Recital 14

(14)In order to ensure that the active account requirement contributes to the overarching objective of reducing excessive exposures to clearing services of substantial systemic importance provided by third-country CCPs and that the account is not dormant, a minimum number of derivative contracts should be cleared in the active accounts. Those contracts should be representative of the different subcategories of derivative contracts belonging to clearing services of substantial systemic importance (the ‘representativeness obligation’). The representativeness obligation should reflect the diversity of the portfolios of financial and non-financial counterparties subject to the active account requirement. Contracts with different maturities and different sizes should be cleared through the active accounts, as well as contracts of different economic nature, including all classes of interest rate derivatives that are subject to the clearing obligation under Commission Delegated Regulations (EU) 2015/2205 ⁹ and (EU) 2016/1178 ¹⁰ as regards those denominated in Polish zloty. To define the minimum number of derivative contracts that should be cleared through the active accounts, ESMA should identify up to three derivative classes amongst the derivative contracts belonging to the clearing services of substantial systemic importance. ESMA should further identify up to five most relevant subcategories of trades, per derivative class, based on a combination of size and maturity. Counterparties should then be required to clear at least five trades in the reference period in each relevant subcategory. The number of derivative contracts to be cleared should be at least five trades in the reference period on an annual average basis, meaning that in assessing whether counterparties fulfil the representativeness obligation, competent authorities should consider the total number of trades over a year. In order to ensure a proportionate approach and to avoid imposing an excessive burden on counterparties that have limited activity in the different subcategories of derivative contracts identified by ESMA, a de minimis threshold should apply to the representativeness obligation. In addition, the specific business model of Union pension scheme arrangements needs to be properly taken into account. In several cases, such arrangements have a limited number of interest rate derivatives trades, which are concentrated, long-term and with a high notional amount. That is why it is appropriate for a scaled-down representativeness obligation to be established, which should require one trade to be cleared instead of five in the most relevant subcategories per reference period. Member States should introduce appropriate periodic penalty payments for cases where a counterparty subject to the active account requirement fails to meet its obligations with regard to the operational criteria or the representativeness obligation.