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Regulation (EU) No 648/2012 of the European Parliament and of the CouncilShow full title

Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (Text with EEA relevance)

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Regulation (EU) No 648/2012 of the European Parliament and of the Council, Article 25 is up to date with all changes known to be in force on or before 19 May 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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Changes and effects yet to be applied to Article 25:

  • Regulation revoked by 2023 c. 29 Sch. 1 Pt. 1
  • Art. 25(1) words substituted by S.I. 2018/1184 reg. 8(2)(a) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(1) words substituted by S.I. 2018/1184 reg. 8(2)(b) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(2) words substituted by S.I. 2018/1184 reg. 8(3)(a) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(2)(a) words substituted by S.I. 2018/1184 reg. 8(3)(b) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(2)(d) words substituted by S.I. 2018/1184 reg. 8(3)(c) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(3) omitted by S.I. 2018/1184 reg. 8(4) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(4) words inserted by S.I. 2018/1184 reg. 8(5)(c) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(4) words inserted by S.I. 2018/1184 reg. 8(5)(e)(ii) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(4) words omitted by S.I. 2018/1184 reg. 8(5)(d) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(4) words substituted by S.I. 2018/1184 reg. 8(5)(a) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(4) words substituted by S.I. 2018/1184 reg. 8(5)(b) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(4) words substituted by S.I. 2018/1184 reg. 8(5)(e)(i) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(4) words substituted by S.I. 2018/1184 reg. 8(5)(f) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(4A) inserted by S.I. 2018/1184 reg. 8(6) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(5) words inserted by S.I. 2018/1184 reg. 8(7)(c) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(5) words omitted by S.I. 2018/1184 reg. 8(7)(a) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(5) words substituted by S.I. 2018/1184 reg. 8(7)(b)(i) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(5) words substituted by S.I. 2018/1184 reg. 8(7)(b)(ii) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(6) words substituted by S.I. 2018/1184 reg. 8(8)(a) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(6) words substituted by S.I. 2018/1184 reg. 8(8)(b) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(7) words substituted by S.I. 2018/1184 reg. 8(10)(a) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(7) words substituted by S.I. 2018/1184 reg. 8(10)(b) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(8) words omitted by S.I. 2018/1184 reg. 8(11)(b) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(8) words substituted by S.I. 2018/1184 reg. 8(11)(a)(i) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(8) words substituted by S.I. 2018/1184 reg. 8(11)(a)(ii) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • art. 25(9)(10) inserted by S.I. 2018/1184 reg. 8(12) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))

Changes and effects yet to be applied to the whole legislation item and associated provisions

  • Art. 2(30)-(33) inserted by S.I. 2018/1184 reg. 7 (This amendment not applied to legislation.gov.uk. S.I. 2018/1184, reg. 7 substituted (1.3.2019) by The Financial Services Contracts (Transitional and Saving Provision) (EU Exit) Regulations 2019 (S.I. 2019/405), regs. 1(2), 9)
  • Art. 4(1)(a)(v) words substituted by S.I. 2019/335 reg. 14(2)(a) (This amendment not applied to legislation.gov.uk. Reg. 14(2)(a) substituted (30.10.2019) by S.I. 2019/1416, regs. 1(2), 14(a))
  • Art. 4(1)(a)(iv) words substituted by S.I. 2019/335 reg. 14(2)(a) (This amendment not applied to legislation.gov.uk. Reg. 14(2)(a) substituted (30.10.2019) by S.I. 2019/1416, regs. 1(2), 14(a))
  • Art. 4(1)(b)(ii) words substituted by S.I. 2019/335 reg. 14(2)(b)(i) (This amendment not applied to legislation.gov.uk. Reg. 14(2)(b) omitted (30.10.2019) by virtue of S.I. 2019/1416, regs. 1(2), 14(b))
  • Art. 4(1)(b)(ii) words substituted by S.I. 2019/335 reg. 14(2)(b)(ii) (This amendment not applied to legislation.gov.uk. Reg. 14(2)(b) omitted (30.10.2019) by virtue of S.I. 2019/1416, regs. 1(2), 14(b))
  • Art. 10(1)(a) word omitted by S.I. 2019/335 reg. 20(2)(b) (This amendment not applied to legislation.gov.uk. Reg. 20(2) substituted (30.10.2019) by S.I. 2019/1416, regs. 1(2), 17(a))
  • Art. 10(1)(a) words omitted by S.I. 2019/335 reg. 20(2)(a) (This amendment not applied to legislation.gov.uk. Reg. 20(2) substituted (30.10.2019) by S.I. 2019/1416, regs. 1(2), 17(a))
  • Art. 25(6A) inserted by S.I. 2018/1184 reg. 8(9) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))
  • Art. 25(7)(c) words substituted by S.I. 2018/1184 reg. 8(10)(c) (This amendment not applied to legislation.gov.uk. Reg. 8 omitted (25.6.2020) by virtue of S.I. 2020/646, regs. 1(2)(c), 4(3))

