Notification about exemption from clearing obligations
Article 4(2) EMIR prescribes that intragroup transactions as defined in Article 3 EMIR may be exempted from the clearing obligation 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 the clearing obligation for intragroup 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 shall 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(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 object to the use of this exemption within 30 calendar days after receipt of that notification if the transactions between the counterparties do not meet the conditions laid down in Article 3 EMIR, without prejudice to the right of the competent authorities to object after that period of 30 calendar days has expired where those conditions are no longer met.
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 established in Austria has been authorised to apply 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 met.
In either case, FMA will issue an official notification (“Bescheid”) of its decision to the applying counterparty.
The conditions for an exemption shall be demonstrated by submitting conclusive information. To ensure a consistent procedure, the following template shall be used for this purpose: Risk Management Template. A sample template can be found using the following link: Risk Management Template SAMPLE. Group companies shall be entered in the FMA IGT Tool either manually or by uploading a csv file. The IGT Manual provides supportive information on the registration process and on the submission of notifications to the Financial Market Authority. The counterparty seeking exemption from the clearing obligation for intragroup transactions pursuant to Article 4(2) EMIR shall submit a declaration to the following Financial Market Authority email address: [email protected].
- The declaration shall be signed by a person holding the necessary authorisation for either the applying counterparty or the notifying entity. This authorised signatory shall confirm that all information submitted to the Financial Market Authority via the FMA IGT Tool is valid.
- It is particularly important that all information submitted to the Financial Market Authority in the declaration as well as via the FMA IGT Tool is correct and complete. In the event that incorrect or misleading details are submitted, the person signing the declaration may be in breach of legal requirements, which may entail legal action against that person.
- In accordance with the respective relevant data protection provisions, the Financial Market Authority uses all information submitted to it via the FMA IGT Tool in the performance of its legally prescribed duties pursuant to EMIR and other relevant legal regulations. Personal information may, therefore, be shared with other national supervisory authorities within the EEA for such purposes.
- The group company submitting an application for or notification of an exemption from the clearing obligation pursuant to Article 4(2) EMIR on behalf of other group entities is required to obtain approval to do so by all affected group entities.
Pursuant to the FMA Regulation on Fees, Accounting Group 3 (securities supervision) tariff item III.G.8., a fee of EUR 2,000.00 will be charged for considering an application for an exemption from the intragroup clearing obligation pursuant to Article 4(2) EMIR.