that information without undue delay. ESMA shall forward all information received from such entities to the relevant competent authority without undue delay.
8. ESMA may, upon the proposal of the CCP Supervisory Committee, issue recommendations pursuant to Article 16 of Regulation (EU) No 1095/2010 addressed to one or more competent authorities recommending them to adopt temporary or permanent supervisory decisions in line with the requirements set out in Article 16 and in Titles IV and V of this Regulation to avoid or mitigate significant adverse effects on the financial stability of the Union. ESMA may issue such recommendations only where more than one CCP authorised in accordance with Article 14 is affected or where Union-wide events are destabilising cross-border cleared markets.
( *4 ) Regulation (EU) No 806/2014 of the European Parliament and of the Council of 15 July 2014 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No 1093/2010 ( OJ L 225, 30.7.2014, p. 1 ).’;"
(25)
Article 24a is amended as follows:
(a)
in paragraph 2, point (d)(ii) is replaced by the following:
‘(ii)
where the CCP Supervisory Committee convenes in relation to CCPs authorised in accordance with Article 14, in the context of discussions pertaining to paragraph 7 of this Article, the central banks of issue of the Union currencies of the financial instruments cleared by authorised CCPs that have requested membership of the CCP Supervisory Committee, who shall be non-voting.’
;
(b)
paragraph 3 is replaced by the following;
‘3. The Chair may invite as observers to the meetings of the CCP Supervisory Committee, where appropriate, members of the colleges referred to in Article 18, representatives from the relevant authorities of clients, where known, and representatives from the relevant Union institutions and bodies.’
;
(c)
paragraph 7 is amended as follows:
(i)
the introductory wording is replaced by the following:
‘In relation to CCPs authorised or applying for authorisation in accordance with Article 14, the CCP Supervisory Committee shall, for the purpose of Article 23a, prepare decisions and carry out the tasks entrusted to ESMA in Article 23a and in the following points:’
;
(ii)
the following points are inserted:
‘(ba)
at least annually, discuss and identify supervisory priorities for CCPs authorised in accordance with Article 14 of this Regulation in order to feed into the preparation of Union-wide strategic supervisory priorities by ESMA in accordance with Article 29a of Regulation (EU) No 1095/2010;
(bb)
consider, in cooperation with EBA, EIOPA, and the ECB in carrying out its tasks within a single supervisory mechanism under Regulation (EU) No 1024/2013, any cross-border risks arising from CCPs’ activities, including due to CCPs’ interconnectedness, interlinkages and concentration risks due to such cross-border connections;
(bc)
prepare draft opinions for adoption by the Board of Supervisors in accordance with Articles 17 and 17b, draft validations for adoption by the Board of Supervisors in accordance with Article 49 and draft decisions for adoption by the Board of Supervisors in accordance with Article 49a;
(bd)
provide input to the competent authorities pursuant to Article 17a;
(be)
inform the Board of Supervisors where a competent authority does not comply or does not intend to comply with ESMA’s opinions or with any conditions or recommendations contained therein, including the reasoning from the competent authority, in accordance with Article 17(3c) and Article 17b(4).’
;
(iii)
the following subparagraph is added:
‘ESMA shall on a yearly basis report to the Commission on the cross-border risks arising from CCPs’ activities referred to in the first subparagraph, point (bb).’
;
(26)
in Article 24b, paragraphs 1 and 2 are replaced by the following:
‘1. With regard to supervisory assessments conducted in relation to, and decisions to be taken pursuant to, Articles 41, 44, 46, 50 and 54 in relation to Tier 2 CCPs, the CCP Supervisory Committee shall consult the central banks of issue referred to in Article 25(3), point (f). Each central bank of issue may respond. Where the central bank of issue decides to respond, it shall do so within 10 working days of receipt of the draft decision. In emergency situations, that period shall not exceed 24 hours. Where a central bank of issue proposes amendments or objects to assessments related to, or draft decisions pursuant to Articles 41, 44, 46, 50 and 54, it shall provide full and detailed reasons, in writing. Upon conclusion of the period for consultation, the CCP Supervisory Committee shall duly consider the response and any amendments proposed by the central banks of issue and provide its assessment to the central bank of issue.
2. Where the CCP Supervisory Committee does not reflect in its draft decision the amendments proposed by a central bank of issue, the CCP Supervisory Committee shall inform that central bank of issue in writing stating its full reasons for not taking into account the amendments proposed by that central bank of issue, providing an explanation for any deviations from those amendments. The CCP Supervisory Committee shall submit to the Board of Supervisors the responses received and the amendments proposed by central banks of issue and its explanations for not taking them into account together with its draft decision.’
;
(27)
Article 25 is amended as follows:
(a)
in paragraph 4, the third subparagraph is replaced by the following;
‘The recognition decision shall be based on the conditions set out in paragraph 2 for Tier 1 CCPs and in paragraph 2, points (a) to (d), and paragraph 2b for Tier 2 CCPs. Within 180 working days of the determination that an application is complete in accordance with the second subparagraph, ESMA shall inform the applicant CCP in writing, with a fully reasoned explanation, whether the recognition has been granted or refused.’
;
(b)
in paragraph 5, the following subparagraph is inserted after the second subparagraph:
‘Where the review is undertaken in accordance with point (b) of the first subparagraph of this paragraph, the CCP shall not be required to submit a new application for recognition but shall provide ESMA with all information necessary for ESMA to review its recognition. Where ESMA undertakes a review of the recognition of a CCP established in a third country in accordance with point (b) of the first subparagraph of this paragraph, ESMA shall not treat such review as an application for recognition for the relevant recognised CCP.’
;
(c)
in paragraph 6, the following subparagraph is added:
‘Where it is in the interests of the Union and considering the potential risks to the financial stability of the Union due to the expected participation of clearing members and trading venues established in the Union in CCPs established in a third country, the Commission may adopt the implementing act referred to in the first subparagraph irrespective of whether point (c) of that subparagraph is fulfilled.’
;
(d)
paragraph 7 is replaced by the following:
‘7. ESMA shall establish effective cooperation arrangements with the relevant competent authorities of third countries whose legal and supervisory frameworks have been recognised as equivalent to this Regulation in accordance with paragraph 6.
