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Regulation (EU) No 648/2012 of the European Parliament and of the CouncilShow full title

Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (Text with EEA relevance)

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Regulation (EU) No 648/2012 of the European Parliament and of the Council, TITLE II is up to date with all changes known to be in force on or before 26 January 2025. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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TITLE IIU.K.CLEARING, REPORTING AND RISK MITIGATION OF OTC DERIVATIVES

Article 4U.K.Clearing obligation

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 following ways:

(i)

[F1between two financial counterparties that [F2are subject to the conditions] set out in the second subparagraph of Article 4a(1);

(ii)

between a financial counterparty that [F3is subject to the conditions] set out in the second subparagraph of Article 4a(1) and a non-financial counterparty that [F3is subject to the conditions] set out in the second subparagraph of Article 10(1);

(iii)

between two non-financial counterparties that [F4are subject to the conditions] set out in the second subparagraph of Article 10(1);

(iv)

between, on the one side, a financial counterparty that [F5is subject to the conditions] set out in the second subparagraph of Article 4a(1) or a non-financial counterparty that [F5is subject to the conditions] set out in the second subparagraph of Article 10(1), and, on the other side, an entity established in a third country that would be subject to the clearing obligation if it were established in the [F6United Kingdom];]

(v)

between two entities established in one or more third countries that would be subject to the clearing obligation if they were established in the [F7United Kingdom], provided that the contract has a direct, substantial and foreseeable effect within the [F7United Kingdom] or where such an obligation is necessary or appropriate to prevent the evasion of any provisions of this Regulation; and

[F1(b) they are entered into or novated on or after the date on which the clearing obligation takes effect, provided that, on the date they are entered into or novated, both counterparties meet the conditions set out in point (a).]

2.Without prejudice to risk-mitigation techniques under Article 11, OTC derivative contracts that are intragroup transactions as described in Article 3 shall not be subject to the clearing obligation.

The exemption set out in the first subparagraph shall apply only:

(a)where two counterparties established in the [F8United Kingdom] belonging to the same group have first notified [F9the FCA] in writing that they intend to make use of the exemption for the OTC derivative contracts concluded between each other. The notification shall be made not less than 30 calendar days before the use of the exemption. Within 30 calendar days after receipt of that notification, [F10the FCA] may object to the use of this exemption if the transactions between the counterparties do not meet the conditions laid down in Article 3, without prejudice to the right of [F10the FCA] to object after that period of 30 calendar days has expired where those conditions are no longer met. F11... ;

(b)to OTC derivative contracts between two counterparties belonging to the same group which are established in [F12the United Kingdom] and in a third country, where the counterparty established in the [F13United Kingdom] has been authorised to apply the exemption by [F14the FCA] within 30 calendar days after it has been notified by the counterparty established in the [F13United Kingdom], provided that the conditions laid down in Article 3 are met. F15...

3.The OTC derivative contracts that are subject to the clearing obligation pursuant to paragraph 1 shall be cleared in a CCP authorised under Article 14 or recognised under Article 25 to clear that class of OTC derivatives and listed in the register in accordance with Article 6(2)(b).

For that purpose a counterparty shall become a clearing member, a client, or shall establish indirect clearing arrangements with a clearing member, provided that those arrangements do not increase counterparty risk and ensure that the assets and positions of the counterparty benefit from protection with equivalent effect to that referred to in Articles 39 and 48.

[F163A.Clearing members and clients which provide clearing services, whether directly or indirectly, must—

(a)provide those services under fair, reasonable, non-discriminatory and transparent commercial terms, and

(b)take all reasonable measures to identify, prevent, manage and monitor conflicts of interest, in particular between the trading unit and the clearing unit, that may adversely affect the fair, reasonable, non-discriminatory and transparent provision of clearing services.

3B.The duty under paragraph 3A(a)—

(a)does not oblige clearing members or clients to contract, and

(b)does not prevent clearing members or clients from taking steps to control the risks related to the clearing services offered.

3C.The duty to take the measures described in paragraph 3A(b) includes a duty to do so where trading and clearing services are provided by different legal entities belonging to the same group.

3D.The duties under paragraph 3A (read with paragraphs 3B and 3C) apply in relation to an undertaking with an indirect contractual arrangement with a clearing member of a CCP which enables that undertaking to clear its transactions with a CCP as they apply in relation to a client.]

