Art. 4
European Market Infrastructure Regulation · 32012R0648 · every event for this act · on EUR-Lex
Clearing obligation
6 changes recorded across 6 events, newest first.
in force 2024-12-24 MODIFIED+738 −0§
Amended by Regulation (EU) 2024/2987 32024R2987 · Regulation (EU) 2022/1671 32022R1671
applies from: unchanged
Article 4(1) gains a new subparagraph stating that the clearing obligation does not apply to contracts falling under point (a)(iv) that are concluded between a financial or non-financial counterparty meeting the specified conditions and a third-country pension scheme arrangement operating on a national basis, provided that arrangement is authorised, supervised and recognised under national law, has retirement-benefit provision as its primary purpose, and is exempted from the clearing obligation under that national law.
This subparagraph is absent from the earlier version of Article 4(1), which contained only the two original conditions for concluding contracts and no exclusion for third-country pension scheme arrangements.
Cited: Art. 4, v2 · Art. 4, v1
text before / after
02012R0648-20220812 → 02012R0648-20241224
Article 4
Clearing obligation
1. Counterparties shall clear all OTC derivative contracts pertaining to a class of OTC derivatives that has been declared subject to the clearing obligation in accordance with Article 5(2), if those contracts fulfil both of the following conditions:
(a) they have been concluded in one of the following ways:
(i) between two financial counterparties that meet the conditions set out in the second subparagraph of Article 4a(1);
(ii) between a financial counterparty that meets the conditions set out in the second subparagraph of Article 4a(1) and a non-financial counterparty that meets the conditions set out in the second subparagraph of Article 10(1);
(iii) between two non-financial counterparties that meet the conditions set out in the second subparagraph of Article 10(1);
(iv) between, on the one side, a financial counterparty that meets the conditions set out in the second subparagraph of Article 4a(1) or a non-financial counterparty that meets the conditions set out in the second subparagraph of Article 10(1), and, on the other side, an entity established in a third country that would be subject to the clearing obligation if it were established in the Union;
(v) between two entities established in one or more third countries that would be subject to the clearing obligation if they were established in the Union, provided that the contract has a direct, substantial 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
(b) they are entered into or novated on or after the date on which the clearing obligation takes effect, provided that, on the date they are entered into or novated, both counterparties meet the conditions set out in point (a).
The obligation to clear all OTC derivative contracts shall not apply to contracts concluded in the situations referred to in the first subparagraph, point (a)(iv), between, on the one side, a financial counterparty that meets the conditions set out in Article 4a(1), second subparagraph, or a non-financial counterparty that meets the conditions set out in Article 10(1), second subparagraph, and, on the other side, a pension scheme arrangement that is established in a third country and that operates on a national basis, provided that it is authorised, supervised and recognised under national law, and where its primary purpose is to provide retirement benefits and it is exempted from the clearing obligation under that national law.
2. Without prejudice to risk-mitigation techniques under Article 11, OTC derivative contracts that are intragroup transactions as described in Article 3 shall not be subject to the clearing obligation.
The exemption set out in the first subparagraph shall apply only:
(a) where … 976 unchanged words … 2018.
Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in this paragraph in accordance with Articles 10 to 14 of Regulations (EU) No 1093/2010, (EU) No 1094/2010 or (EU) No 1095/2010.
in force 2021-06-28 MODIFIED§
Amended by Regulation (EU) 2019/834 32019R0834 · Regulation (EU) 2019/876 32019R0876 · Regulation (EU) 2021/962 32021R0962
applies from: unchanged
A new paragraph 3a has been inserted requiring clearing members and clients who provide clearing services, directly or indirectly, to offer those services on fair, reasonable, non-discriminatory and transparent commercial terms, and to take reasonable measures to identify, prevent, manage and monitor conflicts of interest, including between trading and clearing units and across different legal entities in the same group.
The new paragraph also states that clearing members and clients are permitted to control risks related to the clearing services offered, and it empowers the Commission to adopt delegated acts under Article 82 specifying the conditions under which such commercial terms are considered fair, reasonable, non-discriminatory and transparent, based on listed factors covering fees and pricing transparency, reasonable commercial terms, proportionality of price differences to costs and risks, and risk control criteria.
This paragraph 3a did not appear in the earlier version of Article 4, which moved directly from paragraph 3 to paragraph 4.
Cited: Art. 4, v2 · Art. 4, v1
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in force 2020-06-18 MODIFIED§
Amended by Regulation (EU) 2019/834 32019R0834
applies from: unknown
Sources disagree — the amending act's instructions found this change; the text comparison finds no difference in the provision's text and the EU's own amendment metadata does not list it. All are shown; none is overruled.
No explanation shipped — the structural diff did not see this change, so it carries no text; another signal named the unit and the disagreement ships as `disputed`.
text before / after, on the event page →
in force 2019-12-18 MODIFIED§
Amended by Regulation (EU) 2019/834 32019R0834
applies from: unknown
Sources disagree — the amending act's instructions found this change; the text comparison finds no difference in the provision's text and the EU's own amendment metadata does not list it. All are shown; none is overruled.
No explanation shipped — the structural diff did not see this change, so it carries no text; another signal named the unit and the disagreement ships as `disputed`.
text before / after, on the event page →
in force 2019-06-17 MODIFIED§
Amended by Regulation (EU) 2019/834 32019R0834
applies from: unchanged
Points (a)(i) through (a)(iv) now require that the financial counterparties or non-financial counterparties involved meet the threshold conditions set out in the second subparagraph of Article 4a(1) or Article 10(1), whereas the earlier text referred instead to Article 10(1)(b) without any Article 4a(1) cross-reference.
Point (b) no longer contains the separate sub-points (i) and (ii) distinguishing contracts entered on or after the clearing-obligation date from those entered after notification but before that date with a minimum remaining maturity; it instead states a single rule tying entry into or novation of the contract to both counterparties meeting the point (a) conditions on that date.
Cited: Art. 4, v1 · Art. 4, v2
text before / after, on the event page →
in force 2019-01-01 MODIFIED§
Amended by Regulation (EU) 2017/2402 32017R2402
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: 2017-12-12, 2018-07-18
The AFTER text adds a new paragraph 5 stating that paragraph 1 does not apply to OTC derivative contracts concluded by covered bond entities in connection with a covered bond, or by securitisation special purpose entities in connection with a securitisation within the meaning of Regulation (EU) 2017/2402, subject to conditions on the securitisation meeting certain requirements, the derivative being used only to hedge interest rate or currency mismatches, and arrangements adequately mitigating counterparty credit risk.
The AFTER text also adds a new paragraph 6 directing the ESAs to develop draft regulatory technical standards on criteria for adequate mitigation of counterparty credit risk under paragraph 5, with submission to the Commission by 18 July 2018 and delegation of power to the Commission to adopt those standards.
The BEFORE text contains only paragraphs 1 through 4 and does not include these provisions on covered bonds or securitisation special purpose entities.
Cited: Art. 4, v2 · Art. 4, v1
text before / after, on the event page →