7a. Where ESMA has not yet determined the tiering of a CCP or where ESMA has determined that all or some CCPs in a relevant third country are Tier 1 CCPs, the cooperation arrangements referred to in paragraph 7 shall take into account the risk that the provision of clearing services by those CCPs entails and shall specify:
(a)
the mechanism for the exchange of information on an annual basis between ESMA, the central banks of issue referred to in paragraph 3, point (f), and the competent authorities of the third countries concerned, so that ESMA is able to:
(i)
ensure that the CCP complies with the conditions for recognition under paragraph 2;
(ii)
identify any potential material impact on market liquidity or on the financial stability of the Union or of one or more of its Member States; and
(iii)
monitor clearing activities in one, or more, of the CCPs established in such third country by clearing members established in the Union, or that are part of a group subject to consolidated supervision in the Union;
(b)
exceptionally, the mechanism for the exchange of information on a quarterly basis requiring detailed information covering the aspects referred to in paragraph 2a, and in particular information on significant changes to risk models and parameters, the extension of CCP activities and services and changes in the client account structure, with the aim of detecting whether a CCP is potentially close to becoming or is potentially likely to become systemically important for the financial stability of the Union or of one or more of its Member States as well as the mechanism for the exchange of information on market developments that could have consequences for the financial stability of the Union;
(c)
the mechanism for prompt notification to ESMA where a third-country competent authority deems a CCP it is supervising to be in breach of the conditions of its authorisation or of other law to which it is subject;
(d)
the mechanism for prompt notification to ESMA by the third-country competent authority where a third-country CCP which is supervised by that competent authority intends to extend or reduce its clearing services or activities;
(e)
the procedures necessary for the effective monitoring of regulatory and supervisory developments in a third country;
(f)
the procedures for third-country authorities to inform ESMA, the third-country CCP college referred to in Article 25c, and the central banks of issue referred to in paragraph 3, point (f), without undue delay of any emergency situations relating to the recognised CCP, including developments in financial markets, which may have an adverse effect on market liquidity and the stability of the financial system in the Union or one of its Member States and the procedures and contingency plans to address such situations;
(g)
the procedures for third-country authorities to assure the effective enforcement of decisions adopted by ESMA in accordance with Articles 25f, 25j, Article 25k(1), point (b), and Articles 25l, 25m and 25p;
(h)
the consent of third-country authorities to the onward sharing of any information they have provided to ESMA under the cooperation arrangements with the authorities referred to in paragraph 3 and the members of the third-country CCP college, subject to the professional secrecy requirements set out in Article 83.
7b. Where ESMA has determined that at least one CCP in a relevant third country is a Tier 2 CCP, the cooperation arrangements referred to in paragraph 7 shall specify in relation to those Tier 2 CCPs at least the following:
(a)
the elements referred to in paragraph 7a, points (a), (c), (e), (f) and (h), where cooperation arrangements are not already established with the relevant third country pursuant to that paragraph;
(b)
the mechanism for the exchange of information at least on a monthly basis, as appropriate, between ESMA, the central banks of issue referred to in paragraph 3, point (f), and the competent authorities of the third countries concerned, including access to all information requested by ESMA to ensure the CCP’s compliance with the requirements referred to in paragraph 2b;
(c)
the procedures concerning the coordination of supervisory activities, including the agreement of third-country authorities to allow investigations and on-site inspections in accordance with Articles 25g and 25h respectively;
(d)
the procedures for third-country authorities to assure the effective enforcement of decisions adopted by ESMA in accordance with Articles 25b, 25f to 25m, 25p and 25q;
(e)
the procedures for third-country authorities to:
(i)
consult ESMA on the preparation and assessment of recovery plans and on the preparation of resolution plans in relation to aspects relevant for the Union or one or more of its Member States;
(ii)
inform ESMA without undue delay of the establishment of recovery plans and resolution plans and any subsequent material changes to those plans in relation to aspects relevant for the Union or one or more of its Member States;
(iii)
inform ESMA without undue delay if a Tier 2 CCP intends to activate its recovery plan or where the third-country authorities have determined that there are indications of an emerging crisis situation that could affect the operations of that Tier 2 CCP, in particular, its ability to provide clearing services or where the third-country authorities envisage taking a resolution action in the near future.
7c. Where ESMA considers that a third-country competent authority fails to apply any of the provisions laid down in a cooperation arrangement established in accordance with paragraphs 7, 7a and 7b, it shall inform the Commission thereof confidentially and without delay. In such a case, the Commission may decide to review the implementing act adopted in accordance with paragraph 6.’
;
(28)
in Article 25a, paragraph 2 is replaced by the following:
‘2. The request referred to in paragraph 1 of this Article shall provide the factual basis for a finding of comparability and the reasons why compliance with the requirements applicable in the third country satisfies the requirements set out in Article 16 and Titles IV and V. The Tier 2 CCP shall submit its reasoned request referred to in paragraph 1 in an electronic format via the central database.
ESMA shall grant comparable compliance, in part or in full, where it decides, based on the reasoned request referred to in paragraph 1 of this Article, that the Tier 2 CCP in its compliance with relevant requirements applicable in the third country is deemed compliant with the requirements set out in Article 16 and Titles IV and V and thereby satisfies the requirement for recognition under Article 25(2b), point (a).
ESMA shall withdraw, in full or in relation to a particular requirement, comparable compliance, where the Tier 2 CCP no longer complies with the conditions for comparable compliance and where such a CCP has not taken the remedial action requested by ESMA within the set timeframe. When determining the date of effect of the decision to withdraw comparable compliance, ESMA shall endeavour to provide for an appropriate adaptation period not exceeding six months.
Where ESMA grants comparable compliance, it shall continue to be responsible for carrying out its duties and performing its tasks under this Regulation, in particular under Articles 25 and 25b, and shall continue to exercise its powers referred to in Articles 25c, 25d, 25f to 25m, 25p and 25q.
Without prejudice to ESMA’s ability to perform its tasks under this Regulation, where ESMA grants comparable compliance, it shall agree administrative arrangements with the third-country authority in order to ensure the appropriate exchange of information and cooperation for ESMA to monitor that the requirements for comparable compliance are complied with on an ongoing basis.’
;
(29)
in Article 25b(1), the second subparagraph is replaced by the following:
‘ESMA shall require from each Tier 2 CCP all of the following:
(a)
a confirmation, at least on a yearly basis, that the requirements referred to in Article 25(2b) points (a), (c) and (d), continue to be fulfilled;
(b)
information and data on a regular basis to ensure that ESMA is able to supervise the CCP’s compliance with the requirements referred to in Article 25(2b), point (a).’
;
(30)
in Article 25f, paragraph 1 is replaced by the following:
‘1. ESMA may by simple request or by decision require recognised CCPs and related third parties to whom those CCPs have outsourced operational functions or activities to provide all necessary information to enable ESMA to monitor those CCPs’ provision of clearing services and activities in the Union and to carry out its duties under this Regulation.
The information referred to in the first subparagraph and requested by simple request may be of a periodic or one-off nature.’
;
(31)
Article 25o is replaced by the following:
‘Article 25o
Amendments to Annexes III and IV
In order to take account of amendments to Article 16 and Titles IV and V, the Commission is empowered to adopt delegated acts in accordance with Article 82 to ensure that the infringements under Annex III correspond to the requirements under Article 16 and Titles IV and V.
In order to take account of developments on financial markets the Commission is empowered to adopt delegated acts in accordance with Article 82 concerning measures to amend Annex IV.’
;
(32)
Article 25p is amended as follows:
(a)
in paragraph 1, point (c) is replaced by the following:
‘(c)
the CCP concerned has seriously and systematically infringed any of the applicable requirements laid down in this Regulation or no longer complies with any of the conditions for recognition laid down in Article 25, and has not taken the remedial action requested by ESMA within an appropriately set timeframe of up to a maximum of one year.’
;
(b)
paragraph 2 is replaced by the following:
‘2. Before withdrawing the recognition in accordance with paragraph 1, point (c), ESMA shall take into account the possibility of applying measures under Article 25q(1), points (a), (b) and (c).
If ESMA determines that remedial action has not been taken within the timeframe set in accordance with paragraph 1, point (c), of this Article or that the action taken is not appropriate, and after consulting the authorities referred to in Article 25(3), ESMA shall withdraw the recognition decision.’
;
(33)
Article 26 is amended as follows:
(a)
in paragraph 1, the following subparagraph is added:
‘Without prejudice to interoperability arrangements under Title V or the conduct of its investment policy in accordance with Article 47, a CCP shall not be or become a clearing member, a client, or establish indirect clearing arrangements with a clearing member with the aim of undertaking clearing activities at a CCP.’
