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27.7.2012 Official
Journal
of
the
European
Union L
201/1
I
(Legislative acts)
REGULATIONS
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)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
banking, the insurance and occupational pensions and
EUROPEAN UNION,
the securities and markets sectors, and the creation of
a European Systemic Risk Council.
Having regard to the Treaty on the Functioning of the European
Union, and in particular Article 114 thereof,
(2) The
Commission
Communication
of
4
March
2009,
entitled ‘Driving European Recovery’, proposed to
strengthen the Union’s regulatory framework for
Having regard to the proposal from the European Commission,
financial services. In its Communication of 3 July 2009
entitled ‘Ensuring efficient, safe and sound derivatives
markets’, the Commission assessed the role of derivatives
After transmission of the draft legislative act to the national
in the financial crisis, and in its Communication of
parliaments,
20 October 2009 entitled ‘Ensuring efficient, safe and
sound derivative markets: Future policy actions’, the
Commission outlined the actions it intends to take to
reduce the risks associated with derivatives.
Having regard to the opinion of the European Central Bank ( 1 ),
Having regard to the opinion of the European Economic and
(3) On
23
September
2009,
the
Commission
adopted
Social Committee ( 2 ),
proposals for three regulations establishing the
European System of Financial Supervision, including the
creation of three European Supervisory Authorities
Acting in accordance with the ordinary legislative procedure (
(ESAs) to contribute to a consistent application of

3 ),
Union legislation and to the establishment of high-
quality common regulatory and supervisory standards
and practices. The ESAs comprise the European Super
Whereas:
visory Authority (European Banking Authority) (EBA)
established by Regulation (EU) No 1093/2010 of the
European Parliament and of the Council
( 4 ), the
(1) At
the
request
of
the
Commission,
a
report
was
European Supervisory Authority (European Insurance
published on 25 February 2009 by a High-Level Group
and Occupational Pensions Authority) (EIOPA) estab
chaired by Jacques de Larosière and concluded that the
lished by Regulation (EU) No
1094/2010 of the
supervisory framework of the financial sector of the
European Parliament and of the Council ( 5 ), and the
Union needed to be strengthened to reduce the risk
European Supervisory Authority (European Securities
and severity of future financial crises and recommended
and Markets Authority) (ESMA) established by Regulation
far-reaching reforms to the structure of supervision of
(EU) No 1095/2010 of the European Parliament and of
that sector, including the creation of a European
the Council ( 6 ). The ESAs have a crucial role to play in
System of Financial Supervisors, comprising three
safeguarding the stability of the financial sector. It is
European supervisory authorities, one each for the
therefore essential to ensure continuously that the devel
opment of their work is a matter of high political priority
and that they are adequately resourced.
( 1 ) OJ C 57, 23.2.2011, p. 1.
( 2 ) OJ C 54, 19.2.2011, p. 44.
( 3 ) Position of the European Parliament of 29 March 2012 (not yet
( 4 ) OJ L 331, 15.12.2010, p. 12.
published in the Official Journal) and decision of the Council of
( 5 ) OJ L 331, 15.12.2010, p. 48.
4 July 2012.
( 6 ) OJ L 331, 15.12.2010, p. 84.

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Official Journal of the European Union
27.7.2012
(4) Over-the-counter
derivatives
(‘OTC
derivative
contracts’)
the third country provides for an effective equivalent
lack transparency as they are privately negotiated
system for the recognition of CCPs authorised under
contracts and any information concerning them is
foreign legal regimes in accordance with the general
usually only available to the contracting parties. They
regulatory goals and standards set out by the G20 in
create a complex web of interdependence which can
September 2009 of improving transparency in the
make it difficult to identify the nature and level of
derivatives markets, mitigating systemic risk, and
risks involved. The financial crisis has demonstrated
protecting against market abuse. Such a system should
that such characteristics increase uncertainty in times of
be considered equivalent if it ensures that the substantial
market stress and, accordingly, pose risks to financial
result of the applicable regulatory regime is similar to
stability. This Regulation lays down conditions for miti
Union requirements and should be considered effective
gating those risks and improving the transparency of
if those rules are being applied in a consistent manner.
derivative contracts.
(8) It
is
appropriate
and
necessary
in
this
context,
taking
(5) At
the
26
September
2009
summit
in
Pittsburgh,
G20
account of the characteristics of derivative markets and
leaders agreed that all standardised OTC derivative
the functioning of CCPs, to verify the effective equiv
contracts should be cleared through a central
alence of foreign regulatory systems in meeting G20
counterparty (CCP) by the end of 2012 and that OTC
goals and standards in order to improve transparency
derivative contracts should be reported to trade reposi
in derivatives markets, mitigate systemic risk and
tories. In June 2010, G20 leaders in Toronto reaffirmed
protect against market abuse. The very special situation
their commitment and also committed to accelerate the
of CCPs requires that the provisions relating to third
implementation of strong measures to improve trans
countries are organised and function in accordance
parency and regulatory oversight of OTC derivative
with arrangements that are specific to these market
contracts in an internationally consistent and non-
structure entities. Therefore this approach does not
discriminatory way.
constitute a precedent for other legislation.
(6) The
Commission
will
monitor
and
endeavour
to
ensure (9) The
European
Council,
in
its
Conclusions
of
2
December
that those commitments are implemented in a similar
2009, agreed that there was a need to substantially
way by the Union’s international partners. The
improve the mitigation of counterparty credit risk and
Commission should cooperate with third-country auth
that it was important to improve transparency, efficiency
orities in order to explore mutually supportive solutions
and integrity for derivative transactions. The European
to ensure consistency between this Regulation and the
Parliament resolution of 15 June 2010 on ‘Derivatives
requirements established by third countries and thus
markets: future policy actions’ called for mandatory
avoid any possible overlapping in this respect. With the
clearing and reporting of OTC derivative contracts.
assistance of ESMA, the Commission should monitor and
prepare reports to the European Parliament and the
Council on the international application of principles
laid down in this Regulation. In order to avoid
potential duplicate or conflicting requirements, the
(10) ESMA
should
act
within
the
scope
of
this
Regulation
by
Commission might adopt decisions on equivalence of
safeguarding the stability of financial markets in
the legal, supervisory and enforcement framework in
emergency situations, ensuring the consistent application
third countries, if a number of conditions are met. The
of Union rules by national supervisory authorities and
assessment which forms the basis of such decisions
settling disagreements between them. It is also
should not prejudice the right of a CCP established in
entrusted with developing draft regulatory and imple
a third country and recognised by ESMA to provide
menting technical standards and has a central role in
clearing services to clearing members or trading venues
the authorisation and monitoring of CCPs and trade
established in the Union, as the recognition decision
repositories.
should be independent of this assessment. Similarly,
neither an equivalence decision nor the assessment
should prejudice the right of a trade repository estab
lished in a third country and recognised by ESMA to
provide services to entities established in the Union.
(11) One
of
the
basic
tasks
to
be
carried
out
through
the

European System of Central Banks (ESCB) is to
promote the smooth operation of payment systems. In
this respect, the members of the ESCB execute oversight
by ensuring efficient and sound clearing and payment
(7) With
regard
to
the
recognition
of
third-country
CCPs,
systems, including CCPs. The members of the ESCB are
and in accordance with the Union’s international
thus closely involved in the authorisation and monitoring
obligations under the agreement establishing the World
of CCPs, recognition of third-country CCPs and the
Trade Organisation, including the General Agreement on
approval of interoperability arrangements. In addition,
Trade in Services, decisions determining third-country
they are closely involved in respect of the setting of
legal regimes as equivalent to the legal regime of the
regulatory technical standards as well as guidelines and
Union should be adopted only if the legal regime of
recommendations. This Regulation is without prejudice

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EN
27.7.2012 Official
Journal
of
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European
Union L
201/3
to the responsibilities of the European Central Bank
takes effect, in accordance with this Regulation. A
(ECB) and the national central banks (NCBs) to ensure
phased-in implementation of the clearing obligation
efficient and sound clearing and payment systems within
could be in terms of the types of market participants
the Union and with other countries. Consequently, and
that must comply with the clearing obligation. In deter
in order to prevent the possible creation of parallel sets
mining which classes of OTC derivative contracts are to
of rules, ESMA and the ESCB should cooperate closely
be subject to the clearing obligation, ESMA should take
when preparing the relevant draft technical standards.
into account the specific nature of OTC derivative
Further, the access to information by the ECB and the
contracts which are concluded with covered bond
NCBs is crucial when fulfilling their tasks relating to the
issuers or with cover pools for covered bonds.
oversight of clearing and payment systems as well as to
the functions of a central bank of issue.
(17) When determining which classes of OTC derivative
(12) Uniform
rules
are
required
for
derivative
contracts
set
out
contracts are to be subject to the clearing obligation,
in Annex I, Section C, points (4) to (10) of Directive
ESMA should also pay due regard to other relevant
2004/39/EC of the European Parliament and of the
considerations, most importantly the interconnectedness
Council of 21 April 2004 on markets in financial instru
between counterparties using the relevant classes of OTC
ments (
derivative contracts and the impact on the levels of

1 ).
counterparty credit risk as well as promote equal
conditions of competition within the internal market as
referred to in Article 1(5)(d) of Regulation (EU)
No 1095/2010.
(13) Incentives
to
promote
the
use
of
CCPs
have
not
proven
to be sufficient to ensure that standardised OTC
derivative contracts are in fact cleared centrally.
Mandatory CCP clearing requirements for those OTC
derivative contracts that can be cleared centrally are
(18) Where
ESMA has identified that an OTC derivative
therefore necessary.
product is standardised and suitable for clearing but no
CCP is willing to clear that product, ESMA should inves
tigate the reason for this.
(14) It is likely that Member States will adopt divergent
national measures which could create obstacles to the
smooth functioning of the internal market and be to
the detriment of market participants and financial
(19) In
determining
which
classes
of
OTC
derivative
contracts
stability. A uniform application of the clearing obligation
are to be subject to the clearing obligation, due account
in the Union is also necessary to ensure a high level of
should be taken of the specific nature of the relevant
investor protection and to create a level playing field
classes of OTC derivative contracts. The predominant
between market participants.
risk for transactions in some classes of OTC derivative
contracts may relate to settlement risk, which is
addressed through separate infrastructure arrangements,
and may distinguish certain classes of OTC derivative
contracts (such as foreign exchange) from other classes.
(15) Ensuring
that
the
clearing
obligation
reduces
systemic
risk requires a process of identification of classes of
CCP clearing specifically addresses counterparty credit
derivatives that should be subject to that obligation.
risk, and may not be the optimal solution for dealing
That process should take into account the fact that not
with settlement risk. The regime for such contracts
all CCP-cleared OTC derivative contracts can be
should rely, in particular, on preliminary international
considered suitable for mandatory CCP clearing.
convergence and mutual recognition of the relevant

infrastructure.
(16) This
Regulation
sets
out
the
criteria
for
determining
whether or not different classes of OTC derivative
(20) In
order
to
ensure
a
uniform
and
coherent
application
of
contracts should be subject to a clearing obligation. On
this Regulation and a level playing field for market
the basis of draft regulatory technical standards
participants when a class of OTC derivative contract is
developed by ESMA, the Commission should decide
declared subject to the clearing obligation, this obligation
whether a class of OTC derivative contract is to be
should also apply to all contracts pertaining to that class
subject to a clearing obligation, and from when the
of OTC derivative contract entered into on or after the
clearing obligation takes effect including, where appro
date of notification of a CCP authorisation for the
priate, phased-in implementation and the minimum
purpose of the clearing obligation received by ESMA
remaining maturity of contracts entered into or
but before the date from which the clearing obligation
novated before the date on which the clearing obligation
takes effect, provided that those contracts have a
remaining maturity above the minimum determined by
( 1 ) OJ L 145, 30.4.2004, p. 1.
the Commission.

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Official Journal of the European Union
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(21) In determining whether a class of OTC derivative
(25) Rules
on
clearing
OTC
derivative
contracts,
reporting
on
contract is to be subject to clearing requirements,
derivative transactions and risk-mitigation techniques for
ESMA should aim for a reduction in systemic risk. This
OTC derivative contracts not cleared by a CCP should
includes taking into account in the assessment factors
apply to financial counterparties, namely investment
such as the level of contractual and operational standard
firms as authorised in accordance with Directive
isation of contracts, the volume and the liquidity of the
2004/39/EC, credit institutions as authorised in
relevant class of OTC derivative contract as well as the
accordance with Directive 2006/48/EC of the European
availability of fair, reliable and generally accepted pricing
Parliament and of the Council of 14 June 2006 relating
information in the relevant class of OTC derivative
to the taking up and pursuit of the business of credit
contract.
institutions ( 1 ), insurance undertakings as authorised in
accordance with First Council Directive 73/239/EEC of
24 July 1973 on the coordination of laws, Regulations
and administrative provisions relating to the taking-up
and pursuit of the business of direct insurance other
than life insurance ( 2 ), assurance undertakings as auth
orised in accordance with Directive 2002/83/EC of the
(22) For
an
OTC
derivative
contract
to
be
cleared,
both
parties
European Parliament and of the Council of 5 November
to that contract must be subject to a clearing obligation
2002 concerning life assurance ( 3 ), reinsurance under
or must consent. Exemptions to the clearing obligation
takings as authorised in accordance with Directive
should be narrowly tailored as they would reduce the
2005/68/EC of the European Parliament and of the
effectiveness of the obligation and the benefits of CCP
Council of 16 November 2005 on reinsurance ( 4 ), under
clearing and may lead to regulatory arbitrage between
takings for collective investments in transferable
groups of market participants.
securities (UCITS) and, where relevant, their management
companies, as authorised in accordance with Directive
2009/65/EC of the European Parliament and of the
Council of 13 July 2009 on the coordination of laws,
regulations and administrative provisions relating to
undertakings for collective investment in transferable
securities (UCITS)
( 5 ), institutions for occupational
(23) In
order
to
foster
financial
stability
within
the
Union,
it
retirement provision as defined in Directive 2003/41/EC
might be necessary also to subject the transactions
of the European Parliament and of the Council of 3 June
entered into by entities established in third countries to
2003 on the activities and supervision of institutions for
the clearing and risk-mitigation techniques obligations,
occupational retirement provision
( 6 ) and alternative
provided that the transactions concerned have a direct,
investment funds managed by alternative investment
substantial and foreseeable effect within the Union or
fund managers (AIFM) as authorised or registered in
where such obligations are necessary or appropriate to
accordance with Directive 2011/61/EU of the European
prevent the evasion of any provisions of this Regulation.
Parliament and of the Council of 8 June 2011 on Alter
native Investment Fund Managers ( 7 ).
(24) OTC
derivative
contracts
that
are
not
considered
suitable
for CCP clearing entail counterparty credit and oper
(26) Entities
operating pension scheme arrangements, the
ational risk and therefore, rules should be established
primary purpose of which is to provide benefits upon
to manage that risk. To mitigate counterparty credit
retirement, usually in the form of payments for life, but
risk, market participants that are subject to the clearing
also as payments made for a temporary period or as a
obligation should have risk-management procedures that
lump sum, typically minimise their allocation to cash in
require the timely, accurate and appropriately segregated
order to maximise the efficiency and the return for their
exchange of collateral. When preparing draft regulatory
policy holders. Hence, requiring such entities to clear
technical standards specifying those risk-management
OTC derivative contracts centrally would lead to
procedures, ESMA should take into account the
divesting a significant proportion of their assets for
proposals of the international standard setting bodies
cash in order for them to meet the ongoing margin
on margining requirements for non-centrally cleared
requirements of CCPs. To avoid a likely negative
derivatives. When developing draft regulatory technical
impact of such a requirement on the retirement
standards to specify the arrangements required for the
income of future pensioners, the clearing obligation
accurate and appropriate exchange of collateral to
should not apply to pension schemes until a suitable
manage risks associated with uncleared trades, ESMA
technical solution for the transfer of non-cash collateral
should take due account of impediments faced by
covered bond issuers or cover pools in providing
( 1 ) OJ L 177, 30.6.2006, p. 1.
collateral in a number of Union jurisdictions. ESMA
( 2 ) OJ L 228, 16.8.1973, p. 3.
should also take into account the fact that preferential
( 3 ) OJ L 345, 19.12.2002, p. 1.
claims given to covered bond issuers counterparties on
( 4 ) OJ L 323, 9.12.2005, p. 1.
( 5 ) OJ L 302, 17.11.2009, p. 32.
the covered bond issuer’s assets provides equivalent
( 6 ) OJ L 235, 23.9.2003, p. 10.
protection against counterparty credit risk.
( 7 ) OJ L 174, 1.7.2011, p. 1.

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as variation margins is developed by CCPs to address this
products of the insurer which do not have the primary
problem. Such a technical solution should take into
purpose of providing an income at retirement.
account the special role of pension scheme arrangements
and avoid materially adverse effects on pensioners.
During a transitional period, OTC derivative contracts
entered into with a view to decreasing investment risks
directly relating to the financial solvency of pension
scheme arrangements should be subject not only to the
Further examples might be retirement provision busi
reporting obligation, but also to bilateral collateralisation
nesses of insurance undertakings covered by Directive
requirements. The ultimate aim, however, is central
2002/83/EC, provided that all assets corresponding to
clearing as soon as this is tenable.
the businesses are included in a special register in
accordance with the Annex to Directive 2001/17/EC of
the European Parliament and of the Council of 19 March
2001 on the reorganisation and winding-up of insurance
undertakings ( 1 ) as well as occupational retirement
provision arrangements of insurance undertakings based
on collective bargaining agreements. Institutions estab
(27) It
is
important
to
ensure
that
only
appropriate
entities
lished for the purpose of providing compensation to
and arrangements receive special treatment as well as to
members of pension scheme arrangements in the case
take into account the diversity of pension systems across
of a default should also be treated as a pension scheme
the Union, while also to provide for a level playing field
for the purpose of this Regulation.
for all pension scheme arrangements. Therefore, the
temporary derogation should apply to institutions for
occupational retirement provision registered in
accordance with Directive 2003/41/EC, including any
authorised entity responsible for managing such an insti
tution and acting on its behalf as referred to in
Article 2(1) of that Directive as well as any legal entity
(29) Where
appropriate,
rules
applicable
to
financial
counter
set up for the purpose of investment by such institutions,
parties, should also apply to non-financial counterparties.
acting solely and exclusively in their interest, and to
It is recognised that non-financial counterparties use OTC
occupational retirement provision businesses of insti
derivative contracts in order to cover themselves against
tutions referred to in Article 3 of Directive 2003/41/EC.
commercial risks directly linked to their commercial or
treasury financing activities. Consequently, in determining
whether a non-financial counterparty should be subject
to the clearing obligation, consideration should be given
to the purpose for which that non-financial counterparty
uses OTC derivative contracts and to the size of the
exposures that it has in those instruments. In order to
ensure that non-financial institutions have the oppor
(28) The
temporary
derogation
should
also
apply
to
occupa
tunity to state their views on the clearing thresholds,
tional retirement provision businesses of life insurance
ESMA should, when preparing the relevant regulatory
undertakings provided that all corresponding assets and
technical standards, conduct an open public consultation
liabilities are ring-fenced, managed and organised separ
ensuring the participation of non-financial institutions.
ately, without any possibility of transfer. It should also
ESMA should also consult all relevant authorities, for
apply to any other authorised and supervised entities
example the Agency for the Cooperation of Energy Regu
operating on a national basis only or arrangements
lators, in order to ensure that the particularities of those
that are provided mainly in the territory of one
sectors are fully taken into account. Moreover, by
Member State, only if both of them are recognised by
17 August 2015, the Commission should assess the
national law and their primary purpose is to provide
systemic importance of the transactions of non-
benefits upon retirement. The entities and arrangements
financial firms in OTC derivative contracts in different
referred to in this recital should be subject to the decision
sectors, including in the energy sector.
of the relevant competent authority and in order to
ensure consistency, remove possible misalignments and
avoid any abuse, the opinion of ESMA, after consulting
EIOPA. This could include entities and arrangements that
are not necessarily linked to an employer pension
programme but still have the primary purpose of
providing income at retirement, either on a compulsory
(30) In determining whether an OTC derivative
contract
or on a voluntary basis. Examples could include legal
reduces risks directly relating to the commercial activities
entities operating pension schemes on a funded basis
and treasury activities of a non-financial counterparty,
under national law, provided that they invest in
due account should be taken of that non-financial
accordance with the ‘prudent person’ principle, and
counterparty’s overall hedging and risk-mitigation strat
pension arrangements taken up by individuals directly,
egies. In particular, consideration should be given to
which may also be provided by life insurers. The
whether an OTC derivative contract is economically
exemption in the case of pension arrangements taken
appropriate for the reduction of risks in the conduct
up by individuals directly should not cover OTC
derivative contracts relating to other life insurance
( 1 ) OJ L 110, 20.4.2001, p. 28.

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Official Journal of the European Union
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and management of a non-financial counterparty, where
and in the regulatory technical standards developed by
the risks relate to fluctuations in interest rates, foreign
ESMA and adopted by the Commission. The Commission
exchange rates, inflation rates or commodity prices.
should continue to monitor closely the evolution of the
OTC derivatives market and should, where necessary,
intervene in order to prevent competitive distortions
from occurring in the internal market with the aim of
ensuring a level playing field in the financial markets.
(31) The clearing threshold is a very important figure for all
non-financial counterparties. When the clearing threshold
is set, the systemic relevance of the sum of net positions
and exposures per counterparty and per class of OTC
derivative contract should be taken into account. In
that connection, appropriate efforts should be made to
recognise the methods of risk mitigation used by non-
(36) In certain areas within financial services and trading of
financial counterparties in the context of their normal
derivative contracts, commercial and intellectual property
business activity.
rights may also exist. In instances where such property
rights relate to products or services which have become,
or impact upon, industry standards, licences should be
available on proportionate, fair, reasonable and non-
discriminatory terms.
(32) Members
of
the
ESCB
and
other
Member
States’
bodies
performing similar functions, other Union public bodies
charged with or intervening in the management of the
public debt, and the Bank for International Settlements
should be excluded from the scope of this Regulation in
order to avoid limiting their power to perform their tasks
(37) In
order
to
identify
the
relevant
classes
of
OTC
derivative
of common interest.
contracts that should be subject to the clearing
obligation, the thresholds and systemically relevant
non-financial counterparties, reliable data is needed.
Therefore, for regulatory purposes, it is important that
(33) As
not
all
market
participants
that
are
subject
to
the
a uniform derivatives data reporting requirement is estab
clearing obligation are able to become clearing
lished at Union level. Moreover, a retrospective reporting
members of the CCP, they should have the possibility
obligation is needed, to the largest possible extent, for
to access CCPs as clients or indirect clients subject to
both financial counterparties and non-financial counter
certain conditions.
parties, in order to provide comparative data, including
to ESMA and the relevant competent authorities.
(34) The
introduction
of
a
clearing
obligation
along
with
a
process to establish which CCPs can be used for the
purpose of this obligation may lead to unintended
competitive distortions of the OTC derivatives market.
(38) An intragroup transaction is a transaction between two
For example, a CCP could refuse to clear transactions
undertakings which are included in the same consoli
executed on certain trading venues because the CCP is
dation on a full basis and are subject to appropriate
owned by a competing trading venue. In order to avoid
centralised risk evaluation, measurement and control
such discriminatory practices, CCPs should agree to clear
procedures. They are part of the same institutional
transactions executed in different trading venues, to the
protection scheme as referred to in Article 80(8) of
extent that those trading venues comply with the oper
Directive 2006/48/EC or, in the case of credit institutions
ational and technical requirements established by the
affiliated to the same central body, as referred to in
CCP, without reference to the contractual documents
Article 3(1) of that Directive, both are credit institutions
on the basis of which the parties concluded the
or one is a credit institution and the other is a central
relevant OTC derivative transaction, provided that those
body. OTC derivative contracts may be recognised within
documents are consistent with market standards. Trading
non-financial or financial groups, as well as within
venues should provide the CCPs with trade feeds on a
groups composed of both financial and non-financial
transparent and non-discriminatory basis. The right of
undertakings, and if such a contract is considered an
access of a CCP to a trading venue should allow for
intragroup transaction in respect of one counterparty,
arrangements whereby multiple CCPs use trade feeds of
then it should also be considered an intragroup trans
the same trading venue. However, this should not lead to
action in respect of the other counterparty to that
interoperability for derivatives clearing or create liquidity
contract. It is recognised that intragroup transactions
fragmentation.
may be necessary for aggregating risks within a group

structure and that intragroup risks are therefore specific.
Since the submission of those transactions to the clearing
obligation may limit the efficiency of those intragroup
risk-management processes, an exemption of intragroup
(35) This
Regulation
should
not
block
fair
and
open
access
transactions from the clearing obligation may be
between trading venues and CCPs in the internal market,
beneficial, provided that this exemption does not
subject to the conditions laid down in this Regulation
increase systemic risk. As a result, adequate exchange

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European
Union L
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of collateral should be substituted to the CCP clearing
relation to a group the parent undertaking of which has
those transactions, where that is appropriate to mitigate
its head office in a third country, the same consolidated
intragroup counterparty risks.
supervision by a third country competent authority
verified as equivalent to that governed by the principles
laid down in Article 143 of Directive 2006/48/EC or in
Article 2 of Directive 2006/49/EC.
(39) However, some intragroup transactions could be
exempted, in some cases on the basis of the decision
of the competent authorities, from the collateralisation
requirement provided that their risk-management
procedures are adequately sound, robust and consistent
(41) It
is
important
that
market
participants
report
all
details
with the level of complexity of the transaction and there
regarding derivative contracts they have entered into to
is no impediment to the prompt transfer of own funds
trade repositories. As a result, information on the risks
or repayment of liabilities between the counterparties.
inherent in derivatives markets will be centrally stored
Those criteria as well as the procedures for the counter
and easily accessible, inter alia, to ESMA, the relevant
parties and the relevant competent authorities to be
competent authorities, the European Systemic Risk
followed while applying exemptions should be specified
Board (ESRB) and the relevant central banks of the ESCB.
in regulatory technical standards adopted in accordance
with the relevant regulations establishing the ESAs.
Before developing such draft regulatory technical stan
dards, the ESAs should prepare an impact assessment
of their potential impact on the internal market as well
(42) The
provision
of
trade
repository
services
is
characterised
as on financial market participants and in particular on
by economies of scale, which may hamper competition
the operations and the structure of groups concerned. All
in this particular field. At the same time, the imposition
the technical standards applicable to the collateral
of a comprehensive reporting requirement on market
exchanged in intragroup transactions, including criteria
participants may increase the value of the information
for the exemption, should take into account the
maintained by trade repositories also for third parties
prevailing specificities of those transactions and existing
providing ancillary services such as trade confirmation,
differences between non-financial and financial counter
trade matching, credit event servicing, portfolio recon
parties as well as their purpose and methods of using
ciliation or portfolio compression. It is appropriate to
derivatives.
ensure that a level playing field in the post-trade sector
more generally is not compromised by a possible natural
monopoly in the provision of trade repository services.
Therefore, trade repositories should be required to
(40) Counterparties should be considered to be included in
provide access to the information held in the repository
the same consolidation at least where they are both
on fair, reasonable and non-discriminatory terms, subject
included in a consolidation in accordance with Council
to necessary precautions on data protection.
Directive 83/349/EEC
( 1 ) or International Financial
Reporting Standards (IFRS) adopted pursuant to Regu
lation (EC) No 1606/2002 of the European Parliament
and of the Council ( 2 ) or, in relation to a group the
parent undertaking of which has its head office in a
third country, in accordance with generally accepted
(43) In
order
to
allow
for
a
comprehensive
overview
of
the
accounting principles of a third country determined to
market and for assessing systemic risk, both CCP-cleared
be equivalent to IFRS in accordance with Commission
and non-CCP-cleared derivative contracts should be
Regulation (EC) No
1569/2007
(
reported to trade repositories.