[F174.The FCA may make technical standards specifying the contracts that are considered to have a direct, substantial and foreseeable effect within the United Kingdom or the cases where it is necessary or appropriate to prevent the evasion of any provision of this Regulation as referred to in paragraph 1(a)(v).

The Bank of England may make technical standards in relation to CCPs specifying the types of indirect contractual arrangements that meet the conditions referred to in the second sub-paragraph of paragraph 3.

The FCA may make technical standards for cases other than CCPs specifying the types of indirect contractual arrangements that meet—

(a)the conditions referred to in the second sub-paragraph of paragraph 3; and

(b)conditions for reasonable and transparent commercial terms.]

[F184A.The FCA may make rules specifying the conditions under which the commercial terms referred to in paragraph 3A(a) are to be considered fair, reasonable, non-discriminatory and transparent.]

[F195. 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, [F20as defined in regulation 3(1) of the Securitisation Regulations 2024] provided that:

(a) in the case of securitisation special purpose entities, the securitisation special purpose entity shall solely issue securitisations [F21of one or more of the following kinds—

(i)an STS securitisation as defined in regulation 9 of the Securitisation Regulations 2024,

(ii)an overseas STS securitisation as defined in regulation 12(2) of those Regulations;

(iii)a qualifying EU securitisation as defined in regulation 12(3) of those Regulations.]

(b) the OTC derivative contract is used only to hedge interest rate or currency mismatches under the covered bond or securitisation; and

(c) the arrangements under the covered bond or securitisation adequately mitigate counterparty credit risk with respect to the OTC derivative contracts concluded by the covered bond entity or securitisation special purpose entity in connection with the covered bond or securitisation.

F225A.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

6. In order to ensure consistent application of this Article, and taking into account the need to prevent regulatory arbitrage, the [F23FCA may make] technical standards specifying criteria for establishing which arrangements under covered bonds or securitisations adequately mitigate counterparty credit risk, within the meaning of paragraph 5.

F24...]

Textual Amendments

[F25 Article 4a U.K. Financial counterparties that are subject to the clearing obligation

1 . Every 12 months, a financial counterparty taking positions in OTC derivative contracts may calculate its aggregate month-end average position for the previous 12 months in accordance with paragraph 3.

Where a financial counterparty does not calculate its positions, or where the result of that calculation exceeds any of the clearing thresholds specified pursuant to point (b) of Article 10(4), the financial counterparty shall:

[F26( a )immediately notify the FCA of that fact and, where relevant, the period used for the calculation;]

( b ) establish clearing arrangements within four months after the notification referred to in point (a) of this subparagraph; and

( c ) 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 (a) of this subparagraph.

2 . A financial counterparty that is subject to the clearing obligation referred to in Article 4 on 17 June 2019 or that becomes subject to the clearing obligation in accordance with the second subparagraph of paragraph 1, shall remain subject to that obligation and shall continue clearing until that financial counterparty demonstrates to the [F27FCA] that its aggregate month-end average position for the previous 12 months does not exceed the clearing threshold specified pursuant to point (b) of Article 10(4).

The financial counterparty shall be able to demonstrate to the [F27FCA] that the calculation of the aggregate month-end average position for the previous 12 months does not lead to a systematic underestimation of that position.

3 . In calculating the positions referred to in paragraph 1, 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 subparagraph, for UCITS and AIFs, the positions referred to in paragraph 1 shall be calculated at the level of the fund.

UCITS management companies which manage more than one UCITSs and AIFMs which manage more than one AIF shall be able to demonstrate to the [F28FCA] 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; and

( b ) a circumvention of the clearing obligation.

The relevant competent authorities of the financial counterparty and of the other entities within the group shall [F29seek to] establish cooperation procedures to ensure the effective calculation of the positions at the group level.]

Textual Amendments

Article 5U.K.Clearing obligation procedure

F30 1 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F312.Technical standards may be made as follows:

(a)the Bank of England may make technical standards specifying the class or classes of OTC derivatives that should be subject to the clearing obligation referred to in Article 4;

(b)the Bank of England may make technical standards for financial counterparties that are PRA-authorised persons and the FCA may make technical standards for all other cases, specifying the date or dates from which the clearing obligation takes effect, including any phase in and the categories of counterparties to which the obligation applies.

In developing the technical standards under this paragraph, the Bank and the FCA shall not prejudice the transitional provision relating to C6 energy derivative contracts as laid down in Article 89a.]

