Executive Summary:
This EEA Joint Committee Decision No. 113/2018 amends Annex IX of the EEA Agreement to incorporate several Commission Delegated and Implementing Regulations related to financial services, specifically concerning OTC derivatives, central counterparties, and trade repositories. The decision entered into force on June 1, 2018, following notifications under Article 103(1) of the EEA Agreement. It mandates changes to reporting obligations and clearing obligations for various counterparties within the EEA.
Key Points / Main Content:
Incorporation of Regulations:
* Commission Delegated Regulations (EU) 2015/1515, 2015/2205, 2016/592, 2016/1178, 2017/104, and 2017/751 are incorporated into the EEA Agreement.
* Commission Implementing Regulation (EU) 2017/105 is incorporated into the EEA Agreement.
Amendments to Annex IX:
* Point 31bc is updated to include Regulation EU 2015/1515.
* Point 31bcb regarding Commission Implementing Regulation EU No 1247/2012 is replaced, with adaptations for EFTA states concerning reporting timelines for derivative contracts.
* Point 31bce is updated to include amendments by Regulation EU 2017/104.
* Points 31bcp, 31bcq and 31bcr are added to include Regulations EU 2015/2205, EU 2016/592 and EU 2016/1178 respectively, with adaptations for EFTA states concerning clearing obligations and relevant timelines based on counterparty categories.
Adaptations for EFTA States:
* Specific adaptations are made for EFTA States regarding the dates of application for reporting and clearing obligations.
* For OTC derivative contracts, clearing obligation timelines vary for counterparties in different categories (1, 2, 3, and 4) and under specific conditions related to third-country equivalence decisions.
Impact Analysis:
EFTA States:
Impact: EFTA States must adapt their regulatory framework to align with the incorporated EU regulations concerning financial services, particularly those related to OTC derivatives, central counterparties, and trade repositories. This includes adhering to specific timelines for reporting and clearing obligations.
Action Required: EFTA States need to incorporate the changes into their national laws, ensure compliance with the adapted timelines for reporting derivative contracts, and fulfill clearing obligations as per the counterparty categories defined in the regulations.
Financial Counterparties (Categories 1, 2, 3, 4):
Impact: Financial counterparties operating within the EEA are subject to revised timelines for clearing obligations based on their category and the specifics of their OTC derivative contracts. Those established in EFTA States or dealing with EU Member States may face additional considerations.
Action Required: Financial counterparties need to assess their category, understand the updated deadlines for clearing obligations, and adjust their operational processes to ensure timely compliance with the new regulatory requirements.
Third Countries:
Impact: Third countries with counterparties engaging in OTC derivative contracts with EEA-established counterparties (excluding Category 4) are subject to specific clearing obligations dependent on equivalence decisions.
Action Required: Monitor and adhere to timelines dependent on whether an equivalence decision has been adopted.
Key Entities Referenced
EEA Joint Committee: The decision-making body responsible for amending the EEA Agreement, as indicated by its adoption of Decision No 113/2018.
EEA Agreement: Agreement on the European Economic Area, the foundational treaty being amended by the decision.
Regulation EU No 648/2012: A key piece of European Union legislation related to OTC derivatives, central counterparties, and trade repositories, which is frequently referenced and supplemented by the regulations mentioned in the document.
Commission Delegated Regulation EU 2015/1515: A delegated regulation of the European Commission amending Regulation EU No 648/2012 regarding transitional periods for pension scheme arrangements, being incorporated into the EEA Agreement.
Commission Delegated Regulation EU 2015/2205: A delegated regulation of the European Commission supplementing Regulation EU No 648/2012 with regulatory technical standards on the clearing obligation, being incorporated into the EEA Agreement.
Commission Delegated Regulation EU 2016/592: A delegated regulation of the European Commission supplementing Regulation EU No 648/2012 with regulatory technical standards on the clearing obligation, being incorporated into the EEA Agreement.
Commission Delegated Regulation EU 2016/1178: A delegated regulation of the European Commission supplementing Regulation EU No 648/2012 with regulatory technical standards on the clearing obligation, being incorporated into the EEA Agreement.
EFTA States: European Free Trade Association States, whose specific adaptations to EU regulations are outlined within the EEA Agreement framework.
25.4.2019 EN Official Journal of the European Union L 110/87
DECISION OF THE EEA JOINT COMMITTEE
No 113/2018
of 31 May 2018
amending Annex IX (Financial services) to the EEA Agreement [2019/657]
THE EEA JOINT COMMITTEE,
Having regard to the Agreement on the European Economic Area (‘the EEA Agreement’), and in particular Article 98
thereof,
Whereas:
(1) Commission Delegated Regulation (EU) 2015/1515 of 5 June 2015 amending Regulation (EU) No 648/2012 of
the European Parliament and of the Council as regards the extension of the transitional periods related to
pension scheme arrangements (1) is to be incorporated into the EEA Agreement.
