Notification about exemption from clearing obligations
Article 4 (2) EMIR prescribes that intra-group transactions as defined in Article 3 EMIR may be exempted from clearing obligations pursuant to Article 4 (1) EMIR.
Pursuant to Article 4 (2) EMIR Austrian counterparties are obliged to inform the Financial Market Authority, if they wish to make use of the exemption from clearing obligations for intra-group transactions. This obligation applies both to financial counterparties in accordance with Article 2 point 8 EMIR as well as to non-financial counterparties in accordance with Article 2 point 9 EMIR.
The notification in accordance with Article 4 (2) EMIR must be made at least 30 calendar days prior to making use of this exemption.
In order to be able to make use of the exemption from the clearing obligation, both counterparties are required to be within the same scope of full consolidation. Consolidation as defined in EMIR means that the counterparties are either
– included in a single scope of consolidation in accordance with Article 3 (3) a) EMIR, or
– subject to supervision on a consolidated basis in accordance with Article 3 para. 3 b) EMIR.
Furthermore, both counterparties must also be incorporated into centralised risk evaluation, measurement and control procedures as defined in Article 3 (1); Article 3 (2) a) and Article 3 (2) d) EMIR.
Pursuant to Article 4 (2) a) EMIR the competent authorities may raise objection towards the exercising of this exemption within 30 calendar days of the notification, if the transactions between the counterparties do not correspond to the conditions set out in Article 3 EMIR; the right of the competent authorities to also raised objection once this 30 calendar days period has expired, if the conditions for the exemption are no longer satisfied, remains unaffected by this.
Pursuant to Article 4 (2) b) EMIR exemptions may be granted between two counterparties belonging to the same group, where one is incorporated in Austria and the other in a third country, if the counterparty that is incorporated in Austria has been permitted to make use of the exemption by the Financial Market Authority within 30 calendar days of receipt of the notification submitted by the counterparty located in Austria, provided that the conditions in accordance with Article 3 EMIR are fulfilled. In this case an administrative decision is sent to the counterparty making the application.
The conditions for an exemption are to be clarified with detailed information. To ensure a consistent procedure, the following template must be used for this purpose: Risk Management Template. A sample template can be found at the link below: Risk Management Template SAMPLE Group members must be manually entered in the IGT tool or uploaded via the .csv file. In case of submission via upload, the following .csv file must be used: (csv-File) The User Manual (IGT-Manual 3.0) (available in German only) contains a description of the registration process as well as instructions for the submission of notifications to the Financial Market Authority. A declaration must first be submitted (Declaration) to the Financial Market Authority. The declaration in the annex must be submitted by the counterparty seeking an exemption from clearing obligations for intra-group transactions pursuant to Article 4 (2) EMIR from the Financial Market Authority using the EMIR-IGT Tool. The declaration must be sent to the following e-mail address: IGT@fma.gv.at
- The declaration must be signed by a person holding the necessary authorisation to do so, who is employed in either the counterparty making the application or the one making the notification. This person must confirm that all details and information, which are being submitted to the Financial Market Authority via the EMIR-IGT Tool, are correct.
- It is particularly important that all details and information that are submitted to the Financial Market Authority in the declaration as well as via the EMIR-IGT Tool are both correct and complete. In the event that incorrect or misleading details are submitted, the person signing the declaration may breach legal regulations and legal action may result against that person.
- In accordance with the respective relevant data protection provisions, the Financial Market Authority uses all information that is submitted to the FMA via the EMIR-IGT Tool in the performance of its legally prescribed tasks pursuant to EMIT and other relevant legal regulations. Personal information may therefore also be submitted to other national supervisory authorities within the EEA for such purposes.
- The member of the group making the application or the notification with regard to exemption from clearing obligations pursuant to Article 4 (2) EMIR in the name of other legal entities belonging to the group, is required to have received approval to do so by all legal entities in the group.
The amount of EUR 2 000.00 is payable for checking exemption from the clearing obligations for intra-group transactions pursuant to 4 (2) EMIR pursuant to the FMA Regulation on Fees, Accounting Group 3 (securities supervision) tariff item III.G.8.