[F323.The Bank of England shall identify in accordance with the criteria set out in points (a), (b) and (c) of paragraph 4 the classes of derivatives that should be subject to the clearing obligation provided in Article 4 but for which no CCP has yet received authorisation.]

4.With the overarching aim of reducing systemic risk, the [F33development by the Bank of England of] technical standards for the part referred to in paragraph 2(a) shall take into consideration the following criteria:

(a)the degree of standardisation of the contractual terms and operational processes of the relevant class of OTC derivatives;

(b)the volume and liquidity of the relevant class of OTC derivatives;

(c)the availability of fair, reliable and generally accepted pricing information in the relevant class of OTC derivatives.

In preparing those F34... technical standards, [F35the Bank of England] may take into consideration the interconnectedness between counterparties using the relevant classes of OTC derivatives, the anticipated impact on the levels of counterparty credit risk between counterparties as well as the impact on competition across the [F36United Kingdom].

F37...

5.[F38In developing these technical standards, the Bank of England and the FCA] shall take into consideration the following criteria:

(a)the expected volume of the relevant class of OTC derivatives;

(b)whether more than one CCP already clear the same class of OTC derivatives;

(c)the ability of the relevant CCPs to handle the expected volume and to manage the risk arising from the clearing of the relevant class of OTC derivatives;

(d)the type and number of counterparties active, and expected to be active within the market for the relevant class of OTC derivatives;

(e)the period of time a counterparty subject to the clearing obligation needs in order to put in place arrangements to clear its OTC derivative contracts through a CCP;

(f)the risk management and the legal and operational capacity of the range of counterparties that are active in the market for the relevant class of OTC derivatives and that would be captured by the clearing obligation pursuant to Article 4(1).

6.If a class of OTC derivative contracts no longer has a CCP which is authorised or recognised to clear those contracts under this Regulation, it shall cease to be subject to the clearing obligation referred to in Article 4, and paragraph 3 of this Article shall apply.

Textual Amendments

Article 6U.K.Public register

1.[F39The Bank of England] shall establish, maintain and keep up to date a public register in order to identify the classes of OTC derivatives subject to the clearing obligation correctly and unequivocally. The public register shall be available on [F40the Bank of England's] website.

2.The register shall include:

(a)the classes of OTC derivatives that are subject to the clearing obligation pursuant to Article 4;

[F41(b) the CCPs that are authorised in accordance with [F42Article 14 or 15] or recognised in accordance with Article 25 and the date of authorisation or recognition respectively, indicating the CCPs that are authorised or recognised for the purpose of the clearing obligation;]

(c)the dates from which the clearing obligation takes effect, including any phased-in implementation;

(d)the classes of OTC derivatives identified by [F43the Bank of England] in accordance with Article 5(3);

F44(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F45(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F13 . Where a CCP is no longer authorised or recognised in accordance with this Regulation to clear a specific class of OTC derivatives, [F46the Bank of England] shall immediately remove that CCP from the public register in relation to that class of OTC derivatives.]

[F474.The Bank of England may make technical standards specifying the details to be included in the public register referred to in paragraph 1.]

Textual Amendments

[F48 Article 6a U.K. Suspension of the clearing obligation

1.The Bank of England may, with the consent of the Treasury, direct that the clearing obligation referred to in Article 4(1) be suspended for specific classes of OTC derivatives or for a specific type of counterparty if one of the following conditions is met:

(a)the specific classes of OTC derivatives are no longer suitable for central clearing in accordance with the criteria referred to in the first sub-paragraph of Article 5(4) and in Article 5(5);

(b)a CCP is likely to cease clearing those specific classes of OTC derivatives and no other CCP is able to clear those specific classes of OTC derivatives without interruption;

(c)the suspension of the clearing obligation for those specific classes of OTC derivatives or for a specific type of counterparty is necessary to avoid or address a serious threat to financial stability or to the orderly functioning of financial markets in the United Kingdom and the suspension is proportionate to those aims.

The Bank of England must inform the FCA of its intention to make a direction as soon as is reasonably practicable after making the decision to make a direction.

2.The FCA may inform the Bank of England that, in its opinion, there is evidence that one of the conditions for suspension of the clearing obligation set out in paragraph 1 has been met. The Bank shall consider the FCA's information, and respond as appropriate within a reasonable time from the receipt of that information.

