Guarantees as CCP Collateral: What ESMA’s Draft RTS Changes

On 23 February 2026 ESMA opened a consultation (paper reference ESMA91-1505572268-4513) on the draft regulatory technical standards that set the conditions for using guarantees as CCP collateral at an EU central counterparty. The consultation closed on 30 April 2026. The subject is narrow on paper and wide in practice: the draft RTS amends Commission Delegated Regulation (EU) No 153/2013, the rulebook that every authorised EU CCP already runs its collateral and investment policy against.

The Level 1 driver is EMIR 3, Regulation (EU) 2024/2987, dated 27 November 2024 and published in the Official Journal on 4 December 2024. EMIR 3 amended Article 46 of EMIR to recognise public guarantees, public bank guarantees and commercial bank guarantees as possible CCP collateral for non-financial clearing members and non-financial clients, subject to conditions. It did not amend Article 47. ESMA is using the same draft RTS to specify the Article 46 conditions and, separately, to propose targeted changes to RTS 153/2013 under the existing Article 47(8) mandate on CCP investment policy and secure deposit arrangements. If your firm clears at an EU CCP, or clears indirectly as a client, the guarantees as CCP collateral question now has a concrete draft answer to prepare against.

This is a change to collateral eligibility, concentration management and CCP investment policy. The work sits in collateral operations, legal documentation and risk; treating this as a reporting-template update would send preparation down the wrong track.

Related reading: our guide to the EMIR 3 clearing obligation thresholds and the active account requirement.

From energy-crisis emergency measure to a permanent regime

The guarantee route into CCP collateral did not start with EMIR 3. During the 2022 energy price crisis, margin calls on energy derivatives spiked and the European Commission asked ESMA to look at emergency relief. ESMA adopted a Final Report on 14 October 2022 that temporarily revised RTS 153/2013 to widen the eligible-collateral pool: uncollateralised bank guarantees for non-financial counterparties acting as clearing members, and public guarantees for all types of counterparties. The measure was deliberately temporary. The waiver allowing uncollateralised commercial bank guarantees was limited to specified wholesale-energy derivatives under REMIT, while the temporary public-guarantee route was not limited in the same way.

That relief was extended by Delegated Regulation (EU) 2024/818 until 7 September 2024. The extension did not run through to the application of the relevant EMIR 3 amendments on 24 December 2024, so it did not provide uninterrupted continuity. EMIR 3 subsequently made the Article 46 guarantee categories a permanent Level 1 feature, subject to the relevant Level 2 conditions. The draft RTS treats the expired emergency conditions as a starting point rather than a template, because industry experience during the relief period exposed where the earlier drafting was too thin, particularly around the credit and liquidity risk of the guarantor.

Two features of the new Article 46 matter more than the mechanics of any single condition. First, acceptance is no longer confined to wholesale energy markets. Second, it is no longer confined to non-financial counterparties that are themselves clearing members. Under EMIR 3, a non-financial counterparty that clears indirectly, as a client of a clearing member, can also have a guarantee posted on its behalf. That pushes the collateral relief further down the clearing chain and brings smaller commodity and corporate clients into scope.

The dates that govern preparation

Deadlines drive why this topic is worth reading now, so here is the calendar in one place:

• 27 November 2024: EMIR 3 (Regulation (EU) 2024/2987) adopted; published in the Official Journal on 4 December 2024.
• 23 February 2026: ESMA published the consultation paper (ESMA91-1505572268-4513) with the draft RTS amending Delegated Regulation (EU) No 153/2013.
• 30 April 2026: consultation window closed for comments.
• Q2 2026: ESMA to consider the feedback received.
• Q4 2026: ESMA expects to publish a final report and submit the final draft RTS to the European Commission for endorsement, potentially together with other measures.
• After endorsement: the amended RTS enters into force on the twentieth day following its publication in the Official Journal, subject to the Commission’s adoption and the European Parliament and Council scrutiny period.

The practical read is that the conditions below are draft, not law. The Level 1 change in Article 46 is settled; the Level 2 detail that makes it usable is still in ESMA’s hands and then the Commission’s. Firms have time to prepare before any compliance deadline arrives, and the shape of the final text can still move.

