Commission Delegated Regulation (EU) 2022/2310 of 18 October 2022 amending the regulatory technical standards laid down in Delegated Regulation (EU) No 149/2013 as regards the value of the clearing threshold for positions held in OTC commodity derivative contracts and other OTC derivative contracts (Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to 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 [^ntr1-L_2022307EN.01002901-E0001], and in particular Article 10(4), third subparagraph, thereof,

Whereas:

• (1) Commission Delegated Regulation (EU) No 149/2013 [^ntr2-L_2022307EN.01002901-E0002] specifies, among others, the values of the clearing thresholds for the purpose of the clearing obligation.

• (2) Pursuant to Article 10(4), fourth subparagraph, of Regulation (EU) No 648/2012, the European Securities and Markets Authority (ESMA) is to periodically review the values of those clearing thresholds and to propose regulatory technical standards to amend them. That review is to be preceded by a consultation of the European Systemic Risk Board (ESRB) and other relevant authorities and has to take into account, where necessary, the interconnectedness of financial counterparties.

• (3) For some third-country jurisdictions, no equivalence decision as referred to in Article 2a of Regulation (EU) No 648/2012 has yet been adopted. As a result, contracts executed on markets in those third-country jurisdictions are considered OTC and, although being cleared by recognised CCPs, count towards the clearing thresholds. In addition, commodity prices have recently increased, significantly exacerbated by Russia’s unprovoked and unjustified military aggression against Ukraine. Those reasons call for a corresponding adjustment of the current threshold for commodity derivatives. The clearing threshold value for positions held in OTC commodity derivatives should therefore be increased from EUR 3 billion to EUR 4 billion.

• (4) Delegated Regulation (EU) No 149/2013 should therefore be amended accordingly.

• (5) This Regulation is based on a report and the draft regulatory technical standards submitted to the Commission by ESMA.

• (6) ESMA conducted an open public consultation on the clearing thresholds for different asset classes and in particular on the clearing thresholds for commodity derivative asset classes. Given the limited scope of the amendment and its urgency in view of the rapidly increasing commodity prices, it would be highly disproportionate for ESMA to conduct an additional open public consultation on these draft regulatory technical standards. ESMA consulted the ESRB in accordance with Article 10(4), fourth subparagraph, of Regulation (EU) No 648/2012 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. [^ntr3-L_2022307EN.01002901-E0003]

• (7) Given the recent increase of in commodity prices and its effect on non-financial counterparties taking positions in OTC commodity derivative contracts, it is necessary to adjust the clearing threshold value for positions held by non-financial counterparties in OTC commodity derivatives as quickly as possible. In the light of the current energy crisis and inflation, ESMA shall assess the impact of the revised threshold and come forward with amendments if deemed necessary and appropriate. This Regulation should therefore enter into force as a matter of urgency,

HAS ADOPTED THIS REGULATION:

Article 1

Amendment to Delegated Regulation (EU) No 149/2013

In Article 11 of Delegated Regulation (EU) No 149/2013, point (e) is replaced by the following:

• ‘(e) EUR 4 billion in gross notional value for OTC commodity derivative contracts and other OTC derivative contracts not provided for under points (a) to (d).’.

Article 2

Entry into force

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 18 October 2022.

For the Commission

The President

Ursula VON DER LEYEN

[^ntr1-L_2022307EN.01002901-E0001]: OJ L 201, 27.7.2012, p. 1.

[^ntr2-L_2022307EN.01002901-E0002]: Commission Delegated Regulation (EU) No 149/2013 of 19 December 2012 supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council with regard to regulatory technical standards on indirect clearing arrangements, the clearing obligation, the public register, access to a trading venue, non-financial counterparties, and risk mitigation techniques for OTC derivatives contracts not cleared by a CCP (OJ L 52, 23.2.2013, p. 11).

[^ntr3-L_2022307EN.01002901-E0003]: Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).