3.A direction under paragraph 1 to suspend the clearing obligation for specific classes of OTC derivatives shall also trigger a suspension of the trading obligation laid down in Article 28(1) and (2) of Regulation (EU) No 600/2014 for the same classes of OTC derivatives that are subject to the suspension of the clearing obligation.

4.The Bank shall set the period for the suspension of the clearing obligation and the trading obligation. The suspension shall be for a period of no more than twelve months beginning with the day the decision was published on the Bank of England's website in accordance with paragraph 5.

5.A direction to suspend the clearing and trading obligations must be published on the websites of the Bank of England and the FCA and be included within the public register referred to in Article 6. The FCA must also update the register of derivatives that are subject to the trading obligation referred to in Article 34 of Regulation (EU) No 600/2014.]

Textual Amendments

[F49Article 6bU.K.Risk reduction services

1.The Bank of England may by rules provide for the clearing obligation referred to in Article 4(1) in respect of a class or classes of OTC derivatives not to apply—

(a)in relation to activities or transactions of a specified description carried out as part of a risk reduction service, or

(b)to persons of a specified description in the provision of such services.

2.The power to make rules under paragraph 1 is exercisable only if the Bank of England considers that the rules are necessary or expedient for the purpose of advancing the financial stability objective under section 2A of the Bank of England Act 1998.

3.The risk reduction services to which the rules relate may only be post-trade services that do not give rise to any transactions that contribute to the price discovery process.

4.The rules—

(a)may describe the risk reduction services to which they relate in whatever way the Bank of England considers appropriate (subject to paragraph 3);

(b)may provide for whatever conditions or exceptions the Bank of England considers appropriate.

5.In this Article—

  • “risk reduction service” means a service provided to two or more counterparties to derivatives transactions for the purpose of reducing non-market risks in derivatives portfolios (including, for example, portfolio compression);

  • “specified” means specified in the rules.]

Textual Amendments

Article 7U.K.Access to a CCP

[F501 . A CCP that has been authorised to clear OTC derivative contracts shall accept clearing such contracts on a non-discriminatory and transparent basis, including as regards collateral requirements and fees related to access, regardless of the trading venue. This in particular shall ensure that a trading venue has the right to non-discriminatory treatment in terms of how contracts traded on that trading venue are treated in terms of:

( a ) collateral requirements and netting of economically equivalent contracts, where the inclusion of such contracts in the close-out and other netting procedures of a CCP based on the applicable insolvency law would not endanger the smooth and orderly functioning, the validity or enforceability of such procedures; and

( b ) cross-margining with correlated contracts cleared by the same CCP under a risk model that complies with Article 41.

A CCP may require that a trading venue comply with the operational and technical requirements established by the CCP, including the risk-management requirements.]

2.A CCP shall accede to or refuse a formal request for access by a trading venue within three months of such a request.

3.Where a CCP refuses access under paragraph 2, it shall provide the trading venue with full reasons for such refusal.

4.Save where the competent authority of the trading venue and that of the CCP refuse access, the CCP shall, subject to the second subparagraph, grant access within three months of a decision acceding to the trading venue’s formal request in accordance with paragraph 2.

The competent authority of the trading venue and that of the CCP may refuse access to the CCP following a formal request by the trading venue only where such access would threaten the smooth and orderly functioning of the markets or would adversely affect systemic risk.

F515.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F526 . 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 same CCP shall be further specified by [F53Commission Delegated Regulation (EU) 2017/581 supplementing Regulation (EU) No 600/2014 of the European Parliament and of the Council with regard to regulatory technical standards on clearing access in respect of trading venues and central counterparties].]

Textual Amendments

Article 8U.K.Access to a trading venue

1.A trading venue shall provide trade feeds on a non-discriminatory and transparent basis to any CCP that has been authorised to clear OTC derivative contracts traded on that trading venue upon request by the CCP.

2.Where a request to access a trading venue has been formally submitted to a trading venue by a CCP, the trading venue shall respond to the CCP within three months.

3.Where access is refused by a trading venue, it shall notify the CCP accordingly, providing full reasons.

4.Without prejudice to the decision by competent authorities of the trading venue and of the CCP, access shall be made possible by the trading venue within three months of a positive response to a request for access.

Access of the CCP to the trading venue shall be granted only where such access would not require interoperability or threaten the smooth and orderly functioning of markets in particular due to liquidity fragmentation and the trading venue has put in place adequate mechanisms to prevent such fragmentation.