Three types of guarantees as CCP collateral, and who can post them

The draft RTS rebuilds Section 2 and Section 2a of Annex I to RTS 153/2013 around three distinct guarantee categories, each with its own conditions. The distinction that changes the answer for a filer is the identity of the guarantor, not the size of the guarantee.

A commercial bank guarantee is one issued by a credit institution. A public bank guarantee is one issued by a publicly owned bank that is not a central bank and not a multilateral development bank. A public guarantee is one issued or guaranteed by a government body: a central government in the EEA, an EEA regional government or local authority where its risk matches the central government, the European Financial Stability Facility, the European Stability Mechanism, the Union itself, or a multilateral development bank listed under Article 117(2) of the Capital Requirements Regulation and established in the Union. A guarantee issued by an EEA central bank, or by the central bank of issue of a currency in which the CCP has exposures, sits in its own lighter category under Section 2.

Across all three, the guarantee must be capable of guaranteeing a non-financial clearing member or a non-financial client, and where it guarantees a client instead of the member, the draft requires it to be posted to an individually segregated account in the name of that non-financial client, with the CCP as the sole beneficiary. The segregation requirement carries practical weight: it lets the CCP link the guarantee to a specific client’s positions and, if the clearing member defaults, identify and port that client’s collateral to another member. The draft allows a transfer clause so the beneficiary can move from the CCP to the clearing member under conditions the CCP defines.

What a bank guarantee has to satisfy

For a commercial bank guarantee to be accepted under Article 46(1), the draft RTS carries forward a demanding set of conditions and tightens a few. The guarantor has to be a credit institution as defined in Article 4(1)(1) of the Capital Requirements Regulation, which removes ambiguity about who can stand behind the guarantee. The CCP has to judge that guarantor to be of low credit risk using a defined, objective methodology that does not rely fully on external opinions and that takes into account the risk arising from the issuer’s country of establishment. The guarantee has to be irrevocable and unconditional, honourable on demand within the liquidation period of the defaulting clearing member’s portfolio, and free of any legal, contractual or operational defence the issuer could raise to avoid paying.

The draft also blocks obvious wrong-way exposures. A guarantee cannot be issued by an entity in the same group as the non-financial party it covers, by an entity providing services critical to the CCP’s functioning (unless that entity is an EEA central bank or a relevant central bank of issue), or by the clearing member of the non-financial client itself. Where a commercial bank guarantee is backed by collateral, that backing collateral has to be free of wrong-way risk and be something the CCP can reach promptly and treat as bankruptcy-remote if the clearing member and the guarantor both fail at once.

One point is easy to misread. EMIR 3 lets a CCP accept fully uncollateralised public bank or commercial bank guarantees, but the third subparagraph of Article 46(1) makes that a choice the CCP has to switch on in its own operating rules. The draft RTS reflects the default the other way for public bank guarantees: unless the CCP’s operating rules specify otherwise, a public bank guarantee has to be fully backed by collateral meeting the same wrong-way-risk and access conditions. Uncollateralised acceptance is available, but it is not automatic, and a clearing member should not assume a CCP will offer it.

Public guarantees: the legal opinion is the new operational load

Public guarantees carry the heaviest documentation. The old Section 2a conditions came out of the 2022 emergency measures and expired with them, so ESMA is rebuilding them for permanent use. The draft keeps the core requirements: the public guarantor has to be one of the eligible government bodies, the CCP has to demonstrate low credit risk on the guarantor from an internal assessment, the guarantor has to respect the conditions in the CCP’s risk management framework, and the guarantee has to be irrevocable, unconditional and honourable within the liquidation period.

The addition that will consume the most preparation time is the written legal opinion. Because public guarantees are less standardised than bank guarantees and public-sector legal frameworks vary by jurisdiction, the draft requires a public guarantee to arrive with an independent legal opinion. At a minimum, that opinion has to confirm the guarantor’s legal capacity and authority to issue the guarantee and enter related agreements, that all necessary permits and approvals have been obtained, the legal validity and first-demand enforceability of the guarantee and any payment-agent agreement, recognition of the choice-of-law and jurisdiction clauses, that the arrangements cannot be contested, revoked or rendered non-binding after execution, and that the CCP can judicially enforce its rights without restrictions, waiting periods or special authorisations. Where a payment agent sits between the public guarantor and the CCP, the opinion has to cover that arrangement too.

