(fra kommisjonsforordningen)

(1) The annual fee referred to in Article 11(12a), fifth subparagraph, of Regulation (EU) No 648/2012 should be sufficiently high to cover all direct and indirect costs incurred by the European Banking Authority ('EBA') for validating the pro forma models referred to in Article 11(3), fourth subparagraph, of that Regulation. All the fees charged should be set at a level such as to avoid a deficit or a significant accumulation of surplus. Where a significant positive or negative budget result becomes recurrent, the level of the fees should be revised. 

(2) The obligation to have the pro forma models referred to in Article 11(3), fourth subparagraph, of Regulation (EU) No 648/2012 validated by the EBA was introduced by Regulation (EU) 2024/2987 of the European Parliament and of the Council. However, some of the counterparties that have entered into OTC derivative contracts that have not been cleared by a CCP, have been using pro forma models prior to the entry into force of that Regulation. It is therefore appropriate to devise a specific methodology for the calculation of fees due for the validation of those pro forma models. 

(3) Article 11(12a), fifth subparagraph, of Regulation (EU) No 648/2012 requires that the annual fee to be paid to the EBA is proportionate to the monthly average outstanding notional amount of non-centrally cleared OTC derivatives transactions over the last 12 months of the counterparties concerned. Counterparties should use the equivalent portfolio notional approach to determine the average notional amount. Counterparties should be allowed to use an alternative approach, provided that they can justify the choice for that alternative approach to their competent authority. 

(4) For new pro forma models, there is not yet a monthly average outstanding notional amount that can be used to allocate the cost proportionally over all counterparties that use that new pro forma model. It is therefore appropriate, for the first year in which the new pro forma model is used, to charge those counterparties an equal and fixed fee per new pro forma model. Article 11(12a), second subparagraph, of Regulation (EU) No 648/2012, however, gives the EBA six months after the receipt of the application for validation of such new pro forma model to validate that model, which means that it is possible that a pro forma model is only validated in the year following the application for validation. The EBA should therefore be able to charge the fixed fee also for the year in which the pro forma model is actually validated. For the years following the one in which the first validation is granted, a steady state methodology for the determination of fees due should be established. 

(5) To enable the EBA to calculate the annual fee accurately, counterparties that use pro forma models that are subject to validation by the EBA should send the EBA all the information that the EBA requires for such calculation in a timely manner,