[F545.The FCA may make technical standards specifying the notion of liquidity fragmentation.]

Textual Amendments

Article 9U.K.Reporting obligation

[F11 . Counterparties and CCPs shall ensure that the details of any derivative contract they have concluded and of any modification or termination of the contract are reported in accordance with paragraphs 1a to 1f of this Article to a trade repository registered in accordance with Article 55 or recognised in accordance with Article 77. The details shall be reported no later than the working day following the conclusion, modification or termination of the contract.

The reporting obligation shall apply to derivative contracts which:

( a ) were entered into before  12 February 2014 and remain outstanding on that date;

( b ) were entered into on or after  12 February 2014 .

Notwithstanding Article 3, the reporting obligation shall not apply to derivative contracts within the same group where at least one of the counterparties is a non-financial counterparty or would be qualified as a non-financial counterparty if it were established in the [F55United Kingdom], provided that:

( a ) both counterparties are included in the same consolidation on a full basis;

( b ) both counterparties are subject to appropriate centralised risk evaluation, measurement and control procedures; and

( c ) the parent undertaking is not a financial counterparty.

Counterparties shall notify [F56the FCA] of their intention to apply the exemption referred to in the third subparagraph. The exemption shall be valid unless the [F57FCA does] not agree upon fulfilment of the conditions referred to in the third subparagraph within three months of the date of notification.

[F58For the purposes of this Article, counterparties shall be considered to be included in the same consolidation if they both meet either of the criteria set out in Article 3(3).]]

[F251a . Financial counterparties shall be solely responsible, and legally liable, for reporting on behalf of both counterparties, the details of OTC derivative contracts concluded with a non-financial counterparty that does not meet the conditions referred to in the second subparagraph of Article 10(1), as well as for ensuring the correctness of the details reported.

To ensure that the financial counterparty has all the data it needs to fulfil the reporting obligation, the non-financial counterparty shall provide the financial counterparty with the details of the OTC derivative contracts concluded between them, which the financial counterparty cannot be reasonably expected to possess. The non-financial counterparty shall be responsible for ensuring that those details are correct.

Notwithstanding the first subparagraph, non-financial counterparties who have already invested in a reporting system may decide to report the details of their OTC derivative contracts with financial counterparties to a trade repository. In that case, the non-financial counterparties shall inform the financial counterparties with which they have concluded OTC derivative contracts of their decision prior to reporting those details. In that situation, the non-financial counterparties shall be responsible, and legally liable, for reporting those details and for ensuring their correctness.

A non-financial counterparty that does not meet the conditions referred to in the second subparagraph of Article 10(1) and that concludes an OTC derivative contract with an entity established in a third country shall not be required to report pursuant to this Article and shall not be legally liable for reporting or ensuring the correctness of the details of such OTC derivative contracts, provided that:

( a ) that third-country entity would be qualified as a financial counterparty if it were established in the [F59United Kingdom];

( b ) the legal regime for reporting to which that third-country entity is subject has been declared equivalent pursuant to Article 13; and

( c ) the third-country financial counterparty has reported such information pursuant to that third-country legal regime for reporting to a trade repository that is subject to a legally binding and enforceable obligation to grant the entities referred to in Article 81(3) direct and immediate access to the data.

1b . The management company of a UCITS shall be responsible, and legally liable, for reporting the details of OTC derivative contracts to which that UCITS is a counterparty, as well as for ensuring the correctness of the details reported.

1c . The AIFM shall be responsible, and legally liable, for reporting the details of OTC derivative contracts to which the relevant AIF is a counterparty, as well as for ensuring the correctness of the details reported.]

[F60 1d .The trustees or managers of an occupational pension scheme (within the meaning given in section 1(1) of the Pension Schemes Act 1993) shall be responsible, and legally liable, for reporting the details of OTC derivative contracts to which that occupational pension scheme is a counterparty.]

[F251e . Counterparties and CCPs that are required to report the details of derivative contracts shall ensure that such details are reported correctly and without duplication.

1f . Counterparties and CCPs that are subject to the reporting obligation referred to in paragraph 1 may delegate that reporting obligation.]

2.Counterparties shall keep a record of any derivative contract they have concluded and any modification for at least five years following the termination of the contract.

