Enhanced Memorandum of Understanding

European Securities and Markets Authority

U.S. Commodity Futures Trading Commission

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* esma 

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European Securities and 

Markets Authority 
1 

Enhanced Memorandum of Understanding

Related to ESMA’s Assessment of Compliance and Monitoring of the Ongoing 

Compliance with Recognition Conditions by Certain Derivatives Clearing 

Organizations Established in the United States

In view of certain central counterparties (“CCPs”) established in the United States (“U.S.”) and 

registered with the Commodity Futures Trading Commission (“CFTC”) as derivatives clearing 

organizations (“DCOs”) having applied or that may apply to the European Securities and 

Markets Authority (“ESMA”) for recognition as third-country CCPs, pursuant to Article 25 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 (“EMIR”), the CFTC and 

ESMA have reached this enhanced Memorandum of Understanding (“MoU”) regarding 

arrangements for cooperation related to ESMA’s assessment of compliance and monitoring of 

the ongoing compliance by the Covered CCPs as defined in Article 1(c) below with the 

recognition conditions set out in Article 25 of EMIR and with the conditions in paragraphs 2 

and 3 of Article 1 (“Equivalence Conditions”) in the European Commission Implementing 

Decision (EU) 2016/377 of 15 March 2016 (“Equivalence Decision”), except for agricultural 

commodity derivative contracts fulfilling the conditions set out in Article 2 of the Equivalence 

Decision (“Exemption Conditions”) (collectively, “Recognition Conditions”), as well as ESMA’s 

periodic reviews as set out in Article 25(5) of EMIR and ESMA’s monitoring of regulatory and 

supervisory developments in third countries as set out in Article 25(6b) of EMIR, in light of the 

CFTC’s and ESMA’s relevant supervisory and monitoring responsibilities. 

Under Article 25(6) of EMIR, the European Commission adopted the Equivalence Decision

determining that i) the legal and supervisory arrangements of the CFTC ensure that Covered 

CCPs comply with legally binding requirements which are equivalent to the requirements of 

EMIR (provided that the Covered CCPs fulfil the Equivalence Conditions, subject to the 

Exemption Conditions), ii) Covered CCPs are subject to effective supervision and enforcement 

in the United States on an ongoing basis, and iii) the legal framework of the United States 

provides for an effective equivalent system for the recognition of CCPs under the CFTC’s legal 

regime.

Article 25(2)(c) of EMIR requires the establishment of cooperation arrangements as a 

precondition for ESMA to recognise CCPs established in the United States to provide clearing 

services to clearing members or trading venues established in the European Union (“EU”). 

Article 25(7) of EMIR provides for ESMA confidentially to inform the European Commission of 

any failure by any third-country authority to apply provisions of a cooperation arrangement, 

and the European Commission may decide to review its implementing act on equivalence for 

that third country. 

Regulation (EU) No 2019/2099 (“EMIR 2.2”) enhanced the EU framework for recognition and 

supervision of third-country CCPs and expanded the role and powers of ESMA. Under Article 

25(2a) of EMIR and Commission Delegated Regulation (EU) 2020/1303 of 14 July 2020 

supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council 

with regard to the criteria that ESMA should take into account to determine whether a central 

counterparty established in a third country is systemically important or likely to become 
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systemically important for the financial stability of the Union or of one or more of its Member 

States, ESMA considers the systemic importance of a third-country CCP applying or having 

applied for recognition based upon specified criteria, elements and indicators. Based upon an 

assessment of the elements of the criteria and the indicators, ESMA determines whether the 

CCP is not or is not likely to become systemically important (a “Tier 1 CCP”) or is or is likely to 

become systemically important (a Tier 2 CCP) and this determination is reviewed periodically 

as per Article 25(5) of EMIR. 

With regard to a Covered CCP as defined in Article 1(c) below, ESMA and the CFTC (each an 

“Authority” and, together, the “Authorities”), as set out in this enhanced MoU, affirm their 

willingness to enhance cooperation and information sharing to proportionately fulfil their 

respective supervisory and monitoring responsibilities. The Authorities further recognise the 

value of strong cooperation and sustained information sharing to promote effective and 

efficient cross-border supervision of such CCPs that engage in clearing activity in both the U.S.

and the EU. 

The Authorities are mindful to uphold fundamental principles of deference in their supervisory 

cooperation, including as set out in the G20 Leaders’ declaration at the September 2013 St. 