3 ) (or accounting
standards of a third country the use of which is
permitted in accordance with Article 4 of Regulation
(EC) No 1569/2007), or where they are both covered
by the same consolidated supervision in accordance
with Directive 2006/48/EC or with Directive 2006/49/EC
(44) The
ESAs
should
be
provided
with
adequate
resources
in
of the European Parliament and of the Council ( 4 ) or, in
order to perform the tasks they are given in this Regu
lation effectively.
( 1 ) Seventh Council Directive 83/349/EEC of 13 June 1983 based on
Article 54(3)(g) of the Treaty on consolidated accounts (OJ L 193,
18.7.1983, p. 1).
( 2 ) Regulation (EC) No 1606/2002 of the European Parliament and of
the Council of 19 July 2002 on the application of international
(45) Counterparties and CCPs that conclude, modify,
accounting standards (OJ L 243, 11.9.2002, p. 1).
( 3 ) Commission Regulation (EC) No 1569/2007 of 21 December 2007
or terminate a derivative contract should ensure that
establishing a mechanism for the determination of equivalence of
the details of that contract are reported to a trade
accounting standards applied by third country issuers of securities
repository. They should be able to delegate the
pursuant to Directives 2003/71/EC and 2004/109/EC of the
reporting of the contract to another entity. An entity
European Parliament and of the Council (OJ L 340, 22.12.2007,
or its employees that report the details of a derivative
p. 66).
contract to a trade repository on behalf of a counter
( 4 ) Directive 2006/49/EC of the European Parliament and of the
Council of 14 June 2006 on the capital adequacy of investment
party, in accordance with this Regulation, should not
firms and credit institutions (OJ L 177, 30.6.2006, p. 201).
be in breach of any restriction on disclosure. When

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L 201/8
EN
Official Journal of the European Union
27.7.2012
preparing the draft regulatory technical standards
application of this Regulation, those requirements should
regarding reporting, ESMA should take into account the
apply to the clearing of all financial instruments in which
progress made in the development of a unique contract
the CCPs deal.
identifier and the list of required reporting data in
Annex I, Table 1 of Commission Regulation (EC)
No 1287/2006 ( 1 ) implementing Directive 2004/39/EC
and consult other relevant authorities such as the
Agency for the Cooperation of Energy Regulators.
(50) It
is
therefore
necessary,
for
regulatory
and
harmon
isation purposes, to ensure that counterparties only use
CCPs which comply with the requirements laid down in
this Regulation. Those requirements should not prevent
Member States from adopting or continuing to apply
(46) Taking into consideration the principles set out in the
additional requirements in respect of CCPs established
Commission’s Communication on reinforcing sanc
in their territory including certain authorisation
tioning regimes in the financial services sector and legal
requirements under Directive 2006/48/EC. However,
acts of the Union adopted as a follow-up to that
imposing such additional requirements should not
Communication, Member States should lay down rules
influence the right of CCPs authorised in other Member
on penalties applicable to infringements of this Regu
States or recognised, in accordance with this Regulation,
lation. Member States should enforce those penalties in
to provide clearing services to clearing members and
a manner that does not reduce the effectiveness of those
their clients established in the Member State introducing
rules. Those penalties should be effective, proportionate
additional requirements, since those CCPs are not subject
and dissuasive. They should be based on guidelines
to those additional requirements and do not need to
adopted by ESMA to promote convergence and cross-
comply with them. By 30 September 2014, ESMA
sector consistency of penalty regimes in the financial
should draft a report on the impact of the application
sector. Member States should ensure that the penalties
of additional requirements by Member States.
imposed are publicly disclosed, where appropriate, and
that assessment reports on the effectiveness of existing
rules are published at regular intervals.
(51) Direct
rules
regarding
the
authorisation
and
supervision
of CCPs are an essential corollary to the obligation to
clear OTC derivative contracts. It is appropriate that
(47) A
CCP
might
be
established
in
accordance
with
this
competent authorities retain responsibility for all
Regulation in any Member State. No Member State or
aspects of the authorisation and the supervision of
group of Member States should be discriminated against,
CCPs, including the responsibility for verifying that the
directly or indirectly, as a venue for clearing services.
applicant CCP complies with this Regulation and with
Nothing in this Regulation should attempt to restrict or
Directive 98/26/EC of the European Parliament and of
impede a CCP in one jurisdiction from clearing a product
the Council of 19 May 1998 on settlement finality in
denominated in the currency of another Member State or
payment and securities settlement systems ( 2 ), in view of
in the currency of a third country.
the fact that those national competent authorities remain
best placed to examine how the CCPs operate on a daily
basis, to carry out regular reviews and to take appro
priate action, where necessary.
(48) Authorisation
of
a
CCP
should
be
conditional
on
a
minimum amount of initial capital. Capital, including
retained earnings and reserves of a CCP, should be
proportionate to the risk stemming from the activities
(52) Where
a
CCP
risks
insolvency,
fiscal
responsibility
may
of the CCP at all times in order to ensure that it is
lie predominantly with the Member State in which that
adequately capitalised against credit, counterparty,
CCP is established. It follows that authorisation and
market, operational, legal and business risks which are
supervision of that CCP should be exercised by the
not already covered by specific financial resources and
relevant competent authority of that Member State.
that it is able to conduct an orderly winding-up or
However, since a CCP’s clearing members may be estab
restructuring of its operations if necessary.
lished in different Member States and they will be the
first to be impacted by the CCP’s default, it is imperative
that all relevant competent authorities and ESMA be
involved in the authorisation and supervisory process.
This will avoid divergent national measures or practices
(49) As
this
Regulation
introduces
a
legal
obligation
to
clear
and obstacles to the proper functioning of the internal
through specific CCPs for regulatory purposes, it is
market. Furthermore, no proposal or policy of any
essential to ensure that those CCPs are safe and sound
member of a college of supervisors should, directly or
and comply at all times with the stringent organisational,
indirectly, discriminate against any Member State or
business conduct, and prudential requirements estab
group of Member States as a venue for clearing
lished by this Regulation. In order to ensure uniform
services in any currency. ESMA should be a participant
( 1 ) OJ L 241, 2.9.2006, p. 1.
( 2 ) OJ L 166, 11.6.1998, p. 45.

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EN
27.7.2012 Official
Journal
of
the
European
Union L
201/9
in every college in order to ensure the consistent and
(57) A
CCP
should
not
be
authorised
where
all
the
members
correct application of this Regulation. ESMA should
of the college, excluding the competent authorities of the
involve other competent authorities in the Member
Member State where the CCP is established, reach a joint
States concerned in the work of preparing recommen
opinion by mutual agreement that the CCP should not be
dations and decisions.
authorised. If, however, a sufficient majority of the
college has expressed a negative opinion and any of
the competent authorities concerned, based on that
majority of two-thirds of the college, has referred the
(53) In
light
of
the
role
assigned
to
colleges,
it
is
important
matter to ESMA, the competent authority of the
that all the relevant competent authorities as well as
Member State where the CCP is established should
members of the ESCB are involved in performing their
defer its decision on the authorisation and await any
tasks. The college should consist not only of the
decision that ESMA may take regarding conformity
competent authorities supervising the CCP but also of
with Union law. The competent authority of the
the supervisors of the entities on which the operations
Member State where the CCP is established should take
of that CCP might have an impact, namely selected
its decision in accordance with such a decision by ESMA.
clearing members, trading venues, interoperable CCPs
Where all the members of the college, excluding the
and central securities depositories. Members of the
authorities of the Member State where the CCP is estab
ESCB that are responsible for the oversight of the CCP
lished, reach a joint opinion to the effect that they
and interoperable CCPs as well as those responsible for
consider that the requirements are not met and that
the issue of the currencies of the financial instruments
the CCP should not receive authorisation, the
cleared by the CCP, should be able to participate in the
competent authority of the Member State where the
college. As the supervised or overseen entities would be
CCP is established should be able to refer the matter to
established in a limited range of Member States in which
ESMA to decide on conformity with Union law.
the CCP operates, a single competent authority or
member of the ESCB could be responsible for supervision
or oversight of a number of those entities. In order to
ensure smooth cooperation between all the members of
the college, appropriate procedures and mechanisms
(58) It
is
necessary
to
reinforce
provisions
on
exchange
of
should be put in place.
information between competent authorities, ESMA and
other relevant authorities and to strengthen the duties
of assistance and cooperation between them. Due to
increasing cross-border activity, those authorities should
provide each other with the relevant information for the
(54) Since
the
establishment
and
functioning
of
the
college
is
assumed to be based on a written agreement between all
exercise of their functions so as to ensure the effective
of its members, it is appropriate to confer upon them the
enforcement of this Regulation, including in situations
power to determine the college’s decision-making
where infringements or suspected infringements may be
procedures, given the sensitivity of the issue. Therefore,
of concern to authorities in two or more Member States.
detailed rules on voting procedures should be laid down
For the exchange of information, strict professional
in a written agreement between the members of the
secrecy is needed. It is essential, due to the wide
college. However, in order to balance the interests of
impact of OTC derivative contracts, that other relevant
all the relevant market participants and Member States
authorities, such as tax authorities and energy regulators,
appropriately, the college should vote in accordance with
have access to information necessary to the exercise of
the general principle whereby each member has one vote,
their functions.
irrespective of the number of functions it performs in
accordance with this Regulation. For colleges with up
to and including 12 members, a maximum of two
college members belonging to the same Member State
(59) In view of the global nature of financial markets, ESMA
should have a vote and each voting member should
should be directly responsible for recognising CCPs
have one vote. For colleges with more than 12
established in third countries and thus allowing them
members, a maximum of three college members
to provide clearing services within the Union, provided
belonging to the same Member State should have a
that the Commission has recognised the legal and super
vote and each voting member should have one vote.
visory framework of that third country as equivalent to
the Union framework and that certain other conditions
are met. Therefore, a CCP established in a third country,
providing clearing services to clearing members or
(55) The very particular situation of CCPs requires that
trading venues established in the Union should be
colleges are organised and function in accordance with
recognised by ESMA. However, in order not to hamper
arrangements that are specific to the supervision of CCPs.
the further development of cross-border investment
management business in the Union, a third-country
CCP providing services to clients established in the
Union through a clearing member established in a
(56) The
arrangements
provided
for
in
this
Regulation
do
not
third country should not have to be recognised by
constitute a precedent for other legislation on the super
ESMA. In this context, agreements with the Union’s
vision and oversight of financial market infrastructures,
major international partners will be of particular
in particular with regard to the voting modalities for
importance in order to ensure a global level playing
referrals to ESMA.
field and financial stability.

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L 201/10
EN
Official Journal of the European Union
27.7.2012
(60) On
16
September
2010,
the
European
Council
agreed
on
other risks, including the risks that it bears or poses to
the need for the Union to promote its interest and values
other entities as a result of interdependencies. A CCP
more assertively and, in a spirit of reciprocity and mutual
should have adequate procedures and mechanisms in
benefit, in the context of the Union’s external relations
place to deal with the default of a clearing member. In
and to take steps, inter alia, to secure greater market
order to minimise the contagion risk of such a default,
access for European business and deepen regulatory
the CCP should have in place stringent participation
cooperation with major trade partners.
requirements, collect appropriate initial margins,
maintain a default fund and other financial resources to
cover potential losses. In order to ensure that it benefits
from sufficient resources on an ongoing basis, the CCP
should establish a minimum amount below which the
(61) A
CCP
should
have
robust
governance
arrangements,
senior management of good repute and independent
size of the default fund is not generally to fall. This
members on its board, irrespective of its ownership
should not, however, limit the CCP’s ability to use the
structure. At least one-third, and no less than two,
entirety of the default fund to cover the losses caused by
members of its board should be independent. However,
a clearing member’s default.
different governance arrangements and ownership
structures may influence a CCP’s willingness or ability
to clear certain products. It is thus appropriate that the
independent members of the board and the risk
committee to be established by the CCP address any
(66) When
defining
a
sound
risk-management
framework,
a
potential conflict of interests within a CCP. Clearing
CCP should take into account its potential risk and
members and clients need to be adequately represented
economic impact on the clearing members and their
as decisions taken by the CCP may have an impact on
clients. Although the development of a highly robust
them.
risk management should remain its primary objective, a
CCP may adapt its features to the specific activities and
risk profiles of the clients of the clearing members, and if
deemed appropriate on the basis of the criteria specified
in the regulatory technical standards to be developed by
(62) A CCP may outsource functions. The CCP’s risk
ESMA, may include in the scope of the highly liquid
committee should advise on such outsourcing. Major
assets accepted as collateral, at least cash, government
activities linked to risk management should not be
bonds, covered bonds in accordance with Directive
outsourced unless this is approved by the competent
2006/48/EC subject to adequate haircuts, guarantees
authority.
callable on first demand granted by a member of the
ESCB, commercial bank guarantees under strict
conditions, in particular relating to the creditworthiness
of the guarantor, and the guarantor’s capital links with
(63) The
participation
requirements
for
a
CCP should
be
CCP’s clearing members. Where appropriate, ESMA may
transparent, proportionate, and non-discriminatory and
also consider gold as an asset acceptable as collateral.
should allow for remote access to the extent that this
CCPs should be able to accept, under strict risk-
does not expose the CCP to additional risks.
management conditions, commercial bank guarantees
from non-financial counterparties acting as clearing
members.
(64) Clients of clearing members that clear their OTC
derivative contracts with CCPs should be granted a
high level of protection. The actual level of protection
(67) CCPs’
risk-management
strategies
should
be
sufficiently
depends on the level of segregation that those clients
sound so as to avoid risks for the taxpayer.
choose. Intermediaries should segregate their assets
from those of their clients. For this reason, CCPs
should keep updated and easily identifiable records, in
order to facilitate the transfer of the positions and
assets of a defaulting clearing member’s clients to a
(68) Margin calls and haircuts on collateral may have
solvent clearing member or, as the case may be, the
procyclical effects. CCPs, competent authorities and
orderly liquidation of the clients’ positions and the
ESMA should therefore adopt measures to prevent and
return of excess collateral to the clients. The requirements
control possible procyclical effects in risk-management
laid down in this Regulation on the segregation and
practices adopted by CCPs, to the extent that a CCP’s
portability of clients’ positions and assets should
soundness and financial security is not negatively
therefore prevail over any conflicting laws, regulations
affected.
and administrative provisions of the Member States
that prevent the parties from fulfilling them.
(69) Exposure management is an essential part of the clearing
(65) A
CCP
should
have
a
sound
risk-management
framework
process. Access to, and use of, the relevant pricing
to manage credit risks, liquidity risks, operational and
sources should be granted to provide clearing services

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EN
27.7.2012 Official
Journal
of
the
European
Union L
201/11
in general. Such pricing sources should include those
ESMA should assume responsibility for the registration,
relating to indices that are used as references to
withdrawal of registration and supervision of trade
derivatives or other financial instruments.
repositories.
(70) Margins
are
the
primary
line
of
defence
for
a
CCP.
(75) Given
that
regulators,
CCPs
and
other
market
participants
Although CCPs should invest the margins received in a
rely on the data maintained by trade repositories, it is
safe and prudent manner, they should make particular
necessary to ensure that those trade repositories are
efforts to ensure adequate protection of margins to
subject to strict operational, record-keeping and data-
guarantee that they are returned in a timely manner to
management requirements.
the non-defaulting clearing members or to an inter
operable CCP where the CCP collecting these margins
defaults.
(76) Transparency
of
prices,
fees
and
risk-management
models
associated with the services provided by CCPs, their
members and trade repositories is necessary to enable
(71) Access
to
adequate
liquidity
resources
is
essential
for
a
market participants to make an informed choice.
CCP. It is possible for such liquidity to derive from access
to central bank liquidity, creditworthy and reliable
commercial bank liquidity, or a combination of both.
Access to liquidity could result from an authorisation
(77) In
order
to
carry
out
its
duties
effectively,
ESMA
should
granted in accordance with Article 6 of Directive
be able to require, by simple request or by decision, all
2006/48/EC or other appropriate arrangements. In
necessary information from trade repositories, related
assessing the adequacy of liquidity resources, especially
third parties and third parties to which the trade reposi
in stress situations, a CCP should take into consideration
tories have outsourced operational functions or activities.
the risks of obtaining the liquidity by only relying on
If ESMA requires such information by simple request, the
commercial banks credit lines.
addressee is not obliged to provide the information but,
in the event that it does so voluntarily, the information
provided should not be incorrect or misleading. Such
information should be made available without delay.
(72) The ‘European Code of Conduct for Clearing and
Settlement’ of 7 November 2006 established a
voluntary framework for establishing links between
CCPs. However, the post-trade sector remains fragmented
(78) Without
prejudice
to
cases
covered
by
criminal
or
tax
along national lines, making cross-border trades more
law, the competent authorities, ESMA, bodies or natural
costly and hindering harmonisation. It is therefore
or legal persons other than the competent authorities,
necessary to lay down the conditions for the estab
which receive confidential information should use it
lishment of interoperability arrangements between CCPs
only in the performance of their duties and for the
to the extent these do not expose the relevant CCPs to
exercise of their functions. However, this should not
risks that are not appropriately managed.
prevent the exercise, in accordance with national law,
of the functions of national bodies responsible for the
prevention, investigation or correction of cases of
maladministration.
(73) Interoperability arrangements are important for greater
integration of the post-trading market within the Union
and regulation should be provided for. However, as inter
operability arrangements may expose CCPs to additional
(79) In
order
to
exercise
its
supervisory
powers
effectively,
risks, CCPs should have been, for three years, authorised
ESMA should be able to conduct investigations and on-
to clear or recognised in accordance with this Regulation,
site inspections.
or authorised under a pre-existing national authorisation
regime, before competent authorities grant approval of
such interoperability arrangements. In addition, given the
additional complexities involved in an interoperability
(80) ESMA
should
be
able
to
delegate
specific
supervisory
arrangement between CCPs clearing OTC derivative
tasks to the competent authority of a Member State,
contracts, it is appropriate at this stage to restrict the
for instance where a supervisory task requires
scope of interoperability arrangements to transferable
knowledge and experience with respect to local
securities and money-market instruments. However, by
conditions, which are more easily available at national
30 September 2014, ESMA should submit a report to
level. ESMA should be able to delegate the carrying out
the Commission on whether an extension of that scope
of specific investigatory tasks and on-site inspections.
to other financial instruments would be appropriate.
Prior to the delegation of tasks, ESMA should consult
the relevant competent authority about the detailed
conditions relating to such delegation of tasks,
including the scope of the task to be delegated, the
(74) Trade
repositories
collect
data
for
regulatory
purposes
timetable for the performance of the task, and the trans
that are relevant to authorities in all Member States.
mission of necessary information by and to ESMA. ESMA

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L 201/12
EN
Official Journal of the European Union
27.7.2012
should compensate the competent authorities for
(87) ESMA’s
decisions
imposing
fines
and
periodic
penalty
carrying out a delegated task in accordance with a regu
payments should be enforceable and their enforcement
lation on fees to be adopted by the Commission by
should be subject to the rules of civil procedure which
means of a delegated act. ESMA should not be able to
are in force in the State in the territory of which it is
delegate the power to adopt decisions on registration.
carried out. Rules of civil procedure should not include
criminal procedural rules but could include adminis
trative procedural rules.
(81) It
is
necessary
to
ensure
that
competent
authorities
are
able to request that ESMA examine whether the
conditions for the withdrawal of a trade repository’s
(88) In
the
case
of
an
infringement
committed
by
a
trade
registration are met. ESMA should assess such requests
repository, ESMA should be empowered to take a
and take any appropriate measures.
range of supervisory measures, including requiring the
trade repository to bring the infringement to an end,
and, as a last resort, withdrawing the registration where
the trade repository has seriously or repeatedly infringed
(82) ESMA should be able to impose periodic penalty
this Regulation. The supervisory measures should be
payments to compel trade repositories to put an end
applied by ESMA taking into account the nature and
to an infringement, to supply complete and correct
seriousness of the infringement and should respect the
information required by ESMA or to submit to an inves
principle of proportionality. Before taking a decision on
tigation or an on-site inspection.
supervisory measures, ESMA should give the persons
subject to the proceedings an opportunity to be heard
in order to comply with their rights of defence.
(83) ESMA
should
also
be
able
to
impose
fines
on
trade
repositories where it finds that they have committed,
intentionally or negligently, an infringement of this Regu
lation. Fines should be imposed according to the level of
(89) It
is
essential
that
Member
States
and
ESMA
protect
the
seriousness of the infringement. Infringements should be
right to privacy of natural persons when processing
divided into different groups for which specific fines
personal data, in accordance with Directive 95/46/EC
should be allocated. In order to calculate the fine
of the European Parliament and of the Council of
relating to a particular infringement, ESMA should use
24 October 1995 on the protection of individuals with
a two-step methodology consisting of setting a basic
regard to the processing of personal data and on the free
amount and adjusting that basic amount, if necessary,
movement of such data ( 1 ) and with Regulation (EC)
by certain coefficients. The basic amount should be
No 45/2001 of the European Parliament and of the
established by taking into account the annual turnover
Council of 18 December 2000 on the protection of
of the trade repository concerned and the adjustments
individuals with regard to the processing of personal
should be made by increasing or decreasing the basic
data by the Community institutions and bodies and of
amount through the application of the relevant coef
the free movement of such data ( 2 ).
ficients in accordance with this Regulation.
(90) It
is
important
to
ensure
international
convergence
of
(84) This
Regulation
should
establish
coefficients
linked
to
requirements for CCPs and trade repositories. This Regu
aggravating and mitigating circumstances in order to
lation follows the existing recommendations developed
give the necessary tools to ESMA to decide on a fine
by the Committee on Payment and Settlement Systems
which is proportionate to the seriousness of the
(CPSS) and International Organization of Securities
infringement committed by a trade repository, taking
Commissions (IOSCO) noting that the CPSS-IOSCO prin
into account the circumstances under which that
ciples for financial market infrastructure, including CCPs,
infringement has been committed.
were established on 16 April 2012. It creates a Union
framework in which CCPs can operate safely. ESMA
should consider these existing standards and their
future developments when drawing up or proposing to
(85) Before taking a decision to impose fines or periodic
revise the regulatory technical standards as well as the
penalty payments, ESMA should give the persons
guidelines and recommendations foreseen in this Regu
subject to the proceedings the opportunity to be heard
lation.
in order to respect their rights of defence.
(91) The
power
to
adopt
acts
in
accordance
with
Article
290
(86) ESMA
should
refrain
from
imposing
fines
or
periodic
of the Treaty on the Functioning of the European Union
penalty payments where a prior acquittal or conviction
(TFEU) should be delegated to the Commission in respect
arising from identical facts, or from facts which are
of amendments to the list of entities exempt from this
substantially the same, has acquired the force of res
judicata as a result of criminal proceedings under
( 1 ) OJ L 281, 23.11.1995, p. 31.
national law.
( 2 ) OJ L 8, 12.1.2001, p. 1.

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EN
27.7.2012 Official
Journal
of
the
European
Union L
201/13
Regulation, further rules of procedure relating to the
plans; the appropriate percentage and time horizons for
imposition of fines or periodic penalty payments,
the liquidation period and the calculation of historical
including provisions on the rights of the defence, time
volatility to be considered for the different classes of
limits, the collection of fines or periodic penalty
financial instruments taking into account the objective
payments and the limitation periods for the imposition
to limit pro-cyclicality and the conditions under which
and enforcement of penalty payments or fines; measures
portfolio margining practices can be implemented; the
to amend Annex II in order to take account of devel
framework for defining extreme but plausible market
opments in the financial markets; the further specifi
conditions which should be used when defining the
cation of the type of fees, the matters for which fees
size of the default fund and the resources of CCPs; the
are due, the amount of the fees and the manner in
methodology for calculating and maintaining the amount
which they are to be paid. It is of particular importance
of CCPs’ own resources; the type of collateral that could
that the Commission carry out appropriate consultations
be considered highly liquid, such as cash, gold,
during its preparatory work, including at expert level.
government and high-quality corporate bonds, covered
The Commission, when preparing and drawing up
bonds and the haircuts and the conditions under which
delegated acts, should ensure a simultaneous, timely
commercial bank guarantees can be accepted as
and appropriate transmission of relevant documents to
collateral; the financial instruments that can be
the European Parliament and to the Council.
considered highly liquid, bearing minimal credit and
market risk, highly secured arrangements and concen
tration limits; the type of stress tests to be undertaken
(92) In order
to ensure consistent harmonisation, power
should be delegated to the Commission to adopt
by CCPs for different classes of financial instruments and
the ESAs’ draft regulatory technical standards in
portfolios, the involvement of clearing members or other
accordance with Articles 10 to 14 of Regulations (EU)
parties in the tests, the frequency and timing of the tests
No 1093/2010,
(EU)
No 1094/2010
and
(EU)
and the key information that the CCP is to disclose on its
No 1095/2010 for the application, for the purposes of
risk-management model and assumptions adopted to
this Regulation, of points (4) to (10) of Section C of
perform the stress tests; the details of the application
Annex I to Directive 2004/39/EC and in order to
by trade repositories for registration with ESMA; the
specify: the OTC derivative contracts that are considered
frequency and the detail in which trade repositories are
to have a direct, substantial and foreseeable effect within
to disclose information relating to aggregate positions by
the Union or the cases where it is necessary or appro
class of OTC derivative contract; and the operational
priate to prevent the evasion of any provision of this
standards required in order to aggregate and compare
Regulation; the types of indirect contractual
data across repositories.
arrangements that meet the conditions set out in this
Regulation; the classes of OTC derivative contracts that
should be subject to the clearing obligation, the date or
(93) Any
obligation
imposed
by
this
Regulation
which
is
to
dates from which the clearing obligation is to take effect,
be further developed by means of delegated or imple
including any phase-in, the categories of counterparties
menting acts adopted under Article 290 or 291 TFEU
to which the clearing obligation applies, and the
should be understood as applying only from the date on
minimum remaining maturity of the OTC derivative
which those acts take effect.
contracts entered into or novated before the date on
which the clearing obligation takes effect; the details to
be included in a competent authority’s notification to
(94) As a part of its development of technical guidelines and
ESMA of its authorisation of a CCP to clear a class of
regulatory technical standards, and in particular when
OTC derivative contract; particular classes of OTC
setting the clearing threshold for non-financial counter
derivative contracts, the degree of standardisation of the
parties under this Regulation, ESMA should organise
contractual terms and operational processes, the volume
public hearings of market participants.
and the liquidity, and the availability of fair, reliable and
generally accepted pricing information; the details to be
included in ESMA’s register of classes of OTC derivative
(95) In
order
to
ensure
uniform
conditions
for
the
implemen
contracts subject to the clearing obligation; the details
tation of this Regulation, implementing powers should be
and type of the reports for the different classes of deriva
conferred on the Commission. Those powers should be
tives; criteria to determine which OTC derivative
exercised in accordance with Regulation (EU)
contracts are objectively measurable as reducing risks
No 182/2011 of the European Parliament and of the
directly relating to the commercial activity or treasury
Council of 16 February 2011 laying down the rules
financing activity and values of the clearing thresholds,
and general principles concerning mechanisms for
the procedures and the arrangements in regard to risk-
control by Member States of the Commission’s exercise
mitigation techniques for OTC derivative contracts not
of implementing powers ( 1 ).
cleared by a CCP; the risk-management procedures,
including the required levels and type of collateral and
segregation arrangements and the required level of
(96) The
Commission
should
monitor
and
assess
the
need
for
capital; the notion of liquidity fragmentation;
any appropriate measures to ensure the consistent and
requirements regarding the capital, retained earnings
effective application and development of regulations,
and reserves of CCPs; the minimum content of the
standards and practices falling within the scope of this
rules and governance arrangements for CCPs; the
Regulation, taking into consideration the outcome of the
details of the records and information to be retained
work performed by relevant international forums.
by CCPs; the minimum content and requirements for
CCPs’ business continuity policies and disaster recovery
( 1 ) OJ L 55, 28.2.2011, p. 13.