[F613.Except where the FCA has suspended the reporting obligation under paragraph 3A, where a trade repository is not available to record the details of a derivative contract:

(a)counterparties and CCPs shall ensure that such details are reported to the FCA; and

(b)the FCA shall ensure that all the relevant entities referred to in paragraph 3 of Article 81 have access to all the details of derivative contracts they need to fulfil their respective responsibilities and mandates

3A.The FCA may suspend the reporting obligation in paragraph 1. Before it does so it must:

(a)provide a report to the Treasury setting out its reasons for suspending the reporting obligation;

(b)specify a date:

(i)on which the suspension of that obligation will end;

(ii)by which it anticipates counterparties and CCPs will be able to report details of any derivative contracts as set out in paragraph 3; and

(c)consult the Treasury and the Bank of England.

3B.The FCA may, with the consent of the Treasury, suspend the reporting obligation under paragraph 3A for a period of up to one year or such longer period as the Treasury may by regulations specify.

3C.Details of any derivative contracts that counterparties and CCPs have concluded, and of any modification or termination of the contract, that have not been reported to a trade repository in accordance with the reporting obligation in paragraph 1 must be reported by those counterparties and CCPs to a trade repository following the end of the suspension of the reporting obligation in paragraph 3a by no later than the end of the period specified by the FCA for this purpose.]

4.A counterparty or a CCP that reports the details of a derivative contract to a trade repository or to [F62the FCA], or an entity that reports such details on behalf of a counterparty or a CCP shall not be considered in breach of any restriction on disclosure of information imposed by that contract or by any legislative, regulatory or administrative provision.

No liability resulting from that disclosure shall lie with the reporting entity or its directors or employees.

[F635.The Bank of England may make technical standards for CCPs, and the FCA may make technical standards for all other cases specifying the details and type of the reports referred to in paragraphs 1 and 3 for the different classes of derivatives. The reports referred to in paragraphs 1 and 3 shall specify at least:

(a)the parties to the derivative contract and, where different, the beneficiary of the rights and obligations arising from it;

(b)the main characteristics of the derivative contracts, including their type, underlying maturity, notional value, price, and settlement date.]

[F1[F646 . The Bank of England may make technical standards for CCPs, and the FCA may make technical standards in all other cases specifying:]

( a ) the data standards and formats for the information to be reported, which shall include at least the following:

(i)

global legal entity identifiers (LEIs);

(ii)

international securities identification numbers (ISINs);

(iii)

unique trade identifiers (UTIs);

( b ) the methods and arrangements for reporting;

( c ) the frequency of the reports;

( d ) the date by which derivative contracts are to be reported.

F65...

F65...

F65...]

Textual Amendments

Article 10U.K.Non-financial counterparties

[F11 . Every 12 months, a non-financial counterparty taking positions in OTC derivative contracts may calculate its aggregate month-end average position for the previous 12 months in accordance with paragraph 3.

Where a non-financial counterparty does not calculate its positions, or where the result of that calculation in respect of one or more classes of OTC derivatives exceeds the clearing thresholds specified pursuant to point (b) of the first subparagraph of paragraph 4, that non-financial counterparty shall:

( a ) immediately notify [F66the FCA], and, where relevant, indicate the period used for the calculation;

( b ) establish clearing arrangements within four months of the notification referred to in point (a) of this subparagraph;

( c ) become subject to the clearing obligation referred to in Article 4 for the OTC derivative contracts entered into or novated more than four months following the notification referred to in point (a) of this subparagraph that pertain to those asset classes in respect of which the result of the calculation exceeds the clearing thresholds or, where the non-financial counterparty has not calculated its position, that pertain to any class of OTC derivatives which is subject to the clearing obligation.

2 . A non-financial counterparty that is subject to the clearing obligation referred to in Article 4 on 17 June 2019 or that becomes subject to the clearing obligation in accordance with the second subparagraph of paragraph 1 of this Article, shall remain subject to that obligation and shall continue clearing until that non-financial counterparty demonstrates to the [F67FCA] that its aggregate month-end average position for the previous 12 months does not exceed the clearing threshold specified pursuant to point (b) of paragraph 4 of this Article.

The non-financial counterparty shall be able to demonstrate to the [F67FCA] that the calculation of the aggregate month-end average position for the previous 12 months does not lead to a systematic underestimation of the position.]

[F252a . The relevant competent authorities of the non-financial counterparty and of the other entities within the group shall [F68seek to] establish cooperation procedures to ensure the effective calculation of the positions at the group level.]

