On January 30, 2015, the European Securities and Markets Authority (“ESMA”) published an Opinion on the draft Regulatory Technical Standards (“RTS”) on the clearing obligation for interest rate swaps under the European Market Infrastructure Regulation (“EMIR”). The draft RTS specify details such as the class of OTC derivatives that should be subject to the clearing obligation and the dates from which the clearing obligation takes effect. ESMA’s Opinion follows on from the Commission’s recent communication to ESMA of its intention to endorse the draft RTS with amendments. The amendments proposed by the Commission include postponing the starting date of the frontloading requirement (which is the obligation to clear OTC derivative contracts after a central counterparty has been authorized under EMIR and before the date of application of the clearing obligation), clarifying the calculation of the threshold for investment funds and excluding non-EU intragroup transactions from the clearing obligation. In the Opinion, ESMA addresses the changes made by the Commission to the RTS and, in particular, states that the processes that would exempt non-EU intragroup transactions from the clearing obligation are not appropriate. ESMA states that it can provide technical advice on the issue if requested, so that an alternative solution can be found and delays to the implementation of the clearing obligation can be avoided.
The draft RTS and Opinion are available at: http://www.esma.europa.eu/system/files/rts_for_irs_annexe_acte_autonome_nlw_part1_v1.doc and http://www.esma.europa.eu/news/ESMA-publishes-opinion-draft-RTS-clearing-obligation-interest-rate-swaps?t=326&o=home.