ESMA_QA_2506
Status: ✅ Answer Published
Regulatory Context
Level 1 Regulation: Regulation 648/2012 - OTC derivatives, central counterparties and trade repositories (EMIR) - CCPs
Topic: EU-CCPs
Subject Matter: Active Account Requirement
Question
Submission Date: 04-04-2025
To check whether counterparties are subject to the active account requirement, how should the positions to be compared to the clearing thresholds be calculated?
10-07-2025
Original language
In order to determine whether they are subject to the active account requirements in accordance with Article 7a(1) of EMIR, counterparties should check whether they meet the two cumulative conditions:
- they are subject to the clearing obligation in accordance with Articles 4a and 10 of EMIR; and
- they exceed the clearing threshold in any of the categories of derivative contracts referred to in Article 7a(6) of EMIR, in an individual category listed in that paragraph or on aggregate across all categories listed in that paragraph. The methodology to determine the fulfilment of the first condition is specified under Articles 4a and 10 of EMIR, respectively. For the second condition, counterparties should follow the same methodology as for the first condition, but not with the same frequency (i.e. on a continuous basis rather than every 12 months as mentioned in Articles 4a and 10 of EMIR): once a counterparty is subject to the clearing obligation, it shall determine whether it is above the clearing thresholds in any of the categories of derivative contracts referred to in Article 7a(6) of EMIR, in an individual category or on aggregate across all categories, as the case may be, using the same methodology as described in Articles 4a and 10 of EMIR, on a continuous basis.
Disclaimer in relation to the answers provided by the European Commission in accordance with Article 16b(5) of the ESMA Regulation
The answers clarify provisions already contained in the applicable legislation. They do not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements for the concerned operators and persons, including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before the Union and national courts.
ESMA Answer
Answer Date: 10-07-2025
In order to determine whether they are subject to the active account requirements in accordance with Article 7a(1) of EMIR, counterparties should check whether they meet the two cumulative conditions:
- they are subject to the clearing obligation in accordance with Articles 4a and 10 of EMIR; and
- they exceed the clearing threshold in any of the categories of derivative contracts referred to in Article 7a(6) of EMIR, in an individual category listed in that paragraph or on aggregate across all categories listed in that paragraph. The methodology to determine the fulfilment of the first condition is specified under Articles 4a and 10 of EMIR, respectively. For the second condition, counterparties should follow the same methodology as for the first condition, but not with the same frequency (i.e. on a continuous basis rather than every 12 months as mentioned in Articles 4a and 10 of EMIR): once a counterparty is subject to the clearing obligation, it shall determine whether it is above the clearing thresholds in any of the categories of derivative contracts referred to in Article 7a(6) of EMIR, in an individual category or on aggregate across all categories, as the case may be, using the same methodology as described in Articles 4a and 10 of EMIR, on a continuous basis.
Disclaimer in relation to the answers provided by the European Commission in accordance with Article 16b(5) of the ESMA Regulation
The answers clarify provisions already contained in the applicable legislation. They do not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements for the concerned operators and persons, including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before the Union and national courts.
This document was automatically extracted from the ESMA EMIR Q&A database.