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L 201/14
EN
Official Journal of the European Union
27.7.2012
(97) In
view
of
the
rules
regarding
interoperable
systems,
it
(b) the Bank for International Settlements.
was deemed appropriate to amend Directive 98/26/EC to
protect the rights of a system operator that provides
collateral security to a receiving system operator in the
event of insolvency proceedings against that receiving
5. With the exception of the reporting obligation under
system operator.
Article 9, this Regulation shall not apply to the following
entities:
(98) In order to facilitate efficient clearing, recording,
settlement and payment, CCPs and trade repositories
should accommodate in their communication procedures
(a) multilateral development banks, as listed under Section 4.2
with participants and with the market infrastructures they
of Part 1 of Annex VI to Directive 2006/48/EC;
interface with, the relevant international communication
procedures and standards for messaging and reference
data.
(b) public sector entities within the meaning of point (18) of
Article 4 of Directive 2006/48/EC where they are owned by
central governments and have explicit guarantee
(99) Since
the
objectives
of
this
Regulation,
namely
to
lay
arrangements provided by central governments;
down uniform requirements for OTC derivative
contracts and for the performance of activities of CCPs
and trade repositories, cannot be sufficiently achieved by
the Member States and can therefore, by reason of the
(c) the European Financial Stability Facility and the European
scale of the action, be better achieved at Union level, the
Stability Mechanism.
Union may adopt measures, in accordance with the
principle of subsidiarity as set out in Article 5 of the
Treaty on European Union. In accordance with the
principle of proportionality, as set out in that Article,
6. The
Commission
shall
be
empowered
to
adopt
delegated
this Regulation does not go beyond what is necessary
acts in accordance with Article 82 to amend the list set out in
in order to achieve those objectives,
paragraph 4 of this Article.
HAVE ADOPTED THIS REGULATION:
To that end, by 17 November 2012 the Commission shall
present to the European Parliament and the Council a report
TITLE I
assessing the international treatment of public bodies charged
with or intervening in the management of the public debt and
SUBJECT MATTER, SCOPE AND DEFINITIONS
central banks.
Article 1
Subject matter and scope
The report shall include a comparative analysis of the treatment
1. This
Regulation
lays
down
clearing
and
bilateral
risk- of those bodies and of central banks within the legal framework
management requirements for over-the-counter (‘OTC’)
of a significant number of third countries, including at least the
derivative contracts, reporting requirements for derivative
three most important jurisdictions as regards volumes of
contracts and uniform requirements for the performance of
contracts traded, and the risk-management standards applicable
activities of central counterparties (‘CCPs’) and trade repositories.
to the derivative transactions entered into by those bodies and
by central banks in those jurisdictions. If the report concludes,
in particular in regard to the comparative analysis, that the
2. This
Regulation
shall
apply
to
CCPs
and
their
clearing exemption of the monetary responsibilities of those third-
members, to financial counterparties and to trade repositories.
country central banks from the clearing and reporting
It shall apply to non-financial counterparties and trading venues
obligation is necessary, the Commission shall add them to the
where so provided.
list set out in paragraph 4.
3. Title
V
of
this
Regulation
shall
apply
only
to
transferable
securities and money-market instruments, as defined in point
Article 2
(18)(a) and (b) and point (19) of Article 4(1) of Directive
2004/39/EC.
Definitions
For the purposes of this Regulation, the following definitions
shall apply:
4. This
Regulation
shall
not
apply
to:
(a) the members of the ESCB and other Member States’ bodies
(1) ‘CCP’ means a legal person that interposes itself between
performing similar functions and other Union public bodies
the counterparties to the contracts traded on one or more
charged with or intervening in the management of the
financial markets, becoming the buyer to every seller and
public debt;
the seller to every buyer;

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EN
27.7.2012 Official
Journal
of
the
European
Union L
201/15
(2) ‘trade repository’ means a legal person that centrally
(a) institutions for occupational retirement provision
collects and maintains the records of derivatives;
within the meaning of Article 6(a) of Directive
2003/41/EC, including any authorised entity
responsible for managing such an institution and
(3) ‘clearing’ means the process of establishing positions,
acting on its behalf as referred to in Article 2(1) of
including the calculation of net obligations, and ensuring
that Directive as well as any legal entity set up for the
that financial instruments, cash, or both, are available to
purpose of investment of such institutions, acting
secure the exposures arising from those positions;
solely and exclusively in their interest;
(4) ‘trading venue’ means a system operated by an investment
(b) occupational retirement provision businesses of insti
firm or a market operator within the meaning of
tutions referred to in Article 3 of Directive
Article 4(1)(1) and 4(1)(13) of Directive 2004/39/EC
2003/41/EC;
other than a systematic internaliser within the meaning
of Article 4(1)(7) thereof, which brings together buying
(c) occupational retirement provision businesses of life
or selling interests in financial instruments in the system,
insurance undertakings covered by Directive
in a way that results in a contract in accordance with Title
2002/83/EC, provided that all assets and liabilities
II or III of that Directive;
corresponding to the business are ring-fenced,
managed and organised separately from the other
activities of the insurance undertaking, without any
(5) ‘derivative’ or ‘derivative contract’ means a financial
possibility of transfer;
instrument as set out in points (4) to (10) of Section C
of Annex I to Directive 2004/39/EC as implemented by
Article 38 and 39 of Regulation (EC) No 1287/2006;
(d) any other authorised and supervised entities, or
arrangements, operating on a national basis, provided
that:
(6) ‘class of derivatives’ means a subset of derivatives sharing
common and essential characteristics including at least the
relationship with the underlying asset, the type of
(i) they are recognised under national law; and
underlying asset, and currency of notional amount.
Derivatives belonging to the same class may have
different maturities;
(ii) their primary purpose is to provide retirement
benefits;
(7) ‘OTC derivative’ or ‘OTC derivative contract’ means a
(11) ‘counterparty credit risk’ means the risk that the
derivative contract the execution of which does not take
counterparty to a transaction defaults before the final
place on a regulated market as within the meaning of
settlement of the transaction’s cash flows;
Article 4(1)(14) of Directive 2004/39/EC or on a third-
country market considered as equivalent to a regulated
market in accordance with Article 19(6) of Directive
(12) ‘interoperability arrangement’ means an arrangement
2004/39/EC;
between two or more CCPs that involves a cross-system
execution of transactions;
(8) ‘financial counterparty’ means an investment firm auth
orised in accordance with Directive 2004/39/EC, a credit
(13) ‘competent authority’ means the competent authority
institution authorised in accordance with Directive
referred to in the legislation referred to in point (8) of
2006/48/EC, an insurance undertaking authorised in
this Article, the competent authority referred to in
accordance with Directive 73/239/EEC, an assurance
Article 10(5) or the authority designated by each
undertaking authorised in accordance with Directive
Member State in accordance with Article 22;
2002/83/EC, a reinsurance undertaking authorised in
accordance with Directive 2005/68/EC, a UCITS and,
where relevant, its management company, authorised in
(14) ‘clearing member’ means an undertaking which participates
accordance with Directive 2009/65/EC, an institution for
in a CCP and which is responsible for discharging the
occupational retirement provision within the meaning of
financial obligations arising from that participation;
Article 6(a) of Directive 2003/41/EC and an alternative
investment fund managed by AIFMs authorised or
registered in accordance with Directive 2011/61/EU;
(15) ‘client’ means an undertaking with a contractual rela
tionship with a clearing member of a CCP which enables
that undertaking to clear its transactions with that CCP;
(9) ‘non-financial counterparty’ means an undertaking estab
lished in the Union other than the entities referred to in
(16) ‘group’ means the group of undertakings consisting of a
points (1) and (8);
parent undertaking and its subsidiaries within the meaning
of Articles 1 and 2 of Directive 83/349/EEC or the group
of undertakings referred to in Article 3(1) and Article 80(7)
(10) ‘pension scheme arrangement’ means:
and (8) of Directive 2006/48/EC;

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L 201/16
EN
Official Journal of the European Union
27.7.2012
(17) ‘financial institution’ means an undertaking other than a
(b) control or a similar relationship between any natural
credit institution, the principal activity of which is to
or legal person and an undertaking or a subsidiary of a
acquire holdings or to carry on one or more of the
subsidiary also being considered a subsidiary of the
activities listed in points (2) to (12) of Annex I to
parent undertaking which is at the head of those
Directive 2006/48/EC;
undertakings.
(18) ‘financial holding company’ means a financial institution,
A situation in which two or more natural or legal persons
the subsidiary undertakings of which are either exclusively
are permanently linked to one and the same person by a
or mainly credit institutions or financial institutions, at
control relationship shall also be regarded as constituting a
least one of such subsidiary undertakings being a credit
close link between such persons.
institution, and which is not a mixed financial holding
company within the meaning of Article 2(15) of
Directive 2002/87/EC of the European Parliament and of
(25) ‘capital’ means subscribed capital within the meaning of
the Council of 16 December 2002 on the supplementary
Article 22 of Council Directive 86/635/EEC of
supervision of credit institutions, insurance undertakings
8 December 1986 on the annual accounts and
and investment firms in a financial conglomerate ( 1 );
consolidated accounts of banks and other financial insti
tutions ( 3 ) in so far it has been paid up, plus the related
share premium accounts, it fully absorbs losses in going
(19) ‘ancillary services undertaking’ means an undertaking the
concern situations, and, in the event of bankruptcy or
principal activity of which consists in owning or managing
liquidation, it ranks after all other claims;
property, managing data-processing services, or a similar
activity which is ancillary to the principal activity of one
or more credit institution;
(26) ‘reserves’ means reserves as set out in Article 9 of Fourth
Council Directive 78/660/EEC of 25 July 1978 based on
Article 54(3)(g) of the Treaty on the annual accounts of
(20) ‘qualifying holding’ means any direct or indirect holding in
certain types of companies ( 4 ) and profits and losses
a CCP or trade repository which represents at least 10 % of
brought forward as a result of the application of the
the capital or of the voting rights, as set out in Articles 9
final profit or loss;
and 10 of Directive 2004/109/EC of the European
Parliament and of the Council of 15 December 2004 on
the harmonisation of transparency requirements in relation
(27) ‘board’ means administrative or supervisory board, or
to information about issuers whose securities are admitted
both, in accordance with national company law;
to trading on a regulated market ( 2 ), taking into account
the conditions regarding aggregation thereof laid down in
Article 12(4) and (5) of that Directive, or which makes it
(28) ‘independent member’ of the board means a member of
possible to exercise a significant influence over the
the board who has no business, family or other rela
management of the CCP or trade repository in which
tionship that raises a conflict of interests regarding the
that holding subsists;
CCP concerned or its controlling shareholders, its
management or its clearing members, and who has had
no such relationship during the five years preceding his
(21) ‘parent undertaking’ means a parent undertaking as
membership of the board;
described in Articles 1 and 2 of Directive 83/349/EEC;
(29) ‘senior management’ means the person or persons who
(22) ‘subsidiary’ means a subsidiary undertaking as described in
effectively direct the business of the CCP or the trade
Articles 1 and 2 of Directive 83/349/EEC, including a
repository, and the executive member or members of the
subsidiary of a subsidiary undertaking of an ultimate
board.
parent undertaking;
Article 3
(23) ‘control’ means the relationship between a parent under
taking and a subsidiary, as described in Article 1 of
Intragroup transactions
Directive 83/349/EEC;
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
(24) ‘close links’ means a situation in which two or more
provided that both counterparties are included in the same
natural or legal persons are linked by:
consolidation on a full basis and they are subject to an appro
priate centralised risk evaluation, measurement and control
procedures and that counterparty is established in the Union
(a) participation, by way of direct ownership or control, of
or, if it is established in a third country, the Commission has
20 % or more of the voting rights or capital of an
adopted an implementing act under Article 13(2) in respect of
undertaking; or
that third country.
( 1 ) OJ L 35, 11.2.2003, p. 1.
( 3 ) OJ L 372, 31.12.1986, p. 1.
( 2 ) OJ L 390, 31.12.2004, p. 38.
( 4 ) OJ L 222, 14.8.1978, p. 11.

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EN
27.7.2012 Official
Journal
of
the
European
Union L
201/17
2. In
relation
to
a
financial
counterparty,
an
intragroup
Regulation (EC) No 1569/2007 (or accounting standards
transaction is any of the following:
of a third country the use of which is permitted in
accordance with Article 4 of that Regulation); or
(a) an OTC derivative contract entered into with another
counterparty which is part of the same group, provided
(b) covered by the same consolidated supervision in accordance
that the following conditions are met:
with Directive 2006/48/EC or Directive 2006/49/EC or, in
relation to a group the parent undertaking of which has its
head office in a third country, the same consolidated super
(i) the financial counterparty is established in the Union
vision by a third-country competent authority verified as
or, if it is established in a third country, the
equivalent to that governed by the principles laid down in
Commission has adopted an implementing act under
Article 143 of Directive 2006/48/EC or in Article 2 of
Article 13(2) in respect of that third country;
Directive 2006/49/EC.
(ii) the other counterparty is a financial counterparty, a
TITLE II
financial holding company, a financial institution or
an ancillary services undertaking subject to appropriate
CLEARING, REPORTING AND RISK MITIGATION OF OTC
prudential requirements;
DERIVATIVES
Article 4
(iii) both counterparties are included in the same consoli
Clearing obligation
dation on a full basis; and
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
(iv) both counterparties are subject to appropriate
Article 5(2), if those contracts fulfil both of the following
centralised risk evaluation, measurement and control
conditions:
procedures;
(a) they have been concluded in one of the following ways:
(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 80(8) of Directive 2006/48/EC, provided that the
(i) between two financial counterparties;
condition set out in point (a)(ii) of this paragraph is met;
(ii) between a financial counterparty and a non-financial
(c) an OTC derivative contract entered into between credit
counterparty that meets the conditions referred to in
institutions affiliated to the same central body or between
Article 10(1)(b);
such credit institution and the central body, as referred to in
Article 3(1) of Directive 2006/48/EC; or
(iii) between two non-financial counterparties that meet the
conditions referred to in Article 10(1)(b);
(d) an OTC derivative contract entered into with a non-financial
counterparty which is part of the same group provided that
both counterparties are included in the same consolidation
(iv) between a financial counterparty or a non-financial
on a full basis and they are subject to an appropriate
counterparty meeting the conditions referred to in
centralised risk evaluation, measurement and control
Article 10(1)(b) and an entity established in a third
procedures and that counterparty is established in the
country that would be subject to the clearing obligation
Union or in a third-country jurisdiction for which the
if it were established in the Union; or
Commission has adopted an implementing act as referred
to in Article 13(2) in respect of that third country.
(v) between two entities established in one or more third
countries that would be subject to the clearing
3. For
the
purposes
of
this
Article,
counterparties
shall
be
obligation if they were established in the Union,
considered to be included in the same consolidation when they
provided that the contract has a direct, substantial
are both either:
and foreseeable effect within the Union or where such
an obligation is necessary or appropriate to prevent the
evasion of any provisions of this Regulation; and
(a) included in a consolidation in accordance with Directive
83/349/EEC or International Financial Reporting Standards
(IFRS) adopted pursuant to Regulation (EC) No 1606/2002
(b) they are entered into or novated either:
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
(i) on or after the date from which the clearing obligation
determined to be equivalent to IFRS in accordance with
takes effect; or

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L 201/18
EN
Official Journal of the European Union
27.7.2012
(ii) on or after notification as referred to in Article 5(1) but
4. In
order
to
ensure
consistent
application
of
this
Article,
before the date from which the clearing obligation takes
ESMA shall develop draft regulatory technical standards spec
effect if the contracts have a remaining maturity higher
ifying the contracts that are considered to have a direct,
than the minimum remaining maturity determined by
substantial and foreseeable effect within the Union or the
the Commission in accordance with Article 5(2)(c).
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), and the types of indirect contractual
arrangements that meet the conditions referred to in the
2. Without
prejudice
to
risk-mitigation
techniques
under second subparagraph of paragraph 3.
Article 11, OTC derivative contracts that are intragroup trans
actions as described in Article 3 shall not be subject to the
clearing obligation.
ESMA shall submit those draft regulatory technical standards to
the Commission by 30 September 2012.
The exemption set out in the first subparagraph shall apply
Power is delegated to the Commission to adopt the regulatory
only:
technical standards referred to in the first subparagraph in
accordance with Articles 10 to 14 of Regulation (EU)
No 1095/2010.
(a) where two counterparties established in the Union
belonging to the same group have first notified their
respective competent authorities in writing that they
Article 5
intend to make use of the exemption for the OTC derivative
Clearing obligation procedure
contracts concluded between each other. The notification
shall be made not less than 30 calendar days before the
1. Where a competent authority authorises a CCP to clear a
use of the exemption. Within 30 calendar days after receipt
class of OTC derivatives under Article 14 or 15, it shall
of that notification, the competent authorities may object to
immediately notify ESMA of that authorisation.
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 the competent
In order to ensure consistent application of this Article, ESMA
authorities to object after that period of 30 calendar days
shall develop draft regulatory technical standards specifying the
has expired where those conditions are no longer met. If
details to be included in the notifications referred to in the first
there is disagreement between the competent authorities,
subparagraph.
ESMA may assist those authorities in reaching an
agreement in accordance with its powers under Article 19
of Regulation (EU) No 1095/2010;
ESMA shall submit those draft regulatory technical standards to
the Commission by 30 September 2012.
(b) to OTC derivative contracts between two counterparties
Power is delegated to the Commission to adopt the regulatory
belonging to the same group which are established in a
technical standards referred to in the second subparagraph in
Member State and in a third country, where the
accordance with Articles 10 to 14 of Regulation (EU)
counterparty established in the Union has been authorised
No 1095/2010.
to apply the exemption by its competent authority within
30 calendar days after it has been notified by the
counterparty established in the Union, provided that the
2. Within
six
months
of
receiving
notification
in
accordance
conditions laid down in Article 3 are met. The competent
with paragraph 1 or accomplishing a procedure for recognition
authority shall notify ESMA of that decision.
set out in Article 25, ESMA shall, after conducting a public
consultation and after consulting the ESRB and, where appro
priate, the competent authorities of third countries, develop and
3. The
OTC
derivative
contracts
that
are
subject
to
the submit to the Commission for endorsement draft regulatory
clearing obligation pursuant to paragraph 1 shall be cleared
technical standards specifying the following:
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).
(a) the class of OTC derivatives that should be subject to the
clearing obligation referred to in Article 4;
For that purpose a counterparty shall become a clearing
(b) the date or dates from which the clearing obligation takes
member, a client, or shall establish indirect clearing
effect, including any phase in and the categories of counter
arrangements with a clearing member, provided that those
parties to which the obligation applies; and
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
(c) the minimum remaining maturity of the OTC derivative
39 and 48.
contracts referred to in Article 4(1)(b)(ii).

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EN
27.7.2012 Official
Journal
of
the
European
Union L
201/19
Power is delegated to the Commission to adopt regulatory
5. The
draft
regulatory
technical
standards
for
the
part
technical standards referred to in the first subparagraph in
referred to in paragraph 2(b) shall take into consideration the
accordance with Articles 10 to 14 of Regulation (EU)
following criteria:
No 1095/2010.
(a) the expected volume of the relevant class of OTC deriva
3. ESMA
shall,
on
its
own
initiative,
after
conducting
a
tives;
public consultation and after consulting the ESRB and, where
appropriate, the competent authorities of third countries,
identify, in accordance with the criteria set out in points (a),
(b) whether more than one CCP already clear the same class of
(b) and (c) of paragraph 4 and notify to the Commission the
OTC derivatives;
classes of derivatives that should be subject to the clearing
obligation provided in Article 4, but for which no CCP has
yet received authorisation.
(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;
Following the notification, ESMA shall publish a call for a devel
opment of proposals for the clearing of those classes of deriva
tives.
(d) the type and number of counterparties active, and expected
to be active within the market for the relevant class of OTC
derivatives;
4. With
the
overarching
aim
of
reducing
systemic
risk,
the
draft regulatory technical standards for the part referred to in
paragraph 2(a) shall take into consideration the following
(e) the period of time a counterparty subject to the clearing
criteria:
obligation needs in order to put in place arrangements to
clear its OTC derivative contracts through a CCP;
(a) the degree of standardisation of the contractual terms and
operational processes of the relevant class of OTC deriva
(f) the risk management and the legal and operational capacity
tives;
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).
(b) the volume and liquidity of the relevant class of OTC deriva
tives;
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
(c) the availability of fair, reliable and generally accepted pricing
obligation referred to in Article 4, and paragraph 3 of this
information in the relevant class of OTC derivatives.
Article shall apply.
In preparing those draft regulatory technical standards, ESMA
Article 6
may take into consideration the interconnectedness between
counterparties using the relevant classes of OTC derivatives,
Public register
the anticipated impact on the levels of counterparty credit
1. ESMA
shall
establish,
maintain
and
keep
up
to
date
a
risk between counterparties as well as the impact on
public register in order to identify the classes of OTC derivatives
competition across the Union.
subject to the clearing obligation correctly and unequivocally.
The public register shall be available on ESMA’s website.
In order to ensure consistent application of this Article, ESMA
shall develop draft regulatory technical standards further spec
2. The
register
shall
include:
ifying the criteria referred to in points (a), (b) and (c) of the first
subparagraph.
(a) the classes of OTC derivatives that are subject to the
clearing obligation pursuant to Article 4;
ESMA shall submit those draft regulatory technical standards to
the Commission by 30 September 2012.
(b) the CCPs that are authorised or recognised for the purpose
of the clearing obligation;
Power is delegated to the Commission to adopt regulatory
technical standards referred to in the third subparagraph of
this paragraph in accordance with Articles 10 to 14 of Regu
(c) the dates from which the clearing obligation takes effect,
lation (EU) No 1095/2010.
including any phased-in implementation;

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Official Journal of the European Union
27.7.2012
(d) the classes of OTC derivatives identified by ESMA in
5. ESMA shall settle any dispute arising from a disagreement
accordance with Article 5(3);
between competent authorities in accordance with its powers
under Article 19 of Regulation (EU) No 1095/2010.
(e) the minimum remaining maturity of the derivative contracts
referred to in Article 4(1)(b)(ii);
Article 8
Access to a trading venue
(f) the CCPs that have been notified to ESMA by the competent
authority for the purpose of the clearing obligation and the
1. A
trading
venue
shall
provide
trade
feeds
on
a
non-
date of notification of each of them.
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.
3. Where a CCP is no longer authorised or recognised in
accordance with this Regulation to clear a given class of deriva
tives, ESMA shall immediately remove it from the public register
in relation to that class of OTC derivatives.
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.
4. In
order
to
ensure
consistent
application
of
this
Article,
ESMA may develop draft regulatory technical standards spec
ifying the details to be included in the public register referred to
in paragraph 1.
3. Where
access
is
refused
by
a
trading
venue,
it
shall
notify
the CCP accordingly, providing full reasons.
ESMA shall submit any such draft regulatory technical standards
to the Commission by 30 September 2012.
4. Without
prejudice
to
the
decision
by
competent
auth
orities of the trading venue and of the CCP, access shall be
made possible by the trading venue within three months of a
Power is delegated to the Commission to adopt the regulatory
positive response to a request for access.
technical standards referred to in the first subparagraph in
accordance with Articles 10 to 14 of Regulation (EU)
No 1095/2010.
Access of the CCP to the trading venue shall be granted only
where such access would not require interoperability or threaten
Article 7
the smooth and orderly functioning of markets in particular due
to liquidity fragmentation and the trading venue has put in
Access to a CCP
place adequate mechanisms to prevent such fragmentation.
1. A
CCP
that
has
been
authorised
to
clear
OTC
derivative
contracts shall accept clearing such contracts on a non-discrimi
natory and transparent basis, regardless of the trading venue.
5. In
order
to
ensure
consistent
application
of
this
Article,
ESMA shall develop draft regulatory technical standards spec
A CCP may require that a trading venue comply with the oper
ifying the notion of liquidity fragmentation.
ational and technical requirements established by the CCP,
including the risk-management requirements.
ESMA shall submit those draft regulatory technical standards to
the Commission by 30 September 2012.
2.
A CCP shall accede to or refuse a formal request for access
by a trading venue within three months of such a request.
Power is delegated to the Commission to adopt the regulatory
3. Where
a
CCP
refuses
access
under
paragraph
2,
it
shall technical standards referred to in the first subparagraph in
provide the trading venue with full reasons for such refusal.
accordance with Articles 10 to 14 of Regulation (EU)
No 1095/2010.
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
Article 9
decision acceding to the trading venue’s formal request in
Reporting obligation
accordance with paragraph 2.
1. Counterparties
and
CCPs
shall
ensure
that
the
details
of
any derivative contract they have concluded and of any modi
The competent authority of the trading venue and that of the
fication or termination of the contract are reported to a trade
CCP may refuse access to the CCP following a formal request by
repository registered in accordance with Article 55 or
the trading venue only where such access would threaten the
recognised in accordance with Article 77. The details shall be
smooth and orderly functioning of the markets or would
reported no later than the working day following the
adversely affect systemic risk.
conclusion, modification or termination of the contract.

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of
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European
Union L
201/21
The reporting obligation shall apply to derivative contracts
Power is delegated to the Commission to adopt the regulatory
which:
technical standards referred to in the first subparagraph in
accordance with Articles 10 to 14 of Regulation (EU)
No 1095/2010.
(a) were entered into before 16 August 2012 and remain
outstanding on that date;
6. In
order
to
ensure
uniform
conditions
of
application
of
(b) are entered into on or after 16 August 2012.
paragraphs 1 and 3, ESMA shall develop draft implementing
technical standards specifying:
A counterparty or a CCP which is subject to the reporting
obligation may delegate the reporting of the details of the
derivative contract.
(a) the format and frequency of the reports referred to in para
graphs 1 and 3 for the different classes of derivatives;
Counterparties and CCPs shall ensure that the details of their
derivative contracts are reported without duplication.
(b) the date by which derivative contracts are to be reported,
including any phase-in for contracts entered into before the
2. Counterparties
shall
keep
a
record
of
any
derivative
reporting obligation applies.
contract they have concluded and any modification for at
least five years following the termination of the contract.
ESMA shall submit those draft implementing technical standards
3. Where
a
trade
repository
is
not
available
to
record
the to the Commission by 30 September 2012.
details of a derivative contract, counterparties and CCPs shall
ensure that such details are reported to ESMA.
Power is conferred on the Commission to adopt the imple
menting technical standards referred to in the first subparagraph
In this case ESMA shall ensure that all the relevant entities
in accordance with Article 15 of Regulation (EU)
referred to in Article 81(3) have access to all the details of
No 1095/2010.
derivative contracts they need to fulfil their respective respon
sibilities and mandates.
Article 10
4. A counterparty or a CCP that reports the details of a
derivative contract to a trade repository or to ESMA, or an
Non-financial counterparties
entity that reports such details on behalf of a counterparty or
1. Where
a
non-financial
counterparty
takes
positions
in
a CCP shall not be considered in breach of any restriction on
OTC derivative contracts and those positions exceed the
disclosure of information imposed by that contract or by any
clearing threshold as specified under paragraph 3, that non-
legislative, regulatory or administrative provision.
financial counterparty shall:
No liability resulting from that disclosure shall lie with the
reporting entity or its directors or employees.
(a) immediately notify ESMA and the competent authority
referred to in paragraph 5 thereof;
5. In
order
to
ensure
consistent
application
of
this
Article,
ESMA shall develop draft regulatory technical standards spec
ifying the details and type of the reports referred to in para
(b) become subject to the clearing obligation for future
graphs 1 and 3 for the different classes of derivatives.
contracts in accordance with Article 4 if the rolling
average position over 30 working days exceeds the
threshold; and
The reports referred to in paragraphs 1 and 3 shall specify at
least:
(c) clear all relevant future contracts within four months of
(a) the parties to the derivative contract and, where different,
becoming subject to the clearing obligation.
the beneficiary of the rights and obligations arising from it;
(b) the main characteristics of the derivative contracts, including
2. A
non-financial
counterparty
that
has
become
subject
to
their type, underlying maturity, notional value, price, and
the clearing obligation in accordance with paragraph 1(b) and
settlement date.
that subsequently demonstrates to the authority designated in
accordance with paragraph 5 that its rolling average position
over 30 working days does not exceed the clearing threshold,
ESMA shall submit those draft regulatory technical standards to
shall no longer be subject to the clearing obligation set out in
the Commission by 30 September 2012.
Article 4.

