in force 2025-01-17 MODIFIED+2,730 −424§
Amended by Regulation (EU) 2022/2554 32022R2554
applies from: unknown (the text changed beyond its dates, so no date that moved can be read as the application date)
dates added to the text: 2024-12-24, 2025-12-25 · dates removed: 2012-09-30
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Paragraph 4 now instructs ESMA to specify a third element, the mechanisms triggering a review of clearing threshold values following significant price fluctuations or increased financial stability risks, in addition to the criteria and threshold values it previously covered, and the deadline for submitting the draft regulatory technical standards to the Commission changes from 30 September 2012 to 25 December 2025.
The former paragraph 4 provisions on periodic review of clearing thresholds are replaced by a new paragraph 4a setting a review at least every two years or earlier where required, and a new paragraph 4b restates the cooperation-procedure obligation while adding evaluation and assessment of group-level exposure.
Paragraph 5 is expanded so that the designated authority's duty is described by reference to non-financial counterparties' obligations under the Regulation generally, and new reporting duties are added requiring reports to ESMA at least every two years on exposure levels, together with an ESMA report to the European Parliament, the Council and the Commission at least every two years from 24 December 2024.
Cited: Art. 10, v1 · Art. 10, v2
text before / after
02012R0648-20241224 → 02012R0648-20250117
Article 10
Non-financial counterparties
1. Every 12 months, a non-financial counterparty taking positions in OTC derivative contracts may calculate its aggregate month-end average position for the previous 12 months in accordance with paragraph 3.
Where a non-financial counterparty does not calculate its positions, … 332 unchanged words … or by other non-financial entities within the group to which the non-financial counterparty belongs, which are not objectively measurable as reducing risks directly relating to the commercial activity or treasury financing activity of the non-financial counterparty or of that group.
4. In order to ensure consistent application of this Article, ESMA shall develop draft regulatory technical standards, ESMA, after consulting having consulted the ESRB and other relevant authorities, specifying: shall develop draft regulatory technical standards to specify:
(a) the criteria for establishing which OTC derivative contracts are objectively measurable as reducing risks directly relating to the commercial activity or treasury financing activity referred to in paragraph 3; and
(b) the values of the clearing thresholds, thresholds for uncleared positions, which are determined taking into account the calculation methodology set out in paragraph 3 of this Article and Article 4a(3), the systemic relevance of the sum of net positions and exposures per counterparty and per class of OTC derivatives.
After conducting an open public consultation, derivatives; and
(c) the mechanisms triggering a review of the values of the clearing thresholds, following significant price fluctuations in the underlying class of OTC derivatives or a significant increase of financial stability risks.
ESMA shall submit those the draft regulatory technical standards referred to in the first subparagraph to the Commission by 30 September 2012. 25 December 2025.
Power is delegated to the Commission to adopt supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
After consulting 4a. ESMA, in consultation with the ESRB and other relevant authorities, ESMA ESRB, shall periodically review the clearing thresholds referred to in paragraph 4, first subparagraph, point (b) (b), of the first subparagraph and, where necessary this Article and in Article 4a(4), taking into account, in particular, the interconnectedness of financial counterparties, propose counterparties and the need to amend ensure the prudent coverage of financial counterparties under the clearing obligation. That review shall be conducted at least every two years, or earlier where necessary or where required under the mechanisms established under paragraph 4, first subparagraph, point (c). As a result of that review, ESMA may, in the regulatory technical standards adopted pursuant to paragraph 4, propose changes to the thresholds specified in accordance with this the first subparagraph, point (b), of that paragraph.
When reviewing the clearing thresholds, ESMA shall consider whether the classes of OTC derivatives, for which a clearing threshold has been set, are still the relevant classes of OTC derivatives or if new classes should be introduced.
That periodic review shall be accompanied by a report by ESMA on the subject.
4b. The relevant competent authorities of the non-financial counterparty and of the other entities within the group shall establish cooperation procedures to ensure the effective calculation of the positions and evaluate and assess the level of exposure in OTC derivative contracts at group level.
5. Each Member State shall designate an authority responsible for ensuring that the obligation obligations of non-financial counterparties under paragraph 1 this Regulation are met. That authority, in cooperation with the authorities responsible for the other entities of the group, shall report to ESMA at least every two years, and more frequently where an emergency situation is met. identified under Article 24, on the outcome of the assessment of the level of exposure in OTC derivatives of the non-financial counterparties for which it is responsible. The authority responsible for the Union parent undertaking of the group to which the non-financial counterparty belongs shall report to ESMA, at least every two years, on the outcome of the assessment of the level of exposure in OTC derivatives of the group.
At least every two years from 24 December 2024, ESMA shall present a report to the European Parliament, the Council and the Commission on the activities of Union non-financial counterparties in OTC derivatives, identifying areas where there is a lack of convergence and coherence in the application of this Regulation as well as potential risks to the financial stability of the Union.