3.In calculating the positions referred to in paragraph 1, the non-financial counterparty shall include all the OTC derivative contracts entered into by the non-financial counterparty or by other non-financial entities within the group to which the non-financial counterparty belongs, 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 that group.

[F694.The FCA may make technical standards specifying:

(a)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; and

(b)values of the clearing thresholds, which are determined taking into account the systemic relevance of the sum of net positions and exposures per counterparty and per class of OTC derivatives.

The FCA shall periodically review the thresholds specified under point (b) and, where necessary, taking into account in particular the interconnectedness of financial counterparties, make technical standards to amend them.]

[F705.The authority responsible for ensuring that the obligation under paragraph 1 is met is the FCA.]

Textual Amendments

Article 11U.K.Risk-mitigation techniques for OTC derivative contracts not cleared by a CCP

1.Financial counterparties and non-financial counterparties that enter into an OTC derivative contract not cleared by a CCP, shall ensure, exercising due diligence, that appropriate procedures and arrangements are in place to measure, monitor and mitigate operational risk and counterparty credit risk, including at least:

(a)the timely confirmation, where available, by electronic means, of the terms of the relevant OTC derivative contract;

(b)formalised processes which are robust, resilient and auditable in order to reconcile portfolios, to manage the associated risk and to identify disputes between parties early and resolve them, and to monitor the value of outstanding contracts.

2.Financial counterparties and non-financial counterparties referred to in Article 10 shall mark-to-market on a daily basis the value of outstanding contracts. Where market conditions prevent marking-to-market, reliable and prudent marking-to-model shall be used.

3.Financial counterparties shall have risk-management procedures that require the timely, accurate and appropriately segregated exchange of collateral with respect to OTC derivative contracts that are entered into on or after 16 August 2012. Non-financial counterparties referred to in Article 10 shall have risk-management procedures that require the timely, accurate and appropriately segregated exchange of collateral with respect to OTC derivative contracts that are entered into on or after the clearing threshold is exceeded.

4.Financial counterparties shall hold an appropriate and proportionate amount of capital to manage the risk not covered by appropriate exchange of collateral.

5.The requirement laid down in paragraph 3 of this Article shall not apply to an intragroup transaction referred to in Article 3 that is entered into by counterparties which are established in the [F71United Kingdom] provided that there is no current or foreseen practical or legal impediment to the prompt transfer of own funds or repayment of liabilities between counterparties.

F726.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F737.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8.An intragroup transaction referred to in Article 3(2)(a) to (d) that is entered into by a counterparty which is established in the [F74United Kingdom] and a counterparty which is established in a third-country jurisdiction shall be exempt totally or partially from the requirement laid down in paragraph 3 of this Article, on the basis of a positive decision of the relevant competent authority responsible for supervision of the counterparty which is established in the [F74United Kingdom], provided that the following conditions are fulfilled:

(a)the risk-management procedures of the counterparties are adequately sound, robust and consistent with the level of complexity of the derivative transaction;

(b)there is no current or foreseen practical or legal impediment to the prompt transfer of own funds or repayment of liabilities between the counterparties.

9.An intragroup transaction referred to in Article 3(1) that is entered into by a non-financial counterparty which is established in the [F75United Kingdom] and a counterparty which is established in a third-country jurisdiction shall be exempt from the requirement laid down in paragraph 3 of this Article, provided that the following conditions are fulfilled:

(a)the risk-management procedures of the counterparties are adequately sound, robust and consistent with the level of complexity of the derivative transaction;

(b)there is no current or foreseen practical or legal impediment to the prompt transfer of own funds or repayment of liabilities between the counterparties.

The non-financial counterparty shall notify its intention to apply the exemption to the competent authority referred to in Article 10(5). The exemption shall be valid unless the notified competent authority does not agree upon fulfilment of the conditions referred to in point (a) or (b) of the first subparagraph within three months of the date of notification.

F7610.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11.The counterparty of an intragroup transaction which has been exempted from the requirement laid down in paragraph 3 shall publicly disclose information on the exemption.

F77...

12.The obligations set out in paragraphs 1 to 11 shall apply to OTC derivative contracts entered into between third country entities that would be subject to those obligations if they were established in the [F78United Kingdom], provided that those contracts have a direct, substantial and foreseeable effect within the [F78United Kingdom] or where such obligation is necessary or appropriate to prevent the evasion of any provision of this Regulation.