(2) Commission Delegated Regulation (EU) 2015/2205 of 6 August 2015 supplementing Regulation (EU)
No 648/2012 of the European Parliament and of the Council with regard to regulatory technical standards on
the clearing obligation (2) is to be incorporated into the EEA Agreement.
(3) Commission Delegated Regulation (EU) 2016/592 of 1 March 2016 supplementing Regulation (EU)
No 648/2012 of the European Parliament and of the Council with regard to regulatory technical standards on
the clearing obligation (3) is to be incorporated into the EEA Agreement.
(4) Commission Delegated Regulation (EU) 2016/1178 of 10 June 2016 supplementing Regulation (EU)
No 648/2012 of the European Parliament and of the Council with regard to regulatory technical standards on
the clearing obligation (4), as corrected by OJ L 196, 21.7.2016, p. 56, is to be incorporated into the EEA
Agreement.
(5) Commission Delegated Regulation (EU) 2017/104 of 19 October 2016 amending Delegated Regulation (EU)
No 148/2013 supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council on
OTC derivatives, central counterparties and trade repositories with regard to regulatory technical standards on the
minimum details of the data to be reported to trade repositories (5) is to be incorporated into the EEA
Agreement.
(6) Commission Delegated Regulation (EU) 2017/751 of 16 March 2017 amending Delegated Regulations (EU)
2015/2205, (EU) 2016/592 and (EU) 2016/1178 as regards the deadline for compliance with clearing obligations
for certain counterparties dealing with OTC derivatives (6) is to be incorporated into the EEA Agreement.
(7) Commission Implementing Regulation (EU) 2017/105 of 26 October 2016 amending Implementing Regulation
(EU) No 1247/2012 laying down implementing technical standards with regard to the format and frequency of
trade reports to trade repositories according to Regulation (EU) No 648/2012 of the European Parliament and of
the Council on OTC derivatives, central counterparties and trade repositories (7), as corrected by OJ L 19,
25.1.2017, p. 97, is to be incorporated into the EEA Agreement.
(8) Annex IX to the EEA Agreement should therefore be amended accordingly,
HAS ADOPTED THIS DECISION:
Article 1
Annex IX to the EEA Agreement shall be amended as follows:
1. The following indent is inserted in point 31bc (Regulation (EU) No 648/2012 of the European Parliament and of the
Council):
‘— 32015 R 1515: Commission Delegated Regulation (EU) 2015/1515 of 5 June 2015 (OJ L 239, 15.9.2015,
p. 63).’
(1) OJ L 239, 15.9.2015, p. 63.
(2) OJ L 314, 1.12.2015, p. 13.
(3) OJ L 103, 19.4.2016, p. 5.
(4) OJ L 195, 20.7.2016, p. 3.
(5) OJ L 17, 21.1.2017, p. 1.
(6) OJ L 113, 29.4.2017, p. 15.
(7) OJ L 17, 21.1.2017, p. 17.L 110/88 EN Official Journal of the European Union 25.4.2019
2. The text of point 31bcb (Commission Implementing Regulation (EU) No 1247/2012) is replaced by the following:
‘32012 R 1247: Commission Implementing Regulation (EU) No 1247/2012 of 19 December 2012 laying down
implementing technical standards with regard to the format and frequency of trade reports to trade repositories
according to Regulation (EU) No 648/2012 of the European Parliament and of the Council on OTC derivatives,
central counterparties and trade repositories (OJ L 352, 21.12.2012, p. 20), as amended by:
— 32017 R 0105: Commission Implementing Regulation (EU) 2017/105 of 26 October 2016 (OJ L 17, 21.1.2017,
p. 17), as corrected by OJ L 19, 25.1.2017, p. 17.
The provisions of the Implementing Regulation shall, for the purposes of this Agreement, be read with the following
adaptations:
(a) In Article 4(5) and Article 4b, as regards the EFTA States, the words “in the EEA” shall be inserted after the words
“date of application”.
