What must a CCP disclose, to whom, and when can a breach stay private?

Article 38 sorts a CCP's disclosures by audience. EMIR 3 replaced it from 24 December 2024, keeping the structure but adding ESMA as a recipient and several margin transparency duties. The exam material describes the earlier version and names CySEC as the authority concerned. EMIR itself refers to the CCP's competent authority, designated by the Member State where the CCP is established (Article 22). No CCP is authorised in Cyprus.

Some information is public. A CCP and its clearing members publish the prices and fees of the services provided, showing each service separately, including discounts and rebates and the conditions to benefit from those reductions, and the CCP must let clearing members and, where relevant, their clients access specific services separately. The CCP also publishes the volumes it clears for each class of instruments, on an aggregated basis, and the operational and technical requirements of the communication protocols, covering content and message formats, that it uses with third parties.

Other information is restricted. The CCP accounts separately for the costs and revenues of the services provided. The exam material says these are disclosed to CySEC; since 24 December 2024 they have gone to ESMA and the CCP's competent authority. Clearing members and clients must be told the risks of the services provided. According to the exam material, the price data the CCP uses to calculate end-of-day exposures to its clearing members goes to clearing members and CySEC; since 24 December 2024 ESMA has received it too, alongside the clearing members and the competent authority.

A CCP must publish any breach by a clearing member of its admission criteria (Article 37(1)) or of the price and fee disclosure rules. The exception applies where the competent authority considers that publication would put financial stability or market confidence at risk, cause the parties disproportionate damage or seriously jeopardise the financial markets. The exam material says CySEC takes this decision in consultation with ESMA. EMIR 3 deleted the ESMA consultation on 24 December 2024: the four grounds are unchanged, and the competent authority now decides alone.

Do not confuse this with Article 12(2). There, the authorities supervising financial and non-financial counterparties publish every penalty imposed for breaches of Articles 4, 5 and 7 to 11 (among them the clearing, active account, reporting and risk mitigation rules), unless that would seriously jeopardise financial markets or cause the parties disproportionate damage. Article 38(5) concerns a CCP publishing its members' breaches; Article 12(2) concerns authorities publishing penalties.

Refit, from 18 December 2019, required CCPs to give clearing members a margin simulation tool and to explain their initial margin models, and EMIR 3 has extended both duties. The tool now shows the additional initial margin a new transaction might require at portfolio level, with simulations under different scenarios; as before, access is secured and the results are not binding. The CCP must explain clearly, and document, how its initial margin models are designed and work, including in stressed markets, their key assumptions and limitations, and any add-ons.

The duties now reach down the chain. Clearing members and clients that provide clearing services must explain to their own clients how the CCP's margin models work, what could trigger margin calls and how the amounts clients post are set, and must give them a non-binding simulation of margin under different scenarios. They must also warn clients of the losses or other costs they could bear if the CCP applies its default management or loss allocation arrangements. Clearing members have owed this warning since 12 August 2022; EMIR 3 extended it to clients that provide clearing services. Since 24 December 2024, under Article 7c, they must disclose, for each CCP, the fees they charge clients for clearing, and those providing clearing at both an EU CCP and a recognised third-country CCP must tell clients, where the offer is available, that they can clear at the EU CCP. For the parallel duty of investment firms to disclose costs and charges, see What must clients be told about financial instruments and about costs and charges?