The reason the emergency version saw limited use tells you where the friction is. Industry feedback during the relief period pointed to credit and liquidity risk tied to the type of guarantor, and to a practical settlement gap: unlike commercial banks, public bodies often lack direct access to real-time gross settlement systems such as T2, so a CCP liquidating a public guarantee may depend on a payment agent to actually receive the funds. ESMA has asked whether direct T2 access should be a hard requirement for public guarantors or whether that would shrink the pool of eligible guarantors too far. However the final text lands on that question, the operational point stands: a public guarantee is only as good as the CCP’s ability to turn it into cash inside the liquidation window.

Concentration limits: the 10% cap and the conditional 25% relief

Widening the collateral pool raises a concentration problem, and the draft RTS answers it through Article 42. The headline figure is a single-guarantor cap: a CCP has to ensure that no more than 10% of its collateral is guaranteed by a single credit institution, whether commercial or public bank, or by an equivalent third-country financial institution, or by an entity in the same group as that institution. That is the constraint clearing members should model first, because a CCP that hits it will stop accepting further guarantees from a concentrated name.

There is a conditional loosening. Where the collateral a CCP holds in the form of bank guarantees from commercial or public banks exceeds 50% of its total collateral, the single-guarantor limit may be set up to 25%. This is a ceiling the CCP may apply, not an entitlement a clearing member can demand, and it only comes into play once bank guarantees dominate the CCP’s collateral mix. The draft also broadens the diversification factors a CCP weighs, adding the level of collateralisation of guarantees and the underlying activity of the non-financial client to the existing tests on asset or guarantee type and on issuer sector, activity and geography.

For a clearing member routing several clients through the same guarantor bank, these limits interact. A guarantor that looks comfortable at the level of one client can breach the CCP’s single-name cap once exposures are aggregated. The CCP would then need to prevent or remediate the excess in accordance with its collateral and concentration-management rules; the draft does not prescribe which client guarantee must be rejected or reduced.

Investment policy: EU, BIS and IMF debt become eligible

The second half of the draft RTS touches Article 47 of EMIR, which requires a CCP to invest its financial resources only in cash or in highly liquid instruments with minimal market and credit risk, capable of rapid liquidation with minimal price effect. The eligible instruments are set in RTS 153/2013 and its Annex II. The draft would add the Union, the Bank for International Settlements and the International Monetary Fund to Annex II so that debt instruments issued or explicitly guaranteed by those bodies may qualify as highly liquid investments, provided all other Annex II conditions are met.

The Union addition reflects the growth of EU-level debt under the unified funding approach, including EU-bonds, EU-bills, NextGenerationEU green bonds and SURE social bonds, which ESMA characterises as deep, liquid and low-risk. The BIS and IMF addition aligns the RTS with the Capital Requirements Regulation, which already assigns a 0% risk weight to exposures to those two bodies under Article 118 of CRR. Separately, the draft would add the Union Registry to Article 44(1) as a highly secure arrangement for depositing emission allowances that a CCP has accepted under the limited conditions in Article 46(2).

Emission allowances are the exception worth flagging, because it is easy to conflate two different roles. Allowances are financial instruments under MiFID II. Under Article 46(2) of EMIR, a CCP may accept an emission allowance as collateral only where it is the underlying of the derivative contract or financial instrument that originates the CCP exposure, and only where the CCP considers acceptance appropriate and sufficiently prudent. The draft adds the Union Registry, referred to in Directive 2003/87/EC, to the list of highly secure arrangements for depositing emission allowances that a CCP has taken as collateral; ESMA’s view is that allowances themselves do not meet the minimal-risk criteria for investment under Article 47(1) and they remain outside the eligible investment pool. Accepting allowances as margin and investing a CCP’s own resources in them are separate questions, and the draft answers them differently.