Article 25U.K.Recognition of a third-country CCP

[F11 . A CCP established in a third country may only provide clearing services to clearing members or trading venues established in the [F2United Kingdom] where that CCP is recognised by [F3the Bank of England].]

2.[F4The Bank of England] may recognise a CCP established in a third country that has applied for recognition to provide certain clearing services or activities where:

(a)[F5the Treasury has made regulations] in accordance with paragraph 6;

(b)the CCP is authorised in the relevant third country, and is subject to effective supervision and enforcement ensuring full compliance with the prudential requirements applicable in that third country;

(c)cooperation arrangements have been established pursuant to paragraph 7;

[F6(d ) the CCP is established or authorised in a third country that is not [F7a high-risk third country within the meaning of regulation 33 of the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017] [F1;]]

[F8(e ) the CCP has not been determined as systemically important or likely to become systemically important in accordance with paragraph 2a and is therefore a Tier 1 CCP.]

[F82a .[F9The Bank of England must] determine whether a third-country CCP is systemically important or likely to become systemically important for the financial stability of the [F10United Kingdom] (Tier 2 CCP) by taking into account all of the following criteria:

(a)

the nature, size and complexity of the CCP's business in the [F11United Kingdom], and outside the [F11United Kingdom] to the extent its business may have a systemic impact on the [F12United Kingdom], including:

(i)

the value in aggregate terms and in [F13pounds sterling] of transactions cleared by the CCP, or the aggregate exposure of the CCP engaged in clearing activities to its clearing members and, to the extent the information is available, their clients and indirect clients established [F14in the United Kingdom, including where they have been identified by the PRA as other systemically important institutions (O-SIIs) in accordance with regulation 29 of the Capital Requirements (Capital Buffers and Macro-prudential Measures) Regulations 2014; and;]

(ii)

the risk profile of the CCP in terms of, amongst others, legal, operational and business risk;

(b)

the effect that the failure of or a disruption to the CCP would have on:

(i)

financial markets, including the liquidity of the markets served;

(ii)

financial institutions;

(iii)

the broader financial system; or

(iv)

the financial stability of the [F15United Kingdom];

(c)

the CCP's clearing membership structure including, to the extent the information is available, the structure of its clearing members' network of clients and indirect clients, established in the [F16United Kingdom];

(d)

the extent to which alternative clearing services provided by other CCPs exist F17... for clearing members and, to the extent the information is available, their clients and indirect clients established in the [F18United Kingdom];

(e)

the CCP's relationships, interdependencies, or other interactions with other financial market infrastructures, other financial institutions and the broader financial system to the extent that that is likely to have an impact on the financial stability of the [F19United Kingdom].

[F20The Bank of England may make technical standards specifying further the criteria set out in the first subparagraph.]

Without prejudice to the outcome of the recognition process, [F21the Bank of England must], after conducting the assessment referred to in the first subparagraph, inform the applicant CCP whether or not it is considered to be a Tier 1 CCP within 30 working days of the determination that that CCP's application is complete in accordance with the second subparagraph of paragraph 4.

2b . Where [F22the Bank of England] determines a CCP to be systemically important or likely to become systemically important (Tier 2 CCP) in accordance with paragraph 2a, it shall only recognise that CCP to provide certain clearing services or activities where, in addition to the conditions referred to in points (a) to (d) of paragraph 2, the following conditions are fulfilled:

(a)

the CCP complies, at the moment of recognition and thereafter on an ongoing basis, with the requirements set out in Article 16 and in Titles IV and V. [F23The Bank of England] shall take into account, in accordance with Article 25a, the extent to which a CCP's compliance with those requirements is satisfied by its compliance with comparable requirements applicable in the third country;

(b)

F24. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)

the CCP has provided [F22the Bank of England] with:

(i)

a written statement, signed by its legal representative, expressing the unconditional consent of the CCP to:

  • provide within [F25the time specified in] a request by [F22the Bank of England] any documents, records, information and data held by that CCP at the time the request is served, and

  • allow [F22the Bank of England] to access any of the CCP's business premises;

(ii)

a reasoned legal opinion by an independent legal expert confirming that the consent expressed is valid and enforceable under the relevant applicable laws;

(d)

the CCP has implemented all necessary measures and established all necessary procedures to ensure the effective compliance with the requirements laid down in points (a) and (c);

(e)

[F26the Treasury have not made location regulations under paragraph 2c in relation to the CCP.]]