(b) In Article 5, as regards the EFTA States:
(i) paragraphs 1 and 2 shall read as follows:
“1. Derivative contracts shall be reported:
(a) Within six months of the date of entry into force of Decision of the EEA Joint Committee No 112/2018
of 31 May 2018, where a trade repository for that particular derivative class has been registered under
Article 55 of Regulation (EU) No 648/2012 before the date of entry into force of Decision of the EEA
Joint Committee No 112/2018 of 31 May 2018;
(b) 90 days after the registration of a trade repository for a particular derivative class under Article 55 of
Regulation (EU) No 648/2012, where there is no trade repository registered for that particular derivative
class before or on the date of entry into force of Decision of the EEA Joint Committee No 112/2018 of
31 May 2018, but in any event no earlier than six months after the date of entry into force of Decision
of the EEA Joint Committee No 112/2018 of 31 May 2018;
(c) Within six months of the date of entry into force of Decision of the EEA Joint Committee No 112/2018
of 31 May 2018, where there is no trade repository registered for that particular derivative class under
Article 55 of Regulation (EU) No 648/2012 six months after the date of entry into force of Decision of
the EEA Joint Committee No 112/2018 of 31 May 2018. The reporting obligation shall commence on
this date and contracts shall be reported to ESMA in accordance with Article 9(3) of that Regulation until
a trade repository is registered for that particular derivative class.”;
(ii) in paragraphs 3 and 4, the words “16 August 2012” shall read “1 July 2017.”’
3. The following shall be inserted in point 31bce (Commission Delegated Regulation (EU) No 148/2013), with effect
from nine months after the date of entry into force of this Decision:
‘, as amended by:
— 32017 R 0104: Commission Delegated Regulation (EU) 2017/104 of 19 October 2016 (OJ L 17, 21.1.2017,
p. 1).’
4. The following is added after point 31bco (Commission Delegated Regulation (EU) No 667/2014):
‘31bcp. 32015 R 2205: Commission Delegated Regulation (EU) 2015/2205 of 6 August 2015 supplementing
Regulation (EU) No 648/2012 of the European Parliament and of the Council with regard to regulatory
technical standards on the clearing obligation (OJ L 314, 1.12.2015, p. 13), as amended by:
— 32017 R 0751: Commission Delegated Regulation (EU) 2017/751 of 16 March 2017 (OJ L 113,
29.4.2017, p. 15).
The provisions of the Delegated Regulation shall, for the purposes of this Agreement, be read with the
following adaptations:
(a) In point (b) of Article 2(1), as regards the EFTA States, the words “January, February and March 2016”
shall read “January, February and March of the year of entry into force of Decision of the EEA Joint
Committee No 113/2018 of 31 May 2018”.25.4.2019 EN Official Journal of the European Union L 110/89
(b) In Article 3:
(i) as regards the EFTA States, the first subparagraph of paragraph 1 shall read as follows:
“In respect of contracts pertaining to a class of OTC derivatives set out in the Annex, the clearing
obligation shall take effect:
(a) six months after the date of entry into force of Decision of the EEA Joint Committee
No 113/2018 of 31 May 2018 for counterparties in Category 1;
(b) one year after the date of entry into force of Decision of the EEA Joint Committee No 113/2018
of 31 May 2018 for counterparties in Category 2;
(c) 21 June 2019 for counterparties in Category 3;
(d) two years after the date of entry into force of Decision of the EEA Joint Committee
No 113/2018 of 31 May 2018 for counterparties in Category 4.”;
(ii) in the second subparagraph of paragraph 1, the words “, or between one counterparty established in
an EFTA State and one counterparty established in an EU Member State” shall be inserted after the
words “between two counterparties included in different categories of counterparties”;
(iii) as regards the EFTA States, the first subparagraph of paragraph 2 shall read as follows:
“By way of derogation from points (a), (b) and (c) of paragraph 1, in respect of contracts pertaining
to a class of OTC derivatives set out in the Annex and concluded between counterparties other than
counterparties in Category 4 which are part of the same group and where one counterparty is
established in a third country and the other counterparty is established in the EEA, the clearing
obligation shall take effect:
(a) two years after the date of entry into force of Decision of the EEA Joint Committee
No 113/2018 of 31 May 2018 in case no equivalence decision adopted pursuant to
Article 13(2) of Regulation (EU) No 648/2012 for the purposes of Article 4 of that Regulation
covering the OTC derivative contracts referred to in the Annex to this Regulation in respect of
the relevant third country applies in the EEA; or
(b) the later of the following dates in case an equivalence decision adopted pursuant to Article 13(2)
of Regulation (EU) No 648/2012 for the purposes of Article 4 of that Regulation covering the
OTC derivative contracts referred to in the Annex to this Regulation in respect of the relevant
third country applies in the EEA:
(i) 60 days after the date of entry into force of the decision of the EEA Joint Committee
containing the decision adopted pursuant to Article 13(2) of Regulation (EU) No 648/2012
for the purposes of Article 4 of that Regulation covering the OTC derivative contracts
referred to in the Annex to this Regulation in respect of the relevant third country;
(ii) the date when the clearing obligation takes effect pursuant to paragraph 1.”
