Following the amendment of Article 9(1) EMIR in Article 1 (7) a) of Regulation (EU) 2019/834, with effect from 17.06.2019 it is now possible to request an exemption from the reporting obligation for intra-group contracts, provided that certain conditions are met.
This possibility applies for contracts in which at least one counterparty is a non-financial counterparty (NFC), or would be considered as one, were it to be established in the European Union, provided that
a) both counterparties are included in the same consolidation on a full basis;
b) both counterparties are subject to appropriate centralised risk evaluation, measurement and control procedures; and
c) the parent undertaking is not a financial counterparty.
The intention to apply the exemption is to be notified to the competent authorities and shall be valid provided that the notified authorities do not declare within three months that the conditions for the exemption are not fulfilled.
The following online tool IGT Tool shall be used to notify the Austrian FMA about the intention to use the exemption to report intragroup transactions. You need to register for an account. More details can be found in our manual. We would like to highlight the costs of EUR 2.000,- for the verification of such a notification pursuant to 2. Teil 2. Abschnitt TP III.G.9 of FMA Gebührenverordnung.
The information about the person making the submission, the parent institution in the group and potential members of the group in third countries are to be entered in the form. This form shall be uploaded as type „(1A) Notification form“ within our online IGT Tool. A detailed description as well as further documentation can be uploaded as annexes of one of the following types „(1C) Organisational Chart“, „(2A1) Annex centralised risk management procedures“, „(2A2) Annex Senior management“ or „(2A3) Annex Transparent communication mechanisms“ within our online
I. Identification of the Group:
The details such as the e-mail address, name and contact details of the person submitting the request in question, as well as the company name and LEI of the institution from which the person making the submission comes, must be listed.
A. National competent authority of the parent undertaking:
The name and country of the national competent authority of the parent institution must be entered here.
B. Competent authority of third country intragroup counterparties:
The members within the group, which are established in a third country, are to be stated as well as a categorisation of whether this undertaking would be considered as an FC or an NFC+ , if this undertaking were to be established within the EU. Furthermore the country, in which this undertaking has its registered office, as well as the competent prudential supervisory authority of that country, must also be stated.
C. Organisational structure:
Both a graphical depiction of the organisation as well as any additional written description with any additional information is to be provided here.
II. Exemption criteria:
The three criteria that are the prerequisite for the exercising of the exemption from the reporting obligation for contracts within the group making the application must be confirmed here.
A. Centralised Risk Management:
A more detailed description about the risk management principles and controls (point 1), the senior management (point 2) and the transparent communications mechanisms (point 3) are to be listed in points 1 to 3.
B. Additional Information on Centralised Risk Management:
In the case that the details listed in point A do not apply for the whole group, and there are different processes that apply, then they are to be listed individually and the points contained in Section A to be answered separately for every undertaking within the group.
All details, such as the name, LEI, address and the country of the entity (column B to E and H to K) are to be provided for pairs both within the European Union as well as in third countries (e.g. an undertaking from AT with an undertaking from DE). Every pair is to be entered in a separate row. By default 20 rows are inserted but you can add or delete rows as necessary. The attachment needs to be uploaded as csv file in the relevant “Data transmission” within our online IGT Tool.
Column M contains the national competent authority of the other IGT counterparty, to which a notification has also been sent to. This only concerns counterparty pairs within the Union.
Column F and L contains the classification of the entity such as FC (Financial Counterparty) or NFC (Non-financial Counterparty).