Petersburg Summit. The Authorities recognise that supervisory cooperation based on 

deference enhances coordinated oversight and encourages greater clarity, certainty and 

consistency in regulatory requirements and actions. This MoU also is intended to maximize 

utilization of staff resources, reduce unnecessary duplication and encourage consistency in 

supervisory practices.

Therefore, the primary purposes of this MoU are: 1) ensuring the fulfilment of the condition set 

out in Article 25(2)(c) of EMIR, i.e., that cooperation arrangements have been established as 

regards the Covered CCPs; 2) providing ESMA with adequate tools to assess compliance and 

to monitor the ongoing compliance by the Covered CCPs with the Recognition Conditions, in 

light of ESMA’s relevant supervisory and monitoring responsibilities; and 3) enhancing 

cooperation and information sharing related to the Covered CCPs and related regulatory and 

supervisory developments in the U.S. and the EU. 

This MoU is an arrangement between the CFTC and ESMA and not a collective arrangement 

with other EU authorities. As such, it will not impact any arrangements which may be agreed 

directly between other EU authorities and the CFTC.

Article 1

Definitions

For the purpose of this MoU:

a) “Authority” means a signatory to this MoU or any successor thereto;

b) “Books and Records” means documents, electronic media, and books and records 

within the possession, custody and control of, and other information about, a 

Covered CCP;
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c) “CCP” means a legal person that interposes itself between the counterparties to the 

contracts traded on one or more financial markets, becoming the buyer to every 

seller and the seller to every buyer and, for purposes of this MoU, a “Covered CCP” 

is a CCP identified in Appendix C as agreed between the Authorities; 

d) “Emergency Situation” means the occurrence of an event that could materially 

impair the financial or operational condition of a Covered CCP, including 

developments in financial markets which may have an adverse effect on market 

liquidity and the stability of the financial system in the EU or one of its Member 

States; 

e) “Governmental Entity” means:

i. If the Requesting Authority is the CFTC, the U.S. Department of the 

Treasury, the U.S. Board of Governors of the Federal Reserve System or 

the Securities and Exchange Commission; and

ii. If the Requesting Authority is ESMA:

(a) the competent authority of a Member State in the EU in which the 

Covered CCP provides or intends to provide clearing services and which 

has been selected by the Covered CCP;

(b) the competent authority of a Member State in the EU which is responsible 

for the supervision of a trading venue established in the EU that is served 

or to be served by the Covered CCP;

(c) the competent authority of a Member State in the EU supervising a CCP 

established in the EU with which interoperability arrangements with a 

Covered CCP have been established;

(d) with respect to notification provided by the CFTC to ESMA pursuant to 

Article 3(4)(e) of this MoU, the competent authority of a Member State in 

the EU where, pursuant to Article 25(5) of EMIR, a Covered CCP has 

extended the range of its activities and services in that Member State; 

(e) the central bank(s) of issue of any of the EU currencies of the financial 

instruments cleared or to be cleared by the Covered CCP (“CBI”); or

(f) each of the members, except for the chair and the two independent 

members who are staff of ESMA, of the third-country CCP college 

described in Article 25c of EMIR in their legal capacity as members of the 

college and for purposes of their college responsibilities with regard to a 

Covered CCP. 

f) “Laws and Regulations” means, in relation to ESMA, applicable EU law, and in 

particular, the EU legal acts within ESMA’s scope of action as set out in Article 1(2) 

of Regulation (EU) No. 1095/2010 of the European Parliament and of the Council of 

24 November 2010 establishing a European Supervisory Authority (European 
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Securities and Markets Authority), amending Decision No 716/2009/EC and 

repealing Commission Decision 2009/77/EC, and, in relation to the CFTC, the 

Commodity Exchange Act, Dodd-Frank Wall Street Reform and Consumer 

Protection Act, CFTC regulations and other relevant requirements; 

g) “On-site Visit” means any regulatory visit engaged in by ESMA consistent with the 

provisions in Article 5 of this MoU to the premises of a Covered CCP located in the 

U.S., including inspection of Books and Records;

h) “Person” includes a natural person, unincorporated association, partnership, trust, 

investment company or corporation and may be a Covered CCP;

i) “Requested Authority” means the Authority to whom a request is made under this 

MoU; and

j) “Requesting Authority” means the Authority making a request under this MoU.