[F7913.The Bank of England shall regularly monitor the activity in derivatives not eligible for clearing in order to identify cases where a particular class of derivatives may pose systemic risk. The FCA and the PRA shall regularly monitor the activity in derivatives not eligible for clearing in order to prevent regulatory arbitrage between cleared and non-cleared derivative transactions. In particular—

(a)the Bank of England shall —

(i)take action in accordance with paragraph 3 of Article 5; and

(ii)review the technical standards on margin requirements laid down in Article 41;

(b)the FCA and the PRA shall review the technical standards on margin requirements laid down in paragraph 15.]

14.[F80The FCA may make] technical standards specifying:

(a)the procedures and arrangements referred to in paragraph 1;

(b)the market conditions that prevent marking-to-market and the criteria for using marking-to-model referred to in paragraph 2;

(c)the details of the exempted intragroup transactions to be included in the notification referred to in [F81paragraph 9];

(d)the details of the information on exempted intragroup transactions referred to in paragraph 11;

F82(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F83...

[F8414A.The FCA may make technical standards specifying the contracts that are considered to have a direct, substantial and foreseeable effect within the United Kingdom or the cases where it is necessary or appropriate to prevent the evasion of any provision of this Regulation as referred to in paragraph 12.]

[F85 15 .The PRA may make technical standards for financial counterparties that are PRA-authorised persons and the FCA may make technical standards for all other cases, specifying the risk-management procedures, including the levels and type of collateral and segregation arrangements, referred to in paragraph 3, and the supervisory procedures to ensure initial and ongoing validation of those risk-management procedures. ]

[F8615A.For the purposes of making technical standards under paragraph 15 the level and type of collateral required with respect to an OTC derivative contract which—

(a)is concluded by a covered bond entity in connection with a covered bond or by a securitisation special purpose entity (within the meaning given in [F87regulation 3(1) of the Securitisation Regulations 2024]) in connection with a securitisation (within the meaning of [F88regulation 3(1) of those Regulations]), and

(b)meets the conditions of Article 4(5) of this Regulation and [F89is—

(i)an STS securitisation as defined in regulation 9 of the Securitisation Regulations 2024,

(ii)an overseas STS securitisation as defined in regulation 12(2) of those Regulations, or

(iii)a qualifying EU securitisation as defined in regulation 12(3) of those Regulations,]

are to be determined taking into account any impediments faced in exchanging collateral with respect to existing collateral arrangements under the covered bond or the securitisation.

F90...]

[F9116.The FCA may make technical standards specifying the procedures for the counterparties and the relevant competent authorities to be followed when applying exemptions under paragraphs 8 and 9.

17.The PRA may make technical standards in respect of financial counterparties that are PRA-authorised persons in respect of United Kingdom to United Kingdom intragroup exemptions (see paragraph 5) and the FCA may make technical standards in all other cases, specifying the applicable criteria referred to in paragraphs 5, 8 and 9, including in particular what should be considered as a practical or legal impediment to the prompt transfer of own funds and repayment of liabilities between the counterparties.]

Textual Amendments

Article 12U.K.Penalties

[F921.Regulation 9 of the 2013 Regulations sets out the penalties applicable to infringements of the rules under this Title.]

F932.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3.An infringement of the rules under this Title shall not affect the validity of an OTC derivative contract or the possibility for the parties to enforce the provisions of an OTC derivative contract. An infringement of the rules under this Title shall not give rise to any right to compensation from a party to an OTC derivative contract.

Textual Amendments

Article 13U.K.Mechanism to avoid duplicative or conflicting rules

F941.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2.[F95The Treasury may by regulations determine] 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 to that set out in this Regulation; and

(c)are being effectively applied and enforced in an equitable and non-distortive manner so as to ensure effective supervision and enforcement in that third country.

F96...

3.[F97Regulations] 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 established in that third country.

F984.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F99Article 13aU.K. Conditions for making technical standards

The FCA, the PRA and the Bank of England, as appropriate, must co-ordinate the exercise of their functions when making technical standards under:

(a)the second sub-paragraph of paragraph 4 of Article 4,

(b)paragraph 5 of Article 9,

(c)paragraph 6 of Article 9,

(d)paragraph 15 of Article 11, or

(e)paragraph 17 of Article 11,

with a view to ensuring that the technical standards made under each of those provisions are compatible.]

Textual Amendments

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