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 form is to be used together with the template for listing of the pairings for the submission to the FMA, to be sent via e-mail to IGT@fma.gv.at The forms are only available in English due the potential necessity to consult with sister authorities.
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.
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 (line 2 to 5 and 7 to 10) 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 column (column B through to column XFD).
The national competent authority is to be entered in row 12 for every pair, to which the corresponding request has also been submitted. This shall only apply for pairs within the European Union.
Whether the undertaking in row 2 to 5 is to be classified as an NFC is to be stated in row 14.
Whether the undertaking in row 7 to 10 is to be classified as an NFC is to be stated in row 16.