On February 14, 2014, ESMA published a letter sent to the Commission, in which ESMA invites the Commission to clarify the definitions of FX derivatives and commodity forwards that can be physically settled, in order to bring consistency to the application of EMIR across Member States. ESMA has observed that characterization of these contracts differs, in particular as to the settlement period beyond which a contract is a financial contract and no longer a commercial contract. Hence, France considers this settlement period to be of three days, where other jurisdictions see it of seven days, in particular for FX contracts. Interestingly, and unless the EU Commission provides for clarification (by which means is not mentioned), ESMA considers by anticipation that the settlement period will be of seven days for FX contracts, meaning that for contracts settling within seven days, EMIR will not apply. However, this would not prevent Member States from considering contracts not meeting this criterion as financial instruments for purposes other than EMIR, such as MiFID/MiFIR or MAD/MAR. A wider consistency relating to all EU legislation referring to financial instruments would be welcomed, however.