Article 2

General provisions

1. Pursuant to the regime under EMIR for recognition of third-country CCPs, ESMA does not 

have direct supervision or enforcement powers over Tier 1 CCPs and fully relies on the 

supervision and enforcement capabilities of the CFTC, which supervises and enforces 

compliance with the CFTC’s Laws and Regulations. With regard to CFTC-registered DCOs 

not listed in Appendix C, cooperation between the Authorities is covered by the 

Memorandum of Understanding Related to ESMA’s Assessment of Compliance and 

Monitoring of the Ongoing Compliance with Recognition Conditions by Derivatives Clearing 

Organizations Established in the United States (2 June 2016). 

2. With respect to Covered CCPs, the Authorities affirm a commitment to cooperate in the 

context of one another’s regulatory regime and supervisory practices to the greatest extent 

appropriate and permitted by applicable Laws and Regulations. In the fulfilment of their 

responsibilities and objectives, the Authorities will rely upon the regulatory framework and 

supervision of the CFTC as the Authority with direct supervisory powers over the Covered 

CCPs, recognising that the CFTC remains accountable in the U.S. for the resilience of a 

Covered CCP under its supervision. Further, the Authorities understand that ESMA’s 

supervisory objectives as to a Covered CCP would focus on the clearing activity of EU 

market participants and activity of the Covered CCP that can have material adverse impact 

in the financial markets of the EU or one of its Member States. This MoU also recognises 

the role of the European Central Bank and other CBIs under EMIR. 

3. This MoU does not cover cooperation with regards to CCPs established in the EU because 

ESMA does not have direct supervisory powers in respect of such CCPs. For the 

avoidance of doubt, this MoU does not cover, in particular, cooperation in respect of CCPs 

established in the EU of which ESMA is a member of the supervisory college.
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4. This MoU is a statement of intent to consult, cooperate and exchange information in 

connection with ESMA’s assessment of compliance and monitoring of the ongoing 

compliance by the Covered CCPs with the Recognition Conditions, in light of ESMA’s 

relevant supervisory and monitoring responsibilities, including monitoring of related 

regulatory and supervisory developments in the U.S. The cooperation and information 

sharing arrangements under this MoU should be interpreted and implemented in a manner 

that is permitted by, and consistent with, the laws and other legal or regulatory 

requirements applicable to each Authority. The Authorities intend to cooperate through 

ongoing informal consultations, supplemented as needed by more formal cooperation.

5. This MoU does not create any legally binding obligations, confer any rights or supersede 

any domestic or EU laws. This MoU does not confer upon any Person the right or ability, 

directly or indirectly, to obtain, suppress or exclude any information or to challenge the 

execution of a request for assistance under this MoU.

6. This MoU is not intended to limit or condition the discretion of an Authority in any way in 

the discharge of its regulatory responsibilities or to prejudice or affect in any way the 

individual responsibilities, competencies or autonomy of any Authority. This MoU does not 

limit an Authority to taking solely those measures described herein in fulfilment of its 

responsibilities and mandates. In particular, this MoU does not affect any right of any 

Authority to communicate with or obtain information or documents from any Person subject 

to its jurisdiction that is established in the territory of the other Authority.

7. The Authorities should, within the framework of this MoU, provide each other with the fullest 

cooperation permissible under their Laws and Regulations in relation to ESMA’s 

assessment of compliance and monitoring of the ongoing compliance by the Covered 

CCPs with the Recognition Conditions. Following consultation, cooperation may be 

denied:

a) where the cooperation would require an Authority to act in a manner that would 

violate its Laws and Regulations; or

b) on the grounds of national public interest for the CFTC or of European public 

interest for ESMA.

8. The Authorities represent that, as of the date upon which this MoU takes effect, no 

domestic or EU laws or regulations should prevent them from providing assistance to one 

another.

9. The Authorities will endeavour to reach an understanding on the interpretation and 

application of this MoU. Where the Authorities encounter material differences of views 

related to the interpretation of a provision of this MoU, they should endeavour to make 

good faith efforts, through cooperation, consultations and discussions, to resolve such 

differences in order to reach mutually acceptable resolution of the issues raised.

10. To facilitate communication and cooperation under this MoU, the Authorities hereby 

designate contact persons as set forth in Appendix A, which may be amended from time 

to time by an Authority transmitting revised contact information to the other Authority.
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Article 3

Scope of cooperation

1. The Authorities recognise the importance of close communication concerning the Covered 

CCPs and intend to cooperate regarding:

a) general issues, including with respect to regulatory, supervisory or other 

developments concerning the Covered CCPs;

b) relevant Laws and Regulations, including proposals to materially change regulatory 

requirements applicable to Covered CCPs;

c) issues relevant to the operations, activities and services of the Covered CCPs;

d) coordination and planning of On-site Visits of Covered CCPs; 

e) provision of information concerning Covered CCPs to ESMA, including, as 

applicable, on a recurrent, periodic basis as set out in relevant arrangements signed 

by duly authorised officials of the Authorities which are intended to complement this 

MoU regarding the scope of such information; and

f) any other areas of mutual interest, including discussions on adverse market events 

and supervisory stress tests. 