What CCPs and clearing members can line up now

Because the RTS is still draft, the useful work now is preparation, because there is no rule to implement yet. For a CCP, the material items are the internal credit-assessment methodology for guarantors that does not lean wholly on external ratings, the operating-rule choices on whether to accept uncollateralised bank guarantees, the concentration monitoring needed to police the 10% and 25% thresholds across a wider collateral base, and the framework for reviewing legal opinions on public guarantees, including any payment-agent leg.

For a clearing member and its non-financial clients, the questions are more concrete: which of your guarantor banks would qualify as credit institutions under the CRR definition, whether a public guarantee your client could obtain would survive the legal-opinion test, and whether posting guarantees through individually segregated accounts fits your existing account structures at the CCP. For firms currently posting margin to an EU CCP, the proposed guarantee route would be an additional CCP collateral option, subject to the CCP’s operating rules and the conditions in the final RTS. It should not be treated as part of the bilateral initial-margin framework for uncleared derivatives. Firms that cleared energy exposures under the earlier emergency relief will recognise much of the shape here, and the wider CCP resilience context is worth reading alongside the ESMA CCP stress test framework, although ESMA’s separate CCP stress-test exercise provides broader context on member-default, market-shock and concentration risks; it does not establish the eligibility conditions for guarantee collateral.

Frequently Asked Questions

Does this draft RTS change any EMIR transaction reporting field or template?

No. The draft amends Commission Delegated Regulation (EU) No 153/2013 on collateral eligibility, concentration limits and CCP investment policy. It does not amend the EMIR reporting technical standards, so there is no new reportable field or template to build. Preparation belongs in collateral operations, legal and risk. For the reporting side, see our EMIR reporting guide.

Can a non-financial firm that clears as a client of a clearing member post a guarantee?

Yes, a guarantee may be issued for a non-financial client and posted by its clearing member to the CCP. This is one of the substantive EMIR 3 changes. The draft would require the guarantee to be posted to an individually segregated account in the client’s name with the CCP as sole beneficiary. The earlier uncollateralised commercial-bank guarantee relief was limited to non-financial clearing members; temporary public guarantees had a broader scope.

Can a CCP accept a fully uncollateralised commercial bank guarantee?

Only if the CCP has specified that in its operating rules under the third subparagraph of Article 46(1) of EMIR. The draft RTS treats full collateral backing as the default for public bank guarantees unless the CCP’s rules provide otherwise, so a clearing member should confirm each CCP’s stance instead of assuming uncollateralised acceptance is available.

How is a public guarantee different from a central bank guarantee?

A guarantee from an EEA central bank, or from the central bank of issue of a currency in which the CCP has exposures, sits in Section 2 with a lighter set of conditions. A public guarantee from a government, an EEA regional or local authority, the EFSF, the ESM, the Union or a Union-based multilateral development bank falls under Section 2a and carries the additional requirements, including the independent legal opinion.

What counts as a “public bank” under EMIR 3?

EMIR 3 does not define the term. ESMA proposes to read it as publicly owned banks other than the multilateral development banks listed under Article 117(2) of the CRR and other than central banks, and has asked consultation respondents whether that approach works. Until the final RTS lands, treat any definition as provisional.

Are emission allowances now something a CCP can invest in?

Emission allowances fall outside the pool a CCP may invest in under Article 47(1): ESMA’s view is that they do not meet the minimal-risk criteria. They may be accepted as collateral under Article 46(2) only where the allowance is the underlying of the derivative contract or financial instrument that originates the CCP exposure and the CCP considers acceptance appropriate and sufficiently prudent. The draft would add the Union Registry as a highly secure place to deposit such allowances. Eligibility as collateral and eligibility for CCP investment are separate tests.

When would these conditions actually bind?

Not yet. ESMA expects to publish a final report and submit the final draft RTS to the European Commission in Q4 2026. The Commission then has to endorse it, after which the European Parliament and Council scrutiny period runs, and the RTS enters into force twenty days after Official Journal publication. The conditions can still change before then.

