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ESMA publishes final report amending RTS on the clearing obligation for intragroup transactions

27 September 2018

The European Securities and Markets Authority (ESMA) has today published its Final Report on the Clearing Obligation under EMIR (no 6). The report presents a new set of draft regulatory technical standards (RTS) on the clearing obligation. The draft RTS relate to the deferred date of application for the treatment of certain intragroup transactions concluded with a third country group entity.

Currently there are three Commission Delegated Regulations (CDRs) on the clearing obligation, which mandate a range of interest rate and credit derivative classes for clearing. These CDRs contain a deferred date of application of the clearing obligation for intragroup transactions that satisfy certain conditions, and where one of the counterparties is in a third country, in the absence of the relevant equivalence decision.

Proposed extension and alignment to 21 December 2020

With the deferred dates soon approaching and, in the absence of implementing acts on equivalence on the legal, supervisory and enforcement framework of a third country under Article 13(2) of EMIR in respect of the clearing obligation, ESMA proposes to prolong these exemptions for a very limited period of time. 

ESMA, with the first deferred deadline approaching on 21 December 2018, aims to find the right balance between the objective of a temporary exemption and the need to contain the risk of unintended consequences with respect to EMIR’s objectives by deferring the date of application for two years.

In seeking to ensure simplicity, ESMA also proposes to align the date of extension for the three relevant CDRs to 21 December 2020 in case no equivalence decision has been adopted. These are;

  • Commission Delegated Regulation (EU) 2015/2205 regarding interest rate derivative classes;
  • Commission Delegated Regulation (EU) 2016/592 regarding credit derivative classes; and
  • Commission Delegated Regulation (EU) 2016/1178 regarding interest rate derivative classes.

Next steps

ESMA has now sent the draft RTS to the European Commission for endorsement.