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3. In
calculating
the
positions
referred
to
in
paragraph
1,
the (a) the timely confirmation, where available, by electronic
non-financial counterparty shall include all the OTC derivative
means, of the terms of the relevant OTC derivative contract;
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
(b) formalised processes which are robust, resilient and
activity or treasury financing activity of the non-financial
auditable in order to reconcile portfolios, to manage the
counterparty or of that group.
associated risk and to identify disputes between parties
early and resolve them, and to monitor the value of
outstanding contracts.
4. In
order
to
ensure
consistent
application
of
this
Article,
ESMA shall develop draft regulatory technical standards, after
consulting the ESRB and other relevant authorities, specifying:
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-
(a) criteria for establishing which OTC derivative contracts are
model shall be used.
objectively measurable as reducing risks directly relating to
the commercial activity or treasury financing activity
referred to in paragraph 3; and
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.
(b) values of the clearing thresholds, which are determined
Non-financial counterparties referred to in Article 10 shall have
taking into account the systemic relevance of the sum of
risk-management procedures that require the timely, accurate
net positions and exposures per counterparty and per class
and appropriately segregated exchange of collateral with
of OTC derivatives.
respect to OTC derivative contracts that are entered into on
or after the clearing threshold is exceeded.
After conducting an open public consultation, ESMA shall
submit those draft regulatory technical standards to the
4. Financial
counterparties
shall
hold
an
appropriate
and
Commission by 30 September 2012.
proportionate amount of capital to manage the risk not
covered by appropriate exchange of collateral.
Power is delegated to the Commission to adopt the regulatory
technical standards referred to in the first subparagraph in
5. The
requirement
laid
down
in
paragraph
3
of
this
Article
accordance with Articles 10 to 14 of Regulation (EU)
shall not apply to an intragroup transaction referred to in
No 1095/2010.
Article 3 that is entered into by counterparties which are estab
lished in the same Member State provided that there is no
current or foreseen practical or legal impediment to the
prompt transfer of own funds or repayment of liabilities
After consulting the ESRB and other relevant authorities, ESMA
between counterparties.
shall periodically review the thresholds and, where necessary,
propose regulatory technical standards to amend them.
6. An
intragroup
transaction
referred
to
in
Article
3(2)(a),
(b)
or (c) that is entered into by counterparties which are estab
5. Each Member State shall designate an authority lished in different Member States shall be exempt totally or
responsible for ensuring that the obligation under paragraph
partially from the requirement laid down in paragraph 3 of
1 is met.
this Article, on the basis of a positive decision of both the
relevant competent authorities, provided that the following
conditions are fulfilled:
Article 11
Risk-mitigation techniques for OTC derivative contracts
(a) the risk-management procedures of the counterparties are
not cleared by a CCP
adequately sound, robust and consistent with the level of
complexity of the derivative transaction;
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,
(b) there is no current or foreseen practical or legal impediment
monitor and mitigate operational risk and counterparty credit
to the prompt transfer of own funds or repayment of
risk, including at least:
liabilities between the counterparties.

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European
Union L
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If the competent authorities fail to reach a positive decision
The non-financial counterparty shall notify its intention to
within 30 calendar days of receipt of the application for
apply the exemption to the competent authority referred to in
exemption, ESMA may assist those authorities in reaching
Article 10(5). The exemption shall be valid unless the notified
agreement in accordance with its powers under Article 19 of
competent authority does not agree upon fulfilment of the
Regulation (EU) No 1095/2010.
conditions referred to in point (a) or (b) of the first
subparagraph within three months of the date of notification.
7. An
intragroup
transaction
referred
to
in
Article
3(1)
that
is entered into by non-financial counterparties which are estab
10. An
intragroup
transaction
referred
to
in
Article
3(1)
that
lished in different Member States shall be exempt from the
is entered into by a non-financial counterparty and a financial
requirement laid down in paragraph 3 of this Article,
counterparty which are established in different Member States
provided that the following conditions are fulfilled:
shall be exempt totally or partially from the requirement laid
down in paragraph 3 of this Article, on the basis of a positive
(a) the risk-management procedures of the counterparties are
decision of the relevant competent authority responsible for
adequately sound, robust and consistent with the level of
supervision of the financial counterparty, provided that the
complexity of the derivative transaction;
following conditions are fulfilled:
(b) there is no current or foreseen practical or legal impediment
(a) the risk-management procedures of the counterparties are
to the prompt transfer of own funds or repayment of
adequately sound, robust and consistent with the level of
liabilities between the counterparties.
complexity of the derivative transaction;
The non-financial counterparties shall notify their intention to
(b) there is no current or foreseen practical or legal impediment
apply the exemption to the competent authorities referred to in
to the prompt transfer of own funds or repayment of
Article 10(5). The exemption shall be valid unless either of the
liabilities between the counterparties.
notified competent authorities 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 the notifi
The relevant competent authority responsible for supervision of
cation.
the financial counterparty shall notify any such decision to the
competent authority referred to in Article 10(5). The exemption
is valid unless the notified competent authority does not agree
8. An
intragroup
transaction
referred
to
in
Article
3(2)(a)
to upon fulfilment of the conditions referred to in point (a) or (b)
(d) that is entered into by a counterparty which is established in
of the first subparagraph. If there is disagreement between the
the Union and a counterparty which is established in a third-
competent authorities, ESMA may assist those authorities in
country jurisdiction shall be exempt totally or partially from the
reaching an agreement in accordance with its powers under
requirement laid down in paragraph 3 of this Article, on the
Article 19 of Regulation (EU) No 1095/2010.
basis of a positive decision of the relevant competent authority
responsible for supervision of the counterparty which is estab
lished in the Union, provided that the following conditions are
11. The
counterparty
of
an
intragroup
transaction
which
has
fulfilled:
been exempted from the requirement laid down in paragraph 3
shall publicly disclose information on the exemption.
(a) the risk-management procedures of the counterparties are
adequately sound, robust and consistent with the level of
A competent authority shall notify ESMA of any decision
complexity of the derivative transaction;
adopted pursuant to paragraph 6, 8 or 10, or any notification
received pursuant to paragraph 7, 9 or 10, and shall provide
ESMA with the details of the intragroup transaction concerned.
(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.
12. The obligations set out in paragraphs 1 to 11 shall apply
to OTC derivative contracts entered into between third country
9. An
intragroup
transaction
referred
to
in
Article
3(1)
that entities that would be subject to those obligations if they were
is entered into by a non-financial counterparty which is estab
established in the Union, provided that those contracts have a
lished in the Union and a counterparty which is established in a
direct, substantial and foreseeable effect within the Union or
third-country jurisdiction shall be exempt from the requirement
where such obligation is necessary or appropriate to prevent
laid down in paragraph 3 of this Article, provided that the
the evasion of any provision of this Regulation.
following conditions are fulfilled:
13. ESMA
shall
regularly
monitor
the
activity
in
derivatives
(a) the risk-management procedures of the counterparties are
not eligible for clearing in order to identify cases where a
adequately sound, robust and consistent with the level of
particular class of derivatives may pose systemic risk and to
complexity of the derivative transaction;
prevent regulatory arbitrage between cleared and non-cleared
derivative transactions. In particular, ESMA shall, after
consulting the ESRB, take action in accordance with Article 5(3)
(b) there is no current or foreseen practical or legal impediment
or review the regulatory technical standards on margin
to the prompt transfer of own funds or repayment of
requirements laid down in paragraph 14 of this Article and
liabilities between the counterparties.
in Article 41.

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14. In
order
to
ensure
consistent
application
of
this
Article, accordance with either Articles 10 to 14 of Regulations (EU)
ESMA shall draft regulatory technical standards specifying:
No 1093/2010, (EU) No 1094/2010 or (EU) No 1095/2010.
(a) the procedures and arrangements referred to in paragraph 1;
Article 12
Penalties
(b) the market conditions that prevent marking-to-market and
the criteria for using marking-to-model referred to in
1. Member
States
shall
lay
down
the
rules
on
penalties
paragraph 2;
applicable to infringements of the rules under this Title and
shall take all measures necessary to ensure that they are imple
mented. Those penalties shall include at least administrative
(c) the details of the exempted intragroup transactions to be
fines. The penalties provided for shall be effective, proportionate
included in the notification referred to in paragraphs 7, 9
and dissuasive.
and 10;
(d) the details of the information on exempted intragroup
2. Member
States
shall
ensure
that
the
competent
authorities
transactions referred to in paragraph 11;
responsible for the supervision of financial, and, where appro
priate, non-financial counterparties disclose every penalty that
has been imposed for infringements of Articles 4, 5 and 7 to 11
(e) the contracts that are considered to have a direct, substantial
to the public, unless such disclosure would seriously jeopardise
and foreseeable effect within the Union or the cases where it
the financial markets or cause disproportionate damage to the
is necessary or appropriate to prevent the evasion of any
parties involved. Member States shall, at regular intervals,
provision of this Regulation as referred to in paragraph 12;
publish assessment reports on the effectiveness of the penalty
rules being applied. Such disclosure and publication shall not
contain personal data within the meaning of Article 2(a) of
ESMA shall submit those draft regulatory technical standards to
Directive 95/46/EC.
the Commission by 30 September 2012.
Power is delegated to the Commission to adopt the regulatory
By 17 February 2013, the Member States shall notify the rules
technical standards referred to in the first subparagraph in
referred to in paragraph 1 to the Commission. They shall notify
accordance with Articles 10 to 14 of Regulation (EU)
the Commission of any subsequent amendment thereto without
No 1095/2010.
delay.
15. In
order
to
ensure
consistent
application
of
this
Article, 3. An
infringement
of
the
rules
under
this
Title
shall
not
the ESAs shall develop common draft regulatory technical
affect the validity of an OTC derivative contract or the possi
standards specifying:
bility for the parties to enforce the provisions of an OTC
derivative contract. An infringement of the rules under this
(a) the risk-management procedures, including the levels and
Title shall not give rise to any right to compensation from a
type of collateral and segregation arrangements, required
party to an OTC derivative contract.
for compliance with paragraph 3;
Article 13
(b) the level of capital required for compliance with
paragraph 4;
Mechanism to avoid duplicative or conflicting rules
1. The Commission shall be assisted by ESMA in monitoring
(c) the procedures for the counterparties and the relevant
and preparing reports to the European Parliament and to the
competent authorities to be followed when applying
Council on the international application of principles laid down
exemptions under paragraphs 6 to 10;
in Articles 4, 9, 10 and 11, in particular with regard to
potential duplicative or conflicting requirements on market
participants, and recommend possible action.
(d) the applicable criteria referred to in paragraphs 5 to 10
including in particular what should be considered as
practical or legal impediment to the prompt transfer of
2. The
Commission
may
adopt
implementing
acts
declaring
own funds and repayment of liabilities between the counter
that the legal, supervisory and enforcement arrangements of a
parties.
third country:
The ESAs shall submit those common draft regulatory technical
standards to the Commission by 30 September 2012.
(a) are equivalent to the requirements laid down in this Regu
lation under Articles 4, 9, 10 and 11;
Depending on the legal nature of the counterparty, power
is delegated to the Commission to adopt the regulatory
(b) ensure protection of professional secrecy that is equivalent
technical standards referred to in the first subparagraph in
to that set out in this Regulation; and

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of
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European
Union L
201/25
(c) are being effectively applied and enforced in an equitable
5. Authorisation
referred
to
in
paragraph
1
shall
not
prevent
and non-distortive manner so as to ensure effective super
Member States from adopting or continuing to apply, in respect
vision and enforcement in that third country.
of CCPs established in their territory, additional requirements
including certain requirements for authorisation under Directive
2006/48/EC.
Those implementing acts shall be adopted in accordance with
the examination procedure referred to in Article 86(2).
Article 15
3. An
implementing
act
on
equivalence
as
referred
to
in
Extension of activities and services
paragraph 2 shall imply that counterparties entering into a
1. A CCP wishing to extend its business to additional
transaction subject to this Regulation shall be deemed to have
services or activities not covered by the initial authorisation
fulfilled the obligations contained in Articles 4, 9, 10 and 11
shall submit a request for extension to the CCP’s competent
where at least one of the counterparties is established in that
authority. The offering of clearing services for which the CCP
third country.
has not already been authorised shall be considered to be an
extension of that authorisation.
4. The
Commission
shall,
in
cooperation
with
ESMA,
monitor the effective implementation by third countries, for
The extension of authorisation shall be made in accordance
which an implementing act on equivalence has been adopted,
with the procedure set out under Article 17.
of the requirements equivalent to those laid down in Articles 4,
9, 10 and 11 and regularly report, at least on an annual basis,
to the European Parliament and the Council. Where the report
2. Where a CCP wishes to extend its business into a Member
reveals an insufficient or inconsistent application of the
State other than that where it is established, the CCP’s
equivalent requirements by third country authorities, the
competent authority shall immediately notify the competent
Commission shall, within 30 calendar days of the presentation
authority of that other Member State.
of the report, withdraw the recognition as equivalent of the
third country legal framework in question. Where an imple
menting act on equivalence is withdrawn, counterparties shall
Article 16
automatically be subject again to all requirements laid down in
Capital requirements
this Regulation.
1. A
CCP
shall
have
a
permanent
and
available
initial
capital
of at least EUR 7,5 million to be authorised pursuant to
TITLE III
Article 14.
AUTHORISATION AND SUPERVISION OF CCPs
2. A
CCP’s
capital,
including
retained
earnings
and
reserves,
CHAPTER 1
shall be proportionate to the risk stemming from the activities
Conditions and procedures for the authorisation of a CCP
of the CCP. It shall at all times be sufficient to ensure an orderly
winding-down or restructuring of the activities over an appro
Article 14
priate time span and an adequate protection of the CCP against
Authorisation of a CCP
credit, counterparty, market, operational, legal and business
risks which are not already covered by specific financial
1. Where
a
legal
person
established
in
the
Union
intends
to resources as referred to in Articles 41 to 44.
provide clearing services as a CCP, it shall apply for authori
sation to the competent authority of the Member State where it
is established (the CCP’s competent authority), in accordance
3. In
order
to
ensure
consistent
application
of
this
Article,
with the procedure set out in Article 17.
EBA shall, in close cooperation with the ESCB and after
consulting ESMA, develop draft regulatory technical standards
specifying requirements regarding the capital, retained earnings
2. Once
authorisation
has
been
granted
in
accordance
with and reserves of a CCP referred to in paragraph 2.
Article 17, it shall be effective for the entire territory of the
Union.
EBA shall submit those draft regulatory technical standards to
the Commission by 30 September 2012.
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
Power is delegated to the Commission to adopt the regulatory
or perform including the classes of financial instruments
technical standards referred to in the first subparagraph in
covered by such authorisation.
accordance with Articles 10 to 14 of Regulation (EU)
No 1093/2010.
4. A
CCP
shall
comply
at
all
times
with
the
conditions
necessary for authorisation.
Article 17
Procedure for granting and refusing authorisation
A CCP shall, without undue delay, notify the competent
1. The
applicant
CCP
shall
submit
an
application
for
auth
authority of any material changes affecting the conditions for
orisation to the competent authority of the Member State where
authorisation.
it is established.

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L 201/26
EN
Official Journal of the European Union
27.7.2012
2. The
applicant
CCP
shall
provide
all
information
necessary Where all the members of the college, excluding the authorities
to satisfy the competent authority that the applicant CCP has
of the Member State where the CCP is established, reach a joint
established, at the time of authorisation, all the necessary
opinion by mutual agreement, pursuant to Article 19(1), that
arrangements to meet the requirements laid down in this Regu
the CCP not be authorised, the CCP’s competent authority may
lation. The competent authority shall immediately transmit all
refer the matter to ESMA in accordance with Article 19 of
the information received from the applicant CCP to ESMA and
Regulation (EU) No 1095/2010.
the college referred to in Article 18(1).
The competent authority of the Member State where the CCP is
established shall transmit the decision to the other competent
3. Within
30
working
days
of
receipt
of
the
application,
the authorities concerned.
competent authority shall assess whether the application is
complete. If the application is not complete, the competent
5. ESMA shall act in accordance with Article 17 of Regu
authority shall set a deadline by which the applicant CCP has
lation (EU) No 1095/2010 in the event that the CCP’s
to provide additional information. After assessing that an appli
competent authority has not applied the provisions of this
cation is complete, the competent authority shall notify the
Regulation, or has applied them in a way which appears to
applicant CCP and the members of the college established in
be in breach of Union law.
accordance with Article 18(1) and ESMA accordingly.
ESMA may investigate an alleged breach or non-application of
Union law upon request from any member of the college or on
4. The
competent
authority
shall
grant
authorisation
only its own initiative, after having informed the competent auth
where it is fully satisfied that the applicant CCP complies
ority.
with all the requirements laid down in this Regulation and
that the CCP is notified as a system pursuant to Directive
6. While
performing
their
duties,
any
action
taken
by
any
98/26/EC.
member of the college shall not, directly or indirectly,
discriminate against any Member State or group of Member
States as a venue for clearing services in any currency.
The competent authority shall duly consider the opinion of the
college reached in accordance with Article 19. Where the CCP’s
7. Within six months of the submission of a complete appli
competent authority does not agree with a positive opinion of
cation, the competent authority shall inform the applicant CCP
the college, its decision shall contain full reasons and an expla
in writing, with a fully reasoned explanation, whether authori
nation of any significant deviation from that positive opinion.
sation has been granted or refused.
Article 18
The CCP shall not be authorised where all the members of the
college, excluding the authorities of the Member State where the
College
CCP is established, reach a joint opinion by mutual agreement,
1. Within
30
calendar
days
of
the
submission
of
a
complete
pursuant to Article 19(1), that the CCP not be authorised. That
application in accordance with Article 17, the CCP’s competent
opinion shall state in writing the full and detailed reasons why
authority shall establish, manage and chair a college to facilitate
the college consider that the requirements laid down in this
the exercise of the tasks referred to in Articles 15, 17, 49, 51
Regulation or other Union law are not met.
and 54.
2. The
college
shall
consist
of:
Where a joint opinion by mutual agreement as referred to
in the third subparagraph has not been reached and a
majority of two-thirds of the college have expressed a
(a) ESMA;
negative opinion, any of the competent authorities concerned,
based on that majority of two-thirds of the college, may, within
(b) the CCP’s competent authority;
30 calendar days of the adoption of that negative opinion, refer
the matter to ESMA in accordance with Article 19 of Regulation
(c) the competent authorities responsible for the supervision of
(EU) No 1095/2010.
the clearing members of the CCP that are established in the
three Member States with the largest contributions to the
default fund of the CCP referred to in Article 42 on an
The referral decision shall state in writing the full and detailed
aggregate basis over a one-year period;
reasons why the relevant members of the college consider that
the requirements laid down in this Regulation or other parts of
(d) the competent authorities responsible for the supervision of
Union law are not met. In that case the CCP’s competent
trading venues served by the CCP;
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)
(e) the competent authorities supervising CCPs with which
No 1095/2010, The competent authority shall take its
interoperability arrangements have been established;
decision in conformity with ESMA’s decision. The matter shall
not be referred to ESMA after the end of the 30-day period
(f) the competent authorities supervising central securities
referred to in the fourth subparagraph.
depositories to which the CCP is linked;

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EN
27.7.2012 Official
Journal
of
the
European
Union L
201/27
(g) the relevant members of the ESCB responsible for the
CCP’s competent authority shall conduct a risk assessment of
oversight of the CCP and the relevant members of the
the CCP and submit a report to the college.
ESCB responsible for the oversight of the CCPs with
which interoperability arrangements have been established;
Within 30 calendar days of receipt, and on the basis of the
(h) the central banks of issue of the most relevant Union
findings in, that report, the college shall reach a joint opinion
currencies of the financial instruments cleared.
determining whether the applicant CCP complies with all the
requirements laid down in this Regulation.
3. The
competent
authority
of
a
Member
State
which
is
not
a member of the college may request from the college any
information relevant for the performance of its supervisory
Without prejudice to the fourth subparagraph of Article 17(4)
duties.
and if no joint opinion is reached in accordance with the
second subparagraph, the college shall adopt a majority
opinion within the same period.
4. The
college
shall,
without
prejudice
to
the
responsibilities
of competent authorities under this Regulation, ensure:
2. ESMA shall facilitate the adoption of the joint opinion in
(a) the preparation of the opinion referred to in Article 19;
accordance with its general coordination function under
Article 31 of Regulation (EU) No 1095/2010.
(b) the exchange of information, including requests for
information pursuant to Article 84;
3. A
majority
opinion
of
the
college
shall
be
adopted
on
the
basis of a simple majority of its members. For colleges up to
(c) agreement on the voluntary entrustment of tasks among its
and including 12 members, a maximum of two college
members;
members belonging to the same Member State shall have a
vote and each voting member shall have one vote. For
(d) the coordination of supervisory examination programmes
colleges with more than 12 members, a maximum of three
based on a risk assessment of the CCP; and
members belonging to the same Member State shall have a
vote and each voting member shall have one vote. ESMA
shall have no voting rights on the opinions of the college.
(e) the determination of procedures and contingency plans to
address emergency situations, as referred to in Article 24.
Article 20
5. The
establishment
and
functioning
of
the
college
shall
be
based on a written agreement between all its members.
Withdrawal of authorisation
1. Without
prejudice
to
Article
22(3),
the
CCP’s
competent
That agreement shall determine the practical arrangements for
authority shall withdraw authorisation where the CCP:
the functioning of the college, including detailed rules on voting
procedures as referred to in Article 19(3), and may determine
tasks to be entrusted to the CCP’s competent authority or
(a) has not made use of the authorisation within 12 months,
another member of the college.
expressly renounces the authorisation or has provided no
services or performed no activity for the preceding six
months;
6. In
order
to
ensure
the
consistent
and
coherent
functioning
of colleges across the Union, ESMA shall develop draft regu
latory technical standards specifying the conditions under which
the Union currencies referred to in paragraph 2(h) are to be
(b) has obtained authorisation by making false statements or by
considered as the most relevant and the details of the practical
any other irregular means;
arrangements referred to in paragraph 5.
ESMA shall submit those draft regulatory technical standards to
(c) is no longer in compliance with the conditions under which
the Commission by 30 September 2012.
authorisation was granted and has not taken the remedial
action requested by the CCP’s competent authority within a
set time frame;
Power is delegated to the Commission to adopt the regulatory
technical standards referred to in the first subparagraph in
accordance with Articles 10 to 14 of Regulation (EU)
(d) has seriously and systematically infringed any of the
No 1095/2010.
requirements laid down in this Regulation.
Article 19
Opinion of the college
2. Where
the
CCP’s
competent
authority
considers
that
one
of the circumstances referred to in paragraph 1 applies, it shall,
1. Within four months of the submission of a complete
within five working days, notify ESMA and the members of
application by the CCP in accordance with Article 17, the
college accordingly.

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L 201/28
EN
Official Journal of the European Union
27.7.2012
3. The
CCP’s
competent
authority
shall
consult
the
members
(a) conduct a peer review analysis of the supervisory activities
of the college on the necessity to withdraw the authorisation of
of all competent authorities in relation to the authorisation
the CCP, except where a decision is required urgently.
and the supervision of CCPs in accordance with Article 30
of Regulation (EU) No 1095/2010; and
4. Any
member
of
the
college
may,
at
any
time,
request
that
the CCP’s competent authority examine whether the CCP
(b) initiate and coordinate Union-wide assessments of the
remains in compliance with the conditions under which auth
resilience of CCPs to adverse market developments in
orisation was granted.
accordance with Article 32(2) of Regulation (EU)
No 1095/2010.
5. The
CCP’s
competent
authority
may
limit
the
withdrawal
to a particular service, activity, or class of financial instruments.
Where an assessment referred to in point (b) of the second
subparagraph exposes shortcomings in the resilience of one
6. The
CCP’s
competent
authority
shall
send
ESMA
and
the or more CCPs, ESMA shall issue the necessary recommendations
members of the college its fully reasoned decision, which shall
pursuant to Article 16 of Regulation (EU) No 1095/2010.
take into account the reservations of the members of the
college.
CHAPTER 2
7. The
decision
on
the
withdrawal
of
authorisation
shall
take
Supervision and oversight of CCPs
effect throughout the Union.
Article 22
Competent authority
Article 21
1. Each Member State shall designate the competent
Review and evaluation
authority responsible for carrying out the duties resulting
1. Without prejudice to the role of the college, the
from this Regulation for the authorisation and supervision of
competent authorities referred to in Article 22 shall review
CCPs established in its territory and shall inform the
the arrangements, strategies, processes and mechanisms imple
Commission and ESMA thereof.
mented by CCPs to comply with this Regulation and evaluate
the risks to which CCPs are, or might be, exposed.
Where a Member State designates more than one competent
authority, it shall clearly determine the respective roles and shall
2. The
review
and
evaluation
referred
to
in
paragraph
1
shall designate a single authority to be responsible for coordinating
cover all the requirements on CCPs laid down in this Regu
cooperation and the exchange of information with the
lation.
Commission, ESMA, other Member States’ competent auth
orities, EBA and the relevant members of the ESCB, in
3. The
competent
authorities
shall
establish
the
frequency accordance with Articles 23, 24, 83 and 84.
and depth of the review and evaluation referred to in
paragraph 1 having regard to the size, systemic importance,
2. Each
Member
State
shall
ensure
that
the
competent
nature, scale and complexity of the activities of the CCPs
authority has the supervisory and investigatory powers
concerned. The review and evaluation shall be updated at
necessary for the exercise of its functions.
least on an annual basis.
The CCPs shall be subject to on-site inspections.
3. Each
Member
State
shall
ensure
that
appropriate
adminis
trative measures, in conformity with national law, can be taken
or imposed against the natural or legal persons responsible for
4. The
competent
authorities
shall
regularly,
and
at
least non-compliance with this Regulation.
annually, inform the college of the results of the review and
evaluation as referred to in paragraph 1, including any remedial
action taken or penalty imposed.
Those measures shall be effective, proportionate and dissuasive
and may include requests for remedial action within a set time
frame.
5. The
competent
authorities
shall
require
any
CCP
that
does
not meet the requirements laid down in this Regulation to take
the necessary action or steps at an early stage to address the
4. ESMA shall publish on its website a list of the competent
situation.
authorities designated in accordance with paragraph 1.
6. ESMA
shall
fulfil
a
coordination
role
between
competent
CHAPTER 3
authorities and across colleges with a view to building a
common supervisory culture and consistent supervisory prac
Cooperation
tices, ensuring uniform procedures and consistent approaches,
Article 23
and strengthening consistency in supervisory outcomes.
Cooperation between authorities
For the purposes of the first subparagraph, ESMA shall, at least
1. Competent
authorities
shall
cooperate
closely
with
each
annually:
other, with ESMA and, if necessary, with the ESCB.