[F27 2c .The Treasury may make regulations in respect of a third-country CCP to be known as location regulations.

Location regulations may be made for the purpose of requiring that some or all of the clearing services of the third-country CCP may only be provided to clearing members and trading venues established in the United Kingdom by the CCP after it has been authorised in accordance with Article 14.

The Treasury may only make location regulations—

(a)having received a recommendation from the Bank of England (see paragraph 2ca);

(b)following compliance with the procedural requirements of paragraph 2cb.

Where a third-country CCP is already providing clearing services to clearing members or trading venues established within the United Kingdom, the requirement which may be imposed by virtue of the second subparagraph may only come into force after a period of time specified in the location regulations has elapsed (“adaptation period”).

Location regulations including an adaptation period may specify—

(a)conditions with which the third-country CCP must comply in order to continue to provide clearing services or activities described in the location regulations during the adaptation period;

(b)measures that must be taken during the adaptation period, in order to limit the potential costs to clearing members and their clients, in particular those established in the United Kingdom.

2ca.The Bank of England may recommend that the Treasury make location regulations under paragraph 2c if it considers that a third-country CCP, or some of its clearing services, are of such substantial systemic importance to the United Kingdom that the CCP should not be recognised under paragraph 1.

The recommendation must be in writing.

The recommendation must include advice—

(a)explaining how compliance with the conditions set out in paragraph 2b would not sufficiently address the financial stability risk for the United Kingdom;

(b)describing the characteristics of the clearing services provided by the CCP, including the liquidity and physical settlement requirements associated with the provision of such services;

(c)providing a quantitative technical assessment of the costs and benefits and consequences of a decision not to recognise the CCP to provide certain clearing services or activities, taking into account—

(i)the existence of potential alternative substitutes for the provision of the clearing services concerned in the currencies concerned to clearing members, and to the extent the information is available, their clients and indirect clients established in the United Kingdom;

(ii)the potential consequences of including the outstanding contracts held at the CCP within the scope of the location direction;

(d)where relevant, addressing the duration of the adaptation period mentioned in the fourth subparagraph of paragraph 2c and any conditions or measures the Bank of England proposes to be included in the location regulations (see the fifth subparagraph of paragraph 2c).

2cb.Before the Treasury make location regulations under paragraph 2c, they must send a statement in writing to the third-country CCP concerned.

The statement must—

(a)state that the Treasury propose to make location regulations in respect of the CCP;

(b)provide a summary of the Treasury's reasons for proposing to make the regulations;

(c)be accompanied by a copy of the Bank of England's recommendation given under paragraph 2ca;

(d)specify a reasonable period within which the CCP may make representations.

The Treasury must have regard to any representations made within the period specified in the statement.

Where the Treasury make location regulations, they must—

(a)send a copy of the regulations to—

(i)the third-country CCP concerned;

(ii)the Bank of England;

(iii)the Financial Conduct Authority, and

(b)publish the regulations on their website.]

F28 3 .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4.The CCP referred to in paragraph 1 shall submit its application to [F29the Bank of England].

[F1The applicant CCP shall provide [F30the Bank of England] with all information necessary for its recognition. Within 30 working days of receipt, [F30the Bank of England] shall assess whether the application is complete. If the application is not complete, [F30the Bank of England] shall set a deadline by which the applicant CCP is to provide additional information. F31...

The recognition decision shall be based on the conditions set out in paragraph 2 for Tier 1 CCPs and in points (a) to (d) of paragraph 2 and paragraph 2b for Tier 2 CCPs. It shall be independent of any assessment as the basis for the equivalence decision as referred to in Article 13(3). [F32Before the end of the relevant period (see paragraph 4A), the Bank of England] shall inform the applicant CCP in writing, with a fully reasoned explanation, whether the recognition has been granted or refused.]

[F33Recognition under this Article must be granted only for services or activities linked to clearing and the decision granting recognition must specify the services or activities which the CCP is recognised to provide or perform, including the classes of financial instruments covered by the recognition.]

