Supervision of the clearing of OTC derivatives and supervision of trade repositories

(1) Without prejudice to section 6 of the Banking Act, the Bundesanstalt is, under this Act, competent for compliance with the requirements of Articles 4, 4a, 5 and 7 to 13 of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ L 201, 27.7.2012, p. 1), insofar as section 3(5) or section 5(6) of the Stock Exchange Act does not provide otherwise. The Bundesanstalt is the competent authority within the meaning of Article 62(4), Article 63(3) to (7), Article 68(3) and Article 74(1) to (3) of Regulation (EU) No 648/2012. Insofar as Regulation (EU) No 648/2012 does not provide otherwise, the provisions of Parts 1 and 2 of this Act, other than sections 22 and 23, apply correspondingly.
(1a) The Bundesanstalt may impose periodic penalty payments under
1. Article 7a(9), second subparagraph of Regulation (EU) No 648/2012, in the version of 27 November 2024, as against financial or non-financial counterparties, having regard to the requirements of Article 7a(9), third and fourth subparagraphs of Regulation (EU) No 648/2012, in the version of 27 November 2024, and
2. Article 12(1a), first subparagraph of Regulation (EU) No 648/2012, in the version of 27 November 2024, as against entities, having regard to the requirements of Article 12(1a), second subparagraph of Regulation (EU) No 648/2012, in the version of 27 November 2024.
(2) A domestic financial counterparty within the meaning of Article 2, point 8 of Regulation (EU) No 648/2012, where it grants or extends a guarantee within the meaning of Articles 1 and 2(1) of Commission Delegated Regulation (EU) No 285/2014 of 13 February 2014 supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council with regard to regulatory technical standards on the direct, substantial and foreseeable effect of contracts within the Union and to prevent the circumvention of rules and obligations (OJ L 85, 21.3.2014, p. 1), as amended from time to time, must, by appropriate measures, in particular by way of contractual arrangements and controls, ensure that the entities established in a third country that are party to the guaranteed OTC derivative contracts do not breach the provisions of Regulation (EU) No 648/2012 applicable to those guaranteed OTC derivative contracts.
(3) Domestic clearing members within the meaning of Article 2, point 14 of Regulation (EU) No 648/2012, and trading venues within the meaning of Article 2, point 4 of Regulation (EU) No 648/2012, may use the clearing services of a central counterparty established in a third country within the meaning of Article 25(1) of Regulation (EU) No 648/2012 only where that central counterparty has been recognised by the European Securities and Markets Authority.
(4) The Bundesanstalt exercises the powers conferred on it under subsections (1) and (1a) in conjunction with Regulation (EU) No 648/2012, insofar as necessary for the performance of its tasks and for monitoring compliance with the obligations laid down in Regulation (EU) No 648/2012.
(5) Where the Bundesanstalt acts as the competent authority under subsection (1), or exercises powers under subsection (4), the documents to be submitted must be prepared and submitted in German and, on request by the Bundesanstalt, additionally in English. The Bundesanstalt may permit the documents to be prepared and submitted exclusively in English.
(6) The Bundesanstalt may require undertakings to provide information, to produce documents, and to surrender copies, insofar as necessary for monitoring compliance with the requirements under subsection (1). Statutory rights to refuse information or testimony, and statutory duties of confidentiality, remain unaffected.
(7) An objection and an action for rescission against measures of the Bundesanstalt under subsections (4) and (6), including in connection with Regulation (EU) No 648/2012, have no suspensive effect.