What changed, Regulation (EU) No 648/2012

− **3.** Title V of this Regulation shall apply only to transferable securities and money-market instruments, as defined in point (18)(a) and (b) and point (19) of Article 4(1) of Directive 2004/39/EC.
− **1.** In relation to a non-financial counterparty, an intragroup transaction is an OTC derivative contract entered into with another counterparty which is part of the same group provided that both counterparties are included in the same consolidation on a full basis and they are subject to an appro…
− **2.** In relation to a financial counterparty, an intragroup transaction is any of the following:(a) an OTC derivative contract entered into with another counterparty which is part of the same group, provided that the following conditions are met:(i) the financial counterparty is established in the…
− **3.** For the purposes of this Article, counterparties shall be considered to be included in the same consolidation when they are both either:(a) included in a consolidation in accordance with Directive 83/349/EEC or International Financial Reporting Standards (IFRS) adopted pursuant to Regulation …
− **1.** Counterparties shall clear all OTC derivative contracts pertaining to a class of OTC derivatives that has been declared subject to the clearing obligation in accordance with Article 5(2), if those contracts fulfil both of the following conditions:(a) they have been concluded in one of the fol…
− **5.** Paragraph 1 of this Article shall not apply with respect to OTC derivative contracts that are concluded by covered bond entities in connection with a covered bond, or by a securitisation special purpose entity in connection with a securitisation, within the meaning of Regulation (EU) 2017/240…
− In the developing of the draft regulatory technical standards under this paragraph ESMA shall not prejudice the transitional provision relating to C6 energy derivative contracts as laid down in Article 95 of Directive 2014/65/EU (11).
− **2.** The register shall include:(a) the classes of OTC derivatives that are subject to the clearing obligation pursuant to Article 4;▼M14(b) the CCPs that are authorised in accordance with Article 17 or recognised in accordance with Article 25 and the date of authorisation or recognition respectiv…
− **1.** Where a CCP meets the conditions under Article 22 of Regulation (EU) 2021/23 of the European Parliament and of the Council (12), the resolution authority of the CCP designated under Article 3(1) of that Regulation or the competent authority designated in accordance with Article 22(1) of this …
− **6.** The conditions laid down in paragraph 1 regarding non-discriminatory treatment in terms of how contracts traded on that trading venue are treated in terms of collateral requirements and netting of economically equivalent contracts and cross-margining with correlated contracts cleared by the s…
− (a) that third-country entity would be qualified as a financial counterparty if it were established in the Union;
− (b) the legal regime for reporting to which that third-country entity is subject has been declared equivalent pursuant to Article 13; and
− **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.
− In developing those draft implementing technical standards, ESMA shall take into account international developments and standards agreed upon at Union or global level, and their consistency with the reporting requirements laid down in Article 4 of Regulation (EU) 2015/2365 (14) and Article 26 of Reg…
− **15.** In order to ensure consistent application of this Article, the ESAs shall develop common draft regulatory technical standards specifying:▼M12(a) the risk-management procedures, including the levels and type of collateral and segregation arrangements referred to in paragraph 3;▼M12(aa) the su…
− EBA, in cooperation with ESMA and EIOPA, shall submit the draft regulatory technical standards referred to in point (aa) of the first subparagraph to the Commission by 18 June 2020.
− ### Article 13 — Mechanism to avoid duplicative or conflicting rules
− **1.** The Commission shall be assisted by ESMA in monitoring and preparing reports to the European Parliament and to the Council on the international application of principles laid down in Articles 4, 9, 10 and 11, in particular with regard to potential duplicative or conflicting requirements on ma…
− **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 this Regulation under Articles 4, 9, 10 and 11;(b) ensure protection of professional secrecy that is equivalent …
− **3.** An implementing act on equivalence as referred to in paragraph 2 shall imply that counterparties entering into a transaction subject to this Regulation shall be deemed to have fulfilled the obligations contained in Articles 4, 9, 10 and 11 where at least one of the counterparties is establish…
− **4.** The Commission shall, in cooperation with ESMA, monitor the effective implementation by third countries, for which an implementing act on equivalence has been adopted, of the requirements equivalent to those laid down in Articles 4, 9, 10 and 11 and regularly report, at least on an annual bas…
− **3.** Authorisation referred to in paragraph 1 shall be granted only for activities linked to clearing and shall specify the services or activities which the CCP is authorised to provide or perform including the classes of financial instruments covered by such authorisation.