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EN
27.7.2012 Official
Journal
of
the
European
Union L
201/29
2. Competent
authorities
shall,
in
the
exercise
of
their (b) the competent authorities responsible for the supervision of
general duties, duly consider the potential impact of their
the clearing members of the CCP that are established in the
decisions on the stability of the financial system in all other
three Member States which make or are anticipated by the
Member States concerned, in particular the emergency situations
CCP to make the largest contributions to the default fund of
referred to in Article 24, based on the available information at
the CCP referred to in Article 42 on an aggregate basis over
the time.
a one-year period;
Article 24
(c) the competent authorities responsible for the supervision of
Emergency situations
trading venues located in the Union, served or to be served
by the CCP;
The CCP’s competent authority or any other authority shall
inform ESMA, the college, the relevant members of the ESCB
and other relevant authorities without undue delay of any
(d) the competent authorities supervising CCPs established in
emergency situation relating to a CCP, including developments
the Union with which interoperability arrangements have
in financial markets, which may have an adverse effect on
been established;
market liquidity and the stability of the financial system in
any of the Member States where the CCP or one of its
clearing members are established.
(e) the relevant members of the ESCB of the Member States in
which the CCP provides or intends to provide clearing
services and the relevant members of the ESCB responsible
CHAPTER 4
for the oversight of the CCPs with which interoperability
Relations with third countries
arrangements have been established;
Article 25
(f) the central banks of issue of the most relevant Union
Recognition of a third-country CCP
currencies of the financial instruments cleared or to be
1. A
CCP
established
in
a
third
country
may
provide
clearing
cleared.
services to clearing members or trading venues established in
the Union only where that CCP is recognised by ESMA.
4. The
CCP
referred
to
in
paragraph
1
shall
submit
its
appli
cation to ESMA.
2. ESMA, after consulting the authorities referred to in
paragraph 3, may recognise a CCP established in a third
country that has applied for recognition to provide certain
The applicant CCP shall provide ESMA with all information
clearing services or activities where:
necessary for its recognition. Within 30 working days of
receipt, ESMA shall assess whether the application is
(a) the Commission has adopted an implementing act in
complete. If the application is not complete, ESMA shall set a
accordance with paragraph 6;
deadline by which the applicant CCP has to provide additional
information.
(b) the CCP is authorised in the relevant third country, and is
subject to effective supervision and enforcement ensuring
The recognition decision shall be based on the conditions set
full compliance with the prudential requirements applicable
out in paragraph 2 and shall be independent of any assessment
in that third country;
as the basis for the equivalence decision as referred to in
Article 13(3).
(c) cooperation arrangements have been established pursuant to
paragraph 7;
ESMA shall consult the authorities and entities referred to in
(d) the CCP is established or authorised in a third country that
paragraph 3 prior to taking its decision.
is considered as having equivalent systems for anti-money-
laundering and combating the financing of terrorism to
Within 180 working days of the submission of a complete
those of the Union in accordance with the criteria set out
application, ESMA shall inform the applicant CCP in writing,
in the common understanding between Member States on
with a fully reasoned explanation, whether the recognition has
third-country equivalence under Directive 2005/60/EC of
been granted or refused.
the European Parliament and of the Council of 26 October
2005 on the prevention of the use of the financial system
for the purpose of money laundering and terrorist financ
ESMA shall publish on its website a list of the CCPs recognised
ing ( 1 ).
in accordance with this Regulation.
3. When
assessing
whether
the
conditions
referred
to
in
5. ESMA
shall,
after
consulting
the
authorities
and
entities
paragraph 2 are met, ESMA shall consult:
referred to in paragraph 3, review the recognition of the CCP
established in a third country where that CCP has extended the
(a) the competent authority of a Member State in which the
range of its activities and services in the Union. That review
CCP provides or intends to provide clearing services and
shall be conducted in accordance with paragraphs 2, 3 and 4.
which has been selected by the CCP;
ESMA may withdraw the recognition of that CCP where the
conditions set out in paragraph 2 are no longer met and in
( 1 ) OJ L 309, 25.11.2005, p. 15.
the same circumstances as those described in Article 20.

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L 201/30
EN
Official Journal of the European Union
27.7.2012
6. The
Commission
may
adopt
an
implementing
act
under to identify, manage, monitor and report the risks to which it is
Article 5 of Regulation (EU) No 182/2011, determining that the
or might be exposed, and adequate internal control mech
legal and supervisory arrangements of a third country ensure
anisms, including sound administrative and accounting
that CCPs authorised in that third country comply with legally
procedures.
binding requirements which are equivalent to the requirements
laid down in Title IV of this Regulation, that those CCPs are
subject to effective supervision and enforcement in that third
2. A
CCP
shall
adopt
policies
and
procedures
which
are
country on an ongoing basis and that the legal framework of
sufficiently effective so as to ensure compliance with this Regu
that third country provides for an effective equivalent system for
lation, including compliance of its managers and employees
the recognition of CCPs authorised under third-country legal
with all the provisions of this Regulation.
regimes.
3. A
CCP
shall
maintain
and
operate
an
organisational
7. ESMA
shall
establish
cooperation
arrangements
with
the structure that ensures continuity and orderly functioning in
relevant competent authorities of third countries whose legal
the performance of its services and activities. It shall employ
and supervisory frameworks have been recognised as equivalent
appropriate and proportionate systems, resources and
to this Regulation in accordance with paragraph 6. Such
procedures.
arrangements shall specify at least:
4. A
CCP
shall
maintain
a
clear
separation
between
the
(a) the mechanism for the exchange of information between
reporting lines for risk management and those for the other
ESMA and the competent authorities of the third
operations of the CCP.
countries concerned, including access to all information
requested by ESMA regarding CCPs authorised in third
5. A
CCP
shall
adopt,
implement
and
maintain
a
remun
countries;
eration policy which promotes sound and effective risk
management and which does not create incentives to relax
(b) the mechanism for prompt notification to ESMA where a
risk standards.
third-country competent authority deems a CCP it is super
vising to be in breach of the conditions of its authorisation
or of other law to which it is subject;
6. A
CCP
shall
maintain
information
technology
systems
adequate to deal with the complexity, variety and type of
services and activities performed so as to ensure high
(c) the mechanism for prompt notification to ESMA by a third-
standards of security and the integrity and confidentiality of
country competent authority where a CCP it is supervising
the information maintained.
has been granted the right to provide clearing services to
clearing members or clients established in the Union;
7. A
CCP
shall
make
its
governance
arrangements,
the
rules
governing the CCP, and its admission criteria for clearing
(d) the procedures concerning the coordination of supervisory
membership, available publicly free of charge.
activities including, where appropriate, on-site inspections.
8. The
CCP
shall
be
subject
to
frequent
and
independent
8. In
order
to
ensure
consistent
application
of
this
Article, audits. The results of those audits shall be communicated to
ESMA shall develop draft regulatory technical standards spec
the board and shall be made available to the competent auth
ifying the information that the applicant CCP shall provide
ority.
ESMA in its application for recognition.
ESMA shall submit those draft regulatory technical standards to
9. In
order
to
ensure
consistent
application
of
this
Article,
the Commission by 30 September 2012.
ESMA, after consulting the members of the ESCB, shall develop
draft regulatory technical standards specifying the minimum
content of the rules and governance arrangements referred to
Power is delegated to the Commission to adopt the regulatory
in paragraphs 1 to 8.
technical standards referred to in the first subparagraph in
accordance with Articles 10 to 14 of Regulation (EU)
No 1095/2010.
ESMA shall submit those draft regulatory technical standards to
the Commission by 30 September 2012.
TITLE IV
Power is delegated to the Commission to adopt the regulatory
REQUIREMENTS FOR CCPs
technical standards referred to in the first subparagraph in
CHAPTER 1
accordance with Articles 10 to 14 of Regulation (EU)
No 1095/2010.
Organisational requirements
Article 26
Article 27
General provisions
Senior management and the board
1. A
CCP
shall
have
robust
governance
arrangements,
which 1. The senior management of a CCP shall be of sufficiently
include a clear organisational structure with well-defined, trans
good repute and shall have sufficient experience so as to ensure
parent and consistent lines of responsibility, effective processes
the sound and prudent management of the CCP.

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EN
27.7.2012 Official
Journal
of
the
European
Union L
201/31
2. A
CCP
shall
have
a
board.
At
least
one
third,
but
no
less 5. A
CCP
shall
promptly
inform
the
competent
authority
of
than two, of the members of that board shall be independent.
any decision in which the board decides not to follow the
Representatives of the clients of clearing members shall be
advice of the risk committee.
invited to board meetings for matters relevant to Articles 38
and 39. The compensation of the independent and other non-
executive members of the board shall not be linked to the
Article 29
business performance of the CCP.
Record keeping
1. A
CCP
shall
maintain,
for
a
period
of
at
least
10
years,
all
The members of a CCP’s board, including its independent
the records on the services and activity provided so as to enable
members, shall be of sufficiently good repute and shall have
the competent authority to monitor the CCP’s compliance with
adequate expertise in financial services, risk management and
this Regulation.
clearing services.
2. A
CCP
shall
maintain,
for
a
period
of
at
least
10
years
following the termination of a contract, all information on all
3. A
CCP
shall
clearly
determine
the
roles
and
responsibilities contracts it has processed. That information shall at least enable
of the board and shall make the minutes of the board meetings
the identification of the original terms of a transaction before
available to the competent authority and auditors.
clearing by that CCP.
Article 28
3. A
CCP
shall
make
the
records
and
information
referred
to
in paragraphs 1 and 2 and all information on the positions of
Risk committee
cleared contracts, irrespective of the venue where the trans
1. A CCP shall establish a risk committee, which shall be
actions were executed, available upon request to the
composed of representatives of its clearing members, inde
competent authority, to ESMA and to the relevant members
pendent members of the board and representatives of its
of the ESCB.
clients. The risk committee may invite employees of the CCP
and external independent experts to attend risk-committee
4. In
order
to
ensure
consistent
application
of
this
Article,
meetings in a non-voting capacity. Competent authorities may
ESMA shall develop draft regulatory technical standards spec
request to attend risk-committee meetings in a non-voting
ifying the details of the records and information to be retained
capacity and to be duly informed of the activities and
as referred to in paragraphs 1 to 3.
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
ESMA shall submit those draft regulatory technical standards to
shall have a majority in the risk committee.
the Commission by 30 September 2012.
Power is delegated to the Commission to adopt the regulatory
2. A CCP shall clearly determine the mandate, the technical standards referred to in the first subparagraph in
governance arrangements to ensure its independence, the oper
accordance with Articles 10 to 14 of Regulation (EU)
ational procedures, the admission criteria and the election
No 1095/2010.
mechanism for risk-committee members. The governance
arrangements shall be publicly available and shall, at least,
determine that the risk committee is chaired by an independent
5. In
order
to
ensure
uniform
conditions
of
application
of
member of the board, reports directly to the board and holds
paragraphs 1 and 2, ESMA shall develop draft implementing
regular meetings.
technical standards specifying the format of the records and
information to be retained.
3. The
risk
committee
shall
advise
the
board
on
any
arrangements that may impact the risk management of the
ESMA shall submit those draft implementing technical standards
CCP, such as a significant change in its risk model, the
to the Commission by 30 September 2012.
default procedures, the criteria for accepting clearing
members, the clearing of new classes of instruments, or the
Power is conferred on the Commission to adopt the imple
outsourcing of functions. The advice of the risk committee is
menting technical standards referred to in the first subparagraph
not required for the daily operations of the CCP. Reasonable
in accordance with Article 15 of Regulation (EU)
efforts shall be made to consult the risk committee on devel
No 1095/2010.
opments impacting the risk management of the CCP in
emergency situations.
Article 30
Shareholders and members with qualifying holdings
4. Without
prejudice
to
the
right
of
competent
authorities
to
be duly informed, the members of the risk committee shall be
1. The
competent
authority
shall
not
authorise
a
CCP
unless
bound by confidentiality. Where the chairman of the risk
it has been informed of the identities of the shareholders or
committee determines that a member has an actual or
members, whether direct or indirect, natural or legal persons,
potential conflict of interest on a particular matter, that
that have qualifying holdings and of the amounts of those
member shall not be allowed to vote on that matter.
holdings.

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L 201/32
EN
Official Journal of the European Union
27.7.2012
2. The
competent
authority
shall
refuse
to
authorise
a
CCP
The competent authority shall have a maximum of 60 working
where it is not satisfied as to the suitability of the shareholders
days as from the date of the written acknowledgement of
or members that have qualifying holdings in the CCP, taking
receipt of the notification and all documents required to be
into account the need to ensure the sound and prudent
attached to the notification on the basis of the list referred to
management of a CCP.
in Article 32(4) (the assessment period), to carry out the
assessment provided for in Article 32(1) (the assessment).
3. Where
close
links
exist
between
the
CCP
and
other
natural
or legal persons, the competent authority shall grant authori
sation only where those links do not prevent the effective
exercise of the supervisory functions of the competent auth
ority.
The competent authority shall inform the proposed acquirer or
vendor of the date of the expiry of the assessment period at the
4. Where
the
persons
referred
to
in
paragraph
1
exercise
an time of acknowledging receipt.
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
3. The
competent
authority
may,
during
the
assessment
CCP.
period, where necessary, but no later than on the 50th
5. The
competent
authority
shall
refuse
authorisation
where working day of the assessment period, request any further
the laws, regulations or administrative provisions of a third
information that is necessary to complete the assessment.
country governing one or more natural or legal persons with
Such request shall be made in writing and shall specify the
which the CCP has close links, or difficulties involved in their
additional information needed.
enforcement, prevent the effective exercise of the supervisory
functions of the competent authority.
Article 31
The assessment period shall be interrupted for the period
Information to competent authorities
between the date of request for information by the competent
authority and the receipt of a response thereto by the proposed
1. A
CCP
shall
notify
its
competent
authority
of
any
changes acquirer. The interruption shall not exceed 20 working days.
to its management, and shall provide the competent authority
Any further requests by the competent authority for completion
with all the information necessary to assess compliance with
or clarification of the information shall be at its discretion but
Article 27(1) and the second subparagraph of Article 27(2).
may not result in an interruption of the assessment period.
Where the conduct of a member of the board is likely to be
prejudicial to the sound and prudent management of the CCP,
the competent authority shall take appropriate measures, which
may include removing that member from the board.
4. The
competent
authority
may
extend
the
interruption
referred to in the second subparagraph of paragraph 3 up to
2. Any natural or legal person or such persons acting in
30 working days where the proposed acquirer or vendor is
concert (the ‘proposed acquirer’), who have taken a decision
either:
either to acquire, directly or indirectly, a qualifying holding in
a CCP or to further increase, directly or indirectly, such a qual
ifying holding in a CCP as a result of which the proportion of
the voting rights or of the capital held would reach or exceed
(a) situated or regulated outside the Union;
10 %, 20 %, 30 % or 50 % or so that the CCP would become its
subsidiary (the ‘proposed acquisition’), shall first notify in
writing the competent authority of the CCP in which they are
seeking to acquire or increase a qualifying holding, indicating
the size of the intended holding and relevant information, as
(b) a natural or legal person not subject to supervision under
referred to in Article 32(4).
this Regulation or Directive 73/239/EEC, Council Directive
92/49/EEC of 18 June 1992 on the coordination of laws,
Any natural or legal person who has taken a decision to
regulations and administrative provisions relating to direct
dispose, directly or indirectly, of a qualifying holding in a
insurance other than life assurance
( 1 ) or Directives
CCP (the ‘proposed vendor’) shall first notify the competent
2002/83/EC, 2003/41/EC, 2004/39/EC, 2005/68/EC,
authority in writing thereof, indicating the size of such
2006/48/EC, 2009/65/EC or 2011/61/EU.
holding. Such a person shall likewise notify the competent
authority where it has taken a decision to reduce a qualifying
holding so that the proportion of the voting rights or of the
capital held would fall below 10 %, 20 %, 30 % or 50 % or so
that the CCP would cease to be that person’s subsidiary.
5. Where
the
competent
authority,
upon
completion
of
the
assessment, decides to oppose the proposed acquisition, it shall,
The competent authority shall, promptly and in any event
within two working days, and not exceeding the assessment
within two working days of receipt of the notification
period, inform the proposed acquirer in writing and provide
referred to in this paragraph and of the information referred
the reasons for that decision. The competent authority shall
to in paragraph 3, acknowledge receipt in writing thereof to the
proposed acquirer or vendor.
( 1 ) OJ L 228, 11.8.1992, p. 1.

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27.7.2012 Official
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European
Union L
201/33
notify the college referred to in Article 18 accordingly. Subject
whether the group of which it will become a part has a
to national law, an appropriate statement of the reasons for the
structure that makes it possible to exercise effective supervision,
decision may be made accessible to the public at the request of
to effectively exchange information among the competent auth
the proposed acquirer. However, Member States may allow a
orities and to determine the allocation of responsibilities among
competent authority to make such disclosure in the absence of
the competent authorities.
a request by the proposed acquirer.
2. The
competent
authorities
may
oppose
the
proposed
6. Where
the
competent
authority
does
not
oppose
the acquisition only where there are reasonable grounds for doing
proposed acquisition within the assessment period, it shall be
so on the basis of the criteria set out in paragraph 1 or where
deemed to be approved.
the information provided by the proposed acquirer is incom
plete.
7. The
competent
authority
may
fix
a
maximum
period
for
concluding the proposed acquisition and extend it where appro
priate.
3. Member
States
shall
neither
impose
any
prior
conditions
in respect of the level of holding that shall be acquired nor
allow their competent authorities to examine the proposed
8. Member States shall not impose requirements for notifi
acquisition in terms of the economic needs of the market.
cation to, and approval by, the competent authority of direct or
indirect acquisitions of voting rights or capital that are more
stringent than those set out in this Regulation.
4. Member
States
shall
make
publicly
available
a
list
spec
ifying the information that is necessary to carry out the
assessment and that shall be provided to the competent auth
Article 32
orities at the time of notification referred to in Article 31(2).
Assessment
The information required shall be proportionate and shall be
adapted to the nature of the proposed acquirer and the
1. Where assessing the notification provided for in proposed acquisition. Member States shall not require
Article 31(2) and the information referred to in Article 31(3),
information that is not relevant for a prudential assessment.
the competent authority shall, in order to ensure the sound and
prudent management of the CCP in which an acquisition is
proposed, and having regard to the likely influence of the
5. Notwithstanding
Article
31(2),
(3)
and
(4),
where
two
or
proposed acquirer on the CCP, appraise the suitability of the
more proposals to acquire or increase qualifying holdings in the
proposed acquirer and the financial soundness of the proposed
same CCP have been notified to the competent authority, the
acquisition against all of the following:
latter shall treat the proposed acquirers in a non-discriminatory
manner.
(a) the reputation and financial soundness of the proposed
acquirer;
6. The
relevant
competent
authorities
shall
cooperate
closely
with each other when carrying out the assessment where the
(b) the reputation and experience of any person who will direct
proposed acquirer is one of the following:
the business of the CCP as a result of the proposed
acquisition;
(a) another CCP, a credit institution, assurance undertaking,
insurance undertaking, reinsurance undertaking, investment
(c) whether the CCP will be able to comply and continue to
firm, market operator, an operator of a securities settlement
comply with this Regulation;
system, a UCITS management company or an AIFM auth
orised in another Member State;
(d) whether there are reasonable grounds to suspect that, in
connection with the proposed acquisition, money laun
dering or terrorist financing within the meaning of
(b) the parent undertaking of another CCP, a credit institution,
Article 1 of Directive 2005/60/EC is being or has been
assurance undertaking, insurance undertaking, reinsurance
committed or attempted, or that the proposed acquisition
undertaking, investment firm, market operator, an
could increase the risk thereof.
operator of a securities settlement system, a UCITS
management company or an AIFM authorised in another
Member State;
Where assessing the financial soundness of the proposed
acquirer, the competent authority shall pay particular attention
to the type of business pursued and envisaged in the CCP in
(c) a natural or legal person controlling another CCP, a credit
which the acquisition is proposed.
institution, assurance undertaking, insurance undertaking,
reinsurance undertaking, investment firm, market operator,
an operator of a securities settlement system, a UCITS
Where assessing the CCP’s ability to comply with this Regu
management company or an AIFM authorised in another
lation, the competent authority shall pay particular attention to
Member State.

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L 201/34
EN
Official Journal of the European Union
27.7.2012
7. The
competent
authorities
shall,
without
undue
delay, recorded in that CCP for any commercial purposes without
provide each other with any information which is essential or
the prior written consent of the client to whom such
relevant for the assessment. The competent authorities shall,
confidential information belongs.
upon request, communicate all relevant information to each
other and shall communicate all essential information at their
own initiative. A decision by the competent authority that has
Article 34
authorised the CCP in which the acquisition is proposed shall
indicate any views or reservations expressed by the competent
Business continuity
authority responsible for the proposed acquirer.
1. A
CCP
shall
establish,
implement
and
maintain
an
adequate business continuity policy and disaster recovery plan
aiming at ensuring the preservation of its functions, the timely
Article 33
recovery of operations and the fulfilment of the CCP’s
obligations. Such a plan shall at least allow for the recovery
Conflicts of interest
of all transactions at the time of disruption to allow the CCP to
continue to operate with certainty and to complete settlement
1. A
CCP
shall
maintain
and
operate
effective
written
organi
on the scheduled date.
sational and administrative arrangements to identify and
manage any potential conflicts of interest between itself,
including its managers, employees, or any person with direct
2. A
CCP
shall
establish,
implement
and
maintain
an
or indirect control or close links, and its clearing members or
adequate procedure ensuring the timely and orderly settlement
their clients known to the CCP. It shall maintain and implement
or transfer of the assets and positions of clients and clearing
adequate procedures aiming at resolving possible conflicts of
members in the event of a withdrawal of authorisation pursuant
interest.
to a decision under Article 20.
2. Where
the
organisational
or
administrative
arrangements 3. In
order
to
ensure
consistent
application
of
this
Article,
of a CCP to manage conflicts of interest are not sufficient to
ESMA shall, after consulting the members of the ESCB, develop
ensure, with reasonable confidence, that risks of damage to the
draft regulatory technical standards specifying the minimum
interests of a clearing member or client are prevented, it shall
content and requirements of the business continuity policy
clearly disclose the general nature or sources of conflicts of
and of the disaster recovery plan.
interest to the clearing member before accepting new trans
actions from that clearing member. Where the client is
known to the CCP, the CCP shall inform the client and the
ESMA shall submit those draft regulatory technical standards to
clearing member whose client is concerned.
the Commission by 30 September 2012.
Power is delegated to the Commission to adopt the regulatory
3. Where the CCP is a parent undertaking or a subsidiary,
technical standards referred to in the first subparagraph in
the written arrangements shall also take into account any
accordance with Articles 10 to 14 of Regulation (EU)
circumstances, of which the CCP is or should be aware,
No 1095/2010.
which may give rise to a conflict of interest arising as a result
of the structure and business activities of other undertakings
with which it has a parent undertaking or a subsidiary rela
Article 35
tionship.
Outsourcing
1. Where
a
CCP
outsources
operational
functions,
services
or
4. The
written
arrangements
established
in
accordance
with activities, it shall remain fully responsible for discharging all of
paragraph 1 shall include the following:
its obligations under this Regulation and shall ensure at all
times that:
(a) the circumstances which constitute or may give rise to a
(a) outsourcing does not result in the delegation of its respon
conflict of interest entailing a material risk of damage to the
sibility;
interests of one or more clearing members or clients;
(b) the relationship and obligations of the CCP towards its
(b) procedures to be followed and measures to be adopted in
clearing members or, where relevant, towards their clients
order to manage such conflict.
are not altered;
(c) the conditions for authorisation of the CCP do not effec
5. A
CCP
shall
take
all
reasonable
steps
to
prevent
any
tively change;
misuse of the information held in its systems and shall
prevent the use of that information for other business activities.
A natural person who has a close link to a CCP or a legal
(d) outsourcing does not prevent the exercise of supervisory
person that has a parent undertaking or a subsidiary rela
and oversight functions, including on-site access to acquire
tionship with a CCP shall not use confidential information
any relevant information needed to fulfil those mandates;

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(e) outsourcing does not result in depriving the CCP from the
Article 37
necessary systems and controls to manage the risks it faces;
Participation requirements
1. A
CCP
shall
establish,
where
relevant
per
type
of
product
(f) the service provider implements equivalent business
cleared, the categories of admissible clearing members and the
continuity requirements to those that the CCP must fulfil
admission criteria, upon the advice of the risk committee
under this Regulation;
pursuant to Article 28(3). Such criteria shall be non-discrimi
natory, transparent and objective so as to ensure fair and open
access to the CCP and shall ensure that clearing members have
(g) the CCP retains the necessary expertise and resources to
sufficient financial resources and operational capacity to meet
evaluate the quality of the services provided and the organi
the obligations arising from participation in a CCP. Criteria that
sational and capital adequacy of the service provider, and to
restrict access shall be permitted only to the extent that their
supervise the outsourced functions effectively and manage
objective is to control the risk for the CCP.
the risks associated with the outsourcing and supervises
those functions and manages those risks on an ongoing
basis;
2. A CCP shall ensure that the application of the criteria
referred to in paragraph 1 is met on an ongoing basis and
shall have timely access to the information relevant for such
(h) the CCP has direct access to the relevant information of the
assessment. A CCP shall conduct, at least once a year, a compre
outsourced functions;
hensive review of compliance with this Article by its clearing
members.
(i) the service provider cooperates with the competent
authority in connection with the outsourced activities;
3. Clearing
members
that
clear
transactions
on
behalf
of
their clients shall have the necessary additional financial
resources and operational capacity to perform this activity.
(j) the service provider protects any confidential information
The CCP’s rules for clearing members shall allow it to gather
relating to the CCP and its clearing members and clients
relevant basic information to identify, monitor and manage
or, where that service provider is established in a third
relevant concentrations of risk relating to the provision of
country, ensures that the data protection standards of that
services to clients. Clearing members shall, upon request,
third country, or those set out in the agreement between the
inform the CCP about the criteria and arrangements they
parties concerned, are comparable to the data protection
adopt to allow their clients to access the services of the CCP.
standards in effect in the Union.
Responsibility for ensuring that clients comply with their
obligations shall remain with clearing members.
A CCP shall not outsource major activities linked to risk
management unless such outsourcing is approved by the
competent authority.
4. A
CCP
shall
have
objective
and
transparent
procedures
for
the suspension and orderly exit of clearing members that no
longer meet the criteria referred to in paragraph 1.
2. The
competent
authority
shall
require
the
CCP
to
allocate
and set out its rights and obligations, and those of the service
provider, clearly in a written agreement.
5. A
CCP
may
only
deny
access
to
clearing
members
meeting the criteria referred to in paragraph 1 where duly
justified in writing and based on a comprehensive risk analysis.
3. A
CCP
shall
make
all
information
necessary
to
enable
the
competent authority to assess the compliance of the
performance of the outsourced activities with this Regulation
6. A
CCP
may
impose
specific
additional
obligations
on
available on request.
clearing members, such as the participation in auctions of a
defaulting clearing member’s position. Such additional
obligations shall be proportional to the risk brought by the
CHAPTER 2
clearing member and shall not restrict participation to certain
categories of clearing members.
Conduct of business rules
Article 36
General provisions
Article 38
1. When
providing
services
to
its
clearing
members,
and
Transparency
where relevant, to their clients, a CCP shall act fairly and profes
1. A
CCP
and
its
clearing
members
shall
publicly
disclose
the
sionally in accordance with the best interests of such clearing
prices and fees associated with the services provided. They shall
members and clients and sound risk management.
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
2. A
CCP
shall
have
accessible,
transparent
and
fair
rules
for and, where relevant, their clients separate access to the specific
the prompt handling of complaints.
services provided.

