TITLE II

CLEARING, REPORTING AND RISK MITIGATION OF OTC DERIVATIVES

Reporting obligation
Article 9
1
Counterparties and CCPs shall ensure that the details of any derivative contract they have concluded and of any modification or termination of the contract are reported to a trade repository registered in accordance with Article 55 or recognised in accordance with Article 77. The details shall be reported no later than the working day following the conclusion, modification or termination of the contract.
The reporting obligation shall apply to derivative contracts which:
a
were entered into before 16 August 2012 and remain outstanding on that date;
b
are entered into on or after 16 August 2012.
A counterparty or a CCP which is subject to the reporting obligation may delegate the reporting of the details of the derivative contract.
Counterparties and CCPs shall ensure that the details of their derivative contracts are reported without duplication.
2
Counterparties shall keep a record of any derivative contract they have concluded and any modification for at least five years following the termination of the contract.
3
Where a trade repository is not available to record the details of a derivative contract, counterparties and CCPs shall ensure that such details are reported to ESMA.
In this case ESMA shall ensure that all the relevant entities referred to in Article 81(3) have access to all the details of derivative contracts they need to fulfil their respective responsibilities and mandates.
4
A counterparty or a CCP that reports the details of a derivative contract to a trade repository or to ESMA, or an entity that reports such details on behalf of a counterparty or a CCP shall not be considered in breach of any restriction on disclosure of information imposed by that contract or by any legislative, regulatory or administrative provision.
No liability resulting from that disclosure shall lie with the reporting entity or its directors or employees.
5
In order to ensure consistent application of this Article, ESMA shall develop draft regulatory technical standards specifying the details and type of the reports referred to in paragraphs 1 and 3 for the different classes of derivatives.
The reports referred to in paragraphs 1 and 3 shall specify at least:
a
the parties to the derivative contract and, where different, the beneficiary of the rights and obligations arising from it;
b
the main characteristics of the derivative contracts, including their type, underlying maturity, notional value, price, and settlement date.
ESMA shall submit those draft regulatory technical standards to the Commission by 30 September 2012.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.
6
In order to ensure uniform conditions of application of paragraphs 1 and 3, ESMA shall develop draft implementing technical standards specifying:
a
the format and frequency of the reports referred to in paragraphs 1 and 3 for the different classes of derivatives;
b
the date by which derivative contracts are to be reported, including any phase-in for contracts entered into before the reporting obligation applies.
ESMA shall submit those draft implementing technical standards to the Commission by 30 September 2012.
Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Article 15 of Regulation (EU) No 1095/2010.