(1)

Commission Delegated Regulation (EU) No 149/2013 (2) 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. (3)

(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,

‘(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).’.