Collateralisation of Intra Group Transactions

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Notification about exemption from collateralisation obligations

Delegated Regulation (EU) No. 2016/2251 has been in force since 24 January 2017. The Delegated Regulation prescribes that counterparties that which enter into OTC derivatives contracts that are not cleared through a central counterparty (CCP) are required to mutually (bilaterally) secure them against collateral (see also Article 11 (3) of Regulation 648/2012 “EMIR”).

The counterparties of derivative contracts concluded within a group (“Intra Group Transactions – IGT”) may be exempted from this requirement by the national competent authorities subject to certain conditions being fulfilled, cf. Article 11 (6 to 10) EMIR.

Pursuant to Article 11 (5) EMIR the collateralisation requirement does not exist for intra group transactions between counterparties established in the same Member State (groups with members only in Austria), provided that no current or foreseen practical or legal impediment for the prompt transfer of own funds or the repayment of liabilities exists. In such instances no application or notification is required to be sent to the FMA.

Where the counterparties are not established in the same Member State, financial counterparties (FCs) and non-financial counterparties (NFCs) may be exempted from this collateralisation obligation where the requirements pursuant to Article 11 EMIR are fulfilled.

It is important to differentiate between a total of 5 potential constellations in relation to the exemption from the collateralisation obligation (excluding Article 11 (5) EMIR – see above):

Table: 5 possible constellations for exemption from the collateralisation obligation
Legal basisGroupProcedureTime frame
AT FC and EU FCauthorisation3 months
AT NFC and EU NFCnon-objection3 months
AT FC and third country FCauthorisation3 months
AT NFC and third country FCnon-objection3 months
AT FC and EU NFCauthorisation3 months

 

Article 36 (2) of Delegated Regulation (EU) No 2016/2251 determines the interim solution for third country groups.

The exemption may only be exercised if the following conditions exist:

Both counterparties must be fully consolidated members of a group (Article 3 (2a) EMIR)
Adequate centralised risk evaluation, measurement and control procedures must exist (Article 3 (2a) EMIR)
The risk management procedures of the counterparties must be adequately sound and robust, and be commensurate to the level of complexity of the derivative contract (Article 11 (6-10) a) EMIR)
No legal or practical impediments are allowed to exist or be expected for the prompt transfer of own funds or the repayment of liabilities between the counterparties (Article 11 (6-10) b) EMIR)

 

Notifications pursuant to Article 11 (6-10) EMIR must be submitted via the FMA – IGT Tool

The FMA-IGT tool will be enabled for notifications pursuant to Article 11 (6-10) EMIR (IGT-Tool).

The application process will be explained here shortly.

Group members must be uploaded via the .csv file in the IGT tool. For the upload the following .csv file must be used: .csv file

A sample .csv file can be found here: csv file

New users can find all the relevant information about access to the FMA-IGT tool and setting up an account in the IGT Manual: IGT Manual 2.0

The conditions for an exemption are to be clarified with detailed information. To ensure a consistent procedure, the following templates must be used for this purpose:

Annex A: Proof of Article 3 EMIR (definition of the group) being satisfied and risk management in accordance with Article 11 EMIR (The risk management procedures of the counterparties are adequately sound and robust and correspond to the level of complexity of the derivative contract or no legal or practical impediments exist for the prompt transfer of own funds or the repayment of liabilities between the counterparties)
Annex B: Information referred to in Article 18 (2) of delegated Regulation (EU) 149/2013 (historical data)
Annex C: Information referred to in Article 18 (1c) of delegated Regulation (EU) 149/2013 (particulars in relation to the basic contractual relations between the parties)
Annex Y: Information regarding Article 18 (1b) of delegated Regulation (EU) 149/2013 (Organisation chart of the group)
Annex Z: Information regarding Article 11 (6-10) (b) of Regulation 648/2012 (EMIR) and other information (copies of contracts and other documentation where necessary)
FMA declaration: confirmation of power of attorney to be allowed to submit notifications to the FMA on behalf of the group. Existing users of the FMA-IGT Tool are required to upload Annex Z again in the FMA-IGT Tool. For new users, the declaration is required to be submitted in advance during the access checking process for the tool (together with a copy of an identification document and excerpt from the Commercial Register (Firmenbuchauszug). The declaration must be submitted using the EMIR-IGT Tool by the counterparty seeking an exemption from the Financial Market Authority for collateralisation obligations for intra-group transactions. The declaration must be sent to the following e-mail address: IGT@fma.gv.at