;
(b)
paragraph 8 is replaced by the following:
‘8. The CCP shall be subject to frequent and independent audits. The results of those audits shall be communicated to the board of the CCP and shall be made available to ESMA and to the CCP’s competent authority.’
;
(34)
in Article 27, the following paragraph is inserted:
‘2a. The composition of the CCP’s board shall duly take into account the principle of gender balance.’
;
(35)
Article 28 is amended as follows:
(a)
paragraph 1 is replaced by the following:
‘1. A CCP shall establish a risk committee, which shall be composed of representatives of its clearing members, independent members of the board and representatives of its clients. The risk committee may invite employees of the CCP and external independent experts to attend risk-committee meetings in a non-voting capacity. ESMA and competent authorities may request to attend risk-committee meetings in a non-voting capacity and to be duly informed of the activities and decisions of the risk committee. The advice of the risk committee shall be independent of any direct influence by the management of the CCP. None of the groups of representatives shall have a majority in the risk committee.’
;
(b)
paragraphs 4 and 5 are replaced by the following:
‘4. Without prejudice to the right of ESMA and of the competent authorities to be duly informed, the members of the risk committee shall be bound by confidentiality. Where the chairman of the risk committee determines that a member has an actual or potential conflict of interest on a particular matter, that member shall not be allowed to vote on that matter.
5. A CCP shall promptly inform ESMA, the competent authority and the risk committee of any decision in which the board decides not to follow the advice of the risk committee and explain such decision. The risk committee or any member of the risk committee may inform the competent authority of any areas in which it considers that the advice of the risk committee has not been followed.’
;
(36)
Article 30 is replaced by the following:
‘Article 30
Shareholders and members with qualifying holdings
1. The competent authority shall not authorise a CCP unless it has been informed of the identities of the shareholders or members, whether direct or indirect, natural or legal persons, that have qualifying holdings and of the amounts of those holdings.
2. The competent authority shall not authorise a CCP where it is not satisfied as to the suitability of the shareholders or members that have qualifying holdings in the CCP, taking into account the need to ensure the sound and prudent management of a CCP. Where a college referred to in Article 18 has been established, that college shall issue an opinion as to the suitability of the shareholders or members that have qualifying holdings in the CCP, pursuant to Article 19 and in accordance with the procedure under Article 17b.
3. Where close links exist between the CCP and other natural or legal persons, the competent authority shall grant authorisation only where those links do not prevent the effective exercise of the supervisory functions.
4. Where the persons referred to in paragraph 1 exercise an influence which is likely to be prejudicial to the sound and prudent management of the CCP, the competent authority shall take appropriate measures to terminate that situation, which may include the withdrawal of the authorisation of the CCP. The college referred to in Article 18 shall issue an opinion on whether the influence is likely to be prejudicial to the sound and prudent management of the CCP and on the measures envisaged to terminate that situation, pursuant to Article 19 and in accordance with the procedure under Article 17b.
5. The competent authority shall not authorise the CCP where the laws, regulations or administrative provisions of a third country governing one or more natural or legal persons with which that CCP has close links, or difficulties involved in their enforcement, prevent the effective exercise of the supervisory functions.’
;
(37)
Article 31 is amended as follows:
(a)
in paragraph 2, the third and fourth subparagraphs are replaced by the following:
‘The competent authority shall, promptly and in any event within two working days of receipt of the notification referred to in this paragraph and of the information referred to in paragraph 3 of this Article, acknowledge receipt in writing thereof to the proposed acquirer or vendor and share the information with ESMA and the college referred to in Article 18.
Within 60 working days of the date of the written acknowledgement of receipt of the notification and all documents required to be attached to the notification on the basis of the list referred to in Article 32(4) and unless extended in accordance with this Article, (“the assessment period”), the competent authority shall carry out the assessment provided for in Article 32(1) (“the assessment”). The college referred to in Article 18 shall issue an opinion pursuant to Article 19 and ESMA shall issue an opinion pursuant to Article 24a(7), first subparagraph, point (bc), and in accordance with the procedure under Article 17b during the assessment period.’
;
(b)
in paragraph 3 the first subparagraph is replaced by the following:
‘The competent authority shall, on its own behalf and where requested by ESMA or the college referred to in Article 18, without undue delay during the assessment period, where necessary, but no later than on the 50th working day of the assessment period, request such further information that is necessary to complete the assessment. Such request shall be made in writing and shall specify the additional information needed.’
;
(38)
in Article 32(1), the fourth subparagraph is replaced by the following:
‘The assessment of the competent authority concerning the notification provided for in Article 31(2) and the information referred to in Article 31(3), shall be subject to an opinion of the college referred to in Article 18 pursuant to Article 19 and an opinion of ESMA pursuant to Article 24a(7), first subparagraph, point (bc), issued in accordance with the procedure set out in Article 17b.’
;
(39)
Article 35 is amended as follows:
(a)
in paragraph 1, the second subparagraph is replaced by the following:
‘A CCP shall not outsource major activities linked to risk management unless such outsourcing is approved by the competent authority. The decision of the competent authority shall be subject to an opinion of the college referred to in Article 18 pursuant to Article 19 and an opinion of ESMA pursuant to Article 24a(7), first subparagraph, point (bc), issued in accordance with the procedure set out in Article 17b.’
;
(b)
paragraph 3 is replaced by the following:
‘3. A CCP shall make all information necessary available on request, to enable the competent authority, ESMA and the college referred to in Article 18 to assess the compliance of the performance of the outsourced activities with this Regulation.’
;
(40)
Article 37 is amended as follows:
(a)
paragraph 1 is replaced by the following:
‘1. A CCP shall establish, where relevant per type of product cleared, the categories of admissible clearing members and the admission criteria, upon the advice of the risk committee pursuant to Article 28(3). Such criteria shall be non-discriminatory, transparent and objective so as to ensure fair and open access to the CCP and shall ensure that clearing members have sufficient financial resources and operational capacity to meet the obligations arising from participation in a CCP. Criteria that restrict access shall be permitted only to the extent that their objective is to control the risk for the CCP. Without prejudice to interoperability arrangements under Title V or the conduct of the CCP’s investment policy in accordance with Article 47, the criteria shall ensure that CCPs or clearing houses cannot be clearing members, directly or indirectly, of the CCP.
1a. A CCP shall accept non-financial counterparties as clearing members only if those non-financial counterparties are able to demonstrate how they intend to fulfil the margin requirements and default fund contributions, including in stressed market conditions.
The competent authority of a CCP that accepts non-financial counterparties as clearing members shall regularly review the arrangements established by the CCP to monitor that the condition under the first subparagraph is met. The CCP’s competent authority shall report on an annual basis to the college referred to in Article 18 on the products cleared by those non-financial counterparties, their overall exposure and any identified risks.
A non-financial counterparty acting as a clearing member of a CCP may provide client clearing services only to non-financial counterparties belonging to the same group as that non-financial counterparty and may keep accounts at the CCP only for assets and positions held for its own account or the account of those non-financial counterparties.
ESMA may issue an opinion or a recommendation on the appropriateness of such arrangements following an ad hoc peer review.’
;
(b)
the following paragraph is added:
‘7. ESMA, after consulting EBA and the ESCB, shall develop draft regulatory technical standards to further specify the elements to be considered when a CCP:
(a)
establishes its admission criteria referred to in paragraph 1;
(b)
assesses the ability of non-financial counterparties acting as clearing members to meet margin requirements and default fund contributions referred to in paragraph 1a.
