# Commission Delegated Regulation (EU) No 285/2014Show full title

Commission Delegated Regulation (EU) No 285/2014 of 13 February 2014 supplementing Regulation (EU) No 648/2012 of the European            Parliament and of the Council with regard to regulatory technical standards on direct, substantial and foreseeable effect            of contracts within the Union and to prevent the evasion of rules and obligations (Text with EEA relevance)         

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U.K.

# Commission Delegated Regulation (EU) No 285/2014                     

# of 13 February 2014

# supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council with regard to regulatory technical                        standards on direct, substantial and foreseeable effect of contracts within the Union and to prevent the evasion of rules                        and obligations                     

# (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(1), and in particular Article 4(4) and point (e) of Article 11(14) thereof,                        

Whereas:

(1)Given the broad variety of OTC derivative contracts, in order to determine when an OTC derivative contract may be considered                              to have a direct, substantial and foreseeable effect within the Union and cases where it is necessary or appropriate to prevent                              the evasion of rules and obligations arising from any provision of Regulation (EU) No 648/2012, a criteria based approach                              should be adopted.

(2)Given that pursuant to Article 13(3) of Regulation (EU) No 648/2012, the provisions of that Regulation would be deemed fulfilled                              when at least one of the counterparties is established in a country for which the Commission has adopted an implementing act                              declaring equivalence in accordance with Article 13(2) of Regulation (EU) No 648/2012, these regulatory technical standards                              should apply to contracts where both counterparties are established in a third country whose legal, supervisory and enforcement                              arrangements have not yet been declared equivalent to the requirements laid down in that Regulation.

(3)Certain information on contracts concluded by third country entities would still only be available to third country competent                              authorities. Therefore Union competent authorities should closely cooperate with those authorities in order to ensure that                              the relevant provisions are applied and enforced.

(4)Given that a technical term is necessary for a comprehensive understanding of the appropriate technical standards, this term                              should be defined.

(5)OTC derivative contracts concluded by entities established in third countries covered by a guarantee provided by entities                              established in the Union create a financial risk for the guarantor established in the Union. Furthermore, given that the risk                              would depend on the size of the guarantee granted by financial counterparties in order to cover OTC derivative contracts and                              given the interconnections between financial counterparties compared to non-financial counterparties, only OTC derivative                              contracts concluded by entities established in third countries that are covered by a guarantee which exceeds certain quantitative                              thresholds and is provided by financial counterparties established in the Union should be considered as having a direct, substantial                              and foreseeable effect in the Union.

(6)Financial counterparties established in third countries can enter into OTC derivative contracts through their Union branches.                              Given the impact of the activity of those branches on the Union market, OTC derivative contracts concluded between those Union                              branches should be considered to have a direct, substantial and foreseeable effect within the Union.

(7)OTC derivative contracts that are entered into by specific counterparties with the primary purpose of avoiding the application                              of the clearing obligation or of the risk mitigation techniques applicable to entities that would have been the natural counterparties                              to the contract, should be considered as evading the rules and obligations laid down in Regulation (EU) No 648/2012 as they                              hinder the achievement of a purpose of that Regulation, namely mitigating counterparty credit risk.

(8)OTC derivative contracts that are part of an arrangement whose characteristics are not supported by a business rationale or                              commercial substance and has as its primary purpose the circumvention of the application of Regulation (EU) No 648/2012, including                              rules relating to the conditions of an exemption, should be considered as evading the rules and obligations laid down in that                              Regulation.

(9)Situations where the individual components of the arrangement are inconsistent with the legal substance of the arrangement                              as a whole, where the arrangement is carried out in a manner which would not ordinarily be used in what is expected to be                              reasonable business conduct, where the arrangement or series of arrangements includes elements that have the effect of offsetting                              or nullifying their reciprocal economic substance, where transactions are circular in nature, should be considered as indicators                              of an artificial arrangement or an artificial series of arrangements.

(10)It is desirable to provide technical standards related to contracts that have a direct, substantial and foreseeable effect                              within the Union as well as technical standards related to the prevention of evasion of rules and obligations provided for                              in Regulation (EU) No 648/2012 in a single instrument since both sets of technical standards relate to the clearing obligation                              and the risk mitigation techniques. Furthermore, they share common features such as their application to a contract whose                              counterparties would not be subject to the clearing obligation or to the risk mitigation techniques if the conditions of Article                              4(1)(a)(v) and Article 11(14)(e) of Regulation (EU) No 648/2012 specified further by this Regulation were not met.

(11)Given that third country entities affected by these regulatory technical standards require time in order to arrange for compliance                              with the requirements of Regulation (EU) No 648/2012 when their OTC derivative contracts fulfil the conditions set out in                              these regulatory technical standards for being considered to have a direct, substantial and foreseeable effect within the                              Union, it is appropriate to delay the application of the provision containing those conditions by six months.

(12)This Regulation is based on the draft regulatory technical standards submitted by the European Securities and Markets Authority                              to the Commission.

