(fra kommisjonsforordningen)

(1) Article 7b of Regulation (EU) No 648/2012 requires that counterparties that are to hold an active account pursuant to Article 7a of that Regulation report every six months to their competent authorities the information necessary to assess whether those counterparties comply with the obligations laid down in that Article 7a. Those obligations are, inter alia, laid down in Article 7a(3), points (a) to (d), of that Regulation. The obligations laid down in Article 7a(3), points (a), (b) and (c) are of an operational nature, whereas the obligation laid down in Article 7a(3), points (d), requires that trades that are cleared in the active account are representative of interest rate derivative contracts that are denominated in euro or Polish zloty or short-term interest rate derivatives that are denominated in euro and that are cleared at a clearing service of substantial systemic importance. 

(2) In order to ensure that counterparties with more trades in their portfolios are subject to more stringent operational conditions and reporting requirements than counterparties with fewer trades, this Regulation provides for a different treatment between counterparties with regards to the obligations laid down in Article 7a(3), point (d) of Regulation (EU) No 648/2012. Points (a) and (c) of Article 7a(3) of that Regulation lay down requirements that are further specified in this Regulation. However, due to the universal nature of those requirements, it would not be appropriate to differentiate them with respect to the size of the portfolios of different counterparties. For Article 7a(3), point (b), of Regulation (EU) No 648/2012, as well as for the reporting requirements laid down in Article 7b of that Regulation, this Regulation lays down minimum standards that should apply to all counterparties. It would be disproportionate to require a more stringent treatment for counterparties with more trades. 

(3) The operational obligation laid down in Article 7a(3), point (a) of Regulation (EU) No 648/2012 requires that the active account is permanently functional. For that purpose, the counterparties concerned should have in place the necessary legal and technical arrangements. To avoid unnecessary costs and burden for these counterparties, they should report to their competent authorities the documentation proving their compliance with the operational conditions, directly or indirectly via their clearing members, assessed in the context of their due diligence checks and their onboarding procedures when opening new clearing accounts. 

(4) In order to ensure that the first operational condition is met and that the active account is permanently functional, counterparties should be required to demonstrate that they have the legal and technical arrangements supporting the provision of clearing services in the relevant derivative contracts with an EU CCP, either directly or via a clearing member. These counterparties should report to their competent authorities the documentation proving their compliance with the operational conditions, directly or indirectly via their clearing members, as part of their normal due diligence checks and their onboarding procedures when opening new clearing accounts, in order to avoid generating unnecessary costs and burden for the counterparties. 

(5) Article 7a(3), point (b) of Regulation (EU) No 648/2012 requires counterparties to have systems and resources available to be operationally able to use the active account, even at short notice, for large volumes of derivative contracts. Article 7a(3), point (c) of that Regulation requires that all new trades in the derivative contracts can be cleared in the active account at all times. Counterparties should therefore have the necessary internal systems and dedicated resources to monitor their exposures, and the internal arrangements to use the account when the clearing volumes increase, including the possibility to assess any potential legal or operational barriers that could prevent them or impair their ability to onboard a significant amount of additional transactions. 

(6) Article 7a(4), fourth subparagraph, of Regulation (EU) No 648/2012 requires that compliance with the requirements laid down in Article 7a(3), points (a), (b) and (c) of that Regulation is stress-tested at least once a year. For that purpose, counterparties should run technical and functional tests on their IT connectivity with the authorised CCP, or with their clearing members and clients providing client clearing services. To confirm their active account’s operational capacity and its ability to withstand large increases of volumes under short notice, counterparties should demonstrate to their competent national authority that they have run those technical and functional tests. 

(7) Article 7a(3), point (d), of Regulation (EU) No 648/2012 requires counterparties to ensure that trades that are cleared in the active account are representative of interest rate derivative contracts that are denominated in euro or Polish zloty or short-term interest rate derivatives that are denominated in euro and that are cleared at a clearing service of substantial systemic importance. According to Article 7a(8), second subparagraph, ESMA is to ensure such representativeness by selecting maximum three different classes of derivative contracts, subject to a limit of four maturity ranges, and by specifying the different trade size ranges, subject to a limit of three trade size ranges. The selection of classes of derivative contracts should ensure that the active accounts concerned capture a maximum of classes of interest rate derivatives already subject to the clearing obligation. It should further avoid that derivatives are aggregated into categories that would not share common and essential characteristics, while at the same time allowing for the possibility to better tailor the related representativeness of the transactions cleared in the active accounts to each specific market, taking into consideration their size, liquidity, growth and the level of activity of each clearing service deemed of substantial systemic importance in comparison to Union CCPs activity. Finally, the methodology for the selection of classes of derivative contracts should be flexible and future-proof, catering for market developments and adapting to the evolution of the degree of systemic importance of third-country CCPs and ensuring the related financial stability risks for the Union or for one or more of its Member States are sufficiently mitigated. For that reason, having considered the classes of derivatives already subject to the clearing obligation, their respective liquidity and relative importance, three classes should be defined for OTC interest rate derivatives denominated in euro, two classes for OTC interest rate derivatives denominated in Polich zloty and two classes for short-term interest rate derivatives denominated in euro. 

(8) In order to ensure a balanced distribution of trades, the maturity ranges and trade size ranges of the most relevant subcategories per classes of derivatives, the number of most relevant subcategories, and the durations of the reference period per clearing service deemed of substantial systemic importance should be based on the respective liquidity and typical distribution across market participants. Considering that the universe of typical trades varies significantly across the classes of derivatives considered, it is appropriate to mandate counterparties to pick five most relevant subcategories for each of the three selected classes of interest rate derivatives denominated in euro, one most relevant subcategory for each of the two selected classes of interest rate derivatives denominated in Polish zloty and four most relevant subcategories for each of the two selected classes of short-term interest rate derivatives denominated in euro. 

(9) To avoid that counterparties would be forced to clear certain derivative products in the Union which they do not clear at a clearing service of substantial systemic importance, the counterparties should determine the most relevant subcategories per class of derivative contracts depending on their clearing activity in each class of derivatives subject to the active account. 

(10) To ensure that competent authorities have the necessary information to assess compliance with the active account requirement laid down in Article 7a of Regulation (EU) No 648/2012, counterparties should calculate their activities and risk exposures in the categories of derivatives concerned and provide their competent authority with aggregated data on those categories, including a breakdown by CCP. That report should also contain information enabling the competent authority to assess how the counterparties meet the operational conditions and the representativeness obligation of the active account requirement, including the number of transactions cleared in the active accounts of the counterparties and the subcategories selected. 

(11) Under Article 7b of Regulation (EU) No 648/2012, counterparties are to report to their competent authority the information necessary to assess compliance with that obligation and are to do so very six months. However, to ensure that competent authorities can assess whether the counterparties concerned comply with the active account requirement as from the start of their operations, the first report should cover the period as from which the counterparties become subject to the reporting requirements on the active account up to the next reporting date. 

(12) To ensure effective reporting, it is necessary to lay down templates for those reports. 

(13) This Regulation is based on the draft regulatory technical standards submitted to the Commission by the European Securities and Markets Authority (ESMA). 

(14) Before submitting the draft technical standards on which this Regulation is based, ESMA has consulted the European Banking Authority (EBA), the European Insurance and Occupational Pension Authority (EIOPA), the European Systemic Risk Board (ESRB), and the members of the European System of Central Banks (ESCB). ESMA has conducted open public consultations on those draft regulatory technical standards, analysed the potential related costs and benefits, taken into account the overarching simplification agenda of the Commission, in particular with respect to reporting requirements, and requested the advice of the Securities and Markets Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council