[F1[F34The Bank of England] shall publish on its website a list of the CCPs recognised in accordance with this Regulation, indicating their classification as Tier 1 CCPs or Tier 2 CCPs.]

[F354A.In paragraph 4 “the relevant period” means—

(a)where the applicant CCP has submitted an application before the end of the period of 18 months beginning with IP completion day, the period of one year beginning with the first day on which—

(i)the applicant CCP has submitted a complete application, and

(ii)the conditions in paragraph 2(a) and (c) are met, or

(b)in any other case, the period of 180 working days beginning with the first day on which—

(i)the applicant CCP has submitted a complete application, and

(ii)the conditions in paragraph 2(a) and (c) are met.

4B.A CCP must, without undue delay, notify the Bank of England of any material changes affecting the conditions for recognition—

(a)in point (b) of paragraph 2;

(b)in points (a), (c)(ii) and (d) of the first subparagraph of paragraph 2b.]

[F15 .[F36The Bank of England must, as it considers appropriate, review the recognition of a CCP established in a third country.]

That review shall be conducted in accordance with paragraphs 2 to 4.

Where, following the review referred to in the first subparagraph, [F37the Bank of England] determines that a third-country CCP that has been classified as Tier 1 CCP should be classified as a Tier 2 CCP, [F37the Bank of England] shall set an appropriate adaptation period F38... within which the CCP must comply with the requirements referred to in paragraph 2b. F39...]

[F16 .[F40The Treasury may by regulations specify] that:

(a)

the legal and supervisory arrangements of a third country ensure that CCPs authorised in that third country comply on an ongoing basis with legally binding requirements which are equivalent to the requirements laid down in Title IV of this Regulation;

(b)

those CCPs are subject to effective supervision and enforcement in that third country on an ongoing basis;

(c)

the legal framework of that third country provides for an effective equivalent system for the recognition of CCPs authorised under [F41legal regimes of other countries].

F42... ]

[F436ZA.The Bank of England may provide advice to the Treasury in connection with any regulations made or to be made by the Treasury under paragraph 6.]

F446a.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F456b.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F17 .[F46The Bank of England] [F47must take such steps as it considers appropriate to establish] effective cooperation arrangements with the relevant competent authorities of third countries whose legal and supervisory frameworks have been recognised as equivalent to this Regulation in accordance with paragraph 6. [F48Such arrangements are to specify such matters as the Bank of England considers appropriate. Without limiting the scope to specify matters, such matters may include:]]

[F1(a ) the mechanism for the exchange of information between [F49the Bank of England] F50... and the competent authorities of the third countries concerned, including access to all information requested by [F49the Bank of England] regarding CCPs authorised in third countries, such as significant changes to risk models and parameters, extension of CCP activities and services, changes in the client account structure and in the use of payment systems that substantially affect the [F51United Kingdom];]

(b)the mechanism for prompt notification to [F49the Bank of England] where a third-country competent authority deems a CCP it is supervising to be in breach of the conditions of its authorisation or of other law to which it is subject;

(c)the mechanism for prompt notification to [F49the Bank of England] by a third-country competent authority where a CCP it is supervising has been granted the right to provide clearing services to clearing members or clients established in the [F52United Kingdom];

[F1(d ) the procedures concerning the coordination of supervisory activities F53...]

[F8(e ) the procedures necessary for the effective monitoring of regulatory and supervisory developments in a third country;

( f ) the procedures for third-country authorities to assure the effective enforcement of decisions adopted by [F49the Bank of England] F54...

( g ) the procedures for third-country authorities to inform [F49the Bank of England] F55... without undue delay of any emergency situations relating to the recognised CCP, including developments in financial markets, which may have an adverse effect on market liquidity and the stability of the financial system in the [F56United Kingdom] and the procedures and contingency plans to address such situations; ]

F57( h ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F8Where [F49the Bank of England] considers that a third-country competent authority fails to apply any of the provisions laid down in a cooperation arrangement established in accordance with this paragraph, it shall inform the [F58Treasury] thereof confidentially and without delay. F59...]

8.In order to ensure consistent application of this Article, [F60the Bank of England may make technical standards] specifying the information that the applicant CCP shall [F61provide the Bank of England] in its application for recognition.

F62...

F62...

[F639.This Article is subject to Part 6 of the Central Counterparties (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2018 (which contains transitional provisions).

10.In this Article “competent authority” means a regulatory authority which is responsible for the authorisation and supervision of central counterparties in its territory.]

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