On 31 March 2015, ESMA published its updated Q&As on the implementation of EMIR. The additional Q&As are relevant to the following areas:

  • Intragroup transactions
  • Status of entities not established in the EU
  • Pension scheme exemption from the clearing obligation
  • Frontloading requirements for the clearing obligation
  • Clearing obligation
  • RTS in third country contracts
  • Authorisation of a CCP
  • Segregation and portability

ESMA Revised Opinion: Draft Regulatory Technical Standard on the Clearing Obligation on Interest Rate Swaps

On 6 March 2015, the European Securities and Markets Authority (ESMA) published a revised opinion on draft regulatory technical standards (the RTS) on the clearing obligation for interest rate swaps (IRS) under EMIR. The opinion responds to the European Commission’s (the Commission) letter of 18 December 2014 and a corrigendum to the letter dated 29 January 2015 in which the Commission proposed various amendments to the draft RTS. Please see our previous briefing, Regulatory Technical Standard on the clearing obligation for interest rate swaps, for details of the Commission’s proposed amendments.

The revised opinion comments on three important areas and the revised draft RTS (attached to the revised opinion) has been updated accordingly:

1. Non-EU Intragroup transactions

ESMA agrees with the concerns that the Commission has raised, but not with the proposed method of addressing this issue from both a legal and a practical perspective. ESMA suggests that the Commission should explore alternative ways to achieve the intended result and is ready to assist the Commission to find an alternative solution.

2. Frontloading

ESMA agrees with the Commission’s proposal to postpone the start date of the frontloading obligation.

3. Calculation of the threshold for investment funds

ESMA agrees with the Commission’s proposal to calculate the clearing threshold for investment funds at fund level rather than group level.