− **1.** A CCP wishing to extend its business to additional services or activities not covered by the initial authorisation shall submit a request for extension to the CCP’s competent authority. The offering of clearing services for which the CCP has not already been authorised shall be considered to …
− The extension of authorisation shall be made in accordance with the procedure set out under Article 17.
− **3.** In order to ensure consistent application of this Article, ESMA shall, in cooperation with the ESCB, develop draft regulatory technical standards specifying the conditions under which additional services or activities to which a CCP wishes to extend its business are not covered by the initial…
− **1.** The applicant CCP shall submit an application for authorisation to the competent authority of the Member State where it is established.
− **2.** The applicant CCP shall provide all information necessary to satisfy the competent authority that the applicant CCP has established, at the time of authorisation, all the necessary arrangements to meet the requirements laid down in this Regulation. The competent authority shall immediately tr…
− **3.** Within 30 working days of receipt of the application, the competent authority shall assess whether the application is complete. Where the application is not complete, the competent authority shall set a deadline by which the applicant CCP has to provide additional information. Upon receipt of…
− **4.** The competent authority shall grant authorisation only where it is fully satisfied that the applicant CCP complies with all the requirements laid down in this Regulation and that the CCP is notified as a system pursuant to Directive 98/26/EC.
− The competent authority shall duly consider the opinion of the college reached in accordance with Article 19. Where the CCP’s competent authority does not agree with a positive opinion of the college, its decision shall contain full reasons and an explanation of any significant deviation from that p…
+ **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 …
+ **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 estab…
+ **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 (10) or with th…
+ **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 …
+ **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 Arti…
+ **1.** Counterparties shall clear all OTC derivative contracts pertaining to a class of OTC derivatives that has been declared subject to the clearing obligation in accordance with Article 5(2), if those contracts fulfil both of the following conditions:(a) they have been concluded in one of the fol…
+ 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-fin…
+ **5.** Paragraph 1 of this Article shall not apply with respect to OTC derivative contracts that are concluded by covered bond entities in connection with a covered bond, or by a securitisation special purpose entity in connection with a securitisation, within the meaning of Regulation (EU) 2017/240…
+ ### 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’) car…
+ **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 e…
+ **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 s…
+ **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…
+ **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…
+ 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 appl…
+ 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 t…
+ 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 r…
+ 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.
+ In the developing of the draft regulatory technical standards under this paragraph ESMA shall not prejudice the transitional provision relating to C6 energy derivative contracts as laid down in Article 95 of Directive 2014/65/EU (14).
+ **2.** The register shall include:(a) the classes of OTC derivatives that are subject to the clearing obligation pursuant to Article 4;▼M14(b) the CCPs that are authorised in accordance with Article 17 or recognised in accordance with Article 25 and the date of authorisation or recognition respectiv…
+ **1.** Where a CCP meets the conditions under Article 22 of Regulation (EU) 2021/23 of the European Parliament and of the Council (15), the resolution authority of the CCP designated under Article 3(1) of that Regulation or the competent authority designated in accordance with Article 22(1) of this …
+ **6.** The conditions laid down in paragraph 1 regarding non-discriminatory treatment in terms of how contracts traded on that trading venue are treated in terms of collateral requirements and netting of economically equivalent contracts and cross-margining with correlated contracts cleared by the s…
+ ### 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 der…
+ 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 est…
+ **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 whi…
+ **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 …