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Article 5 - Assessment of the risk profile of a CCP

Article 5

Assessment of the risk profile of a CCP

1.   Competent authorities and supervisory colleges shall assess the adequacy of a CCP’s recovery plan in respect of the risk profile of that CCP by considering all of the following factors:

(a)

whether the CCP’s recovery plan overall encompasses and provides appropriate measures to address different types of risk, and plausible combinations thereof, which might require the use of the recovery tools referred to in Article 1, point (c)(iv);

(b)

whether the risk of disruptions originating both at the CCP and in other entities and service providers to which the CCP is exposed, including clearing, investment, custody and payments, is assessed and mitigated in the recovery plan;

(c)

whether the recovery plan takes into account the nature, size and complexity of the CCP’s business and how those elements are reflected in the measures proposed by the CCP;

(d)

whether the CCP can independently apply the recovery plan without interference from other entities in the same corporate group and, where possible, whether any spill-over effects on other group entities and financial interdependencies are clearly identified;

(e)

whether the recovery plan takes into account environmental risks and the risk of cyber-attacks that could lead to a significant deterioration of the financial situation of the CCP and any other risks identified in stress-test exercises performed in accordance with Article 49(1) of Regulation (EU) No 648/2012 and Article 21(2) of Regulation (EU) No 1095/2010, where relevant for the recovery plan;

(f)

whether the legal risks have been assessed in the recovery plan, and in particular whether all measures in the recovery plan are legal, valid, binding and enforceable;

(g)

whether the arrangements, agreements and contracts, including the operating rules of the CCP and agreements with service providers, are clear, legal, valid, binding and enforceable and actionable to ensure that the risks of legal challenges and lawsuits are managed and minimised;

(h)

whether legal opinions have been collected, where needed, to evidence the legal validity and enforceability of the recovery measures and agreements, in particular where the counterparty to the agreement is located in a third country;

(i)

whether, where the board of the CCP has decided not to follow the advice of the risk committee when approving the CCP’s recovery plan, the reason provided by the CCP both to the members of the risk committee and to its competent authority in accordance with Article 9(18) of Regulation (EU) 2021/23, is adequate.

2.   For the purposes of paragraph 1, point (a), the types of risk to be considered shall include, depending on the CCP, operational, credit, liquidity, general business, custody, settlement, investment, market, systemic, environmental, and climate risks.

3.   For the purposes of paragraph 1, point (c), the aspects referred to in that point may be assessed in the recovery plan by considering all of the following aspects of the CCP’s business:

(a)

the type of financial instruments cleared or to be cleared by the CCP;

(b)

the financial instruments cleared or to be cleared by the CCP that are subject to the clearing obligation referred to in Article 4 of Regulation (EU) No 648/2012;

(c)

the average values cleared by the CCP over one year, per type of product and by currency both in absolute terms, as well as relative terms to the CCP’s capital, at the level of each clearing member and, where possible, of each client;

(d)

whether the transactions cleared by the CCP are executed on an EU trading venue, on a third-country trading venue considered equivalent in accordance with Article 2a of Regulation (EU) No 648/2012, or an OTC;

(e)

the Member States where the CCP provides, or intends to provide, services and other cross-border activities of the CCP.