2. The Authorities recognise in particular the importance of close cooperation in the event 

that a Covered CCP experiences, or is threatened by, a potential financial crisis or other 

Emergency Situation. An Authority should provide notification to the other Authority

consistent with Article 3(4) below and should keep the other Authority appropriately 

informed throughout the Emergency Situation. The CFTC should lead in an Emergency 

Situation and should consult with and take account of the views of ESMA to the greatest 

extent possible. ESMA should coordinate with the relevant CBI(s) regarding an Emergency 

Situation of a Covered CCP and any emergency measures that the CBI may consider 

appropriate.

3. Cooperation will be most useful in circumstances where issues of regulatory concern may 

arise, including but not limited to:

a) the initial application of a Covered CCP for recognition in the EU pursuant to Article 

25 of EMIR and the periodic review of its recognition pursuant to Article 25(5); 

b) ESMA’s supervisory objectives as to Covered CCPs, including ESMA’s ongoing 

and prospective supervisory activities and practices (e.g., as to information 

requests, On-site Visits and stress tests), in coordination with and exercising 

appropriate reliance upon the CFTC;
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c) changes in a Covered CCP’s internal rules, policies and procedures that could 

affect the way in which the Covered CCP complies with any Recognition 

Conditions;

d) regulatory or supervisory actions or approvals taken by the CFTC or ESMA in 

relation to a Covered CCP, including changes to the relevant obligations and 

requirements to which the Covered CCPs are subject that may impact the Covered 

CCPs’ continued compliance with the Recognition Conditions; or

e) changes to regulatory status or requirements that could result in a change in the 

regulatory status of, relief granted to, or supervisory treatment of a Covered CCP 

and potentially could disrupt cross-border clearing arrangements. 

4. Notification. The Authorities will seek to inform each other as soon as practicable of:

a) any known material event that could adversely impact the financial or operational 

stability of a Covered CCP, including: 

i. where the Covered CCP is deemed to be in breach of the conditions of any 

registration or recognition, or of any Laws and Regulations to which it is 

subject;

ii. in an Emergency Situation, general information on the nature of the Emergency 

Situation and any action taken or likely to be taken as far as known to the 

Authority including, e.g., actual or prospective use of the Covered CCP’s 

default protections or recovery plans, or measures taken or plans to address 

the default or potential default of a clearing member or clearing participant; 

b) enforcement or regulatory actions or sanctions, including the withdrawal, 

revocation, suspension or modification of any registration or recognition concerning 

or related to a Covered CCP and which may have a material effect on the Covered 

CCP;

c) in respect of notification by ESMA to the CFTC, any permission or approval granted 

to a Covered CCP to provide clearing services to clearing members, trading venues 

or, when known to the CCP, clients established in the EU, including in respect of 

the U.S. branches of entities established in the EU; 

d) in respect of notification by ESMA to the CFTC, any request by ESMA to a Covered 

CCP to observe a measure that ESMA has adopted to ensure compliance with the 

Recognition Conditions or to cease a practice that ESMA determines is contrary to 

the Recognition Conditions;

e) any material extension of the range of activities and services that a Covered CCP 

provides with respect to current or new asset classes or current or new EU trading 

venues; and

f) material changes to the Laws and Regulations to which the Covered CCPs are 

subject.
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The information to be provided by an Authority pursuant to this paragraph will refer 

to the Covered CCPs registered or recognised by that Authority. The determination 

of what constitutes “material event”, “adversely impact”, “material effect”, “material 

extension”, or “material changes” will be left to the reasonable discretion of the 

Authority providing the information.

5. Exchange of Written Information. Each Authority, upon written request, intends to provide 

the other Authority with assistance in endeavouring to obtain information not otherwise 

available to the Requesting Authority and, where needed, interpreting such information so 

as to enable the Requesting Authority to assess compliance with the Laws and Regulations 

to which the Covered CCPs are subject, provided that the Authority is authorized to collect 

such information. Such requests will be made pursuant to Article 4 of this MoU, and the 

Authorities anticipate that such requests will be made in a manner that is consistent with 

the goal of minimizing administrative burdens. Any request for information, except as 

otherwise stipulated pursuant to paragraph (1)(e) above, will be assessed on a case-bycase basis by the Requested Authority to determine whether the information can be 

provided (either in part or in whole) under the terms of this MoU and in accordance with 

applicable Laws and Regulations. The Requested Authority will consult with the 

Requesting Authority in responding to a request. 

