Article 36
Non-discriminatory access to a trading venue
1.
Without prejudice to Article 8 of Regulation (EU) No 648/2012, a trading venue shall, upon request, provide trade feeds on a non-discriminatory and transparent basis, including as regards fees relating to access, to any CCP authorised or recognised pursuant to that Regulation that wishes to clear transactions in financial instruments that are concluded on that trading venue. That requirement shall not apply to:
(a)
any derivative contract that is already subject to the access obligations laid down in Article 8 of Regulation (EU) No 648/2012;
A trading venue is not bound by this Article if it is connected by close links to a CCP which has given notification that it is availing of the transitional arrangements under Article 35(5).
2.
A request to access a trading venue by a CCP shall be formally submitted to a trading venue, its relevant competent authority and the competent authority of the CCP.
3.
The trading venue shall provide a written response to the CCP within three months of receiving the request referred to in paragraph 2, either permitting access, provided that the relevant competent authority has granted access pursuant to paragraph 4, or denying access. The trading venue may deny a request for access subject to the conditions laid down in paragraph 6, point (a). Where a trading venue denies access, it shall provide full reasons in its response and inform its competent authority of the decision in writing. Where the CCP is established in a Member State other than that of the trading venue, the trading venue shall also forward that written response to the competent authority of the CCP. The trading venue shall provide access within three months of providing a positive response to the access request.
4.
The competent authority of the trading venue or that of the CCP shall grant a CCP access to a trading venue provided that such access would not threaten the smooth and orderly functioning of the markets, in particular due to liquidity fragmentation, and provided that the trading venue has put in place adequate arrangements to prevent such fragmentation, or would not adversely affect systemic risk.
If a competent authority denies access it shall issue its decision within two months following receipt of the request referred to in paragraph 2 and provide full reasons to the other competent authority, the trading venue and the CCP including the evidence on which its decision is based.
6.
ESMA shall develop draft regulatory technical standards to specify:
(a)
the specific conditions under which an access request may be denied by a trading venue, including conditions based on the anticipated volume of transactions, the number of users, arrangements for managing operational risk and complexity or other factors creating significant undue risks;
(b)
the conditions under which access shall be granted, including confidentiality of information provided regarding financial instruments during the development phase and the non-discriminatory and transparent basis as regards fees related to access;
(c)
the conditions under which granting access will threaten the smooth and orderly functioning of the markets, or would adversely affect systemic risk.
ESMA shall submit those draft regulatory technical standards to the Commission by 3 July 2015.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1095/2010.