Article 32a
Stand-alone suspension of the trading obligation
1.
At the request of the competent authority of a Member State, the Commission may, by way of an implementing act, suspend the trading obligation laid down in Article 28 (the ‘derivative trading obligation’) with respect to certain financial counterparties, where appropriate after consulting ESMA. The competent authority shall indicate why it considers that the conditions for a suspension are met. In particular, the competent authority shall demonstrate that a financial counterparty within its jurisdiction:
(a)
regularly acts as a market maker in an OTC derivative subject to the derivative trading obligation and regularly receives requests for a quote for the derivatives subject to the derivative trading obligation from a non-EEA counterparty which has no active membership on an EEA trading venue that offers trading in the OTC derivative subject to the derivative trading obligation; or
(b)
regularly acts as a market maker in a credit default swap subject to the derivative trading obligation and:
(i)
intends to trade credit default swaps subject to the derivative trading obligation on own account on a trading venue open only to counterparties that are CCP clearing members as defined in Article 2, point (14), of Regulation (EU) No 648/2012 (‘dealer-to-dealer’ venue);
(ii)
intends to trade credit default swaps subject to the derivative trading obligation on own account with a counterparty which is a market maker and which has no active membership on an EEA dealer-to-dealer venue that offers trading in the OTC derivatives subject to the derivative trading obligation; and
The implementing act referred to in the first subparagraph of this paragraph shall be adopted in accordance with the examination procedure referred to in Article 51.
2.
When assessing whether to suspend the derivative trading obligation pursuant to paragraph 1, the Commission shall consider whether to suspend it for specific markets, and shall take into account whether such suspension of the derivative trading obligation would have a distortive effect on the clearing obligation under Title II of Regulation (EU) No 648/2012.
The Commission shall also contact other competent authorities of other Member States to assess whether financial counterparties in Member States other than that making the request pursuant to paragraph 1 (the ‘requesting Member State’) are in a situation similar to that in the requesting Member State.
The competent authority of a Member State other than the requesting Member State may, after adoption of the implementing act referred to in paragraph 1, request that financial counterparties that are in a situation similar to that in the requesting Member State be added to the implementing act. The competent authority of the Member State making that request shall demonstrate why it considers that the conditions for a suspension are met.
3.
Where the derivative trading obligation is suspended pursuant to paragraph 1 or 2 with respect to a financial counterparty, the derivative trading obligation shall not apply with respect to its counterparty, as referred to in paragraph 1, point (a), or paragraph 1, point (b)(ii).
4.
The implementing act referred to in paragraph 1 shall be accompanied by the evidence presented by the competent authority requesting the suspension.
5.
The implementing act referred to in paragraph 1 shall be communicated to ESMA and shall be published in the register referred to in Article 34.
6.
The Commission shall regularly review whether the grounds for the suspension of the derivative trading obligation continue to apply.