The information covered by this paragraph includes:

a) information that would assist ESMA in assessing that a Covered CCP complies with 

the Recognition Conditions, both in the context of an initial recognition and, 

thereafter, on an ongoing basis;

b) information that would assist the Requesting Authority in verifying that a Covered 

CCP complies with the relevant obligations and requirements of the Laws and 

Regulations of the Requesting Authority;

c) information that would assist ESMA in verifying compliance with its request to a 

Covered CCP to observe a measure that ESMA has adopted to ensure compliance 

with the Recognition Conditions or to cease a practice that ESMA determines is 

contrary to the Recognition Conditions; 

d) information that would assist the Requesting Authority in understanding changes to 

the relevant obligations and requirements to which the Covered CCPs are subject 

under the Laws and Regulations of the Requested Authority;

e) information relevant to the financial and operational condition of a Covered CCP, 

which might include periodic reports submitted directly by a Covered CCP to the 

Requested Authority;

f) relevant regulatory information and filings that a Covered CCP is required to submit 

to the Requested Authority; and

g) regulatory or supervisory reports and assessments, findings or information 

contained therein, or plans related to supervisory activities prepared by an Authority 

in respect of a Covered CCP.
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6. Periodic Bilateral Discussions. Representatives of the Authorities intend to discuss 

periodically, as appropriate, their respective functions and regulatory oversight programs 

and to identify and discuss issues of common interest relating to the supervision of Covered 

CCPs. 

Article 4

Execution of requests for information

1. To the extent possible, a request for written information pursuant to Article 3(5) should be 

made in writing (which may be transmitted electronically) and addressed to the relevant 

contact person identified in Appendix A. A request generally should specify at least the 

following:

a) the information sought by the Requesting Authority;

b) a concise description of the matter that is the subject of the request;

c) the purpose for which the information is sought, including the Laws and Regulations 

applicable to the activity;

d) to whom, if anyone, including any Governmental Entity onward disclosure of 

information is likely to be necessary and the reason for any such disclosure; and

e) the desired time period for reply and, where appropriate, the urgency thereof.

Any request submitted by ESMA to the CFTC on behalf of a CBI will be submitted in a 

manner consistent with Appendix B. 

Information responsive to the request, as well as any subsequent communication between 

the Authorities, may be transmitted electronically. Any electronic transmission should use 

means that are appropriately secure in light of the confidentiality of the information being 

transmitted.

The Administrative Arrangement for the transfer of personal data (AA) between authorities 

in the European Economic Area (EEA) and non-EEA authorities sets forth certain 

safeguards for the transfer of personal data as defined therein. As signatories to the AA, 

the Authorities acknowledge that they will act consistent with the AA with respect to the 

transfer of personal data between them.

2. In Emergency Situations, the Authorities will endeavour to notify each other of the 

Emergency Situation and communicate information between each other as deemed 

appropriate in the particular circumstances, taking into account all relevant factors, 

including the status of efforts to address the Emergency Situation. During Emergency 

Situations, requests for information may be made in any form, including orally, provided 

such communication is confirmed in writing as promptly as possible following such 

notification.
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Article 5

On-site Visits

1. On-site Visits on a Periodic Basis. The Authorities affirm a commitment to cooperate with 

respect to ESMA’s assessment and monitoring of compliance with the Recognition 

Conditions, in light of ESMA’s relevant supervisory and monitoring responsibilities, 

including with respect to periodic On-site Visits of Covered CCPs pursuant to this 

paragraph. In the exercise of its direct supervisory powers over Covered CCPs, the CFTC 

conducts examinations of each Covered CCP under relevant Laws and Regulations. 

ESMA may participate in an On-site Visit only where the CFTC confirms that it does not 

object and in accordance with the following procedure:

a) For a periodic On-site Visit of a Covered CCP that forms part of an upcoming CFTC 

examination of the Covered CCP (“Examination”), the CFTC will consider input from 

ESMA and establish the scope of and ESMA’s participation in such an On-site Visit. 

