SPAIN Law and Practice Contributed by: Miguel Cases and Claudi Rossell, Cases & Lacambra
jected to mandatory clearing and the date when such obligation will enter into force. These agreements will be properly recorded on ESMA’s registry, together with the relevant dates mentioned in the foregoing and the recognised CCPs. At present, the affected agree - ments are rates derivatives for certain classes of inter - est rate derivatives (basis swaps, forward rate agree - ments (FRAs), interest rate swaps (IRS) and overnight indexed swaps (OIS)) and two credit default swaps (CDS) for iTraxx indices. Not all counterparties are subject to mandatory clear - ing. For this purpose, based on the business thresh - olds over the outstanding gross notional volume of five classes of derivatives (at present, the thresholds are EUR1 billion for credit derivatives, EUR1 billion for equity derivatives, EUR3 billion for interest rate derivatives, EUR3 billion for FX derivatives and EUR4 billion for commodity derivatives and other deriva - tives classes, excluding intra-group transactions), all counterparties are classified into four categories: FCs, FCs minus (FC-s), NFCs and NFCs plus (NFC+s). Only FCs and NFC+s are affected (although NFC+s must exclude from this calculation all hedging transactions and clear only those OTC agreements pertaining to the class whose threshold has been exceeded) after serving a notice on ESMA once this status has been checked. It should be noted that, following EMIR 3 enactment, the quantitative thresholds currently in force may be amended due to the Consultation Paper issued by ESMA on 8 April 2025 on Draft technical standards amending Regulation (EU) 149/2013 to further detail the new EMIR clearing thresholds regime. When this status ceases to be applicable, a non-sub - jection notice is to be served as well. This test is to be carried out at monthly intervals over the previous 12 months. Intra-group transactions are exempt from any clearing obligations when both counterparties are established in the EU and previously notified their respective competent authorities in writing that they intend to make use of this exemption. Within the 30 calendar days following the receipt of that notification, the competent authority may object to the use of this exemption if the transactions between the counterpar - ties do not meet the conditions laid down in Article 3
of EMIR. If there is a disagreement between two com - petent authorities, ESMA may assist those authorities in reaching an agreement. If only one group entity is in the EU, the regulator of such party will check whether all conditions are met and will adopt the correspond - ing decision. It is worth noting that EMIR 3 is more favourable to NFCs, since cleared derivatives are not considered when calculating the thresholds and group-level cal - culations will be replaced by single-entity-level ones. Finally, EMIR exempted transactions with certain EU pension schemes from any clearing obligations, but this exemption will not extend to transactions with third-country schemes. EMIR 3 introduces a per - manent exemption from clearing for EU counter - parties closing transactions with third-country pen - sion schemes where those schemes are authorised, supervised and recognised under national law and are within the scope of a clearing exemption in their home jurisdiction. Finally, EMIR 3 introduces the obligation to maintain an active account for systemically relevant products with an EU CCP (ie, OTC interest rates derivatives in euros and zlotys as well as short-term interest rate derivatives in euros), and MiFID III removes the mandatory provision by trading venues of open and non-discriminatory access to a CCP, with a reciprocal requirement for CCPs to provide access for trading venues, when clearing exchange-traded derivatives (ETDs). Regarding the requirement to maintain an active account, ESMA published on 19 June 2025 the Final Report on the Conditions of the Active Account Requirement. This Final Report provides the draft RTS further specifying the requirements under Article 7a of EMIR, the conditions for stress testing such condi - tions, the details of the representativeness obligation under Article 7a of EMIR, as well as the details of the reporting in accordance with Article 7b of EMIR. 3.1.3 Mandatory Trading As per Articles 28 and 32 of MiFIR II, all counterparties subjected to mandatory clearing must close the corre - sponding transactions with another entity also subject to such obligation on a trading venue (including equiv -
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