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
Paragraph 1 now adds a new subparagraph stating that the clearing obligation described in point (a)(iv) does not apply to contracts between a financial or non-financial counterparty meeting the relevant thresholds and a pension scheme arrangement established in a third country that operates nationally, 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 exclusion for third-country pension scheme arrangements was not present in the earlier version of Article 4, which contained no such carve-out language.
All other paragraphs of Article 4, including the intragroup exemption and clearing-service provisions, remain textually identical between the two versions.
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 that provide clearing services, directly or indirectly, to do so 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 within the same group.
The new paragraph also states that clearing members and clients may control risks related to the clearing services they offer, and it empowers the Commission to adopt delegated acts under Article 82 specifying when the commercial terms are to be considered fair, reasonable, non-discriminatory and transparent, based on listed fairness, reasonableness, non-discrimination and risk-control factors.
No such paragraph 3a existed in the earlier text of Article 4.
Cited: Art. 4, v2 · Art. 4, v1
text before / after, on the event page →
in force 2020-06-18 MODIFIED§
Amended by Regulation (EU) 2019/834 32019R0834
applies from: unknown
Sources disagree, and there is no text on either side — 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 marked 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, and there is no text on either side — 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 marked disputed.
text before / after, on the event page →
in force 2019-06-17 MODIFIED§
Amended by Regulation (EU) 2019/834 32019R0834
applies from: unchanged
The list of ways a contract can be concluded under point (a) now cross-references the specific counterparty-status conditions in Article 4a(1) and Article 10(1), where before it referred only generally to Article 10(1)(b), and point (a)(iv) rephrases the third-country pairing to name a financial or non-financial counterparty on one side meeting those conditions.
Point (b), which previously set out two separate limbs covering contracts entered into after the clearing obligation took effect or after notification but before that date if remaining maturity exceeded a set minimum, is replaced by a single condition that contracts are entered into or novated on or after the date the clearing obligation takes effect and that both counterparties meet the point (a) conditions on that date.
Cited: Art. 4, v2 · Art. 4, v1
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
Two new paragraphs, 5 and 6, were added to Article 4, extending it beyond the original four paragraphs.
Paragraph 5 states that paragraph 1 does not apply to OTC derivative contracts concluded by covered bond entities in connection with a covered bond, or by a securitisation special purpose entity in connection with a securitisation within the meaning of Regulation (EU) 2017/2402, subject to conditions concerning the securitisations issued, the hedging purpose of the contract, and adequate mitigation of counterparty credit risk.
Paragraph 6 directs the ESAs to develop draft regulatory technical standards on criteria for such adequate mitigation of counterparty credit risk and to submit them to the Commission by 18 July 2018, with power delegated to the Commission to adopt them, none of which appears in the earlier version.
Cited: Art. 4, v2 · Art. 4, v1
text before / after, on the event page →