Discussions between the Authorities will consider the supervisory activities of the 

CFTC and will consider any information that was made available or is capable of 

being made available by the CFTC.

b) In participating in an On-site Visit, ESMA officials may pose questions, raise issues 

or concerns, engage with leadership and staff of the Covered CCP as needed, and 

review On-site Visit and assessment results with CFTC officials.

c) Upon request by ESMA and agreement by the CFTC, ESMA will be provided 

access, in coordination with the CFTC, to public and non-public Books and Records 

relevant to the On-site Visit of the Covered CCP. In preparing any analysis resulting 

from the On-site Visit, ESMA will consult the CFTC as to any interpretations or 

conclusions it reaches in reviewing, interpreting, and analysing information 

obtained including the contents of such Books and Records.

d) The CFTC will provide ESMA with a copy of the final report resulting from the 

CFTC’s Examination of the Covered CCP, and ESMA will provide the CFTC with a 

copy of any analysis based on ESMA’s engagement in the On-site Visit of the 

Covered CCP. An Authority may not share with a Governmental Entity, or 

otherwise disclose to a third party, any final report or analysis of the other Authority 

without the prior written consent of the other Authority. 

2. On-site Visits on an Exceptional Basis. Given that ESMA, in respect of Covered CCPs, 

relies fully on the supervision and enforcement capabilities of the CFTC, which supervises 

and enforces compliance with the CFTC’s Laws and Regulations, On-site Visits other than 

those referred to in Article 5(1) will only be considered in exceptional circumstances and 

subject to the prior agreement of the CFTC. In such exceptional circumstances, the 

Authorities should discuss and reach understanding on the terms regarding any such Onsite Visit by ESMA officials, in particular in determining the respective roles and 

responsibilities of the Authorities. ESMA will act in accordance with the following procedure 

before conducting any such On-site Visit: 
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a) ESMA will consult the CFTC with a view to reaching an understanding on the 

intended timeframe for, and the purpose and scope of, any such On-site Visit. The 

CFTC may, in its discretion, accompany or assist the visiting ESMA officials during 

the On-site Visit. 

b) When establishing the scope of any proposed such On-site Visit by ESMA officials, 

ESMA will consider the supervisory activities of the CFTC given ESMA’s reliance 

on the supervision and enforcement capabilities of the CFTC in respect of Covered 

CCPs and will consider any information that was made available or is capable of 

being made available by the CFTC.

c) The CFTC will assist ESMA in reviewing, interpreting and analysing the contents of 

public and non-public Books and Records and obtaining information from directors 

and senior management of a Covered CCP.

Article 6

Permissible uses of information

1. The Requesting Authority may use non-public information obtained under this MoU solely 

for the purpose of ensuring, monitoring or assessing compliance by a Covered CCP with 

the Laws and Regulations of the Requesting Authority.

2. Before using non-public information furnished under this MoU for any purpose other than 

that stated in paragraph (1), the Requesting Authority must obtain the written consent of 

the Requested Authority for the intended use. If consent is denied by the Requested 

Authority, the Authorities will consult to discuss the reasons for withholding approval of 

such use and the circumstances, if any, under which the intended use by the Requesting 

Authority might be allowed.

3. If an Authority (“Receiving Authority”) receives, via a party that is not a signatory to this 

MoU, non-public information originally provided by the other Authority (“Disclosing 

Authority”) that is related to the Disclosing Authority’s supervision and oversight of a 

Covered CCP and that the Receiving Authority is aware was obtained by the third party 

from the Disclosing Authority on a confidential basis, the Receiving Authority will use and 

treat the information in accordance with the terms of this MoU.

4. The restrictions in this Article do not apply to an Authority’s use of information it obtains 

directly from a Covered CCP, other than in connection with any On-site Visit pursuant to 

Article 5 of this MoU. However, where non-public information is provided to the Requesting 

Authority pursuant to an information-sharing request pursuant to Article 4 of this MoU, or 

to an Authority in connection with any On-site Visit pursuant to Article 5 of this MoU, the 

restrictions in this MoU apply to the use of the information by that Requesting Authority.
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Article 7

Confidentiality and onward sharing of information

1. Except as provided in paragraphs (2)-(3) or pursuant to a legally enforceable demand, 

each Authority will keep confidential, to the extent permitted by law, non-public information 

shared under this MoU, requests made under this MoU, the contents of such requests, and 

any other matters arising under this MoU. The terms of this MoU are not confidential.

