Article 274(3) states "The exposure value of a netting set that is subject to a contractual margin agreement shall be capped at the exposure value of the same netting set not subject to any form of margin agreement". This wording has slightly diverged from Basel CRE52.2 which stated "The EAD for a margined netting set is capped at the EAD of the same netting set calculated on an unmargined basis". 

Basel focused on applying the unmargined methodology in the wording not that it should be treated as if there were no margin agreement. This nuance in wording is leading to a misinterpretation of the CRR which is exacerbated by EBA Q&A 2023_6962 which has allowed for firms to apply SA-CCR in a manner which significantly underestimates capital requirements vs economic exposure.

In situations where firms are posting excess variation margin which has a real economic credit risk to the counterparty the wording of the CRR and the Q&A implies that this can be fully disregarded from the exposure calculation. This would therefore mean that firms are able to arbitrage the capital rules and avoid capital charges by lending money to counterparties by posting it as variation margin under a CSA and then disregarding that exposure by applying the "unmargined" cap.

This needs to be resolved by a clarification to the EBA Q&A to the effect that any collateral posted/received under a variation margin CSA should still be included in the exposure calculation, albeit using the unmargined rather than margined formulation to achieve the effect that the cap is designed to do per Basel CRE52.2 FAQ1.  i.e. this could easily be interpreted that if you are not subject to a margin agreement then anything which was variation margin should now just be characterized as NICA as it still economically exists as collateral.

This would satisfy both the purpose of the rule and avoid the risk of understatement of capital requirements.