(13)In accordance with Article 10 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council(2), the European Securities and Markets Authority has conducted open public consultations on the draft regulatory technical                              standards, analysed the potential related costs and benefits and requested the opinion of the Securities and Markets Stakeholder                              Group established in accordance with Article 37 of that Regulation,

HAS ADOPTED THIS REGULATION:

## Article 1U.K.Definitions

For the purposes of this Regulation the following definition shall apply:

‘guarantee’ means an explicitly documented legal obligation by a guarantor to cover payments of the amounts due or that may                     become due pursuant to the OTC derivative contracts covered by that guarantee and entered into by the guaranteed entity to                     the beneficiary where there is a default as defined in the guarantee or where no payment has been effected by the guaranteed                     entity.                  

## Article 2U.K.Contracts with a direct, substantial and foreseeable effect within the Union

1.An OTC derivative contract shall be considered as having a direct, substantial and foreseeable effect within the Union when                        at least one third country entity benefits from a guarantee provided by a financial counterparty established in the Union                        which covers all or part of its liability resulting from that OTC derivative contract, to the extent that the guarantee meets                        both of the following conditions:                  

(a)it covers the entire liability of a third country entity resulting from one or more OTC derivative contracts for an aggregated                        notional amount of at least EUR 8 billion or the equivalent amount in the relevant foreign currency, or it covers only a part                        of the liability of a third country entity resulting from one or more OTC derivative contracts for an aggregated notional                        amount of at least EUR 8 billion or the equivalent amount in the relevant foreign currency divided by the percentage of the                        liability covered;                  

(b)it is at least equal to 5 per cent of the sum of current exposures, as defined in Article 272, point (17) of Regulation (EU)                        No 575/2013 of the European Parliament and of the Council(3), in OTC derivative contracts of the financial counterparty established in the Union issuing the guarantee.                  

When the guarantee is issued for a maximum amount which is below the threshold set out in point (a) of the first subparagraph,                     the contracts covered by that guarantee shall not have a direct, substantial and foreseeable effect within the Union unless                     the amount of the guarantee is increased, in which case the direct, substantial and foreseeable effect of the contracts within                     the Union shall be re-assessed by the guarantor against the conditions set out in points (a) and (b) of the first subparagraph                     on the day of the increase.                  

Where the liability resulting from one or more OTC derivative contracts is below the threshold set out in point (a) of the                     first subparagraph, such contracts shall not be considered to have a direct, substantial and foreseeable effect within the                     Union even where the maximum amount of the guarantee covering such liability is equal to or above the threshold set out in                     point (a) of the first subparagraph and even where the condition set out in point (b) of the first subparagraph has been met.                  

In the event of an increase in the liability resulting from the OTC derivative contracts or of a decrease of the current exposure,                     the guarantor shall re-assess whether the conditions set out in points (a) and (b) of the first subparagraph are met. Such                     assessment shall be done respectively on the day of the increase of liability for the condition set out in point (a) of the                     first subparagraph, and on a monthly basis for the condition set out in point (b) of the first subparagraph.                  

OTC derivative contracts for an aggregate notional amount of at least EUR 8 billion or the equivalent amount in the relevant                     foreign currency concluded before a guarantee is issued or increased, and subsequently covered by a guarantee that meets the                     conditions set out in points (a) and (b) of the first subparagraph, shall be considered as having a direct, substantial and                     foreseeable effect within the Union.                  

2.An OTC derivative contract shall be considered as having a direct, substantial and foreseeable effect within the Union where                        the two entities established in a third country enter into the OTC derivative contract through their branches in the Union                        and would qualify as financial counterparties if they were established in the Union.                  

## Article 3U.K.Cases where it is necessary or appropriate to prevent the evasion of rules or obligations provided for in Regulation (EU)                        No 648/2012

1.An OTC derivative contract shall be deemed to have been designed to circumvent the application of any provision of Regulation                        (EU) No 648/2012 if the way in which that contract has been concluded is considered, when viewed as a whole and having regard                        to all the circumstances, to have as its primary purpose the avoidance of the application of any provision of that Regulation.                  

2.For the purposes of paragraph 1, a contract shall be considered as having for primary purpose the avoidance of the application                        of any provision of Regulation (EU) No 648/2012 if the primary purpose of an arrangement or series of arrangements related                        to the OTC derivative contract, is to defeat the object, spirit and purpose of any provision of Regulation (EU) No 648/2012                        that would otherwise apply including when it is part of an artificial arrangement or artificial series of arrangements.                  

An arrangement that intrinsically lacks business rationale, commercial substance or relevant economic justification and consists                     of any contract, transaction, scheme, action, operation, agreement, grant, understanding, promise, undertaking or event shall                     be considered an artificial arrangement. The arrangement may comprise more than one step or part.                  

## Article 4U.K.Entry into force

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

Article 2 shall apply from 10 October 2014.

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

Done at Brussels, 13 February 2014.

*For the Commission*                            

*The President*                            

José Manuel Barroso                            

1

OJ L 201, 27.7.2012, p. 1.                           

2

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) (OJ L 331, 15.12.2010, p. 84).                           

3

Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit                              institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ L 176, 27.6.2013, p. 1).