When developing those draft regulatory technical standards, ESMA shall take into account:
(a)
the modalities and specificities through which non-financial counterparties might, or already do, access clearing services, including as direct clearing members in sponsored models;
(b)
the need to facilitate prudentially sound direct access of non-financial counterparties to CCP clearing services and activities;
(c)
the need to ensure proportionality;
(d)
the need to ensure an effective management of risks.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’
;
(41)
Article 38 is replaced by the following:
‘Article 38
Transparency
1. A CCP and its clearing members shall publicly disclose the prices and fees associated with the services provided. They shall disclose the prices and fees of each service provided separately, including discounts and rebates and the conditions to benefit from those reductions. A CCP shall allow its clearing members and, where relevant, their clients separate access to the specific services provided.
A CCP shall account separately for costs and revenues of the services provided and shall disclose that information to ESMA and the competent authority.
2. A CCP shall disclose to clearing members and clients the risks associated with the services provided.
3. A CCP shall disclose to ESMA, its clearing members and to its competent authority the price information used to calculate its end-of-day exposures to its clearing members.
A CCP shall publicly disclose the volumes of the cleared transactions for each class of instruments cleared by the CCP on an aggregated basis.
4. A CCP shall publicly disclose the operational and technical requirements relating to the communication protocols covering content and message formats it uses to interact with third parties, including the operational and technical requirements referred to in Article 7.
5. A CCP shall publicly disclose any breaches by clearing members of the criteria referred to in Article 37(1) and the requirements laid down in paragraph 1 of this Article, except where the competent authority, considers that such disclosure would constitute a threat to financial stability or to market confidence or would seriously jeopardise the financial markets or cause disproportionate damage to the parties involved.
6. A CCP shall provide its clearing members with a simulation tool allowing them to determine the amount of additional initial margin at portfolio level that the CCP might require upon the clearing of a new transaction, including a simulation of the margin requirements that they might be subject to under different scenarios. That tool shall only be accessible on a secured access basis, and the results of the simulation shall not be binding.
7. A CCP shall provide its clearing members with information on the initial margin models it uses, including methodologies for any add-ons, in a clear and transparent manner. That information shall:
(a)
clearly explain the design of the initial margin model and how it operates, including in stressed market conditions;
(b)
clearly describe the key assumptions and limitations of the initial margin model and the circumstances under which those assumptions are no longer valid;
(c)
be documented.
8. Clearing members providing clearing services and clients providing clearing services shall provide their clients with at least the following:
(a)
information on the way that the margin models of the CCP work;
(b)
information on the situations and conditions that might trigger margin calls;
(c)
information on the procedures used to establish the amount to be posted by the clients; and
(d)
a simulation of the margin requirements to which clients might be subject under different scenarios.
For the purposes of point (d), the simulation of the margin requirements shall include both the margins required by the CCP and any additional margins required by the clearing members and the clients providing clearing services. The results of such simulation shall not be binding.
Upon the request of a clearing member, a CCP shall, without undue delay, provide that clearing member with the information requested to allow that clearing member to comply with the first subparagraph of this paragraph, unless such information is already provided pursuant to paragraphs 1 to 7. Where the clearing member or a client provides clearing services, and where appropriate, they shall transmit that information to their clients.
9. The clearing members of the CCP and clients providing clearing services, shall clearly inform their existing and potential clients of the potential losses or other costs that they may bear as a result of the application of default management procedures and loss and position allocation arrangements under the CCP’s operating rules, including the type of compensation they may receive, taking into account Article 48(7). Clients shall be provided with sufficiently detailed information to ensure that they understand the worst-case losses or other costs they could face should the CCP undertake recovery measures.
10. ESMA, in consultation with EBA and the ESCB, shall develop draft regulatory technical standards to further specify:
(a)
the requirements that the simulation tool is to comply with and the type of output to be provided pursuant to paragraph 6;
(b)
the information to be provided by CCPs to clearing members regarding transparency of margin models pursuant to paragraph 7;
(c)
the information to be provided by clearing members and clients providing clearing services to their clients under paragraphs 7 and 8; and
(d)
the requirements of the simulation of margins to be provided to clients and the type of output to be provided pursuant to paragraph 8.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’
;
(42)
in Article 40, the following paragraph is added:
‘Without prejudice to Article 1(4) and (5), and with the objective of facilitating central clearing by public sector entities, ESMA shall, by 25 June 2026, issue guidelines in accordance with Article 16 of Regulation (EU) No 1095/2010 specifying the method to be used by CCPs authorised under Article 14 of this Regulation for the calculation of exposures and of the contributions, if any, to the financial resources of CCPs by public sector entities participating in such CCPs, duly taking account of the mandate of public sector entities.’
;
(43)
in Article 41, paragraphs 1, 2 and 3 are replaced by the following:
‘1. A CCP shall impose, call and collect margins to limit its credit exposures from its clearing members and, where relevant, from CCPs with which it has interoperability arrangements. Such margins shall be sufficient to cover potential exposures that the CCP considers will arise until the liquidation of the relevant positions. They shall also be sufficient to cover losses that result from at least 99 % of the exposures movements over an appropriate time horizon and they shall ensure that a CCP fully collateralises its exposures with all its clearing members, and, where relevant, with CCPs with which it has interoperability arrangements, at least on a daily basis. A CCP shall continuously monitor and revise the level of its margins to reflect current market conditions taking into account any potentially procyclical effects of such revisions.
2. A CCP shall adopt models and parameters in setting its margin requirements that capture the risk characteristics of the products cleared and take into account the interval between margin collections, market liquidity and the possibility of changes over the duration of the transaction. The models and parameters shall be validated by the competent authority and subject to an opinion by the college referred to in Article 18 in accordance with Article 19 and an opinion of ESMA in accordance with Article 24a(7), first subparagraph, point (bc), issued in accordance with the procedure set out in Article 17b.
3. A CCP shall call and collect margins on an intraday basis, at least when predefined thresholds are exceeded. In doing so a CCP shall consider, to the extent possible, the potential impact of its intraday margin collections and payments on the liquidity position of its participants and on the resilience of the CCP. A CCP shall not, to the extent possible, hold intraday variation margin payments after it has collected all such payments due.’
;
(44)
in Article 44(1), the second subparagraph is replaced by the following:
‘A CCP shall measure, on a daily basis, its potential liquidity needs. It shall take into account the liquidity risk generated by the default of at least the two entities to which it has the largest exposures and which are clearing members or liquidity providers, excluding central banks.’
;
(45)
Article 46 is amended as follows:
(a)
paragraph 1 is replaced by the following:
‘1. A CCP shall accept highly liquid collateral with minimal credit and market risk to cover its initial and ongoing exposure to its clearing members.
A CCP may, subject to the relevant conditions being met, accept public guarantees, public bank guarantees or commercial bank guarantees, provided that they are unconditionally available upon request within the liquidation period referred to in Article 41.
A CCP shall set in its operating rules the minimum acceptable level of collateralisation for the guarantees it accepts and may specify that it can accept fully uncollateralised public bank guarantees or commercial bank guarantees. A CCP may accept public guarantees, public bank guarantees or commercial bank guarantees only to cover its initial and ongoing exposure to its clearing members that are non-financial counterparties or to clients of clearing members, provided that those clients are non-financial counterparties.
