Treatment of bank guarantees posted by clearing members as initial margin for the purpose of NICA in the CCP hypothetical capital (KCCP) calculation under Article 50a of EMIR

When a CCP calculates the hypothetical capital requirement (KCCP) pursuant to Articles 50a-50b of Regulation (EU) No 648/2012 (EMIR), as amended by Regulation (EU) 2019/876, applying the SA-CCR methodology set out in Part Three, Title II, Chapter 6, Section 3 of CRR, can bank guarantees provided by that clearing member be recognised as part of the collateral in the NICA term, provided that they are contractually pledged to the CCP and can be drawn upon in the event of the clearing member’s default? If the answer to Question 1 is negative and Article 276(1)(a) and (b) of CRR should be applied in full such that the only collateral eligible for inclusion in the NICA is that which qualifies as eligible financial collateral under Article 197 CRR (and Article 299 CRR for netting sets belonging entirely to the trading book), should a CCP assign a value of zero to bank guarantees posted by clearing members as initial margin when computing the Replacement Cost and the PFE multiplier? Or is there an alternative treatment available under the SA-CCR framework that would allow a CCP to partially or fully reflect the risk-mitigating effect of such guarantees in the EAD calculation?

Under Article 50a of Regulation (EU) No 648/2012 as amended by Regulation (EU) 2019/876, a CCP is required to calculate its hypothetical capital (KCCP) for the purpose of enabling clearing members that are institutions to calculate their own funds requirement for default fund contributions pursuant to Article 308 of Regulation (EU) No 575/2013 (CRR). Article 50b EMIR specifies that for exposures arising from contracts and transactions listed in points (a) and (c) of Article 301(1) of Regulation (EU) No 575/2013 a CCP shall calculate KCCP using the method set out in Part Three, Title II, Chapter 6, Section 3 of CRR (i.e. the Standardised Approach for Counterparty Credit Risk, SA-CCR), with a Margin Period of Risk (MPOR) of 10 business days. For margined netting sets, SA‑CCR defines the replacement cost (RC) using the formula in Article 275(2) CRR: RC=max(0, CMV-VM-NICA, TH+MTA-NICA), where the Net Independent Collateral Amount (NICA) represents the net independent collateral posted in relation to the netting set. Article 276(1) of CRR governs the calculation of the collateral amounts. It provides that: (a) where all transactions in a netting set belong to the trading book: only collateral eligible under Articles 197 and 299 CRR shall be recognised; (b) where a netting set contains at least one non-trading-book transaction: only collateral eligible under Article 197 CRR shall be recognised. Article 197 CRR does not include bank guarantees in its list of eligible financial collateral. That list is confined to: (i) cash and cash-equivalent instruments; (ii) debt securities satisfying specified rating and issuance criteria; (iii) equities and convertible bonds included in main indices; (iv) units in CIUs and UCITS meeting certain conditions; and (v) gold. Bank guarantees (commercial or public) constitute unfunded credit protection within the meaning of Articles 213–215 CRR and are expressly treated as a distinct category of credit risk mitigation, separate from eligible financial collateral. They cannot be liquidated, pledged or segregated in the manner contemplated by the SA-CCR collateral framework. In the case of centrally cleared derivatives, clearing members may provide, in addition to cash or securities collateral, bank guarantees issued by credit institutions, which are accepted by the CCP as collateral for margin purposes in accordance with EMIR and the related RTS. Regulation (EU) 2024/2987 (EMIR 3) permanently expanded the scope of permissible guarantees under Article 46 EMIR to include public bank guarantees and commercial bank guarantees, extending eligibility beyond non-financial counterparties (NFCs) acting as clearing members to all NFCs (including clients of clearing members). Therefore, clarification is requested to ensure a consistent and harmonised treatment, across CCPs and jurisdictions, of bank guarantees posted as collateral to CCPs in the calculation of NICA and of the SA‑CCR exposure value used for the hypothetical capital KCCP under Article 50a EMIR.