TITLE IX

TRANSITIONAL AND FINAL PROVISIONS

Regulations
Article 84a
1
Any power to make regulations conferred on the Treasury by this Regulation is exercisable by statutory instrument.
2
Any power to make regulations under this Regulation includes power to make:
a
different provision for different purposes;
b
consequential, supplementary, incidental, transitional, transitory or saving provision.
3
A statutory instrument containing regulations under this Regulation is subject to annulment in pursuance of a resolution of either House of Parliament.

FCA rules
Article 84b
1
The provisions of Part 9A of FSMA (rules and guidance) listed in paragraph 2 apply in relation to rules made by the FCA under Article 4(4A) or 78(10) as they apply in relation to rules made by the FCA under that Part of that Act, subject to the modification in paragraph 3.
2
The provisions are—
a
section 137T (general supplementary powers);
b
section 138C (evidential provision);
c
section 138E (limits on effect of contravening rules);
d
sections 138F, 138G and 138H (notification and verification etc);
e
sections 138I and 138L (consultation);
f
section 141A (power to make consequential amendments of references to rules).
3
Section 137T applies as if the reference to authorised persons were—
a
for the purposes of rules made under Article 4(4A), a reference to clearing members, clients and undertakings described in Article 4(3D), and
b
for the purposes of rules made under Article 78(10), a reference to trade repositories.

Bank of England rules
Article 84c
1
The provisions of Part 9A of FSMA (rules and guidance) listed in paragraph 2 apply in relation to rules made by the Bank of England under Article 6b, subject to the modifications in paragraphs 3 to 5.
2
The provisions are—
a
section 137T (general supplementary powers);
b
sections 138A and 138B (modification or waiver of rules), but with the omission of subsection (4)(b) of section 138A and subsection (4) of section 138B;
c
section 138C (evidential provisions);
d
section 138E (limits on effect of contravening rules);
e
section 138F (notification of rules);
f
section 138G (rule-making instruments);
g
section 138H (verification of rules);
h
section 138J (consultation by the PRA), but with the omission of subsections (2)(c) and (5)(b);
i
section 138L (consultation: general exceptions), but with the omission of subsection (1).
3
Any reference in any of those provisions to an authorised person is to be read as a reference to a person to whom the clearing obligation referred to in Article 4(1) applies.
4
Section 138J(2)(d) has effect in relation to rules proposed to be made by the Bank of England as if the reference to the compatibility of the proposed rules with the provisions mentioned in section 138J(2)(d) were a reference to their compatibility with the Bank of England’s financial stability objective under section 2A of the Bank of England Act 1998.
5
Section 138L(2) has effect as if for paragraphs (a) and (b) there were substituted
“be prejudicial to financial stability”
.

Reports and review
Article 85. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Committee procedure
Article 86. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment to Directive 98/26/EC
Article 87. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Websites
Article 88
1
The Bank of England and the FCA must each, where appropriate, maintain a website which provides details of the following:
a
contracts eligible for the clearing obligation under Article 5;
b
penalties imposed for breaches of Articles 4, 5 and 7 to 11;
c
CCPs authorised to offer services or activities in the United Kingdom that are established in the United Kingdom, and the services or activities which they are authorised to provide or perform, including the classes of financial instruments covered by their authorisation;
d
penalties imposed for breaches of Titles IV and V;
e
CCPs authorised to offer services or activities in the United Kingdom established in a third country, and the services or activities which they are authorised to provide or perform, including the classes of financial instruments covered by their authorisation;
f
trade repositories authorised to offer services or activities in the United Kingdom;
g
fines and periodic penalty payments imposed in accordance with regulation 68 of the Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019;
h
the public register referred to in Article 6.
2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3
The websites referred to in this Article shall be publicly accessible and regularly updated, and shall provide information in a clear format.

