The Central Bank of Ireland has published an industry letter containing a number of recommendations on how to improve firms’ compliance with EMIR, so as to ensure complete, accurate and timely reporting of derivative trades. All counterparties should consider these recommendations, including in particular those required to make an EMIR Regulatory Return (“ERR”), and make any necessary amendments to their trade reporting processes and procedures. 

Background

EMIR1 requires financial and non-financial counterparties to derivative transaction contracts to provide certain information regarding derivative trades to a trade repository (“TR”) by the end of the working day following the conclusion, modification or termination of the contract. Failure to do so constitutes a prescribed contravention which may be subject to an enforcement action by the Central Bank of Ireland (the “Central Bank”).

The Central Bank may also require nonexempt counterparties to complete an ERR pursuant to the European Union (European Markets Infrastructure) Regulations 2014. The Central Bank has exercised this power to require certain NFCs that have significant derivative positions to submit an annual ERR, the first of which covered the period ending on 31 December 2015. See our related briefing here.

During the course of 2016, the Central Bank reviewed a selection of ERR submissions, focusing in particular on the extent to which data is complete, accurate and reliable taking into account the requirements under EMIR, relevant implementing and technical regulations and the implementation guidance provided by the European Securities and Markets Authority (“ESMA”) in its EMIR Q&A. The Central Bank has now published its feedback on the main issues identified from this review as well as recommendations for how firms’ compliance with EMIR could be improved (see here). 

Central Bank Recommendations

The Central Bank’s recommendations address four issues, namely delegated reporting; completeness and accuracy of trade reporting; Legal Entity Identifier (“LEI”) and Unique Trade Identifier (“UTI”)

Delegated Reporting

Many counterparties with delegated reporting arrangements failed to take appropriate steps to ensure EMIR compliance by their delegates, despite the fact that the relevant counterparty remained legally responsible for discharging its EMIR obligations. 

The Central Bank expects a counterparty that has delegated reporting arrangements to ensure that it receives regular feedback from its delegates in order to reconcile data in the TR’s database with that in the counterparty’s internal systems: the relevant delegated reporting arrangement should provide for such feedback. The counterparty should ensure that any required remedial action is undertaken in order to comply with EMIR. 

Conpleteness and accuracy of trade reporting

Counterparties with delegated reporting arrangements in place are not generally informed when trade report submissions have been rejected and cannot therefore ensure that timely remedial action is taken to verify that the reporting obligation is met. 

The Central Bank expects counterparties to review TR rejection reports regularly to ensure that EMIR trade reporting obligations are discharged and, where relevant, that revised correct data submissions are made on a timely basis and remedial action is taken to limit the number of rejected reports. Any counterparty that avails of a delegated reporting arrangement should ensure that it receives details of any TR rejected trade submissions from the reporting entity and that appropriate remedial action has been taken. This requirement should be included in any delegated reporting agreement entered into by a counterparty. 

Legal Entity Identifier (LEI)

A LEI is a 20 character alphanumeric code that is used to identify a specific party to a financial transaction, including derivatives subject to the EMIR requirements. A counterparty should ensure that it shares details of its LEI with its trading partners and any reporting delegates. All reviews of TR data should confirm that the counterparty is correctly identified by its LEI. Counterparties should ensure that LEIs are renewed annually and an entity providing delegated reporting services should monitor its clients’ LEI renewal dates and notify them of those dates in a timely manner. 

Unique Trade Identifier (UTI)

Under Commission Delegated Regulation 148/2013, each derivative subject to the EMIR reporting framework must have a UTI. Counterparties should ensure that a UTI is applied to such derivatives and that it is communicated to all relevant parties in advance of the derivative being reported to a TR. A counterparty should be able to explain how it ensures the UTI is unique.

Where a counterparty delegates responsibility for UTI generation to another entity, the delegating counterparty should ensure that it is advised of the UTI in a timely manner and that it is aware of how it can be deemed unique. 

Comment

According to the Central Bank the quality of data being submitted to TRs continues to raise a number of significant issues. The Central Bank intends to have regard to the above recommendations and guidance issued by ESMA when assessing counterparties’ compliance with EMIR in the future. Each counterparty will need to ensure that it takes on board the Central Bank’s recommendations when meeting its EMIR trade reporting obligations.