(c) In Article 4:
(i) in paragraph 1, as regards the EFTA States, the words “21 February 2016” shall read “two months
after the date of entry into force of Decision of the EEA Joint Committee No 113/2018 of 31 May
2018”;
(ii) in paragraph 2, as regards the EFTA States, the words “21 May 2016” shall read “five months after
the date of entry into force of Decision of the EEA Joint Committee No 113/2018 of 31 May
2018”;
(iii) in paragraph 4, the words “, between one financial counterparty established in an EFTA State and
one financial counterparty established in an EU Member State” shall be inserted after the words
“between two financial counterparties belonging to different categories”.
31bcq. 32016 R 0592: Commission Delegated Regulation (EU) 2016/592 of 1 March 2016 supplementing
Regulation (EU) No 648/2012 of the European Parliament and of the Council with regard to regulatory
technical standards on the clearing obligation (OJ L 103, 19.4.2016, p. 5), as amended by:
— 32017 R 0751: Commission Delegated Regulation (EU) 2017/751 of 16 March 2017 (OJ L 113,
29.4.2017, p. 15).L 110/90 EN Official Journal of the European Union 25.4.2019
The provisions of the Delegated Regulation shall, for the purposes of this Agreement, be read with the
following adaptations:
(a) In point (b) of Article 2(1), as regards the EFTA States, the words “January, February and March 2016”
shall read “January, February and March of the year of entry into force of Decision of the EEA Joint
Committee No 113/2018 of 31 May 2018”.
(b) In Article 3:
(i) as regards the EFTA States, the first subparagraph of paragraph 1 shall read as follows:
“In respect of contracts pertaining to a class of OTC derivatives set out in the Annex, the clearing
obligation shall take effect:
(a) one year after the date of entry into force of Decision of the EEA Joint Committee No 113/2018
of 31 May 2018 for counterparties in Category 1;
(b) eighteen months after the date of entry into force of Decision of the EEA Joint Committee
No 113/2018 of 31 May 2018 for counterparties in Category 2;
(c) 21 June 2019 for counterparties in Category 3;
(d) thirty-nine months after the date of entry into force of Decision of the EEA Joint Committee
No 113/2018 of 31 May 2018 for counterparties in Category 4.”;
(ii) in the second subparagraph of paragraph 1, the words “, or between one counterparty established in
an EFTA State and one counterparty established in an EU Member State” shall be inserted after the
words “between two counterparties included in different categories of counterparties”;
(iii) as regards the EFTA States, the first subparagraph of paragraph 2 shall read as follows:
“By way of derogation from points (a), (b) and (c) of paragraph 1, in respect of contracts pertaining
to a class of OTC derivatives set out in the Annex and concluded between counterparties other than
counterparties in Category 4 which are part of the same group and where one counterparty is
established in a third country and the other counterparty is established in the EEA, the clearing
obligation shall take effect:
(a) thirty-nine months after the date of entry into force of Decision of the EEA Joint Committee
No 113/2018 of 31 May 2018 in case no equivalence decision adopted pursuant to
Article 13(2) of Regulation (EU) No 648/2012 for the purposes of Article 4 of that Regulation
covering the OTC derivative contracts set out in the Annex to this Regulation in respect of the
relevant third country applies in the EEA; or
(b) the later of the following dates in case an equivalence decision adopted pursuant to Article 13(2)
of Regulation (EU) No 648/2012 for the purposes of Article 4 of that Regulation covering the
OTC derivative contracts set out in the Annex to this Regulation in respect of the relevant third
country applies in the EEA:
(i) 60 days after the date of entry into force of the decision of the EEA Joint Committee
containing the decision adopted pursuant to Article 13(2) of Regulation (EU) No 648/2012
for the purposes of Article 4 of that Regulation covering the OTC derivative contracts set
out in the Annex to this Regulation in respect of the relevant third country;
(ii) the date when the clearing obligation takes effect pursuant to paragraph 1.”
(c) In Article 4:
(i) in paragraphs 1 and 2, as regards the EFTA States, the words “9 October 2016” shall read “five
months after the date of entry into force of Decision of the EEA Joint Committee No 113/2018 of
31 May 2018”;
(ii) in paragraph 4, the words “, between one financial counterparty established in an EFTA State and
one financial counterparty established in an EU Member State” shall be inserted after the words
“between two financial counterparties belonging to different categories”.
