Regulation (EU) No. 2019/834 amending the European Market Infrastructure Regulation (EMIR) was published in the Official Journal of the European Union on 28 May 2019 (EMIR-REFIT 2.1) and formally entered into force on 17 June 2019. The Regulatory Fitness and Performance Programme (REFIT) is a programme that is part of the European Commission’s agenda for better legislation. It aims to ensure that EU legal regulations deliver on their objectives for the benefit of citizens, enterprises and the society as a whole, while simultaneously reducing bureaucracy and reducing costs. The objective is to make EU Regulations simpler, more targeted and easier to comply with, without, however, altering the core requirements of the Regulations. The most important changes in the EMIR REFIT 2.1 are as follows:
- Removal of the “frontloading” provision, which stipulated that bilateral derivative contracts with a suitably long minimum remaining maturity were also subject to the clearing obligation via a CCP even where they were concluded prior to the entry into force of the clearing obligation. (“frontloading”)
- Financial counterparties (“FCs”) and non-financial counterparties (“NFCs”)may calculate their clearing threshold
- FCs: Every twelve months, a financial counterparty taking positions in OTC derivative contracts may calculate its aggregate month-end average position for the previous twelve months. Where a financial counterparty does not calculate its positions, or where the result of that calculation exceeds any of the clearing thresholds, then
- the FC immediately notifies ESMA and the FMA;
- the ESMA form shall be used for both reports;
- the FC must establish clearing arrangements within four months after the notification;
- the clearing obligation shall apply to all OTC derivative contracts that are subject to clearing obligation entered into or novated more than four months following the notification;
- following the entry into force of the EMIR REFIT 2.1, FCs remain subject to the clearing obligation until they demonstrate to FMA that they are below the clearing threshold;
- in calculating the positions, all OTC derivative contracts (also hedging contracts) at group level are to be included.
- NFCs: same as for FCs; BUT:
- where the NFC conducts a position calculation pursuant to Article 10(1) EMIR, the clearing obligation only applies to OTC derivative contracts in respect of which the result of the calculation exceeds the clearing threshold; where no position calculation is performed, the clearing obligation shall apply for all OTC derivative contracts subject to the clearing obligation;
- OTC derivative contracts entered into by the non-financial counterparty or by other non-financial entities within the group to which the non-financial counterparty belongs, which are objectively measurable as reducing risks directly relating to the commercial activity or treasury financing activity of the non-financial counterparty or of that group (i.e. hedging contracts), shall not be included in the position calculation pursuant to Article 10(3) EMIR.
- The clearing thresholds are defined in Article 11 of Delegated Regulation (EU) No 149/2013. They are:
- EUR 1 bn for OTC credit derivative contracts,
- EUR 1 bn for OTC equity derivative contracts,
- EUR 3 bn for OTC interest rate derivative contracts,
- EUR 3 bn for OTC foreign exchange derivative contracts,
- EUR 4 bn for commodity derivative contracts and all other OTC derivative contracts (respective gross notional value).
- No notification to the FMA and ESMA is necessary provided that the calculation shows that the clearing threshold has not been exceeded.
- The exemption from the clearing obligation for pensions scheme arrangements is extended until 18 June 2022 in accordance with Delegated Regulation (EU) No 2021/962;
- Removal of the need to notify about contracts that were concluded and a ended prior to the entry into force of EMIR (“Backloading”);
- An exemption from the reporting obligation where at least one counterparty is a non-financial counterparty, or would be considered as one were it established in the European Union, where both counterparties are within the same scope of full consolidation, where both counterparties are subject to centralised risk evaluation, measurement and control procedures, and where the parent company is not a financial counterparty. Counterparties must inform the FMA if they wish to make use of this exemption. The exemption of intra-group derivative contracts from reporting obligations shall be valid in where the FMA does not declare within three months of the day of the notification that the conditions do not exist.
- The procedure for informing the FMA functions in the same way as the current IGT procedure for FCs: Reporting of intragroup transactions
- FCs bear sole responsibility and assume the statutory risk for the legal liability regarding the notification of contracts with NFCs – applicable: for 12 months following the entry into force of the EMIR REFIT 2.1
- NFCs shall, however, voluntarily take over the handling of the notification; in this case, they shall take responsibility/liability for that notification.