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L 201/36
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Official Journal of the European Union
27.7.2012
A CCP shall account separately for costs and revenues of the
4. A
clearing
member
shall
keep
separate
records
and
services provided and shall disclose that information to the
accounts that enable it to distinguish both in accounts held
competent authority.
with the CCP and in its own accounts its assets and positions
from the assets and positions held for the account of its clients
at the CCP.
2. A
CCP
shall
disclose
to
clearing
members
and
clients
the
risks associated with the services provided.
5. A
clearing
member
shall
offer
its
clients,
at
least,
the
choice between omnibus client segregation and individual
client segregation and inform them of the costs and level of
3. A CCP shall disclose to its clearing members and to its
protection referred to in paragraph 7 associated with each
competent authority the price information used to calculate its
option. The client shall confirm its choice in writing.
end-of-day exposures to its clearing members.
6. When a client opts for individual client segregation, any
margin in excess of the client’s requirement shall also be posted
A CCP shall publicly disclose the volumes of the cleared trans
to the CCP and distinguished from the margins of other clients
actions for each class of instruments cleared by the CCP on an
or clearing members and shall not be exposed to losses
aggregated basis.
connected to positions recorded in another account.
4. A
CCP
shall
publicly
disclose
the
operational
and
technical 7. CCPs
and
clearing
members
shall
publicly
disclose
the
requirements relating to the communication protocols covering
levels of protection and the costs associated with the different
content and message formats it uses to interact with third
levels of segregation that they provide and shall offer those
parties, including the operational and technical requirements
services on reasonable commercial terms. Details of the
referred to in Article 7.
different levels of segregation shall include a description of
the main legal implications of the respective levels of segre
gation offered including information on the insolvency law
applicable in the relevant jurisdictions.
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
8. A
CCP
shall
have
a
right
of
use
relating
to
the
margins
or
where the competent authority, after consulting ESMA,
default fund contributions collected via a security financial
considers that such disclosure would constitute a threat to
collateral arrangement, within the meaning of Article 2(1)(c)
financial stability or to market confidence or would seriously
of Directive 2002/47/EC of the European Parliament and of
jeopardise the financial markets or cause disproportionate
the Council of 6 June 2002 on financial collateral arrange
damage to the parties involved.
ments ( 1 ) provided that the use of such arrangements is
provided for in its operating rules. The clearing member shall
confirm its acceptance of the operating rules in writing. The
Article 39
CCP shall publicly disclose that right of use, which shall be
exercised in accordance with Article 47.
Segregation and portability
1. A
CCP
shall
keep
separate
records
and
accounts
that
shall
enable it, at any time and without delay, to distinguish in
9. The
requirement
to
distinguish
assets
and
positions
with
accounts with the CCP the assets and positions held for the
the CCP in accounts is satisfied where:
account of one clearing member from the assets and
positions held for the account of any other clearing member
and from its own assets.
(a) the assets and positions are recorded in separate accounts;
(b) the netting of positions recorded on different accounts is
2. A
CCP
shall
offer
to
keep
separate
records
and
accounts
prevented;
enabling each clearing member to distinguish in accounts with
the CCP the assets and positions of that clearing member from
those held for the accounts of its clients (‘omnibus client segre
(c) the assets covering the positions recorded in an account are
gation’).
not exposed to losses connected to positions recorded in
another account.
3. A
CCP
shall
offer
to
keep
separate
records
and
accounts
enabling each clearing member to distinguish in accounts with
10. Assets
refer
to
collateral
held
to
cover
positions
and
the CCP the assets and positions held for the account of a client
include the right to the transfer of assets equivalent to that
from those held for the account of other clients (‘individual
collateral or the proceeds of the realisation of any collateral,
client segregation’). Upon request, the CCP shall offer clearing
but does not include default fund contributions.
members the possibility to open more accounts in their own
name or for the account of their clients.
( 1 ) OJ L 168, 27.6.2002, p. 43.

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Union L
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CHAPTER 3
margining practices referred to in paragraph 4 can be imple
mented.
Prudential requirements
Article 40
ESMA shall submit those draft regulatory technical standards to
Exposure management
the Commission by 30 September 2012.
A CCP shall measure and assess its liquidity and credit
exposures to each clearing member and, where relevant, to
Power is delegated to the Commission to adopt the regulatory
another CCP with which it has concluded an interoperability
technical standards referred to in the first subparagraph in
arrangement, on a near to real-time basis. A CCP shall have
accordance with Articles 10 to 14 of Regulation (EU)
access in a timely manner and on a non-discriminatory basis to
No 1095/2010.
the relevant pricing sources to effectively measure its exposures.
This shall be done on a reasonable cost basis.
Article 42
Default fund
Article 41
1. To
limit
its
credit
exposures
to
its
clearing
members
Margin requirements
further, a CCP shall maintain a pre-funded default fund to
cover losses that exceed the losses to be covered by margin
1. A
CCP
shall
impose,
call
and
collect
margins
to
limit
its requirements laid down in Article 41, arising from the
credit exposures from its clearing members and, where relevant,
default, including the opening of an insolvency procedure, of
from CCPs with which it has interoperability arrangements.
one or more clearing members.
Such margins shall be sufficient to cover potential exposures
that the CCP estimates will occur until the liquidation of the
relevant positions. They shall also be sufficient to cover losses
The CCP shall establish a minimum amount below which the
that result from at least 99 % of the exposures movements over
size of the default fund is not to fall under any circumstances.
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 interoper
2. A
CCP
shall
establish
the
minimum
size
of
contributions
ability arrangements, at least on a daily basis. A CCP shall
to the default fund and the criteria to calculate the contributions
regularly monitor and, if necessary, revise the level of its
of the single clearing members. The contributions shall be
margins to reflect current market conditions taking into
proportional to the exposures of each clearing member.
account any potentially procyclical effects of such revisions.
3. The
default
fund
shall
at
least
enable
the
CCP
to
with
stand, under extreme but plausible market conditions, the
2. A
CCP
shall
adopt
models
and
parameters
in
setting
its default of the clearing member to which it has the largest
margin requirements that capture the risk characteristics of the
exposures or of the second and third largest clearing
products cleared and take into account the interval between
members, if the sum of their exposures is larger. A CCP shall
margin collections, market liquidity and the possibility of
develop scenarios of extreme but plausible market conditions.
changes over the duration of the transaction. The models and
The scenarios shall include the most volatile periods that have
parameters shall be validated by the competent authority and
been experienced by the markets for which the CCP provides its
subject to an opinion in accordance with Article 19.
services and a range of potential future scenarios. They shall
take into account sudden sales of financial resources and rapid
reductions in market liquidity.
3. A
CCP
shall
call
and
collect
margins
on
an
intraday
basis,
at least when predefined thresholds are exceeded.
4. A
CCP
may
establish
more
than
one
default
fund
for
the
different classes of instrument that it clears.
4. A
CCP
shall
call
and
collect
margins
that
are
adequate
to
5. In
order
to
ensure
consistent
application
of
this
Article,
cover the risk stemming from the positions registered in each
ESMA shall, in close cooperation with the ESCB and after
account kept in accordance with Article 39 with respect to
consulting EBA, develop draft regulatory technical standards
specific financial instruments. A CCP may calculate margins
specifying the framework for defining extreme but plausible
with respect to a portfolio of financial instruments provided
market conditions referred to in paragraph 3, that should be
that the methodology used is prudent and robust.
used when defining the size of the default fund and the other
financial resources referred to in Article 43.
5. In
order
to
ensure
consistent
application
of
this
Article, ESMA shall submit those draft regulatory technical standards to
ESMA shall, after consulting EBA and the ESCB, develop draft
the Commission by 30 September 2012.
regulatory technical standards specifying the appropriate
percentage and time horizons for the liquidation period and
the calculation of historical volatility, as referred to in
Power is delegated to the Commission to adopt the regulatory
paragraph 1, to be considered for the different classes of
technical standards referred to in the first subparagraph in
financial instruments, taking into account the objective to
accordance with Articles 10 to 14 of Regulation (EU)
limit procyclicality, and the conditions under which portfolio
No 1095/2010.

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L 201/38
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Official Journal of the European Union
27.7.2012
Article 43
2. Where
the
margins
posted
by
the
defaulting
clearing
member are not sufficient to cover the losses incurred by the
Other financial resources
CCP, the CCP shall use the default fund contribution of the
1. A
CCP
shall
maintain
sufficient
pre-funded
available defaulting member to cover those losses.
financial resources to cover potential losses that exceed the
losses to be covered by margin requirements laid down in
Article 41 and the default fund as referred to in Article 42.
Such pre-funded financial resources shall include dedicated
3. A CCP shall use contributions to the default fund of the
resources of the CCP, shall be freely available to the CCP and
non-defaulting clearing members and any other financial
shall not be used to meet the capital required under Article 16.
resources referred to in Article 43(1) only after having
exhausted the contributions of the defaulting clearing member.
2. The
default
fund
referred
to
in
Article
42
and
the
other
financial resources referred to in paragraph 1 of this Article
shall at all times enable the CCP to withstand the default of
4. A
CCP
shall
use
dedicated
own
resources
before
using
the
at least the two clearing members to which it has the largest
default fund contributions of non-defaulting clearing members.
exposures under extreme but plausible market conditions.
A CCP shall not use the margins posted by non-defaulting
clearing members to cover the losses resulting from the
default of another clearing member.
3. A
CCP
may
require
non-defaulting
clearing
members
to
provide additional funds in the event of a default of another
clearing member. The clearing members of a CCP shall have
limited exposures toward the CCP.
5. In
order
to
ensure
consistent
application
of
this
Article,
ESMA, shall, after consulting the relevant competent authorities
and the members of the ESCB, develop draft regulatory
Article 44
technical standards specifying the methodology for calculation
Liquidity risk controls
and maintenance of the amount of the CCP’s own resources to
be used in accordance with paragraph 4.
1. A
CCP
shall
at
all
times
have
access
to
adequate
liquidity
to perform its services and activities. To that end, it shall obtain
the necessary credit lines or similar arrangements to cover its
liquidity needs in case the financial resources at its disposal are
ESMA shall submit those draft regulatory technical standards to
not immediately available. A clearing member, parent under
the Commission by 30 September 2012.
taking or subsidiary of that clearing member together shall
not provide more than 25 % of the credit lines needed by the
CCP.
Power is delegated to the Commission to adopt the regulatory
technical standards referred to in the first subparagraph in
A CCP shall measure, on a daily basis, its potential liquidity
accordance with Articles 10 to 14 of Regulation (EU)
needs. It shall take into account the liquidity risk generated
No 1095/2010.
by the default of at least the two clearing members to which
it has the largest exposures.
2. In
order
to
ensure
consistent
application
of
this
Article,
Article 46
ESMA shall, after consulting the relevant authorities and the
Collateral requirements
members of the ESCB, develop draft regulatory technical
standards specifying the framework for managing the liquidity
1. A
CCP
shall
accept
highly
liquid
collateral
with
minimal
risk that CCPs are to withstand in accordance with paragraph 1.
credit and market risk to cover its initial and ongoing exposure
to its clearing members. For non-financial counterparties, a CCP
may accept bank guarantees, taking such guarantees into
ESMA shall submit those draft regulatory technical standards to
account when calculating its exposure to a bank that is a
the Commission by 30 September 2012.
clearing member. It shall apply adequate haircuts to asset
values that reflect the potential for their value to decline over
the interval between their last revaluation and the time by
Power is delegated to the Commission to adopt the regulatory
which they can reasonably be assumed to be liquidated. It
technical standards referred to in the first subparagraph in
shall take into account the liquidity risk following the default
accordance with Articles 10 to 14 of Regulation (EU)
of a market participant and the concentration risk on certain
No 1095/2010.
assets that may result in establishing the acceptable collateral
and the relevant haircuts.
Article 45
Default waterfall
2. A
CCP
may
accept,
where
appropriate
and
sufficiently
1. A CCP shall use the margins posted by a defaulting
prudent, the underlying of the derivative contract or the
clearing member prior to other financial resources in covering
financial instrument that originates the CCP exposure as
losses.
collateral to cover its margin requirements.

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EN
27.7.2012 Official
Journal
of
the
European
Union L
201/39
3. In
order
to
ensure
consistent
application
of
this
Article, own securities or those of its parent undertaking or its
ESMA shall, after consulting EBA, the ESRB and the ESCB,
subsidiary.
develop draft regulatory technical standards specifying:
7. A
CCP
shall
take
into
account
its
overall
credit
risk
(a) the type of collateral that could be considered highly liquid,
exposures to individual obligors in making its investment
such as cash, gold, government and high-quality corporate
decisions and shall ensure that its overall risk exposure to any
bonds and covered bonds;
individual obligor remains within acceptable concentration
limits.
(b) the haircuts referred to in paragraph 1; and
8. In
order
to
ensure
consistent
application
of
this
Article,
(c) the conditions under which commercial bank guarantees
ESMA shall, after consulting EBA and the ESCB, develop draft
may be accepted as collateral under paragraph 1.
regulatory technical standards specifying the financial
instruments that can be considered highly liquid, bearing
minimal credit and market risk as referred to in paragraph 1,
ESMA shall submit those draft regulatory technical standards to
the highly secured arrangements referred to in paragraphs 3 and
the Commission by 30 September 2012.
4 and the concentration limits referred to in paragraph 7.
Power is delegated to the Commission to adopt the regulatory
technical standards referred to in the first subparagraph in
ESMA shall submit those draft regulatory technical standards to
accordance with Articles 10 to 14 of Regulation (EU)
the Commission by 30 September 2012.
No 1095/2010.
Power is delegated to the Commission to adopt the regulatory
Article 47
technical standards referred to in the first subparagraph in
Investment policy
accordance with Articles 10 to 14 of Regulation (EU)
No 1095/2010.
1. A CCP shall invest its financial resources only in cash or
in highly liquid financial instruments with minimal market and
credit risk. A CCP’s investments shall be capable of being
Article 48
liquidated rapidly with minimal adverse price effect.
Default procedures
2. The
amount
of
capital,
including
retained
earnings
and
1. A
CCP
shall
have
detailed
procedures
in
place
to
be
reserves of a CCP which are not invested in accordance with
followed where a clearing member does not comply with the
paragraph 1, shall not be taken into account for the purposes of
participation requirements of the CCP laid down in Article 37
Article 16(2) or Article 45(4).
within the time limit and in accordance with the procedures
established by the CCP. The CCP shall set out in detail the
procedures to be followed in the event the default of a
3. Financial instruments posted as margins or as default fund
clearing member is not declared by the CCP. Those procedures
contributions shall, where available, be deposited with operators
shall be reviewed annually.
of securities settlement systems that ensure the full protection
of those financial instruments. Alternatively, other highly secure
arrangements with authorised financial institutions may be used.
2. A
CCP
shall
take
prompt
action
to
contain
losses
and
liquidity pressures resulting from defaults and shall ensure
that the closing out of any clearing member’s positions does
4. Cash
deposits
of
a
CCP
shall
be
performed
through
highly not disrupt its operations or expose the non-defaulting clearing
secure arrangements with authorised financial institutions or,
members to losses that they cannot anticipate or control.
alternatively, through the use of the standing deposit facilities
of central banks or other comparable means provided for by
central banks.
3. Where
a
CCP
considers
that
the
clearing
member
will
not
be able to meet its future obligations, it shall promptly inform
5. Where
a
CCP
deposits
assets
with
a
third
party,
it
shall the competent authority before the default procedure is declared
ensure that the assets belonging to the clearing members are
or triggered. The competent authority shall promptly
identifiable separately from the assets belonging to the CCP and
communicate that information to ESMA, to the relevant
from assets belonging to that third party by means of differently
members of the ESCB and to the authority responsible for
titled accounts on the books of the third party or any other
the supervision of the defaulting clearing member.
equivalent measures that achieve the same level of protection. A
CCP shall have prompt access to the financial instruments when
required.
4. A
CCP
shall
verify
that
its
default
procedures
are
enforceable. It shall take all reasonable steps to ensure that it
has the legal powers to liquidate the proprietary positions of the
6. A CCP shall not invest its capital or the sums arising from
defaulting clearing member and to transfer or liquidate the
the requirements laid down in Article 41, 42, 43 or 44 in its
clients’ positions of the defaulting clearing member.

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L 201/40
EN
Official Journal of the European Union
27.7.2012
5. Where
assets
and
positions
are
recorded
in
the
records frequent stress tests to assess their resilience in extreme but
and accounts of a CCP as being held for the account of a
plausible market conditions and shall perform back tests to
defaulting clearing member’s clients in accordance with
assess the reliability of the methodology adopted. The CCP
Article 39(2), the CCP shall, at least, contractually commit
shall obtain independent validation, shall inform its competent
itself to trigger the procedures for the transfer of the assets
authority and ESMA of the results of the tests performed and
and positions held by the defaulting clearing member for the
shall obtain their validation before adopting any significant
account of its clients to another clearing member designated by
change to the models and parameters.
all of those clients, on their request and without the consent of
the defaulting clearing member. That other clearing member
shall be obliged to accept those assets and positions only
The adopted models and parameters, including any significant
where it has previously entered into a contractual relationship
change thereto, shall be subject to an opinion of the college
with the clients by which it has committed itself to do so. If the
pursuant to Article 19.
transfer to that other clearing member has not taken place for
any reason within a predefined transfer period specified in its
ESMA shall ensure that information on the results of the stress
operating rules, the CCP may take all steps permitted by its
tests is passed on to the ESAs to enable them to assess the
rules to actively manage its risks in relation to those positions,
exposure of financial undertakings to the default of CCPs.
including liquidating the assets and positions held by the
defaulting clearing member for the account of its clients.
2. A
CCP
shall
regularly
test
the
key
aspects
of
its
default
procedures and take all reasonable steps to ensure that all
clearing members understand them and have appropriate
arrangements in place to respond to a default event.
6. Where
assets
and
positions
are
recorded
in
the
records 3. A
CCP
shall
publicly
disclose
key
information
on
its
risk-
and accounts of a CCP as being held for the account of a
management model and assumptions adopted to perform the
defaulting clearing member’s client in accordance with
stress tests referred to in paragraph 1.
Article 39(3), 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
4. In
order
to
ensure
consistent
application
of
this
Article,
account of the client to another clearing member designated by
ESMA shall, after consulting EBA, other relevant competent
the client, on the client’s request and without the consent of the
authorities and the members of the ESCB, develop draft regu
defaulting clearing member. That other clearing member shall
latory technical standards specifying:
be obliged to accept these assets and positions only where it has
previously entered into a contractual relationship with the client
by which it has committed itself to do so. If the transfer to that
(a) the type of tests to be undertaken for different classes of
other clearing member has not taken place for any reason
financial instruments and portfolios;
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,
(b) the involvement of clearing members or other parties in the
including liquidating the assets and positions held by the
tests;
defaulting clearing member for the account of the client.
(c) the frequency of the tests;
(d) the time horizons of the tests;
7. Clients’ collateral distinguished in accordance with (e) the key information referred to in paragraph 3.
Article 39(2) and (3) shall be used exclusively to cover the
positions held for their account. Any balance owed by the
CCP after the completion of the clearing member’s default
ESMA shall submit those draft regulatory technical standards to
management process by the CCP shall be readily returned to
the Commission by 30 September 2012.
those clients when they are known to the CCP or, if they are
not, to the clearing member for the account of its clients.
Power is delegated to the Commission to adopt the regulatory
technical standards referred to in the first subparagraph in
accordance with Articles 10 to 14 of Regulation (EU)
No 1095/2010.
Article 49
Article 50
Review of models, stress testing and back testing
Settlement
1. A
CCP
shall
regularly
review
the
models
and
parameters 1. A
CCP
shall,
where
practical
and
available,
use
central
adopted to calculate its margin requirements, default fund
bank money to settle its transactions. Where central bank
contributions, collateral requirements and other risk control
money is not used, steps shall be taken to strictly limit cash
mechanisms. It shall subject the models to rigorous and
settlement risks.

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EN
27.7.2012 Official
Journal
of
the
European
Union L
201/41
2. A CCP shall clearly state its obligations with respect to
arrangement that may affect credit and liquidity risks
deliveries of financial instruments, including whether it has an
relating to clearing member concentrations, and pooled
obligation to make or receive delivery of a financial instrument
financial resources.
or whether it indemnifies participants for losses incurred in the
delivery process.
For the purposes of point (b) of the first subparagraph, CCPs
shall use the same rules concerning the moment of entry of
3. Where
a
CCP
has
an
obligation
to
make
or
receive transfer orders into their respective systems and the moment of
deliveries of financial instruments, it shall eliminate principal
irrevocability as set out in Directive 98/26/EC, where relevant.
risk through the use of delivery-versus-payment mechanisms
to the extent possible.
For the purposes of point (c) of the first subparagraph, the
TITLE V
terms of the arrangement shall outline the process for
managing the consequences of the default where one of the
INTEROPERABILITY ARRANGEMENTS
CCPs with which an interoperability arrangement has been
Article 51
concluded is in default.
Interoperability arrangements
1. A
CCP
may
enter
into
an
interoperability
arrangement For the purposes of point (d) of the first subparagraph, CCPs
with another CCP where the requirements laid down in
shall have robust controls over the re-use of clearing members’
Articles 52, 53 and 54 are fulfilled.
collateral under the arrangement, if permitted by their
competent authorities. The arrangement shall outline how
those risks have been addressed taking into account sufficient
2. When
establishing
an
interoperability
arrangement
with coverage and need to limit contagion.
another CCP for the purpose of providing services to a
particular trading venue, the CCP shall have non-discriminatory
access, both to the data that it needs for the performance of its
functions from that particular trading venue, to the extent that
2. Where the risk-management models used by the CCPs to
the CCP complies with the operational and technical
cover their exposure to their clearing members or their
requirements established by the trading venue, and to the
reciprocal exposures are different, the CCPs shall identify
relevant settlement system.
those differences, assess risks that may arise therefrom and
take measures, including securing additional financial resources,
that limit their impact on the interoperability arrangement as
well as their potential consequences in terms of contagion risks
3. Entering
into
an
interoperability
arrangement
or
accessing and ensure that these differences do not affect each CCP’s ability
a data feed or a settlement system referred to in paragraphs 1
to manage the consequences of the default of a clearing
and 2 shall be rejected or restricted, directly or indirectly, only
member.
in order to control any risk arising from that arrangement or
access.
3. Any associated costs that arise from paragraphs 1 and 2
Article 52
shall be borne by the CCP requesting interoperability or access,
unless otherwise agreed between the parties.
Risk management
1. CCPs
that
enter
into
an
interoperability
arrangement
shall:
Article 53
(a) put in place adequate policies, procedures and systems to
Provision of margins among CCPs
effectively identify, monitor and manage the risks arising
1. A
CCP
shall
distinguish
in
accounts
the
assets
and
from the arrangement so that they can meet their
positions held for the account of CCPs with whom it has
obligations in a timely manner;
entered into an interoperability arrangement.
(b) agree on their respective rights and obligations, including
the applicable law governing their relationships;
2. If
a
CCP
that
enters
into
an
interoperability
arrangement
with another CCP only provides initial margins to that CCP
under a security financial collateral arrangement, the receiving
(c) identify, monitor and effectively manage credit and liquidity
CCP shall have no right of use over the margins provided by the
risks so that a default of a clearing member of one CCP
other CCP.
does not affect an interoperable CCP;
3. Collateral
received
in
the
form
of
financial
instruments
(d) identify, monitor and address potential interdependences
shall be deposited with operators of securities settlement
and correlations that arise from an interoperability
systems notified under Directive 98/26/EC.

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L 201/42
EN
Official Journal of the European Union
27.7.2012
4. The assets referred to in paragraphs 1 and 2 shall be
TITLE VI
available to the receiving CCP only in case of default of the
CCP which has provided the collateral in the context of an
REGISTRATION AND SUPERVISION OF TRADE REPOSITORIES
interoperability arrangement.
CHAPTER 1
Conditions and procedures for registration of a trade
repository
Article 55
5. In case of default of the CCP which has received the
collateral in the context of an interoperability arrangement,
Registration of a trade repository
the collateral referred to in paragraphs 1 and 2 shall be
readily returned to the providing CCP.
1. A
trade
repository
shall
register
with
ESMA
for
the
purposes of Article 9.
2. To
be
eligible
to
be
registered
under
this
Article,
a
trade
Article 54
repository shall be a legal person established in the Union and
meet the requirements laid down in Title VII.
Approval of interoperability arrangements
1. An
interoperability
arrangement
shall
be
subject
to
the
prior approval of the competent authorities of the CCPs
3. The
registration
of
a
trade
repository
shall
be
effective
for
involved. The procedure under Article 17 shall apply.
the entire territory of the Union.
4. A
registered
trade
repository
shall
comply
at
all
times
with
the conditions for registration. A trade repository shall, without
2. The
competent
authorities
shall
grant
approval
of
the undue delay, notify ESMA of any material changes to the
interoperability arrangement only where the CCPs involved
conditions for registration.
have been authorised to clear under Article 17 or recognised
under Article 25 or authorised under a pre-existing national
authorisation regime for a period of at least three years, the
Article 56
requirements laid down in Article 52 are met and the technical
conditions for clearing transactions under the terms of the
Application for registration
arrangement allow for a smooth and orderly functioning of
financial markets and the arrangement does not undermine
1. A
trade
repository
shall
submit
an
application
for
regis
the effectiveness of supervision.
tration to ESMA.
2. ESMA shall assess whether the application is complete
within 20 working days of receipt of the application.
3. Where a competent authority considers that the
requirements laid down in paragraph 2 are not met, it shall
provide explanations in writing regarding its risk considerations
Where the application is not complete, ESMA shall set a
to the other competent authorities and the CCPs involved. It
deadline by which the trade repository is to provide additional
shall also notify ESMA, which shall issue an opinion on the
information.
effective validity of the risk considerations as grounds for denial
of the interoperability arrangement. ESMA’s opinion shall be
made available to all the CCPs involved. Where ESMA’s
After assessing an application as complete, ESMA shall notify
opinion differs from the assessment of the relevant competent
the trade repository accordingly.
authority, that competent authority shall reconsider its position,
taking into account ESMA’s opinion.
3. In
order
to
ensure
consistent
application
of
this
Article,
ESMA shall develop draft regulatory technical standards spec
ifying the details of the application for registration referred to in
4. By
31
December
2012,
ESMA
shall
issue
guidelines
or paragraph 1.
recommendations with a view to establishing consistent,
efficient and effective assessments of interoperability arrange
ments, in accordance with the procedure laid down in Article 16
ESMA shall submit those draft regulatory technical standards to
of Regulation (EU) No 1095/2010.
the Commission by 30 September 2012.
Power is delegated to the Commission to adopt the regulatory
technical standards referred to in the first subparagraph in
ESMA shall develop drafts of those guidelines or recommen
accordance with Articles 10 to 14 of Regulation (EU)
dations after consulting the members of the ESCB.
No 1095/2010.