Transitional provisions
Article 89
1
The
clearing obligation set out in Article 4 shall not apply to OTC derivative contracts that are objectively measurable as reducing investment risks that directly relate to the financial solvency of pension scheme arrangements
or EEA pension scheme arrangements
, and to entities established to provide compensation to members of such arrangements in case of default.
The clearing obligation set out in Article 4 shall not apply to OTC derivative contracts as referred to in the first subparagraph of this paragraph entered into by pension scheme arrangements from 17 August 2018 until 16 June 2019 .
The OTC derivative contracts, which would otherwise be subject to the clearing obligation under Article 4, ... shall be subject to the requirements laid down in Article 11.
...
In this paragraph, and in paragraph 2, “
EEA pension scheme arrangement
” means a pension scheme arrangement as defined by Article 2(10) of 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 as it has effect in EU law.
2
This paragraph applies to:
a
pension scheme arrangements that fall within point (c) of Article 2(10); and
b
EEA pension scheme arrangements that fall within points (c) or (d) of Article 2(10) of 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 as it has effect in EU law.
For the pension scheme arrangements and EEA pension scheme arrangements to which this paragraph applies, the exemption referred to in the first sub-paragraph of paragraph 1 shall only apply where it is granted by the FCA for types of entities or types of arrangements. The FCA shall only grant an exemption where it is satisfied that the type of entities or the type of arrangements fall within the description of those arrangements to which this paragraph applies, and that they encounter difficulties in meeting the variation margin requirements. The FCA must grant or refuse an exemption within 30 calendar days of receipt of a request for an exemption.
The FCA shall publish on its website a list of types of entities and types of arrangements which have been granted an exemption in accordance with this paragraph.
3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5a
Until 15 December 2021 or until a decision is made under Article 25 on the recognition of a CCP, whichever is earlier, that CCP shall apply the treatment specified in the second sub-paragraph of this paragraph.
Until the deadline defined in the first sub-paragraph of this paragraph, and subject to the third sub-paragraph of this paragraph, where the CCP neither has a default fund nor has in place a binding arrangement with its clearing members that allows it to use all or part of the initial margin received from its clearing members as if they were pre-funded contributions, the information it is to report in accordance with paragraph 1 of Article 50c shall include the total amount of initial margin it has received from its clearing members.
The Treasury may by regulations extend the deadline referred to in the first sub-paragraph by 12 months.
6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Further transitional provision
Article 89a
1
Until 3 January 2021:
a
the clearing obligation set out in Article 4 and the risk mitigation procedures set out in paragraph 3 of Article 11 do not apply to C6 energy derivative contracts entered into by non-financial counterparties that meet the conditions in paragraph 1 of Article 10 of this Regulation or by non-financial counterparties that are authorised for the first time as investment firms on or after 3 January 2018; and
b
such C6 energy derivative contracts are not considered to be OTC derivative contracts for the purposes of the clearing threshold set out in Article 10.
C6 energy derivative contracts benefiting from the transitional regime set out in point (a) shall be subject to all other requirements laid down in this Regulation.
2
The FCA shall determine whether paragraph 1 applies to the contract concerned. The FCA shall publish on its website a list of those C6 energy derivative contracts to which that paragraph does apply.
3
In this Article:
- “
C6 energy derivative contracts
” means options, futures, swaps, and any other derivative contracts mentioned in paragraph 6 of Part 1 of Schedule 2 to the Regulated Activities Order relating to coal or oil that are traded on a UK OTF and must be physically settled;
- “
investment firms
” means investment firms within point (a) of point (8) of Article 2;
- “
UK OTF
” has the meaning given in Article 2(1)(13A) of the MIFIR.