2. As required by law and except as provided in Article 5(1)(d), it may become necessary for 

an Authority to share non-public information obtained from the other Authority under this 

MoU with a Governmental Entity in its jurisdiction. In such circumstances and to the extent 

permitted by law:

a) The Authority will supply written notification to the other Authority fifteen business 

days in advance of onward sharing of the information by the Authority; and

b) Prior to the Authority sharing the non-public information with the Governmental 

Entity, the Authority will provide written adequate assurances to the other Authority 

concerning the Governmental Entity’s use and confidential treatment of the 

information, including, as necessary, assurances that:

i. The Governmental Entity has confirmed that it requires the information for 

a purpose within the scope of its jurisdiction; and

ii. The information will not be shared by the Governmental Entity with other 

parties without getting the prior written consent of the other Authority that 

provided the information under the MoU. 

3. Except as provided in paragraph (2), an Authority must obtain the prior written consent of 

the other Authority before disclosing non-public information received under this MoU to any 

non-signatory to this MoU. The other Authority will take into account the level of urgency 

of the request and respond in a timely manner. During an Emergency Situation, consent 

may be obtained in any form, including orally, provided such communication is confirmed 

in writing as promptly as possible following such notification. If consent is denied by the 

other Authority, the Authorities will consult to discuss the reasons for withholding approval 

of such disclosure and the circumstances, if any, under which the intended disclosure by 

the Authority receiving the information under the MoU might be allowed.

4. To the extent possible, each Authority intends to notify the other Authority of any legally 

enforceable demand for non-public information that has been furnished under this MoU. 

When complying with the demand, the Authority intends to assert all appropriate legal 

exemptions or privileges with respect to such information as may be available.

5. The Authorities intend that the sharing or disclosure of non-public information, including 

deliberative and consultative materials, pursuant to the terms of this MoU, will not constitute 

a waiver of privilege or confidentiality of such information.
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Article 8

Successor authorities

1. Where the relevant functions of an Authority are transferred or assigned to another 

authority or authorities, the terms of the MoU will apply to the successor authority or 

authorities performing those relevant functions, such successor authority or authorities will 

become a signatory or signatories to this MoU without the need for any further amendment 

to this MoU, and notice will be provided to the other Authority. This will not affect the right 

of any Authority to give written notice as provided in Article 11(2) that it no longer wishes 

to be a signatory to this MoU if it wishes to do so.

Article 9

Amendments

1. The Authorities intend to periodically review the functioning and effectiveness of 

cooperation arrangements between the Authorities. This MoU may be amended with the 

written consent of all signatories, including in consideration of changes in the regulatory 

status of, relief granted to, or supervisory treatment of one or more Covered CCPs or in 

the relevant regulatory regime in either jurisdiction. 

Article 10

Execution of the MoU

1. This MoU will enter into force on the date that it is signed by ESMA and the CFTC. 

Article 11

Termination

1. This MoU will remain operative for an unlimited period of time.

2. If an Authority wishes to no longer be a signatory to this MoU, it will provide thirty (30) 

calendar days prior written notice to the other Authority.

3. If an Authority gives such notice, the parties will consult concerning the disposition of any 

pending requests. If an understanding cannot be reached through consultation, 

cooperation will continue with respect to all requests for assistance that were made under 

the MoU before the expiration of the 30-day period until all requests are fulfilled or the 

Requesting Authority withdraws such request(s) for assistance.
4. In the event of termination of this MoU, information obtained under this MoU will continue 

to be treated in the manner described under Articles 6 and 7. 

5. If this MoU is terminated without being substituted in a reasonable timeframe by an 

equivalent arrangement, pursuant to Article 25 of EMIR, ESMA will consider the withdrawal 

of recognition of the Covered CCPs. 

Signatures 

European Securities and Markets Authority U.S. Commodity Futures Trading Commission 

)/~ 

Steven Maijoor 

Chairman 

Date signed : 6th January 2021

Heath P. Tarbert 

Chairman & Chief Executive 

Datesigned ~ /~ °;:;20~0 

I 

14 
15

Appendix A 

Contact Persons

European Securities and Markets Authority U.S. Commodity Futures Trading 

Commission

Name: Klaus Löber

Telephone: +331.58.36.51.95

Email: Klaus.Loeber@esma.europa.eu

tc-ccp@esma.europa.eu

Division of Clearing and Risk:

Name: Clark Hutchison, Director

Telephone: 1-202-418-6070

Email: c_hutchison@cftc.gov

Name: Eileen A. Donovan, Deputy Director, 

Clearing Policy

Telephone: 1-202-418-5096

Email: edonovan@cftc.gov

Name: Julie A. Mohr, Deputy Director, 

Examinations

Telephone: 1-312-596-0568

Email: jmohr@cftc.gov

Name: Froukelien Wendt

Telephone: +331.58.36.51.10

Email: 

Froukelien.Wendt@esma.europa.eu

Name: Nicoletta Giusto

Telephone: +331.58.36.51.42

Email: Nicoletta.Giusto@esma.europa.eu

Office of International Affairs:

Name: Suyash Paliwal, Director

Telephone: 1-202-418-6076

Email: spaliwal@cftc.gov
16

Appendix B 

Requests from a Central Bank of Issue for Information on a Covered CCP

1. Pursuant to the terms and conditions of the MoU, ESMA may share, as set out in Article 

7(2) of the MoU, non-public information obtained from the CFTC under the MoU with 

certain Governmental Entities. Where a CBI, as defined in Article 1(e)(ii)(e) of the MoU, 

seeks information on a Covered CCP not otherwise provided to ESMA in connection with 

Article 3(1)(e) of the MoU, the CBI may request such information through consultation with 

ESMA and submission of a written request by ESMA to the CFTC pursuant to Article 4(1) 

of the MoU. A request form is annexed to this Appendix B (Annex B.1).

2. The information that may be requested by a CBI includes:

a) information concerning financial instruments denominated in the EU currency of the 

CBI that are cleared or to be cleared by the Covered CCP; and

b) information in connection with the CBI addressing an Emergency Situation, as 

defined in Article 1(d) of the MoU, in coordination with ESMA as contemplated by 

Article 3(2) of the MoU.

3. Pursuant to Article 7(2)(b) of the MoU and prior to sharing any non-public information with 

a CBI, ESMA will provide the CFTC with adequate assurances by the CBI concerning the 

CBI’s use and confidential treatment of the information. The necessary assurances are 

included in Annex B.1.

4. In a manner consistent with Article 3(5) of the MoU, requests will be made with the goal of 

minimizing administrative burdens. The CFTC will assess any request on a case-by-case 

basis to determine whether the information can be provided (either in part or in whole) 

under the terms of the MoU and in accordance with applicable Laws and Regulations as 

defined in relation to the CFTC in Article 1(f) of the MoU.
17

Annex B.1

ESMA Request Form

This confidential request to the CFTC is being made pursuant to Article 4(1) and under the 

provisions of the Enhanced Memorandum of Understanding Related to ESMA’s 

Assessment of Compliance and Monitoring of the Ongoing Compliance with Recognition 

Conditions by Certain Derivatives Clearing Organizations Established in the United States 

(the “MoU”). 

Name of the CBI

Legal basis for onward 

disclosure by ESMA to the CBI

Information sought by the CBI

Description of the matter that is 

the subject of the request and 

purpose for which the 

information is sought, including 

applicable laws and regulations

Desired time period for reply 

and, where appropriate, the 

urgency thereof

Personal data: The CBI represents that it will protect any personal data transferred by the 

CFTC to ESMA and subsequently onward shared by ESMA to the CBI to the full extent of 

the safeguards provided under applicable European and national laws and regulations on 

the treatment of personal data.

Permissible use: The CBI confirms that it will use any non-public information obtained 

from ESMA in connection with this request under the MoU solely for the purpose set forth 

in this form and in a manner consistent with applicable laws and regulations. Before using 

the non-public information for any other purpose, the CBI first must obtain the written 

consent of the CFTC for the intended use.

Confidentiality: The CBI will keep confidential, to the extent permitted by law, this request, 

the contents of this request, and all non-public information obtained from ESMA in 

connection with this request under the MoU. To the extent possible, the CBI intends to 

notify the CFTC of any legally enforceable demand for the non-public information prior to 
18

complying with the demand and intends to assert all appropriate legal exemptions or 

privileges with respect to such information as may be available.

Written Assurances under Article 7(2)(b) of the MoU: The CBI confirms that:

i. The CBI requires the requested information for a purpose within the scope of the CBI’s 

jurisdiction; and

ii. The requested information will not be shared by the CBI with other parties without 

getting the prior written consent of the CFTC.

For ESMA

Signature: 

Name: 

Title: 

Phone Number: 

Email Address: 

Date: 

For the CBI

Signature: 

Name: 

Title: 

Phone Number: 

Email Address: 

Date: 
19

Appendix C 

Covered CCPs

This appendix is confidential