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EN
27.7.2012 Official
Journal
of
the
European
Union L
201/43
4. In
order
to
ensure
uniform
conditions
of
application
of 2. ESMA shall communicate any decision taken in
paragraph 1, ESMA shall develop draft implementing technical
accordance with paragraph 1 to the Commission.
standards specifying the format of the application for regis
tration to ESMA.
3. ESMA
shall
publish
on
its
website
a
list
of
trade
reposi
tories registered in accordance with this Regulation. That list
shall be updated within five working days following the
ESMA shall submit those draft implementing technical standards
adoption of a decision under paragraph 1.
to the Commission by 30 September 2012.
Article 60
Power is conferred on the Commission to adopt the imple
Exercise of the powers referred to in Articles 61 to 63
menting technical standards referred to in the first subparagraph
The powers conferred on ESMA or any official of or other
in accordance with Article 15 of Regulation (EU)
person authorised by ESMA by Articles 61 to 63 shall not be
No 1095/2010.
used to require the disclosure of information or documents
which are subject to legal privilege.
Article 57
Article 61
Notification of and consultation with competent
Request for information
authorities prior to registration
1. ESMA may by simple request or by decision require trade
1. If
a
trade
repository
which
is
applying
for
registration
is repositories and related third parties to whom the trade reposi
an entity which is authorised or registered by a competent
tories have outsourced operational functions or activities to
authority in the Member State where it is established, ESMA
provide all information that is necessary in order to carry out
shall, without undue delay, notify and consult that competent
its duties under this Regulation.
authority prior to the registration of the trade repository.
2. When
sending
a
simple
request
for
information
under
paragraph 1, ESMA shall:
2. ESMA and the relevant competent authority shall
exchange all information that is necessary for the registration
of the trade repository as well as for the supervision of the
(a) refer to this Article as the legal basis of the request;
entity’s compliance with the conditions of its registration or
authorisation in the Member State where it is established.
(b) state the purpose of the request;
Article 58
(c) specify what information is required;
Examination of the application
1. ESMA
shall,
within
40
working
days
from
the
notification (d) set a time limit within which the information is to be
referred to in the third subparagraph of Article 56(2), examine
provided;
the application for registration based on the compliance of the
trade repository with Articles 78 to 81 and shall adopt a fully
(e) inform the person from whom the information is requested
reasoned registration decision or decision refusing registration.
that he is not obliged to provide the information but that in
case of a voluntary reply to the request the information
provided must not be incorrect and misleading; and
2. A
decision
issued
by
ESMA
pursuant
to
paragraph
1
shall
take effect on the fifth working day following its adoption.
(f) indicate the fine provided for in Article 65 in conjunction
with point (a) of Section IV of Annex I where the answers
to questions asked are incorrect or misleading.
Article 59
Notification of ESMA decisions relating to registration
3. When
requiring
to
supply
information
under
paragraph
1
by decision, ESMA shall:
1. Where ESMA adopts a registration decision or a decision
refusing or withdrawing registration, it shall notify the trade
repository within five working days with a fully reasoned expla
(a) refer to this Article as the legal basis of the request;
nation of its decision.
(b) state the purpose of the request;
ESMA shall, without undue delay, notify the relevant competent
authority referred to in Article 57(1) of its decision.
(c) specify what information is required;

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L 201/44
EN
Official Journal of the European Union
27.7.2012
(d) set a time limit within which the information is to be
2. The
officials
and
other
persons
authorised
by
ESMA
for
provided;
the purposes of the investigations referred to in paragraph 1
shall exercise their powers upon production of a written auth
orisation specifying the subject matter and purpose of the inves
(e) indicate the periodic penalty payments provided for in
tigation. That authorisation shall also indicate the periodic
Article 66 where the production of the required information
penalty payments provided for in Article 66 where the
is incomplete;
production of the required records, data, procedures or any
other material, or the answers to questions asked to persons
referred to in Article 61(1) are not provided or are incomplete,
(f) indicate the fine provided for in Article 65 in conjunction
and the fines provided for in Article 65 in conjunction with
with point (a) of Section IV of Annex I, where the answers
point (b) of Section IV of Annex I, where the answers to
to questions asked are incorrect or misleading; and
questions asked to persons referred to in Article 61(1) are
incorrect or misleading.
(g) indicate the right to appeal the decision before ESMA’s
Board of Appeal and to have the decision reviewed by the
Court of Justice of the European Union (‘Court of Justice’) in
accordance with Articles 60 and 61 of Regulation (EU)
No 1095/2010.
3. The
persons
referred
to
in
Article
61(1)
are
required
to
submit to investigations launched on the basis of a decision of
ESMA. The decision shall specify the subject matter and purpose
4. The
persons
referred
to
in
paragraph
1
or
their
represen
of the investigation, the periodic penalty payments provided for
tatives and, in the case of legal persons or associations having
in Article 66, the legal remedies available under Regulation (EU)
no legal personality, the persons authorised to represent them
No 1095/2010 and the right to have the decision reviewed by
by law or by their constitution shall supply the information
the Court of Justice.
requested. Lawyers duly authorised to act may supply the
information on behalf of their clients. The latter shall remain
fully responsible if the information supplied is incomplete,
incorrect or misleading.
4. In
good
time
before
the
investigation,
ESMA
shall
inform
the competent authority of the Member State where the inves
5. ESMA
shall,
without
delay,
send
a
copy
of
the
simple tigation is to be carried out of the investigation and of the
request or of its decision to the competent authority of the
identity of the authorised persons. Officials of the competent
Member State where the persons referred to in paragraph 1
authority concerned shall, upon the request of ESMA, assist
concerned by the request for information are domiciled or
those authorised persons in carrying out their duties. Officials
established.
of the competent authority concerned may also attend the
investigations upon request.
Article 62
General investigations
1. In
order
to
carry
out
its
duties
under
this
Regulation, 5. If
a
request
for
records
of
telephone
or
data
traffic
referred
ESMA may conduct necessary investigations of persons
to in point (e) of paragraph 1 requires authorisation from a
referred to in Article 61(1). To that end, the officials and
judicial authority according to national rules, such authorisation
other persons authorised by ESMA shall be empowered to:
shall be applied for. Such authorisation may also be applied for
as a precautionary measure.
(a) examine any records, data, procedures and any other
material relevant to the execution of its tasks irrespective
of the medium on which they are stored;
6. Where
authorisation
as
referred
to
in
paragraph
5
is
(b) take or obtain certified copies of or extracts from such
applied for, the national judicial authority shall control that
records, data, procedures and other material;
the decision of ESMA is authentic and that the coercive
measures envisaged are neither arbitrary nor excessive having
regard to the subject matter of the investigations. In its control
(c) summon and ask any person referred to in Article 61(1) or
of the proportionality of the coercive measures, the national
their representatives or staff for oral or written explanations
judicial authority may ask ESMA for detailed explanations, in
on facts or documents relating to the subject matter and
particular relating to the grounds ESMA has for suspecting that
purpose of the inspection and to record the answers;
an infringement of this Regulation has taken place and the
seriousness of the suspected infringement and the nature of
the involvement of the person subject to the coercive
(d) interview any other natural or legal person who consents to
measures. However, the national judicial authority shall not
be interviewed for the purpose of collecting information
review the necessity for the investigation or demand that it
relating to the subject matter of an investigation;
be provided with the information on ESMA’s file. The
lawfulness of ESMA’s decision shall be subject to review only
by the Court of Justice following the procedure set out in
(e) request records of telephone and data traffic.
Regulation (EU) No 1095/2010.

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27.7.2012 Official
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Union L
201/45
Article 63
assistance, requesting, where appropriate, the assistance of the
police or of an equivalent enforcement authority, so as to
On-site inspections
enable them to conduct their on-site inspection.
1. In
order
to
carry
out
its
duties
under
this
Regulation,
ESMA may conduct all necessary on-site inspections at any
business premises or land of the legal persons referred to in
8. If
the
on-site
inspection
provided
for
in
paragraph
1
or
Article 61(1). Where the proper conduct and efficiency of the
the assistance provided for in paragraph 7 requires authorisation
inspection so require, ESMA may carry out the on-site
by a judicial authority according to national law, such auth
inspection without prior announcement.
orisation shall be applied for. Such authorisation may also be
applied for as a precautionary measure.
2. The
officials
and
other
persons
authorised
by
ESMA
to
conduct an on-site inspection may enter any business
premises or land of the legal persons subject to an investigation
9. Where
authorisation
as
referred
to
in
paragraph
8
is
decision adopted by ESMA and shall have all the powers
applied for, the national judicial authority shall verify that
stipulated in Article 62(1). They shall also have the power to
ESMA’s decision is authentic and that the coercive measures
seal any business premises and books or records for the period
envisaged are neither arbitrary nor excessive having regard to
of, and to the extent necessary for, the inspection.
the subject matter of the inspection. In its control of the
proportionality of the coercive measures, the national judicial
authority may ask ESMA for detailed explanations. Such a
request for detailed explanations may in particular relate to
3. The
officials
and
other
persons
authorised
by
ESMA
to the grounds ESMA has for suspecting that an infringement of
conduct an on-site inspection shall exercise their powers upon
this Regulation has taken place, as well as to the seriousness of
production of a written authorisation specifying the subject
the suspected infringement and the nature of the involvement
matter and purpose of the inspection and the periodic penalty
of the person who is subjected to the coercive measures.
payments provided for in Article 66 where the persons
However, the national judicial authority may not review the
concerned do not submit to the inspection. In good time
necessity for the inspection or demand to be provided with
before the inspection, ESMA shall give notice of the inspection
the information on ESMA’s file. The lawfulness of ESMA’s
to the competent authority of the Member State where the
decision shall be subject to review only by the Court of
inspection is to be conducted.
Justice following the procedure set out in Regulation (EU)
No 1095/2010.
4. The
persons
referred
to
in
Article
61(1)
shall
submit
to
on-site inspections ordered by decision of ESMA. The decision
Article 64
shall specify the subject matter and purpose of the inspection,
appoint the date on which it is to begin and indicate the
Procedural rules for taking supervisory measures and
periodic penalty payments provided for in Article 66, the
imposing fines
legal remedies available under Regulation (EU) No 1095/2010
as well as the right to have the decision reviewed by the Court
1. Where, in carrying out its duties under this Regulation,
of Justice. ESMA shall take such decisions after consulting the
ESMA finds that there are serious indications of the possible
competent authority of the Member State where the inspection
existence of facts liable to constitute one or more of the
is to be conducted.
infringements listed in Annex I, ESMA shall appoint an inde
pendent investigation officer within ESMA to investigate the
matter. The appointed officer shall not be involved or have
been directly or indirectly involved in the supervision or the
5. Officials of, as well as those authorised or appointed by,
registration process of the trade repository concerned and shall
the competent authority of the Member State where the
perform his functions independently from ESMA.
inspection is to be conducted shall, at the request of ESMA,
actively assist the officials and other persons authorised by
ESMA. To that end, they shall enjoy the powers set out in
paragraph 2. Officials of the competent authority of the
2. The
investigation
officer
shall
investigate
the
alleged
Member State concerned may also attend the on-site inspections
infringements, taking into account any comments submitted
on request.
by the persons who are subject to the investigations, and
shall submit a complete file with his findings to ESMA.
6. ESMA
may
also
require
competent
authorities
to
carry
out
specific investigatory tasks and on-site inspections as provided
In order to carry out his tasks, the investigation officer may
for in this Article and in Article 62(1) on its behalf. To that end,
exercise the power to request information in accordance with
competent authorities shall enjoy the same powers as ESMA as
Article 61 and to conduct investigations and on-site inspections
set out in this Article and in Article 62(1).
in accordance with Articles 62 and 63. When using those
powers, the investigation officer shall comply with Article 60.
7. Where
the
officials
and
other
accompanying
persons
auth
orised by ESMA find that a person opposes an inspection
Where carrying out his tasks, the investigation officer shall have
ordered pursuant to this Article, the competent authority of
access to all documents and information gathered by ESMA in
the Member State concerned shall afford them the necessary
its supervisory activities.

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Official Journal of the European Union
27.7.2012
3. Upon completion of his investigation and before
Article 65
submitting the file with his findings to ESMA, the investigation
officer shall give the persons subject to the investigations the
Fines
opportunity to be heard on the matters being investigated. The
1. Where,
in
accordance
with
Article
64(5),
ESMA
finds
that
investigation officer shall base his findings only on facts on
a trade repository has, intentionally or negligently, committed
which the persons concerned have had the opportunity to
one of the infringements listed in Annex I, it shall adopt a
comment.
decision imposing a fine in accordance with paragraph 2 of
this Article.
The rights of the defence of the persons concerned shall be fully
An infringement by a trade repository shall be considered to
respected during investigations under this Article.
have been committed intentionally if ESMA finds objective
factors which demonstrate that the trade repository or its
senior management acted deliberately to commit the
infringement.
4. When
submitting
the
file
with
his
findings
to
ESMA,
the
investigation officer shall notify that fact to the persons who are
subject to the investigations. The persons subject to the inves
2. The
basic
amounts
of
the
fines
referred
to
in
paragraph
1
tigations shall be entitled to have access to the file, subject to
shall be included within the following limits:
the legitimate interest of other persons in the protection of their
business secrets. The right of access to the file shall not extend
to confidential information affecting third parties.
(a) for the infringements referred to in point (c) of Section I of
Annex I and in points (c) to (g) of Section II of Annex I, and
in points (a) and (b) of Section III of Annex I the amounts
of the fines shall be at least EUR 10 000 and shall not
5. On the basis of the file containing the investigation
exceed EUR 20 000;
officer’s findings and, when requested by the persons concerned,
after having heard the persons subject to the investigations in
accordance with Article 67, ESMA shall decide if one or more
of the infringements listed in Annex I has been committed by
(b) for the infringements referred to in points (a), (b) and (d) to
the persons who have been subject to the investigations and, in
(h) of Section I of Annex I, and in points (a), (b) and (h) of
such a case, shall take a supervisory measure in accordance with
Section II of Annex I, the amounts of the fines shall be at
Article 73 and impose a fine in accordance with Article 65.
least EUR 5 000 and shall not exceed EUR 10 000.
In order to decide whether the basic amount of the fines should
6. The
investigation
officer
shall
not
participate
in
ESMA’s be at the lower, the middle or the higher end of the limits set
deliberations or in any other way intervene in ESMA’s decision-
out in the first subparagraph, ESMA shall have regard to the
making process.
annual turnover of the preceding business year of the trade
repository concerned. The basic amount shall be at the lower
end of the limit for trade repositories whose annual turnover is
below EUR 1 million, the middle of the limit for the trade
7. The
Commission
shall
adopt
further
rules
of
procedure
for repository whose turnover is between EUR 1 and 5 million
the exercise of the power to impose fines or periodic penalty
and the higher end of the limit for the trade repository
payments, including provisions on the rights of the defence,
whose annual turnover is higher than EUR 5 million.
temporal provisions, and the collection of fines or periodic
penalty payments, and shall adopt detailed rules on the limi
tation periods for the imposition and enforcement of penalties.
3. The
basic
amounts
set
out
in
paragraph
2
shall
be
adjusted, if need be, by taking into account aggravating or
mitigating factors in accordance with the relevant coefficients
set out in Annex II.
The rules referred to in the first subparagraph shall be adopted
by means of delegated acts in accordance with Article 82.
The relevant aggravating coefficients shall be applied one by one
to the basic amount. If more than one aggravating coefficient is
applicable, the difference between the basic amount and the
8. ESMA
shall
refer
matters
for
criminal
prosecution
to
the amount resulting from the application of each individual aggra
relevant national authorities where, in carrying out its duties
vating coefficient shall be added to the basic amount.
under this Regulation, it finds that there are serious indications
of the possible existence of facts liable to constitute criminal
offences. In addition, ESMA shall refrain from imposing fines or
The relevant mitigating coefficients shall be applied one by one
periodic penalty payments where a prior acquittal or conviction
to the basic amount. If more than one mitigating coefficient is
arising from identical fact or facts which are substantially the
applicable, the difference between the basic amount and the
same has already acquired the force of res judicata as the result
amount resulting from the application of each individual miti
of criminal proceedings under national law.
gating coefficient shall be subtracted from the basic amount.

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4. Notwithstanding
paragraphs
2
and
3,
the
amount
of
the
Article 67
fine shall not exceed 20 % of the annual turnover of the trade
repository concerned in the preceding business year but, where
Hearing of the persons concerned
the trade repository has directly or indirectly benefited finan
1. Before
taking
any
decision
on
a
fine
or
periodic
penalty
cially from the infringement, the amount of the fine shall be at
payment under Articles 65 and 66, ESMA shall give the persons
least equal to that benefit.
subject to the proceedings the opportunity to be heard on its
findings. ESMA shall base its decisions only on findings on
which the persons subject to the proceedings have had an
Where an act or omission of a trade repository constitutes more
opportunity to comment.
than one infringement listed in Annex I, only the higher fine
calculated in accordance with paragraphs 2 and 3 and relating
to one of those infringements shall apply.
2. The rights of the defence of the persons subject to the
proceedings shall be fully respected in the proceedings. They
Article 66
shall be entitled to have access to ESMA’s file, subject to the
legitimate interest of other persons in the protection of their
Periodic penalty payments
business secrets. The right of access to the file shall not extend
1. ESMA shall, by decision, impose periodic penalty to confidential information or ESMA’s internal preparatory
payments in order to compel:
documents.
(a) a trade repository to put an end to an infringement in
accordance with a decision taken pursuant to
Article 68
Article 73(1)(a); or
Disclosure, nature, enforcement and allocation of fines and
periodic penalty payments
(b) a person referred to in Article 61(1):
1. ESMA
shall
disclose
to
the
public
every
fine
and
periodic
penalty payment that has been imposed pursuant to Articles 65
and 66 unless such disclosure to the public would seriously
jeopardise the financial markets or cause disproportionate
(i) to supply complete information which has been
damage to the parties involved. Such disclosure shall not
requested by a decision pursuant to Article 61;
contain personal data within the meaning of Regulation (EC)
No 45/2001.
(ii) to submit to an investigation and in particular to
produce complete records, data, procedures or any
other material required and to complete and correct
other information provided in an investigation
2. Fines
and
periodic
penalty
payments
imposed
pursuant
to
launched by a decision pursuant to Article 62; or
Articles 65 and 66 shall be of an administrative nature.
(iii) to submit to an on-site inspection ordered by a decision
taken pursuant to Article 63.
3. Where
ESMA
decides
to
impose
no
fines
or
penalty
payments, it shall inform the European Parliament, the
Council, the Commission, and the competent authorities of
the Member State concerned accordingly and shall set out the
2. A
periodic
penalty
payment
shall
be
effective
and
propor
reasons for its decision.
tionate. The periodic penalty payment shall be imposed for each
day of delay.
3. Notwithstanding paragraph 2, the amount of the periodic
4. Fines
and
periodic
penalty
payments
imposed
pursuant
to
penalty payments shall be 3 % of the average daily turnover in
Articles 65 and 66 shall be enforceable.
the preceding business year, or, in the case of natural persons,
2 % of the average daily income in the preceding calendar year.
It shall be calculated from the date stipulated in the decision
imposing the periodic penalty payment.
Enforcement shall be governed by the rules of civil procedure in
force in the State in the territory of which it is carried out. The
order for its enforcement shall be appended to the decision
4. A
periodic
penalty
payment
shall
be
imposed
for
a without other formality than verification of the authenticity of
maximum period of six months following the notification of
the decision by the authority which the government of each
ESMA’s decision. Following the end of the period, ESMA shall
Member State shall designate for that purpose and shall make
review the measure.
known to ESMA and to the Court of Justice.

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L 201/48
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When those formalities have been completed on application by
4. The
competent
authority
referred
to
in
paragraph
3
shall
the party concerned, the latter may proceed to enforcement in
be the authority designated under Article 22.
accordance with the national law, by bringing the matter
directly before the competent body.
Article 72
Enforcement may be suspended only by a decision of the Court
Supervisory fees
of Justice. However, the courts of the Member State concerned
1. ESMA
shall
charge
fees
to
the
trade
repositories
in
shall have jurisdiction over complaints that enforcement is
accordance with this Regulation and in accordance with the
being carried out in an irregular manner.
delegated acts adopted pursuant to paragraph 3. Those fees
shall fully cover ESMA’s necessary expenditure relating to the
registration and supervision of trade repositories and the
5. The
amounts
of
the
fines
and
periodic
penalty
payments reimbursement of any costs that the competent authorities
shall be allocated to the general budget of the European Union.
may incur carrying out work pursuant to this Regulation in
particular as a result of any delegation of tasks in accordance
with Article 74.
Article 69
Review by the Court of Justice
2. The
amount
of
a
fee
charged
to
a
trade
repository
shall
The Court of Justice shall have unlimited jurisdiction to review
cover all administrative costs incurred by ESMA for its regis
decisions whereby ESMA has imposed a fine or a periodic
tration and supervision activities and be proportionate to the
penalty payment. It may annul, reduce or increase the fine or
turnover of the trade repository concerned.
periodic penalty payment imposed.
3. The
Commission
shall
adopt
a
delegated
act
in
accordance
Article 70
with Article 82 to specify further the type of fees, the matters
for which fees are due, the amount of the fees and the manner
Amendments to Annex II
in which they are to be paid.
In order to take account of developments on financial markets
the Commission shall be empowered to adopt delegated acts in
accordance with Article 82 concerning measures to amend
Article 73
Annex II.
Supervisory measures by ESMA
1. Where,
in
accordance
with
Article
64(5),
ESMA
finds
that
Article 71
a trade repository has committed one of the infringements listed
in Annex I, it shall take one or more of the following decisions:
Withdrawal of registration
1. Without
prejudice
to
Article
73,
ESMA
shall
withdraw
the
registration of a trade repository where the trade repository:
(a) requiring the trade repository to bring the infringement to
an end;
(a) expressly renounces the registration or has provided no
(b) imposing fines under Article 65;
services for the preceding six months;
(c) issuing public notices;
(b) obtained the registration by making false statements or by
any other irregular means;
(d) as a last resort, withdrawing the registration of the trade
repository.
(c) no longer meets the conditions under which it was regis
tered.
2. When
taking
the
decisions
referred
to
in
paragraph
1,
ESMA shall take into account the nature and seriousness of
2. ESMA
shall,
without
undue
delay,
notify
the
relevant the infringement, having regard to the following criteria:
competent authority referred to in Article 57(1) of a decision
to withdraw the registration of a trade repository.
(a) the duration and frequency of the infringement;
3. The
competent
authority
of
a
Member
State
in
which
the
trade repository performs its services and activities and which
(b) whether the infringement has revealed serious or systemic
considers that one of the conditions referred to in paragraph 1
weaknesses in the undertaking’s procedures or in its
has been met, may request ESMA to examine whether the
management systems or internal controls;
conditions for the withdrawal of registration of the trade
repository concerned are met. Where ESMA decides not to
withdraw the registration of the trade repository concerned, it
(c) whether financial crime has been occasioned, facilitated or
shall provide full reasons.
otherwise attributable to the infringement;

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(d) whether the infringement has been committed intentionally
and follow-up decisions concerning infringements, shall not
or negligently.
be delegated.
3. Without
undue
delay,
ESMA
shall
notify
any
decision
CHAPTER 2
adopted pursuant to paragraph 1 to the trade repository
concerned, and shall communicate it to the competent auth
Relations with third countries
orities of the Member States and to the Commission. It shall
Article 75
publicly disclose any such decision on its website within 10
working days from the date when it was adopted.
Equivalence and international agreements
1. The
Commission
may
adopt
an
implementing
act
deter
mining that the legal and supervisory arrangements of a third
When making public its decision as referred to in the first
country ensure that:
subparagraph, ESMA shall also make public the right of the
trade repository concerned to appeal the decision, the fact,
where relevant, that such an appeal has been lodged, specifying
that such an appeal does not have suspensive effect, and the fact
(a) trade repositories authorised in that third country comply
that it is possible for ESMA’s Board of Appeal to suspend the
with legally binding requirements which are equivalent to
application of the contested decision in accordance with
those laid down in this Regulation;
Article 60(3) of Regulation (EU) No 1095/2010.
(b) effective supervision and enforcement of trade repositories
Article 74
takes place in that third country on an ongoing basis; and
Delegation of tasks by ESMA to competent authorities
1. Where
necessary
for
the
proper
performance
of
a
super
(c) guarantees of professional secrecy exist, including the
visory task, ESMA may delegate specific supervisory tasks to the
protection of business secrets shared with third parties by
competent authority of a Member State in accordance with the
the authorities, and they are at least equivalent to those set
guidelines issued by ESMA pursuant to Article 16 of Regulation
out in this Regulation.
(EU) No 1095/2010. Such specific supervisory tasks may, in
particular, include the power to carry out requests for
information in accordance with Article 61 and to conduct
investigations and on-site inspections in accordance with
That implementing act shall be adopted in accordance with the
Article 62 and Article 63(6).
examination procedure referred to in Article 86(2).
2. Prior to delegation of a task, ESMA shall consult the
2. Where
appropriate,
and
in
any
case
after
adopting
an
relevant competent authority. Such consultation shall concern:
implementing act as referred to in paragraph 1, the Commission
shall submit recommendations to the Council for the
negotiation of international agreements with the relevant third
(a) the scope of the task to be delegated;
countries regarding mutual access to, and exchange of
information on, derivative contracts held in trade repositories
which are established in that third country, in a way that
(b) the timetable for the performance of the task; and
ensures that Union authorities, including ESMA, have
immediate and continuous access to all the information
needed for the exercise of their duties.
(c) the transmission of necessary information by and to ESMA.
3. After
conclusion
of
the
agreements
referred
to
in
3. In
accordance
with
the
regulation
on
fees
adopted
by
the paragraph 2, and in accordance with them, ESMA shall
Commission pursuant to Article 72(3), ESMA shall reimburse a
establish cooperation arrangements with the competent auth
competent authority for costs incurred as a result of carrying
orities of the relevant third countries. Those arrangements
out delegated tasks.
shall specify at least:
4. ESMA
shall
review
the
decision
referred
to
in
paragraph
1
(a) a mechanism for the exchange of information between
at appropriate intervals. A delegation may be revoked at any
ESMA and any other Union authorities that exercise respon
time.
sibilities in accordance with this Regulation on the one hand
and the relevant competent authorities of third countries
concerned on the other; and
5. A
delegation
of
tasks
shall
not
affect
the
responsibility
of
ESMA and shall not limit ESMA’s ability to conduct and oversee
the delegated activity. Supervisory responsibilities under this
(b) procedures concerning the coordination of supervisory
Regulation, including registration decisions, final assessments
activities.

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4. ESMA
shall
apply
Regulation
(EC)
No
45/2001
with ESMA shall publish on its website a list of the trade repositories
regard to the transfer of personal data to a third country.
recognised in accordance with this Regulation.
Article 76
TITLE VII
Cooperation arrangements
REQUIREMENTS FOR TRADE REPOSITORIES
Relevant authorities of third countries that do not have any
trade repository established in their jurisdiction may contact
Article 78
ESMA with a view to establishing cooperation arrangements
General requirements
to access information on derivatives contracts held in Union
trade repositories.
1. A
trade
repository
shall
have
robust
governance
arrange
ments, which include a clear organisational structure with well
defined, transparent and consistent lines of responsibility and
ESMA may establish cooperation arrangements with those
adequate internal control mechanisms, including sound admin
relevant authorities regarding access to information on
istrative and accounting procedures, which prevent any
derivatives contracts held in Union trade repositories that
disclosure of confidential information.
these authorities need to fulfil their respective responsibilities
and mandates, provided that guarantees of professional
secrecy exist, including the protection of business secrets
2. A
trade
repository
shall
maintain
and
operate
effective
shared by the authorities with third parties.
written organisational and administrative arrangements to
identify and manage any potential conflicts of interest
concerning its managers, employees, or any person directly or
Article 77
indirectly linked to them by close links.
Recognition of trade repositories
1. A
trade
repository
established
in
a
third
country
may
provide its services and activities to entities established in the
3. A trade repository shall establish adequate policies and
Union for the purposes of Article 9 only after its recognition by
procedures sufficient to ensure its compliance, including of its
ESMA in accordance with paragraph 2.
managers and employees, with all the provisions of this Regu
lation.
2. A
trade
repository
referred
to
in
paragraph
1
shall
submit
to ESMA its application for recognition together with all
4. A
trade
repository
shall
maintain
and
operate
an
adequate
necessary information, including at least the information
organisational structure to ensure continuity and orderly func
necessary to verify that the trade repository is authorised and
tioning of the trade repository in the performance of its services
subject to effective supervision in a third country which:
and activities. It shall employ appropriate and proportionate
systems, resources and procedures.
(a) has been recognised by the Commission, by means of an
implementing act pursuant to Article 75(1), as having an
equivalent and enforceable regulatory and supervisory
5. Where
a
trade
repository
offers
ancillary
services
such
as
framework;
trade confirmation, trade matching, credit event servicing,
portfolio reconciliation or portfolio compression services, the
trade repository shall maintain those ancillary services oper
(b) has entered into an international agreement with the Union
ationally separate from the trade repository’s function of
pursuant to Article 75(2); and
centrally collecting and maintaining records of derivatives.
(c) has entered into cooperation arrangements pursuant to
Article 75(3) to ensure that Union authorities, including
6. The senior management and members of the board of a
ESMA, have immediate and continuous access to all the
trade repository shall be of sufficiently good repute and
necessary information.
experience so as to ensure the sound and prudent management
of the trade repository.
Within 30 working days of receipt of the application, ESMA
shall assess whether the application is complete. If the appli
7. A
trade
repository
shall
have
objective,
non-discriminatory
cation is not complete, ESMA shall set a deadline by which the
and publicly disclosed requirements for access by undertakings
applicant trade repository has to provide additional information.
subject to the reporting obligation under Article 9. A trade
repository shall grant service providers non-discriminatory
access to information maintained by the trade repository, on
Within 180 working days of the submission of a complete
condition that the relevant counterparties have provided their
application, ESMA shall inform the applicant trade repository
consent. Criteria that restrict access shall only be permitted to
in writing with a fully reasoned explanation whether the recog
the extent that their objective is to control the risk to the data
nition has been granted or refused.
maintained by a trade repository.