Staff and resources of ESMA
Article 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Entry into force
Article 91. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Substituted by Regulation (EU) 2019/834 of the European Parliament and of the Council of 20 May 2019 amending Regulation (EU) No 648/2012 as regards the clearing obligation, the suspension of the clearing obligation, the reporting requirements, the risk-mitigation techniques for OTC derivative contracts not cleared by a central counterparty, the registration and supervision of trade repositories and the requirements for trade repositories (Text with EEA relevance).
Art. 84a inserted (31.12.2020) by The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 59(1) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Arts. 85-87 omitted (31.12.2020) by virtue of The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 59(2) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Art. 89a inserted (31.12.2020) by The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 59(5) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Words in Art. 88(1) substituted (31.12.2020) by The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 59(3)(a)(i) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Words in Art. 88(1)(c) substituted (31.12.2020) by The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 59(3)(a)(ii) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Words in Art. 88(1)(e) substituted (31.12.2020) by The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 59(3)(a)(ii) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Words in Art. 88(1)(f) substituted (31.12.2020) by The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 59(3)(a)(ii) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Art. 88(2) omitted (31.12.2020) by virtue of The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 59(3)(b) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Words in Art. 88(3) substituted (31.12.2020) by The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 59(3)(c) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Words in Art. 88(1)(g) substituted (31.12.2020) by The Financial Services (Miscellaneous) (Amendment) (EU Exit) Regulations 2019 (S.I. 2019/710), regs. 1(3), 26 (as amended by S.I. 2020/646, regs. 1(2)(c), 14; S.I. 2020/1385, regs. 1(4), 64(3)); 2020 c. 1, Sch. 5 para. 1(1)
Art. 89(3)(4)(5) omitted (31.12.2020) by virtue of The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 59(4)(a) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Art. 89(5A) substituted (31.12.2020) by The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 59(4)(b) (as amended by S.I. 2020/1385, regs. 1(4), 52(5)) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Art. 89(6)-(9) omitted (31.12.2020) by virtue of The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 59(4)(c) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Words in Art. 89(1) inserted (31.12.2020) by The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) (No. 2) Regulations 2019 (S.I. 2019/1416), regs. 1(3), 34(a)(ii) (with savings in S.I. 2019/680, reg. 11 as amended by S.I. 2020/628, regs. 1(3), 13(2)); 2020 c. 1, Sch. 5 para. 1(1)
Words in Art. 89(1) inserted (31.12.2020) by The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) (No. 2) Regulations 2019 (S.I. 2019/1416), regs. 1(3), 34(b); 2020 c. 1, Sch. 5 para. 1(1)
Art. 89(2) substituted (31.12.2020) by The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) (No. 2) Regulations 2019 (S.I. 2019/1416), regs. 1(3), 34(c) (with savings in S.I. 2019/680, reg. 11 as amended by S.I. 2020/628, regs. 1(3), 13(2); 2020 c. 1, Sch. 5 para. 1(1)
Art. 89(3a)-(3c) omitted (31.12.2020) by virtue of The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2020 (S.I. 2020/646), regs. 1(3), 31 (with savings in S.I. 2019/680, reg. 11 as amended by S.I. 2020/646, reg. 12)
Art. 90 omitted (31.12.2020) by virtue of The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 59(6) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Art. 91 omitted (31.12.2020) by virtue of The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 (S.I. 2019/335), regs. 1(1), 59(6) (with savings in S.I. 2019/680, reg. 11); 2020 c. 1, Sch. 5 para. 1(1)
Art. 84b inserted (1.7.2021) by Financial Services Act 2021 (c. 22), ss. 40(4), 49(5) (with s. 40(5)); S.I. 2021/739, reg. 3(v)
Art. 89(1) modified (12.6.2023) by The Pension Fund Clearing Obligation Exemption and Intragroup Transaction Transitional Clearing and Risk-Management Obligation Exemptions (Extension and Amendment) Regulations 2023 (S.I. 2023/472), regs. 1(2), 2
Art. 84c inserted (29.8.2023) by Financial Services and Markets Act 2023 (c. 29), s. 86(3), Sch. 2 para. 30 (with s. 2(3)); S.I. 2023/779, reg. 4(zz)(ii)
Word in Art. 89(1) substituted (11.6.2025) by The Pension Fund Clearing Obligation Exemption (Amendment) Regulations 2025 (S.I. 2025/670), regs. 1(2), 2(a)
Words in Art. 89(1) omitted (11.6.2025) by virtue of The Pension Fund Clearing Obligation Exemption (Amendment) Regulations 2025 (S.I. 2025/670), regs. 1(2), 2(b)
Words in Art. 89(1) omitted (11.6.2025) by virtue of The Pension Fund Clearing Obligation Exemption (Amendment) Regulations 2025 (S.I. 2025/670), regs. 1(2), 2(c)