Where assets, public guarantees, public bank guarantees or commercial bank guarantees are provided to a CCP, that CCP shall:
(a)
take into account the public bank guarantees or commercial bank guarantees when calculating its exposure to the bank, that is also a clearing member, issuing them;
(b)
subject uncollateralised public bank guarantees or commercial bank guarantees to concentration limits;
(c)
apply adequate haircuts to the value of assets, public guarantees, public bank guarantees and commercial bank guarantees to reflect the potential for those values to decline over the interval between their last revaluation and the time by which they can reasonably be assumed to be liquidated or exercised, as applicable;
(d)
take into account the liquidity risk following the default of a market participant and the concentration risk on certain assets in establishing the acceptable collateral and the relevant haircuts for the CCP;
(e)
take into account the need to minimise any potential procyclicality effects of such revisions when revising the level of the haircuts that it applies to the assets and the public guarantees, public bank guarantees and commercial bank guarantees it accepts as collateral.’
;
(b)
paragraph 3 is replaced by the following:
‘3. ESMA, in cooperation with EBA, and after consulting the ESRB and the members of the ESCB, shall develop draft regulatory technical standards to specify:
(a)
the type of collateral that could be considered highly liquid, such as cash, gold, government and high-quality corporate bonds and covered bonds;
(b)
the haircuts referred to in paragraph 1, taking into account the objective to limit their procyclicality; and
(c)
the relevant conditions under which public guarantees, public bank guarantees and commercial bank guarantees may be accepted as collateral under paragraph 1, including appropriate concentration limits, credit quality requirements and stringent wrong-way risk requirements for public bank guarantees and commercial bank guarantees.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’
;
(46)
Article 48 is amended as follows:
(a)
paragraph 5 is replaced by the following:
‘Where assets and positions are recorded in the records and accounts of a CCP as being held for the account of a defaulting clearing member’s clients in accordance with Article 39(2), the CCP shall, at least, contractually commit itself to trigger the procedures for the transfer of the assets and positions held by the defaulting clearing member for the account of all its clients to another clearing member designated by all of those clients, and shall transfer such assets and positions unless all clients object to such transfer before that transfer is concluded and without the consent of the defaulting clearing member. That other clearing member shall be obliged to accept those assets and positions only where it has previously entered into a contractual relationship with those clients by which it has committed itself to do so. If the transfer to that other clearing member has not taken place for any reason within a predefined transfer period specified in its operating rules, the CCP may take all steps permitted by its rules to actively manage its risks in relation to those positions, including liquidating the assets and positions held by the defaulting clearing member for the account of its clients.’
;
(b)
the following paragraph is added:
‘8. In the event of default of a clearing member and where such default results in the transfer in full or in part of the assets and positions held by clients from the defaulting clearing member towards another clearing member in accordance with paragraphs 5 and 6, that other clearing member may, for three months from the date of that transfer, rely on the due diligence performed by the defaulting clearing member pursuant to Section 4 of Chapter II of Directive (EU) 2015/849 for the purpose of complying with the requirements of that Directive.
Where the clearing member to whom the transfer of assets and positions, as referred to in the first subparagraph of this paragraph, has been made is subject to Regulation (EU) No 575/2013, it shall comply with the capital requirements for exposures of clearing members towards clients under that Regulation within a period agreed with its competent authority, which shall not exceed three months from the date of that transfer.’
;
(47)
Article 49 is amended as follows:
(a)
paragraphs 1 to 1e are replaced by the following:
‘1. A CCP shall regularly review the models and parameters adopted to calculate its margin requirements, default fund contributions, collateral requirements and other risk control mechanisms. It shall subject the models to rigorous and frequent stress tests to assess their resilience in extreme but plausible market conditions and shall perform back tests to assess the reliability of the methodology adopted. The CCP shall obtain independent validation, shall inform its competent authority and ESMA of the results of the tests performed and shall obtain their validation in accordance with paragraphs 1a to 1e before adopting any significant change to the models and parameters.
Where a CCP intends to adopt a change to a model or parameter referred to in the first subparagraph, it shall do one of the following:
(a)
where the CCP considers that the intended change is significant pursuant to paragraph 1i, it shall apply for validation of the change in accordance with the procedure laid down in this Article;
(b)
where the CCP considers that the intended change is not significant pursuant to paragraph 1i of this Article, it shall apply for validation of the change in accordance with the procedure laid down in Article 49a.
1a. All changes to models and parameters not assessed under Article 49a shall be assessed in accordance with the procedure laid down in this Article.
The adopted models and parameters, including any significant change thereto, shall be subject to an opinion of the college referred to in Article 18 in accordance with this Article.
ESMA shall ensure that information on the results of the stress tests is passed on to the ESAs, the ESCB and the Single Resolution Board to enable them to assess the exposure of financial undertakings to the default of CCPs.
1b. Where a CCP intends to adopt any change to a model or parameter referred to in paragraph 1, it shall submit an application for validation of such change in an electronic format via the central database. That application shall be immediately shared with the CCP’s competent authority, ESMA and the college referred to in Article 18. The CCP shall enclose an independent validation of the intended change to its application.
Within two working days of submission of such application, an acknowledgement of receipt of the application shall be sent to the CCP via the central database.
1c. The CCP’s competent authority and ESMA shall each assess, within 10 working days of the acknowledgement of receipt of the application, whether the application contains the documents required and whether those documents contain all the information required pursuant to paragraph 5, point (d).
Where the CCP’s competent authority or ESMA concludes that not all documents or information required have been submitted, the CCP’s competent authority shall request the applicant CCP to submit additional documents or information that it or ESMA has identified as missing, via the central database. The timeframe set out in the first subparagraph of this paragraph may in that case be extended by a maximum of 10 working days. The application shall be rejected where the CCP’s competent authority or ESMA concludes that the CCP has failed to comply with any such request and, in such a case, the authority which concluded that the application is to be rejected shall inform the other authority thereof. The CCP’s competent authority shall inform the CCP of the decisions to reject the application via the central database and also inform the CCP of the documents or information identified as missing.
1d. Within 40 working days of concluding that all documents and information have been submitted in accordance with paragraph 1c:
(a)
the competent authority shall conduct a risk assessment of the significant change and submit its report to ESMA and the college referred to in Article 18; and
(b)
ESMA shall conduct a risk assessment of the significant change and submit its report to the CCP’s competent authority and the college referred to in Article 18.
During the period referred to in the first subparagraph of this paragraph, the CCP’s competent authority, ESMA or any of the members of the college referred to in Article 18 may submit, via the central database, questions directly to, and request complementary information from, the applicant CCP and shall set a deadline by which the applicant CCP is to provide such information.
Within 15 working days of the receipt of the reports referred to in the first subparagraph, the college referred to in Article 18 shall adopt an opinion pursuant to Article 19 and transmit it to ESMA and the competent authority. Notwithstanding a provisional adoption in accordance with paragraph 1g, the competent authority and ESMA shall not adopt a decision granting or refusing the validation of significant changes to models or parameters until such an opinion has been adopted by the college referred to in Article 18, unless the college has not adopted that opinion within the deadline.
1e. Within 10 working days of receipt of the opinion of the college referred to in Article 18, or after the expiry of the deadline for providing that opinion, whichever is earlier, the CCP’s competent authority and ESMA shall each grant or refuse the validation, taking into account the reports referred to in paragraph 1d, first subparagraph of this Article, and that opinion, and shall inform each other in writing thereof, providing a fully reasoned explanation for the grant or refusal. Where the CCP’s competent authority or ESMA has not validated the change, the validation shall be refused.
