1. Every 12 months, a financial counterparty taking positions in OTC derivative contracts may calculate the following positions: 

(a) its uncleared positions in accordance with paragraph 3, first subparagraph; 

(b) its aggregate month-end average positions in cleared and uncleared OTC derivative contracts for the previous 12 months (“aggregate positions”) in accordance with paragraph 3, second subparagraph. 

Where a financial counterparty: 

(a) does not calculate its uncleared positions, or where the result of the calculation of those uncleared positions under the first subparagraph, point (a), of this paragraph exceeds any of the clearing thresholds specified pursuant to Article 10(4), first subparagraph, point (b); or 

(b) does not calculate its aggregate positions, or where the result of the calculation of those aggregate positions exceeds any of the clearing thresholds specified pursuant to paragraph 4 of this Article; that financial counterparty shall: 

(i) immediately notify ESMA and the relevant competent authority thereof; 

(ii) establish clearing arrangements within four months of the notification referred to in point (i) of this subparagraph; and 

(iii) become subject to the clearing obligation referred to in Article 4 for all OTC derivative contracts pertaining to any class of OTC derivatives which is subject to the clearing obligation entered into or novated more than four months following the notification referred to in point (i) of this subparagraph.

The financial counterparty may delegate the task to notify ESMA under the second subparagraph, point (i), to any other entity within the group to which that financial counterparty belongs. The financial counterparty remains legally liable for ensuring such notification has been made to ESMA.

2.   A financial counterparty that is subject to the clearing obligation referred to in Article 4 or that becomes subject to the clearing obligation in accordance with paragraph 1, second subparagraph, of this Article, shall remain subject to that clearing obligation and shall continue clearing until that financial counterparty demonstrates to the relevant competent authority that its aggregate positions or uncleared positions do not exceed the clearing thresholds specified pursuant to paragraph 4 of this Article or Article 10(4), first subparagraph, point (b).

The financial counterparty shall be able to demonstrate to the relevant competent authority that the calculation of the aggregate positions or uncleared positions, as applicable, do not lead to a systematic underestimation of those aggregate positions or uncleared positions.

3.   In calculating the uncleared positions referred to in paragraph 1, first subparagraph, point (a), of this Article the financial counterparty shall include all OTC derivative contracts that are not cleared through a CCP authorised under Article 14 or recognised under Article 25, entered into by that financial counterparty or entered into by other entities within the group to which that financial counterparty belongs.

In calculating the aggregate positions, the financial counterparty shall include all OTC derivative contracts entered into by that financial counterparty or entered into by other entities within the group to which that financial counterparty belongs.

Notwithstanding the first and the second subparagraphs, for UCITS and AIFs, the uncleared positions and the aggregate positions shall be calculated at the level of the fund.

UCITS management companies which manage more than one UCITS and AIFMs which manage more than one AIF shall be able to demonstrate to the relevant competent authority that the calculation of positions at the fund level does not lead to:

(a) a systematic underestimation of the positions of any of the funds they manage or the positions of the manager; or

(b) a circumvention of the clearing obligation.

The relevant competent authorities of the financial counterparty and of the other entities within the group shall establish cooperation procedures to ensure the effective calculation of the positions at the group level.

4.   ESMA, after having consulted the ESRB and other relevant authorities, shall develop draft regulatory technical standards to specify the value of the clearing thresholds applicable to aggregate positions where necessary to ensure the prudent coverage of financial counterparties under the clearing obligation.

Where ESMA, in accordance with Article 10(4a), reviews the clearing thresholds specified pursuant to Article 10(4), first subparagraph, point (b), ESMA shall also review the clearing threshold specified pursuant to the first subparagraph of this paragraph.

ESMA shall submit the draft regulatory technical standards referred to in the first subparagraph to the Commission by 25 December 2025.

Power is delegated to the Commission to supplement this Regulation by adopting the regulatory technical standards referred to in the first subparagraph of this paragraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.

5.   For the purposes of this Article and Article 10, “uncleared position” means the aggregate month-end average position for the previous 12 months in OTC derivative contracts that are not cleared by a CCP authorised under Article 14 or recognised under Article 25.