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8. A
trade
repository
shall
publicly
disclose
the
prices
and
6. A
trade
repository
shall
take
all
reasonable
steps
to
fees associated with services provided under this Regulation. It
prevent any misuse of the information maintained in its
shall disclose the prices and fees of each service provided separ
systems.
ately, including discounts and rebates and the conditions to
benefit from those reductions. It shall allow reporting entities
to access specific services separately. The prices and fees charged
A natural person who has a close link with a trade repository or
by a trade repository shall be cost-related.
a legal person that has a parent undertaking or a subsidiary
relationship with the trade repository shall not use confidential
information recorded in a trade repository for commercial
purposes.
Article 79
Operational reliability
Article 81
1. A
trade
repository
shall
identify
sources
of
operational
risk
Transparency and data availability
and minimise them through the development of appropriate
systems, controls and procedures. Such systems shall be
1. A
trade
repository
shall
regularly,
and
in
an
easily
reliable and secure and have adequate capacity to handle the
accessible way, publish aggregate positions by class of
information received.
derivatives on the contracts reported to it.
2. A trade repository shall collect and maintain data and
2. A
trade
repository
shall
establish,
implement
and
maintain shall ensure that the entities referred to in paragraph 3 have
an adequate business continuity policy and disaster recovery
direct and immediate access to the details of derivatives
plan aiming at ensuring the maintenance of its functions, the
contracts they need to fulfil their respective responsibilities
timely recovery of operations and the fulfilment of the trade
and mandates.
repository’s obligations. Such a plan shall at least provide for
the establishment of backup facilities.
3. A
trade
repository
shall
make
the
necessary
information
available to the following entities to enable them to fulfil their
respective responsibilities and mandates:
3. A
trade
repository
from
which
registration
has
been
withdrawn shall ensure orderly substitution including the
transfer of data to other trade repositories and the redirection
(a) ESMA;
of reporting flows to other trade repositories.
(b) the ESRB;
Article 80
(c) the competent authority supervising CCPs accessing the
Safeguarding and recording
trade repository;
1. A
trade
repository
shall
ensure
the
confidentiality,
integrity and protection of the information received under
(d) the competent authority supervising the trading venues of
Article 9.
the reported contracts;
(e) the relevant members of the ESCB;
2. A
trade
repository
may
only
use
the
data
it
receives
under
this Regulation for commercial purposes if the relevant counter
parties have provided their consent.
(f) the relevant authorities of a third country that has entered
into an international agreement with the Union as referred
to in Article 75;
3. A
trade
repository
shall
promptly
record
the
information
received under Article 9 and shall maintain it for at least 10
(g) supervisory authorities appointed under Article 4 of
years following the termination of the relevant contracts. It shall
Directive 2004/25/EC of the European Parliament and of
employ timely and efficient record keeping procedures to
the Council of 21 April 2004 on takeover bids ( 1 );
document changes to recorded information.
(h) the relevant Union securities and market authorities;
4. A
trade
repository
shall
calculate
the
positions
by
class
of
derivatives and by reporting entity based on the details of the
(i) the relevant authorities of a third country that have entered
derivative contracts reported in accordance with Article 9.
into a cooperation arrangement with ESMA as referred to in
Article 76;
5. A
trade
repository
shall
allow
the
parties
to
a
contract
to (j) the Agency for the Cooperation of Energy Regulators.
access and correct the information on that contract in a timely
manner.
( 1 ) OJ L 142, 30.4.2004, p. 12.

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Official Journal of the European Union
27.7.2012
4. ESMA
shall
share
the
information
necessary
for
the period shall be extended by three months at the initiative of
exercise of their duties with other relevant Union authorities.
the European Parliament or of the Council.
5. In
order
to
ensure
consistent
application
of
this
Article,
ESMA shall, after consulting the members of the ESCB, develop
draft regulatory technical standards specifying the frequency and
TITLE VIII
the details of the information referred to in paragraphs 1 and 3
COMMON PROVISIONS
as well as operational standards required in order to aggregate
and compare data across repositories and for the entities
Article 83
referred to in paragraph 3 to have access to information as
Professional secrecy
necessary. Those draft regulatory technical standards shall aim
to ensure that the information published under paragraph 1 is
1. The
obligation
of
professional
secrecy
shall
apply
to
all
not capable of identifying a party to any contract.
persons who work or have worked for the competent auth
orities designated in accordance with Article 22 and the auth
orities referred to in Article 81(3), for ESMA, or for auditors
ESMA shall submit those draft regulatory technical standards to
and experts instructed by the competent authorities or ESMA.
the Commission by 30 September 2012.
No confidential information that those persons receive in the
course of their duties shall be divulged to any person or auth
ority, except in summary or aggregate form such that an indi
Power is delegated to the Commission to adopt the regulatory
vidual CCP, trade repository or any other person cannot be
technical standards referred to in the first subparagraph in
identified, without prejudice to cases covered by criminal or
accordance with Articles 10 to 14 of Regulation (EU)
tax law or to this Regulation.
No 1095/2010.
Article 82
2. Where a CCP has been declared bankrupt or is being
Exercise of the delegation
compulsorily wound up, confidential information which does
1. The power to adopt delegated acts is conferred to the
not concern third parties may be divulged in civil or
Commission subject to the conditions laid down in this Article.
commercial proceedings where necessary for carrying out the
proceeding.
2. The
delegation
of
power
referred
to
in
Article
1(6),
Article 64(7), Article 70, Article 72(3) and Article 85(2) shall
be conferred to the Commission for an indeterminate period of
3. Without
prejudice
to
cases
covered
by
criminal
or
tax
law,
time.
the competent authorities, ESMA, bodies or natural or legal
persons other than competent authorities which receive
confidential information pursuant to this Regulation may use
3. Before
adopting
a
delegated
act,
the
Commission
shall it only in the performance of their duties and for the exercise of
endeavour to consult ESMA.
their functions, in the case of the competent authorities, within
the scope of this Regulation or, in the case of other authorities,
bodies or natural or legal persons, for the purpose for which
4. A
delegation
of
power
referred
to
in
Article
1(6), such information was provided to them or in the context of
Article 64(7), Article 70, Article 72(3) and Article 85(2) may
administrative or judicial proceedings specifically relating to the
be revoked at any time by the European Parliament or by the
exercise of those functions, or both. Where ESMA, the
Council. A decision to revoke shall put an end to the delegation
competent authority or another authority, body or person
of power specified in that decision. The decision to revoke shall
communicating information consents thereto, the authority
take effect on the day following that of its publication in the
receiving the information may use it for other non-commercial
Official Journal of the European Union or on a later date specified
purposes.
therein. It shall not affect the validity of any delegated acts
already in force.
5. As
soon
as
it
adopts
a
delegated
act,
the
Commission
shall 4. Any
confidential
information
received,
exchanged
or
notify it simultaneously to the European Parliament and to the
transmitted pursuant to this Regulation shall be subject to the
Council.
conditions of professional secrecy laid down in paragraphs 1, 2
and 3. However, those conditions shall not prevent ESMA, the
competent authorities or the relevant central banks from
6. A
delegated
act
adopted
pursuant
to
Article
1(6), exchanging or transmitting confidential information in
Article 64(7), Article 70, Article 72(3) and Article 85(2) shall
accordance with this Regulation and with other legislation
enter into force only if no objection has been expressed by
applicable to investment firms, credit institutions, pension
either the European Parliament or the Council within a period
funds, UCITS, AIFMs, insurance and reinsurance intermediaries,
of three months of notification of the act to the European
insurance undertakings, regulated markets or market operators
Parliament and the Council or if, before the expiry of that
or otherwise with the consent of the competent authority or
period, the European Parliament or the Council have both
other authority or body or natural or legal person that
informed the Commission that they will not object. That
communicated the information.

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EN
27.7.2012 Official
Journal
of
the
European
Union L
201/53
5. Paragraphs
1,
2
and
3
shall
not
prevent
the
competent (d) assess, in cooperation with ESMA and ESRB, the efficiency
authorities from exchanging or transmitting confidential
of margining requirements to limit procyclicality and the
information, in accordance with national law, that has not
need to define additional intervention capacity in this area;
been received from a competent authority of another Member
State.
(e) assess in cooperation with ESMA the evolution of CCP’s
policies on collateral margining and securing requirements
Article 84
and their adaptation to the specific activities and risk
Exchange of information
profiles of their users.
1. Competent
authorities,
ESMA,
and
other
relevant
auth
orities shall, without undue delay, provide one another with
the information required for the purposes of carrying out
The assessment referred to in point (a) of the first subparagraph
their duties.
shall take into account any result of ongoing work between
central banks at Union and international level. The assessment
shall also take into account the principle of independence of
central banks and their right to provide access to liquidity
2. Competent
authorities,
ESMA,
other
relevant
authorities facilities at their own discretion as well as the potential
and other bodies or natural and legal persons receiving
unintended effect on the behaviour of the CCPs or the
confidential information in the exercise of their duties under
internal market. Any accompanying proposals shall not, either
this Regulation shall use it only in the course of their duties.
directly or indirectly, discriminate against any Member State or
group of Member States as a venue for clearing services.
3. Competent
authorities
shall
communicate
information
to
the relevant members of the ESCB where such information is
2. By
17
August
2014,
the
Commission
shall
prepare
a
relevant for the exercise of their duties.
report, after consulting ESMA and EIOPA, assessing the
progress and effort made by CCPs in developing technical
solutions for the transfer by pension scheme arrangements of
non-cash collateral as variation margins, as well as the need for
TITLE IX
any measures to facilitate such solution. If the Commission
TRANSITIONAL AND FINAL PROVISIONS
considers that the necessary effort to develop appropriate
technical solutions has not been made and that the adverse
Article 85
effect of centrally clearing derivative contracts on the retirement
benefits of future pensioners remain unchanged, it shall be
Reports and review
empowered to adopt delegated acts in accordance with
1. By
17
August
2015,
the
Commission
shall
review
and Article 82 to extend the three-year period referred to in
prepare a general report on this Regulation. The Commission
Article 89(1) once by two years and once by one year.
shall submit the report to the European Parliament and the
Council, together with any appropriate proposals.
3. ESMA
shall
submit
to
the
Commission
reports:
The Commission shall in particular:
(a) on the application of the clearing obligation under Title II
and in particular the absence of clearing obligation for OTC
(a) assess, in cooperation with the members of the ESCB, the
derivative contracts entered into before the date of entry
need for any measure to facilitate the access of CCPs to
into force of this Regulation;
central bank liquidity facilities;
(b) on the application of the identification procedure under
(b) assess, in coordination with ESMA and the relevant sectoral
Article 5(3);
authorities, the systemic importance of the transactions of
non-financial firms in OTC derivatives and, in particular, the
impact of this Regulation on the use of OTC derivatives by
non-financial firms;
(c) on the application of the segregation requirements laid
down in Article 39;
(c) assess, in the light of experience, the functioning of the
supervisory framework for CCPs, including the effectiveness
(d) on the extension of the scope of interoperability
of supervisory colleges, the respective voting modalities laid
arrangements under Title V to transactions in classes of
down in Article 19(3), and the role of ESMA, in particular
financial instruments other than transferable securities and
during the authorisation process for CCPs;
money-market instruments;

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L 201/54
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Official Journal of the European Union
27.7.2012
(e) on the access of CCPs to trading venues, the effects on
‘Where a system operator has provided collateral security to
competitiveness of certain practices, and the impact on
another system operator in connection with an interoperable
liquidity fragmentation;
system, the rights of the providing system operator to that
collateral security shall not be affected by insolvency
proceedings against the receiving system operator.’.
(f) on ESMA’s staffing and resources needs arising from the
assumption of its powers and duties in accordance with
this Regulation;
2. Member
States
shall
adopt
and
publish
the
laws,
regu
lations and administrative provisions necessary to comply
with point (1) by 17 August 2014. They shall forthwith
(g) on the impact of the application of additional requirements
inform the Commission thereof.
by Member States pursuant to Article 14(5).
When Member States adopt those measures, they shall contain a
Those reports shall be communicated to the Commission by
reference to Directive 98/26/EC or shall be accompanied by
30 September 2014 for the purposes of paragraph 1. They shall
such reference on the occasion of their official publication.
also be submitted to the European Parliament and the Council.
The methods of making such reference shall be laid down by
Member States.
4. The
Commission
shall,
in
cooperation
with
the
Member
States and ESMA, and after requesting the assessment of the
ESRB, draw up an annual report assessing any possible systemic
Article 88
risk and cost implications of interoperability arrangements.
Websites
1. ESMA
shall
maintain
a
website
which
provides
details
of
The report shall focus at least on the number and complexity of
the following:
such arrangements, and the adequacy of risk-management
systems and models. The Commission shall submit the report
to the European Parliament and the Council, together with any
(a) contracts eligible for the clearing obligation under Article 5;
appropriate proposals.
The ESRB shall provide the Commission with its assessment of
(b) penalties imposed for breaches of Articles 4, 5 and 7 to 11;
any possible systemic risk implications of interoperability
arrangements.
(c) CCPs authorised to offer services or activities in the Union
that are established in the Union, and the services or
5. ESMA
shall
present
an
annual
report
to
the
European
activities which they are authorised to provide or perform,
Parliament, the Council and the Commission on the penalties
including the classes of financial instruments covered by
imposed by competent authorities, including supervisory
their authorisation;
measures, fines and periodic penalty payments.
Article 86
(d) penalties imposed for breaches of Titles IV and V;
Committee procedure
1. The
Commission
shall
be
assisted
by
the
European (e) CCPs authorised to offer services or activities in the Union
Securities Committee established by Commission Decision
established in a third country, and the services or activities
2001/528/EC ( 1 ). That committee shall be a committee within
which they are authorised to provide or perform, including
the meaning of Regulation (EU) No 182/2011.
the classes of financial instruments covered by their auth
orisation;
2. Where
reference
is
made
to
this
paragraph,
Article
5
of
Regulation (EU) No 182/2011 shall apply.
(f) trade repositories authorised to offer services or activities in
the Union;
Article 87
Amendment to Directive 98/26/EC
(g) fines and periodic penalty payments imposed in accordance
1. In
Article
9(1)
of
Directive
98/26/EC,
the
following
with Articles 65 and 66;
subparagraph is added:
( 1 ) OJ L 191, 13.7.2001, p. 45.
(h) the public register referred to in Article 6.

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EN
27.7.2012 Official
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European
Union L
201/55
2. For the purposes of points (b), (c) and (d) of paragraph 1,
3. A
CCP
that
has
been
authorised
in
its
Member
State
of
competent authorities shall maintain websites, which shall be
establishment to provide clearing services in accordance with
linked to the ESMA website.
the national law of that Member State before all the regulatory
technical standards under Articles 4, 5, 8 to 11, 16, 18, 25, 26,
29, 34, 41, 42, 44, 45, 46, 47, 49, 56 and 81 are adopted by
the Commission, shall apply for authorisation under Article 14
3. All
websites
referred
to
in
this
Article
shall
be
publicly for the purposes of this Regulation within six months of the
accessible and regularly updated, and shall provide information
date of entry into force of all the regulatory technical standards
in a clear format.
under Articles 16, 25, 26, 29, 34, 41, 42, 44, 45, 47 and 49.
Article 89
A CCP established in a third country, which has been
recognised to provide clearing services in a Member State in
Transitional provisions
accordance with the national law of that Member State before
1. For three years after the entry into force of this Regu
all the regulatory technical standards under Articles 16, 26, 29,
lation, the clearing obligation set out in Article 4 shall not
34, 41, 42, 44, 45, 47 and 49 are adopted by the Commission,
apply to OTC derivative contracts that are objectively
shall apply for recognition under Article 25 for the purposes of
measurable as reducing investment risks directly relating to
this Regulation within six months of the date of entry into force
the financial solvency of pension scheme arrangements as
of all the regulatory technical standards under Articles 16, 26,
defined in Article 2(10). The transitional period shall also
29, 34, 41, 42, 44, 45, 47 and 49.
apply to entities established for the purpose of providing
compensation to members of pension scheme arrangements
in case of a default.
4. Until
a
decision
is
made
under
this
Regulation
on
the
authorisation or recognition of a CCP, the respective national
rules on authorisation and recognition of CCPs shall continue to
The OTC derivative contracts, which would otherwise be subject
apply and the CCP shall continue to be supervised by the
to the clearing obligation under Article 4, entered into by those
competent authority of its Member State of establishment or
entities during this period shall be subject to the requirements
recognition.
laid down in Article 11.
5. Where
a
competent
authority
authorised
a
CCP
to
clear
a
2. In
relation
to
pension
scheme
arrangements
referred
to
in given class of derivatives in accordance with the national law of
Article 2(10)(c) and (d) the exemption referred to in paragraph
its Member State before all the regulatory technical standards
1 of this Article shall be granted by the relevant competent
under Articles 16, 26, 29, 34, 41, 42, 45, 47 and 49 are
authority for types of entities or types of arrangements. After
adopted by the Commission, the competent authority of that
receiving the request, the competent authority shall notify
Member State shall notify ESMA of that authorisation within
ESMA and EIOPA. Within 30 calendar days of receipt of the
one month of the date of entry into force of the regulatory
notification ESMA, after consulting EIOPA, shall issue an
technical standards under Article 5(1).
opinion assessing compliance of the type of entities or the
type of arrangements with Article 2(10)(c) or (d) as well as
the reasons why an exemption is justified due to difficulties
in meeting the variation margin requirements. The competent
authority shall only grant an exemption where it is fully
Where a competent authority recognised a CCP established in a
satisfied that the type of entities or the type of arrangements
third country to provide clearing services in accordance with the
complies with Article 2(10)(c) or (d) and that they encounter
national law of its Member State before all the regulatory
difficulties in meeting the variation margin requirements. The
technical standards under Articles 16, 26, 29, 34, 41, 42, 45,
competent authority shall adopt a decision within ten working
47 and 49 are adopted by the Commission, the competent
days of receipt of ESMA’s opinion, taking due account of that
authority of that Member State shall notify ESMA of that recog
opinion. If the competent authority does not agree with ESMA’s
nition within one month of the date of entry into force of the
opinion, it shall give full reasons in its decision and shall
regulatory technical standards under Article 5(1).
explain any significant deviation therefrom.
6. A
trade
repository
that
has
been
authorised
or
registered
ESMA shall publish on its website a list of types of entities and
in its Member State of establishment to collect and maintain the
types of arrangements referred to in Article 2(10)(c) and (d)
records of derivatives in accordance with the national law of
which has been granted an exemption in accordance with the
that Member State before all the regulatory and implementing
first subparagraph. To further strengthen consistency in super
technical standards under Articles 9, 56 and 81 are adopted by
visory outcomes, ESMA shall conduct a peer review of the
the Commission, shall apply for registration under Article 55
entities included on the list every year in accordance with
within six months of the date of entry into force of those
Article 30 of Regulation (EU) No 1095/2010.
regulatory and implementing technical standards.

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Official Journal of the European Union
27.7.2012
A trade repository established in a third country, which is
Articles 56 and 81 are adopted by the Commission, can be used
allowed to collect and maintain the records of derivatives in a
to meet the reporting requirement under Article 9 until the time
Member State in accordance with the national law of that
a decision is made on the recognition of the trade repository
Member State before all the regulatory and implementing
under this Regulation.
technical standards under Articles 9, 56 and 81 are adopted
by the Commission, shall apply for recognition under Article 77
within six months of the date of entry into force of those
9. Notwithstanding
Article
81(3)(f),
where
no
international
regulatory and implementing technical standards.
agreement is in place between a third country and the Union
as referred to in Article 75, a trade repository may make the
7. Until
a
decision
is
made
under
this
Regulation
on
the necessary information available to the relevant authorities of
registration or recognition of a trade repository, the respective
that third country until 17 August 2013 provided that it
national rules on authorisation, registration and recognition of
notifies ESMA.
trade repositories shall continue to apply and the trade
repository shall continue to be supervised by the competent
authority of its Member State of establishment or recognition.
Article 90
Staff and resources of ESMA
8. A
trade
repository
that
has
been
authorised
or
registered By 31 December 2012, ESMA shall assess the staffing and
in its Member State of establishment to collect and maintain the
resources needs arising from the assumption of its powers
records of derivatives in accordance with the national law of
and duties in accordance with this Regulation and submit a
that Member State before the regulatory and implementing
report to the European Parliament, the Council and the
technical standards under Articles 56 and 81 are adopted by
Commission.
the Commission, can be used to meet the reporting requirement
under Article 9 until the time a decision is made on the regis
tration of the trade repository under this Regulation.
Article 91
Entry into force
A trade repository established in a third country which has been
allowed to collect and maintain the records of derivatives in
This Regulation shall enter into force on the twentieth day
accordance with the national law of a Member State before
following that of its publication in the Official Journal of the
all the regulatory and implementing technical standards under
European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 4 July 2012.
For the European Parliament
For the Council
The President
The President
M. SCHULZ
A. D. MAVROYIANNIS

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EN
27.7.2012 Official
Journal
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European
Union L
201/57
ANNEX I
List of infringements referred to in Article 65(1)
I. Infringements relating to organisational requirements or conflicts of interest:
(a) a trade repository infringes Article 78(1) by not having robust governance arrangements which include a clear
organisational structure with well-defined, transparent and consistent lines of responsibility and adequate internal
control mechanisms, including sound administrative and accounting procedures, which prevent the disclosure of
confidential information;
(b) a trade repository infringes Article 78(2) by not maintaining or operating effective written organisational and
administrative arrangements to identify and manage any potential conflicts of interest concerning its managers, its
employees, and any person directly or indirectly linked to them by close links;
(c) a trade repository infringes Article 78(3) by not establishing adequate policies and procedures sufficient to ensure
compliance, including that of its managers and employees, with all the provisions of this Regulation;
(d) a trade repository infringes Article 78(4) by not maintaining or operating an adequate organisational structure to
ensure continuity and orderly functioning of the trade repository in the performance of its services and activities;
(e) a trade repository infringes Article 78(5) by not separating operationally its ancillary services from its function of
centrally collecting and maintaining records of derivatives;
(f) a trade repository infringes Article 78(6) by not ensuring that its senior management and the members of the
board are of sufficiently good repute and experience so as to ensure the sound and prudent management of the
trade repository;
(g) a trade repository infringes Article 78(7) by not having objective non-discriminatory and publicly disclosed
requirements for access by services providers and undertakings subject to the reporting obligation under Article 9;
(h) a trade repository infringes Article 78(8) by not publicly disclosing the prices and fees associated with services
provided under this Regulation, by not allowing reporting entities to access specific services separately or by
charging prices and fees that are not cost related.
II. Infringements relating to operational requirements:
(a) a trade repository infringes Article 79(1) by not identifying sources of operational risk or by not minimising those
risks through the development of appropriate systems, controls and procedures;
(b) a trade repository infringes Article 79(2) by not establishing, implementing or maintaining an adequate business
continuity policy and disaster recovery plan aimed at ensuring the maintenance of its functions, the timely
recovery of operations and the fulfilment of the trade repository’s obligations;
(c) a trade repository infringes Article 80(1) by not ensuring the confidentiality, integrity or protection of the
information received under Article 9;
(d) a trade repository infringes Article 80(2) by using the data that it receives under this Regulation for commercial
purposes without the relevant counterparties having provided their consent;
(e) a trade repository infringes Article 80(3) by not promptly recording the information received under Article 9 or
by not maintaining it for at least 10 years following the termination of the relevant contracts or by not
employing timely and efficient record-keeping procedures to document changes to recorded information;
(f) a trade repository infringes Article 80(4) by not calculating the positions by class of derivatives and by reporting
entity based on the details of the derivative contracts reported in accordance with Article 9;
(g) a trade repository infringes Article 80(5) by not allowing the parties to a contract to access and correct the
information on that contract in a timely manner;
(h) a trade repository infringes Article 80(6) by not taking all reasonable steps to prevent any misuse of the
information maintained in its systems.

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L 201/58
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Official Journal of the European Union
27.7.2012
III. Infringements relating to transparency and the availability of information:
(a) a trade repository infringes Article 81(1) by not regularly publishing, in an easily accessible way, aggregate
positions by class of derivatives on the contracts reported to it;
(b) a trade repository infringes Article 81(2) by not allowing the entities referred to in Article 81(3) direct and
immediate access to the details of derivatives contracts they need to fulfil their respective responsibilities and
mandates.
IV. Infringements relating to obstacles to the supervisory activities:
(a) a trade repository infringes Article 61(1) by providing incorrect or misleading information in response to a simple
request for information by ESMA in accordance with Article 61(2) or in response to a decision by ESMA
requiring information in accordance with Article 61(3);
(b) a trade repository provides incorrect or misleading answers to questions asked pursuant to Article 62(1)(c);
(c) a trade repository does not comply in due time with a supervisory measure adopted by ESMA pursuant to
Article 73.

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EN
27.7.2012 Official
Journal
of
the
European
Union L
201/59
ANNEX II
List of the coefficients linked to aggravating and mitigating factors for the application of Article 65(3)
The following coefficients shall be applicable, cumulatively, to the basic amounts referred to in Article 65(2):
I. Adjustment coefficients linked to aggravating factors:
(a) if the infringement has been committed repeatedly, for every time it has been repeated, an additional coefficient of
1,1 shall apply;
(b) if the infringement has been committed for more than six months, a coefficient of 1,5 shall apply;
(c) if the infringement has revealed systemic weaknesses in the organisation of the trade repository, in particular in its
procedures, management systems or internal controls, a coefficient of 2,2 shall apply;
(d) if the infringement has a negative impact on the quality of the data it maintains, a coefficient of 1,5 shall apply;
(e) if the infringement has been committed intentionally, a coefficient of 2 shall apply;
(f) if no remedial action has been taken since the breach has been identified, a coefficient of 1,7 shall apply;
(g) if the trade repository’s senior management has not cooperated with ESMA in carrying out its investigations, a
coefficient of 1,5 shall apply.
II. Adjustment coefficients linked to mitigating factors:
(a) if the infringement has been committed for less than 10 working days, a coefficient of 0,9 shall apply;
(b) if the trade repository’s senior management can demonstrate to have taken all the necessary measures to prevent
the infringement, a coefficient of 0,7 shall apply;
(c) if the trade repository has brought quickly, effectively and completely the infringement to ESMA’s attention, a
coefficient of 0,4 shall apply;
(d) if the trade repository has voluntarily taken measures to ensure that a similar infringement cannot be committed in
the future, a coefficient of 0,6 shall apply.

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