Article 37
Application of Articles 9(1), 10 and 12
1.
Articles 9(1), 10 and 12, shall apply as follows:
(a)
from 1 month after the date of its entry into force of this Regulation for counterparties both of which have, or belong to groups each of which has, an aggregate average notional amount of non-centrally cleared OTC derivatives above EUR 3 000 billion;
(b)
from the date that is the latest of 1 March 2017 or 1 month following the date of its entry into force of this Regulation for other counterparties.
2.
By way of derogation from paragraph 1 in respect of contracts for foreign exchange forwards referred to in point (a) of Article 27, Articles 9(1), 10 and 12 shall apply on one of the following dates, whichever is earlier:
(a)
31 December 2018, where the Regulation referred to in point (b) does not yet apply;
(b)
the date of entry into application of the Commission Delegated Regulation ( *1 ) specifying some technical elements related to the definition of financial instruments with regard to physically settled foreign exchange forwards or the date determined pursuant to paragraph 1, whichever is later.
3.
By way of derogation from paragraph 1, where the conditions of paragraph 4 of this Article are met, Articles 9(1), 10 and 12 shall apply as follows:
(a)
from 30 June 2025 where no equivalence decision has been adopted pursuant to Article 13(2) of Regulation (EU) No 648/2012 for the purposes of Article 11(3) of that Regulation in respect of the relevant third country;
(b)
the later of the following dates where an equivalence decision has been adopted pursuant to Article 13(2) of Regulation (EU) No 648/2012 for the purposes of Article 11(3) of that Regulation in respect of the relevant third country:
(i)
four months after the date of entry into force of the decision adopted pursuant to Article 13(2) of Regulation (EU) No 648/2012 for the purposes of Article 11(3) of that Regulation in respect of the relevant third country;
(ii)
the applicable date determined pursuant to paragraph 1.
4.
The derogation referred to in paragraph 3 shall only apply where counterparties to a non-centrally cleared OTC derivative contract meet all of the following conditions:
(a)
one counterparty is established in a third country and the other counterparty is established in the Union;
(b)
the counterparty established in a third country is either a financial counterparty or a non-financial counterparty;
(c)
the counterparty established in the Union is one of the following:
(i)
a financial counterparty, a non-financial counterparty, a financial holding company, a financial institution or an ancillary services undertaking subject to appropriate prudential requirements and the third country counterparty referred to in point (a) is a financial counterparty;
(ii)
either a financial counterparty or a non-financial counterparty and the third country counterparty referred to in point (a) is a non-financial counterparty;
(d)
both counterparties are included in the same consolidation on a full basis in accordance to Article 3(3) of Regulation (EU) No 648/2012;
(e)
both counterparties are subject to appropriate centralised risk evaluation, measurement and control procedures;
(f)
the requirements of Chapter III are met.
( *1 ) C(2016) 2398 final.