Where the CCP’s competent authority or ESMA does not agree with the opinion of the college referred to in Article 18, including with any of the conditions or recommendations contained therein, its decision shall contain full reasons and an explanation of any significant deviation from that opinion or those conditions or recommendations.
1f. The CCP’s competent authority shall inform the CCP, within the deadline referred to in paragraph 1e, whether the validations have been granted or refused and shall provide a fully reasoned explanation therefor.
1g. The CCP may not adopt any significant change to a model or parameter referred to in paragraph 1 before obtaining validation by both its competent authority and ESMA.
By way of derogation from the first subparagraph, where requested by the CCP, the competent authority, in agreement with ESMA, may allow for a provisional adoption of a significant change of a model or parameter prior to their validations where duly justified. Such a temporary change shall only be allowed for a certain period of time jointly specified by the CCP’s competent authority and ESMA. After the expiry of that period, the CCP shall not be allowed to use such change unless it has been validated pursuant to this Article.
1h. Changes to parameters that are the result of applying a methodology that is part of a validated model, either due to external input or due to a regular review or calibration exercise, shall not be considered changes to models and parameters for the purpose of this Article and Article 49a.
1i. A change shall be considered significant where at least one of the following conditions is met:
(a)
the change leads to a significant decrease or increase of the CCP’s total pre-funded financial resources, including margin requirements, default fund and dedicated own resources as referred to in Article 45(4);
(b)
the structure or the structural elements of the margin model are changed;
(c)
a component of the margin model, including a margin parameter or an add-on, is introduced, removed, or amended in a manner which leads to a significant decrease or increase of the output of the margin model at the CCP level;
(d)
the methodology used to compute portfolio offsets is changed leading to a significant decrease or increase of the total margin requirements for the financial instruments within the portfolio;
(e)
the methodology for defining and calibrating stress test scenarios for the purpose of determining the size of the CCP’s default funds and the size of the individual clearing members’ contributions to those default funds is changed, leading to a significant decrease or increase in the size of any of the default funds or of any individual default fund contribution;
(f)
the methodology applied to assess liquidity risk is changed, leading to a significant decrease or increase of the estimated liquidity needs in any currency or the total liquidity needs;
(g)
the methodology applied to determine the concentration risk a CCP has towards an individual counterparty is changed, such that the CCP’s overall exposure to that counterparty decreases or increases significantly;
(h)
the methodology applied to value collateral, or calibrate collateral haircuts, is changed, such that the total value of collateral decreases or increases significantly;
(i)
the change could have a material effect on the overall risk of the CCP.’
;
(b)
paragraph 5 is replaced by the following:
‘5. ESMA, in close cooperation with the members of the ESCB, shall develop draft regulatory technical standards to further specify;
(a)
what constitutes a significant increase or decrease for the purposes of paragraph 1i, points (a) and (c) to (h);
(b)
the elements to be considered when assessing whether one of the conditions referred to in paragraph 1i is met;
(c)
other changes to models that can be considered as already covered by the approved model and are therefore not considered a model change and not subject to the procedures established in this Article or Article 49a; and
(d)
the lists of required documents that are to accompany an application for validation pursuant to paragraph 1c of this Article and Article 49a and the information that such documents are to contain to demonstrate that the CCP complies with all relevant requirements of this Regulation.
The required documents and level of information shall be proportionate to the type of model validation but contain sufficient detail to ensure a proper analysis of the change.
For the purposes of the first subparagraph, point (a), ESMA may set different values for the different points of paragraph 1i.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’
;
(c)
the following paragraph is added:
‘6. ESMA shall develop draft implementing technical standards to specify the electronic format of the application to be submitted to the central database for the validation referred to in paragraph 1b of this Article and Article 49a.
ESMA shall submit the draft implementing technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph of this paragraph in accordance with Article 15 of Regulation (EU) No 1095/2010.’
;
(48)
the following article is inserted:
‘Article 49a
Accelerated procedure for non-significant changes to a CCP’s models and parameters
1. Where a CCP considers that a change to a model or parameter referred to in Article 49(1) that it intends to adopt does not meet the conditions set out in paragraph 1i of that Article, it may request that the application to validate the change is subject to the accelerated procedure under this Article.
2. The accelerated procedure shall apply to a proposed change to a model or parameter where the following conditions are met:
(a)
the CCP has requested a validation of a change to be assessed under this Article; and
(b)
the CCP’s competent authority and ESMA have each concluded that the proposed change is not significant pursuant to paragraph 4.
3. The CCP shall submit its application including all documents and information required pursuant to Article 49(5), point (d), in an electronic format via the central database. The CCP shall provide all information necessary to demonstrate why the proposed change is to be deemed non-significant and therefore qualifies for assessment under the accelerated procedure under this Article.
An acknowledgement of receipt of the application shall be sent to the CCP via the central database within two working days of the submission of that application.
4. The CCP’s competent authority and ESMA shall each decide, within 10 working days of the acknowledgement of receipt of the application, whether the proposed change is significant or not significant.
5. Where, in accordance with paragraph 4, the CCP’s competent authority or ESMA has decided that the change is significant, they shall inform each other in writing thereof and the application to validate that change shall not be subject to the accelerated procedure under this Article.
The CCP’s competent authority shall notify the applicant CCP via the central database, including a fully reasoned explanation, within two working days of the decision made under paragraph 4. Within 10 working days of receipt of the notification, the CCP shall either withdraw the application or complement it to fulfil the requirements for an application under Article 49.
6. Where, in accordance with paragraph 4, the CCP’s competent authority and ESMA have decided that the change is not significant, they shall each, within three working days of that decision:
(a)
grant the validation, where the CCP complies with this Regulation, or refuse it, where the CCP does not comply with this Regulation; and
(b)
inform each other in writing, including a fully reasoned explanation, whether the validation has been granted or refused.
Where any of them has not granted the model validation, the validation shall be refused.
7. The CCP’s competent authority shall inform the applicant CCP in writing, via the central database, including a fully reasoned explanation, within two working days of the decisions made under paragraph 6 whether the validation has been granted or refused.’
;
(49)
Article 54 is amended as follows:
(a)
paragraph 1 is replaced by the following:
‘1. An interoperability arrangement, or any material change to an approved interoperability arrangement under Title V shall be subject to the prior approval of the competent authorities of the CCPs involved. The CCPs’ competent authorities shall request the opinion of ESMA in accordance with Article 24a(7), first subparagraph, point (bc), and the college referred to in Article 18 in accordance with Article 19, and issued in accordance with the procedure set out in Article 17b.’
;
(b)
paragraph 4 is replaced by the following:
‘4. By 25 June 2026, ESMA shall issue guidelines or recommendations with a view to establishing consistent, efficient and effective assessments of interoperability arrangements by national competent authorities, in accordance with the procedure laid down in Article 16 of Regulation (EU) No 1095/2010. ESMA shall develop drafts of those guidelines or recommendations after consulting the members of the ESCB.
5. ESMA, after consulting the members of the ESCB and the ESRB, shall develop draft regulatory technical standards to further specify the requirements for CCPs to adequately manage the risks arising from interoperability arrangements. For that purpose, ESMA shall take into account the guidelines issued under paragraph 4 and assess whether the provisions included therein are appropriate in the case of interoperability arrangements covering all types of products or contracts, including derivative contracts and non-financial instruments.
ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.’
;
(50)
in Article 81(3), first subparagraph, the following point is added:
‘(t)
the national authorities entrusted with the conduct of macroprudential policy.’
;
(51)
Article 82 is amended as follows:
(a)
paragraphs 2 and 3 are replaced by the following:
‘2. The power to adopt delegated acts referred to in Articles 1(6), Article 3(5), Article 4(3a), Article 7a(7), Article 11(3a), Article 11(12a), Article 25(2a), Article 25(6a), Article 25a(3), Article 25d(3), Article 25i(7), Article 25o, Article 64(7), Article 70 and Article 72(3) shall be conferred on the Commission for an indeterminate period of time from 24 December 2024.
3. The delegation of power referred to in Article 1(6), Article 3(5), Article 4(3a), Article 7a(7), Article 11(3a), Article 11(12a), Article 25(2a), Article 25(6a), Article 25a(3), Article 25d(3), Article 25i(7), Article 25o, Article 64(7), Article 70 and Article 72(3) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.’
;
(b)
paragraph 6 is replaced by the following:
‘6. A delegated act adopted pursuant to Article 1(6), Article 3(5), Article 4(3a), Article 7a(7), Article 11(3a), Article 11(12a), Article 25(2a), Article 25(6a), Article 25a(3), Article 25d(3), Article 25i(7), Article 25o, Article 64(7), Article 70 or Article 72(3) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of three months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council.’
;
(52)
Article 85 is amended as follows;
(a)
paragraph 1 is replaced by the following:
‘1. By 25 December 2029 the Commission shall assess the application of this Regulation and prepare a general report. The Commission shall submit that report to the European Parliament and to the Council, together with any appropriate proposals.’
;
(b)
paragraph 2 is deleted;
(c)
paragraph 4 is deleted;
(d)
paragraph 7 is deleted;
(e)
the following paragraphs are added:
‘7. By 25 December 2026 ESMA shall submit a report to the Commission on the possibility and feasibility to require the segregation of accounts across the clearing chain of non-financial and financial counterparties. The report shall be accompanied by a cost-benefit analysis.
8. By 25 December 2026, ESMA shall submit a report to the European Parliament, to the Council and to the Commission on the appropriateness and implications of extending the definition of a CCP, as referred to in Article 2, point (1), of this Regulation, to other markets beyond financial markets, such as commodity markets, including wholesale energy markets, or markets in crypto-assets under Regulation (EU) 2023/1114 of the European Parliament and Council ( *5 ) .
9. By 25 December 2026, the Commission shall submit a report to the European Parliament and the Council assessing level playing field and financial stability considerations in relation to generalised central bank access for Union CCPs without the condition of maintaining a banking licence. In that context, the Commission shall also take into consideration the situation in third-country jurisdictions.
10. By 25 December 2027, ESMA shall submit a report to the European Parliament, the Council and the Commission on the overall activity in derivative transactions of financial counterparties and non-financial counterparties subject to this Regulation, providing, inter alia, the following information on those financial counterparties and non-financial counterparties, differentiating between their financial or non-financial nature:
(a)
the potential risks to the financial stability of the Union that may arise from that type of activity;
(b)
the positions in OTC commodity derivatives in excess of EUR 1 billion, specifying the exact amount of the positions concerned;
(c)
the total volume of energy derivative contracts traded, distinguishing, where relevant, between those energy derivative contracts traded that are used for hedging and those energy derivative contracts traded that are not used for hedging;
(d)
the total volume of agricultural derivative contracts traded, distinguishing, where relevant, between those agricultural derivative contracts traded that are used for hedging and those agricultural derivative contracts traded that are not used for hedging;
(e)
the share of OTC and exchange-traded energy or agriculture derivative contracts that are physically settled in the total volume of energy derivative contracts or agriculture derivative contracts traded.
11. By 25 December 2026, ESMA, in cooperation with the ESRB, shall submit a report to the Commission. The report shall:
(a)
define in detail the notion of procyclicality in the context of Article 41 for margins called by a CCP and Article 46 for haircuts applied to collateral held by a CCP;
(b)
assess how the anti-procyclicality provisions of this Regulation and Commission Delegated Regulation (EU) No 153/2013 ( *6 ) have been applied over the years and whether further measures are necessary to improve the use of anti-procyclicality tools;
(c)
inform on how anti-procyclicality tools could or could not result in margin increases that would be greater than without the application of said tools, taking into account the potential add-ons or offsets that a CCP is allowed to apply under this Regulation.
In preparing the report, ESMA shall also assess the rules applying to, and the practices of, third-country CCPs, as well as international developments concerning procyclicality.
12. By 25 December 2027, ESMA shall, in close cooperation with the ESRB and the Joint Monitoring Mechanism, assess how Articles 15a, 17, 17a, 17b, 49 and 49a have been applied.
In particular, that assessment shall establish:
(a)
whether the changes introduced by Regulation (EU) 2024/2987 of the European Parliament and of the Council ( *7 ) have obtained the desired effect with respect to increasing the competitiveness of Union CCPs and reducing the regulatory burden they face;
(b)
whether the changes introduced by Regulation (EU) 2024/2987 have reduced the time to market for new clearing services and products without negatively impacting the risk for the CCPs, their clearing members or their clients;
(c)
whether the introduction of the possibility for CCPs to implement directly changes as referred to in Article 15a has negatively impacted their risk profile or has increased the overall financial stability risks for the Union, and whether that possibility should be amended.
ESMA shall submit a report on the outcome of that assessment to the European Parliament, the Council and the Commission.
13. By 25 December 2026 ESMA shall submit a report to the Commission on whether the amendments to Article 9 introduced by Regulation (EU) 2024/2987 have resulted in a sufficiently clear improvement in the conduct of ESMA’s tasks and whether they have had an excessive negative impact on market participants. The report shall be accompanied by a cost-benefit analysis.
14. By 25 December 2028, ESMA shall submit a report to the Commission. That report shall, in cooperation with the ESRB, assess whether:
(a)
PTRR services should be considered systemically important;
(b)
the provision of PTRR services by PTRR service providers has resulted in an increased risk for the Union financial ecosystem; and
(c)
the exemption has resulted in any circumvention of the clearing obligation referred to in Article 4.
Within 18 months of transmission of the report referred to in the first subparagraph, the Commission shall prepare a report on the aspects presented by ESMA in its report. The Commission shall submit its report to the European Parliament and to the Council, together with any appropriate proposals.
( *5 ) Regulation (EU) 2023/1114 of the European Parliament and of the Council of 31 May 2023 on markets in crypto-assets, and amending Regulations (EU) No 1093/2010 and (EU) No 1095/2010 and Directives 2013/36/EU and (EU) 2019/1937 ( OJ L 150, 9.6.2023, p. 40 )."
( *6 ) Commission Delegated Regulation (EU) No 153/2013 of 19 December 2012 supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council with regard to regulatory technical standards on requirements for central counterparties ( OJ L 52, 23.2.2013, p. 41 )."
( *7 ) Regulation (EU) 2024/2987 of the European Parliament and of the Council of 27 November 2024 amending Regulations (EU) No 648/2012, (EU) No 575/2013 and (EU) 2017/1131 as regards measures to mitigate excessive exposures to third-country central counterparties and improve the efficiency of Union clearing markets ( OJ L, 2024/2987, 4.12.2024, ELI: http://data.europa.eu/eli/reg/2024/2987/oj ).’;"
(53)
in Article 89 the following paragraphs are added:
‘10. Where a CCP is a clearing member or a client of another CCP, or has established indirect clearing arrangements, before 24 December 2024, it shall become subject to Article 26(1) on 25 December 2026.
