Section 40(2)

In Article 4 (clearing obligation)— after paragraph 3 insert— Clearing members and clients which provide clearing services, whether directly or indirectly, must— provide those services under fair, reasonable, non-discriminatory and transparent commercial terms, and take all reasonable measures to identify, prevent, manage and monitor conflicts of interest, in particular between the trading unit and the clearing unit, that may adversely affect the fair, reasonable, non-discriminatory and transparent provision of clearing services. The duty under paragraph 3A(a)— does not oblige clearing members or clients to contract, and does not prevent clearing members or clients from taking steps to control the risks related to the clearing services offered. The duty to take the measures described in paragraph 3A(b) includes a duty to do so where trading and clearing services are provided by different legal entities belonging to the same group. The duties under paragraph 3A (read with paragraphs 3B and 3C) apply in relation to an undertaking with an indirect contractual arrangement with a clearing member of a CCP which enables that undertaking to clear its transactions with a CCP as they apply in relation to a client. after paragraph 4 insert— The FCA may make rules specifying the conditions under which the commercial terms referred to in paragraph 3A(a) are to be considered fair, reasonable, non-discriminatory and transparent.

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Source: legislation.gov.uk · retrieved 2026-09-04