Guidance on notifications from financial counterparties of their exceeding or no longer exceeding the clearing threshold

The European Securities and Markets Authority (ESMA) has published on its website information about Regulation (EU) 2019/834 amending EMIR Regulation (EMIR Refit). EMIR Refit provides for a new regime to determine when financial counterparties (FCs) are subject to the clearing obligation. ESMA has also published a notification template (notification template) and the address where such notification is to be sent (EMIR-notifications@esma.europa.eu).

More information is available here:

FCs established in Slovakia that exceed or no longer exceed a clearing threshold must notify Národná banka Slovenska of that fact using the same ESMA notification template.

FCs established in Slovakia that do not calculate their OTC derivative contract positions must must notify to Národná banka Slovenska using the same ESMA notification template. In this case should be inserted “NO” in column H (Positions calculated against the clearing threshold) of tab „Table for notification” in the notification template (notification template).

IF FCs do not calculate their positions or if the result of the calculation exceeds any clearing threshold, FC shall immediately notify ESMA and Národná banka Slovenska and shall become subject to the clearing obligation for OTC derivative contracts concluded or renewed more than 4 months after such notification.

FCs must send notifications to Národná banka Slovenska to EMIR-notifications@nbs.sk.

It is recommended to follow the latest information and the latest version of the notification template provided on ESMA’s website, including the information in ESMA’s Q&A.

The clearing thresholds for the purposes of the clearing obligation are set by Commission Delegated Regulation (EU) No 149/2013 of 19 December 2012 supplementing Regulation (EU) No 648/2012 with regard to regulatory technical standards on indirect clearing arrangements, the clearing obligation, the public register, access to a trading venue, non-financial counterparties, and risk mitigation techniques for OTC derivatives contracts not cleared by a CCP (hereinafter “the Commission Delegated Regulation”), which entered into force on 15 March 2013.

According to Article 11 of the Commission Delegated Regulation, the clearing thresholds are:

1. EUR 1 billion in gross notional value for OTC credit derivative contracts;
2. EUR 1 billion in gross notional value for OTC equity derivative contracts;
3. EUR 3 billion in gross notional value for OTC interest rate derivative contracts;
4. EUR 3 billion in gross notional value for OTC foreign exchange derivative contracts;
5. EUR 3 billion in gross notional value for OTC commodity derivative contracts and other OTC derivative contracts not provided for under points (a) to (d).

According to Article 4a(3) of EMIR (supplemented by EMIR Refit), in calculating the positions of OTC derivatives, the financial counterparty must include all OTC derivative contracts entered into by that financial counterparty or entered into by other entities within the group to which that financial counterparty belongs.