By way of derogation from Article 37(1), a CCP can allow other CCPs or clearing houses that were its clearing members, directly or indirectly, as of 31 December 2023 to remain its clearing members until 25 December 2026 at the latest.
11. Until 25 December 2025 or 30 days after the announcement referred to in Article 17c(1), second subparagraph, whichever date is earlier, the exchange of information, the submission of information and documentation, and notifications that are required to use the central database shall be carried out through the use of alternative arrangements.
12. A CCP authorised under Article 14 that has entered into an interoperability arrangement in financial instruments other than transferable securities, as defined in Article 4(1), point (44), of Directive 2014/65/EU, and money-market instruments with another CCP authorised under Article 14 or a third-country CCP recognised under Article 25 before 24 December 2024 shall seek approval from its competent authorities in accordance with Article 54 before 25 December 2026.
An interoperability arrangement established between a CCP authorised under Article 14 and a CCP that is neither authorised under Article 14 or recognised under Article 25 shall be discontinued before 25 June 2025. If the CCP with which that interoperability arrangement is established becomes authorised under Article 14 or recognised under Article 25 before 25 June 2025, the CCPs that are party to that interoperability arrangement shall seek approval from their competent authorities in accordance with Article 54 before 25 June 2027.
13. By way of derogation from Article 11(3), fourth and fifth subparagraphs, and Article 11(12a), until EBA has publicly announced that it has set up its central validation function, the validation of pro forma models shall be carried out by competent authorities.’
;
(54)
Article 90 is replaced by the following:
‘Article 90
Staff and resources of ESMA
By 25 December 2027, ESMA shall assess the staffing and resource needs arising from the assumption of its powers and duties in accordance with this Regulation and submit a report to the European Parliament, the Council and the Commission.’
;
(55)
Annex III is amended as follows:
(a)
Section II is amended as follows:
(i)
point (a) is replaced by the following:
‘(a)
a Tier 2 CCP infringes Article 26(1) by not having robust governance arrangements which include a clear organisational structure with well-defined, transparent and consistent lines of responsibility, effective processes to identify, manage, monitor and report the risks to which it is or might be exposed and adequate internal control mechanisms, including sound administrative and accounting procedures or by becoming a clearing member, a client, or establishing indirect clearing arrangements with a clearing member with the aim to undertake clearing activities at another CCP, unless such clearing activities are undertaken under an interoperability arrangement under Title V or where conducting its investment policies under Article 47;’
;
(ii)
point (ab) is replaced by the following:
‘(ab)
a Tier 2 CCP infringes Article 37(1) or (2) by using, on an ongoing basis, discriminatory, opaque or subjective admission criteria, or by otherwise failing to ensure fair and open access to that CCP on an ongoing basis or by failing to ensure on an ongoing basis that its clearing members have sufficient financial resources and operational capacity to meet the obligations arising from the participation in that CCP, or by not having admission criteria that ensure that CCPs or clearing houses cannot be clearing members, directly or indirectly, of the CCP, or by failing to conduct a comprehensive review of compliance by its clearing members on an annual basis;’
;
(iii)
the following point is inserted:
‘(aba) a Tier 2 CCP infringes Article 37(1a) by accepting non-financial counterparties as clearing members where such counterparties have not demonstrated how they intend to fulfil the margin requirements and default fund contributions, or by failing to review the arrangements established to monitor that the condition for such non-financial counterparties to act as clearing members is met;’
;
(b)
Section III is amended as follows:
(i)
point (h) is replaced by the following:
‘(h)
a Tier 2 CCP infringes Article 41(1) by not imposing, calling or collecting margins to limit its credit exposures from its clearing members or, where relevant, from CCPs with which it has concluded an interoperability arrangement, or by imposing, calling or collecting margins which are not sufficient to cover potential exposures that the CCP estimates to occur until the liquidation of the relevant positions or to cover losses that result at least 99 % of the exposures movements over an appropriate time horizon or sufficient to ensure that the CCP fully collateralises its exposures with all its clearing members and, where relevant, with all CCPs with which it has concluded an interoperability arrangement, at least on a daily basis, or, by failing to continuously monitor and revise the level of margins to reflect the current market conditions taking into account any potentially procyclical effects;’
;
(ii)
point (j) is replaced by the following:
‘(j)
a Tier 2 CCP infringes Article 41(3) by not calling and collecting margins on an intraday basis, at least when predefined thresholds are exceeded or by holding intraday variation margin payments after it has collected all such payments due, instead of passing them on, where possible;’
;
(iii)
the following point is inserted:
‘(oa)
a Tier 2 CCP infringes Article 45a(1) by taking any of the actions listed under points (a), (b) and (c) of that paragraph where ESMA has required the CCP to refrain from taking any such actions for a period specified by ESMA;’
;
(iv)
the following point is inserted:
‘(pa)
a Tier 2 CCP infringes Article 46(1) by accepting public guarantees, public bank guarantees or commercial bank guarantees, where such guarantees are not unconditionally available upon request within the liquidation period referred to in Article 41, or by not setting, in its operating rules, the minimum acceptable level of collateralisation for the guarantees it accepts, or by accepting public guarantees, public bank guarantees or commercial bank guarantees to cover exposures other than its initial and ongoing exposure to its clearing members that are non-financial counterparties or to clients of clearing members, provided that those clients of clearing members are non-financial counterparties or by, where public guarantees, public bank guarantees or commercial bank guarantees are provided to the CCP, not complying with the requirements set out under the third subparagraph, points (a) to (e), of that paragraph;’
;
(v)
point (ai) is replaced by the following:
‘(ai)
a Tier 2 CCP infringes Article 54(1) by entering into an interoperability arrangement, or making a material change to an approved interoperability arrangement under Title V, without the prior approval of ESMA;’
;
(c)
Section IV is amended as follows:
(i)
point (g) is replaced by the following:
‘(g)
a Tier 2 CCP infringes Article 38(6) by not providing its clearing members with a simulation tool allowing them to determine the amount of additional initial margin, at portfolio level, that the CCP may require upon the clearing of a new transaction, including simulation of the margin requirements that they might be subject to under different scenarios, or by not making that tool accessible on a secured access basis;’
;
(ii)
point (h) is replaced by the following:
‘(h)
a Tier 2 CCP infringes Article 38(7) by not providing its clearing members with information on the initial margin models it uses, as detailed in points (a), (b) and (c) of that paragraph, in a clear and transparent manner;’
;
(iii)
the following point is inserted:
‘(ha)
a Tier 2 CCP infringes Article 38(8) by not providing, or providing with a significant delay, in response to a request by a clearing member, the information requested to allow that clearing member to comply with the first subparagraph of that paragraph, where such information has not already been provided.’
;
(d)
Section V is amended as follows:
(i)
point (b) is replaced by the following:
‘(b)
a Tier 2 CCP or its representatives provide incorrect or misleading answers to questions asked pursuant to point (c) of Article 25g(1);’
;
(ii)
point (c) is replaced by the following:
‘(c)
a Tier 2 CCP infringes point (e) of Article 25g(1) by not complying with ESMA’s request for records of telephone or data traffic;’.