31bcr. 32016 R 1178: Commission Delegated Regulation (EU) 2016/1178 of 10 June 2016 supplementing
Regulation (EU) No 648/2012 of the European Parliament and of the Council with regard to regulatory
technical standards on the clearing obligation (OJ L 195, 20.7.2016, p. 3), as corrected by OJ L 196,
21.7.2016, p. 56, as amended by:
— 32017 R 0751: Commission Delegated Regulation (EU) 2017/751 of 16 March 2017 (OJ L 113,
29.4.2017, p. 15).25.4.2019 EN Official Journal of the European Union L 110/91
The provisions of the Delegated Regulation shall, for the purposes of this Agreement, be read with the
following adaptations:
(a) In point (b) of Article 2(1), as regards the EFTA States, the words “January, February and March 2016”
shall read “January, February and March of the year of entry into force of Decision of the EEA Joint
Committee No 113/2018 of 31 May 2018”.
(b) In Article 3:
(i) as regards the EFTA States, the first subparagraph of paragraph 1 shall read as follows:
“In respect of contracts pertaining to a class of OTC derivatives set out in Annex I, the clearing
obligation shall take effect:
(a) six months after the date of entry into force of Decision of the EEA Joint Committee
No 113/2018 of 31 May 2018 for counterparties in Category 1;
(b) one year after the date of entry into force of Decision of the EEA Joint Committee No 113/2018
of 31 May 2018 for counterparties in Category 2;
(c) 21 June 2019 for counterparties in Category 3;
(d) two years after the date of entry into force of Decision of the EEA Joint Committee
No 113/2018 of 31 May 2018 for counterparties in Category 4.”;
(ii) in the second subparagraph of paragraph 1, the words “, or between one counterparty established in
an EFTA State and one counterparty established in an EU Member State” shall be inserted after the
words “between two counterparties included in different categories of counterparties”;
(iii) as regards the EFTA States, the first subparagraph of paragraph 2 shall read as follows:
“By way of derogation from points (a), (b) and (c) of paragraph 1, in respect of contracts pertaining
to a class of OTC derivatives set out in Annex I and concluded between counterparties other than
counterparties in Category 4 which are part of the same group and where one counterparty is
established in a third country and the other counterparty is established in the EEA, the clearing
obligation shall take effect:
(a) two years after the date of entry into force of Decision of the EEA Joint Committee
No 113/2018 of 31 May 2018 in case no equivalence decision adopted pursuant to
Article 13(2) of Regulation (EU) No 648/2012 for the purposes of Article 4 of that Regulation
covering the OTC derivative contracts set out in Annex I of this Regulation in respect of the
relevant third country applies in the EEA; or
(b) the later of the following dates in case an equivalence decision adopted pursuant to Article 13(2)
of Regulation (EU) No 648/2012 for the purposes of Article 4 of that Regulation covering the
OTC derivative contracts set out in Annex I of this Regulation in respect of the relevant third
country applies in the EEA:
(i) 60 days after the date of entry into force of the decision of the EEA Joint Committee
containing the decision adopted pursuant to Article 13(2) of Regulation (EU) No 648/2012
for the purposes of Article 4 of that Regulation covering the OTC derivative contracts set
out in Annex I of this Regulation in respect of the relevant third country;
(ii) the date when the clearing obligation takes effect pursuant to paragraph 1.”
(c) In Article 4:
(i) in paragraphs 1 and 2, as regards the EFTA States, the words “9 October 2016” shall read “two
months after the date of entry into force of Decision of the EEA Joint Committee No 113/2018 of
31 May 2018”;
(ii) in paragraph 4, the words “, between one financial counterparty established in an EFTA State and
one financial counterparty established in an EU Member State” shall be inserted after the words
“between two financial counterparties belonging to different categories.”’
Article 2
The texts of Delegated Regulations (EU) 2015/1515, (EU) 2015/2205, (EU) 2016/592, (EU) 2016/1178, as corrected by
OJ L 196, 21.7.2016, p. 56, (EU) 2017/104, and (EU) 2017/751 and Implementing Regulation (EU) 2017/105, as
corrected by OJ L 19, 25.1.2017, p. 97, in the Icelandic and Norwegian languages, to be published in the EEA
Supplement to the Official Journal of the European Union, shall be authentic.L 110/92 EN Official Journal of the European Union 25.4.2019
Article 3
This Decision shall enter into force on 1 June 2018, provided that all the notifications under Article 103(1) of the EEA
Agreement have been made (*).
Article 4
This Decision shall be published in the EEA Section of, and in the EEA Supplement to, the Official Journal of the European
Union.
Done at Brussels, 31 May 2018.
For the EEA Joint Committee
The President
Claude MAERTEN
(*) No constitutional requirements indicated.