Related Articles

• EMIR Reporting Explained: how the derivatives reporting obligation works and which fields matter for counterparties.
• EMIR 3 Clearing Obligation Thresholds and the Active Account: the wider EMIR 3 reform package and its clearing-location requirement.
• EMIR Initial Margin Reporting: how initial margin models and collateral feed the EMIR margin picture.
• ESMA 6th CCP Stress Test: what the default and liquidity scenarios mean for clearing members.
• ESMA CCP Fire Drill Default Simulation: how CCP default management is tested in practice.
• Gas Derivatives, EMIR and REMIT Reporting: the energy-market context where guarantee collateral first mattered.

Key Takeaways

• EMIR 3 (Regulation (EU) 2024/2987) made public, public-bank and commercial-bank guarantees a permanent eligible-collateral option at EU CCPs by amending Article 46; it did not amend Article 47. ESMA’s draft RTS of 23 February 2026 sets the Article 46 conditions and proposes targeted Article 47 investment-policy changes, all by amending Delegated Regulation (EU) No 153/2013.
• The consultation closed on 30 April 2026; ESMA expects to submit the final draft RTS to the Commission in Q4 2026, so the conditions are still draft.
• Guarantees now reach non-financial clients that clear indirectly, extending beyond non-financial clearing members. The earlier uncollateralised commercial-bank guarantee relief was limited to specified wholesale-energy derivatives, while the temporary public-guarantee route had a broader product scope.
• A guarantee covering a client has to be posted to an individually segregated account in the client’s name, with the CCP as sole beneficiary.
• Public guarantees require an independent legal opinion on capacity, validity, non-contestability and enforceability, and may depend on a payment agent where the guarantor lacks direct T2 access.
• Concentration is capped at 10% of collateral per single guarantor, rising to a possible 25% ceiling the CCP may set only where bank guarantees exceed 50% of total collateral.
• The draft would allow debt instruments issued or explicitly guaranteed by the Union, BIS or IMF to qualify for CCP investment if all other Annex II conditions are met. Emission allowances would remain ineligible for investment; the Union Registry would be added as a deposit arrangement only for allowances accepted under Article 46(2).
• Only a credit institution as defined in Article 4(1)(1) of the CRR can issue a commercial bank guarantee under the draft, and the CCP must assess it as low credit risk using a defined and objective methodology that does not rely fully on external opinions.

Sources and References

• ESMA, Consultation on guarantees as CCP collateral and on certain aspects of CCP investment policy (paper ESMA91-1505572268-4513, 23 February 2026): https://www.esma.europa.eu/press-news/consultations/consultation-guarantees-ccp-collateral-and-certain-aspects-ccp-investment
• Regulation (EU) No 648/2012 (EMIR), Articles 46 and 47: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32012R0648
• Regulation (EU) 2024/2987 (EMIR 3), of 27 November 2024: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32024R2987
• Commission Delegated Regulation (EU) No 153/2013 (RTS on requirements for CCPs): https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32013R0153
• Commission Delegated Regulation (EU) 2024/818 of 28 November 2023 (extension of temporary emergency measures on CCP collateral requirements): https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32024R0818
• Regulation (EU) No 575/2013 (CRR), Articles 4(1)(1), 117(2) and 118, for the credit-institution definition, the multilateral-development-bank list and the 0% risk-weight treatment of exposures to the Union, IMF and BIS referenced in the consultation paper: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32013R0575

What to have ready before the final RTS lands

The substance of the collateral change is settled at Level 1; the conditions that make it usable are not, and ESMA’s own timetable puts the final draft RTS in front of the Commission in Q4 2026. The concrete next step is to map your guarantor banks against the CRR credit-institution test, decide whether any public guarantee your clients could obtain would survive the legal-opinion requirement, and confirm with each CCP how it will run the 10% and 25% concentration caps once bank guarantees enter its collateral mix.

Disclaimer: The information on RegReportingDesk.com is for educational and informational purposes only. It does not constitute legal, regulatory, tax, or compliance advice. Always consult your compliance officer, legal counsel, or the relevant supervisory authority for guidance specific to your institution.