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

The European Securities and Markets Authority (ESMA) has published information on its website about Regulation (EU) 2019/834 amending EMIR Regulation (EMIR Refit). EMIR Refit provides for a new regime to determine when non-financial counterparties (NFCs) 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:

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

NFCs 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 NFCs 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.

NFCs 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.

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 10(3) of EMIR, in calculating the positions of OTC derivatives, the non-financial counterparty must include all the OTC derivative contracts entered into by the non-financial counterparty or by other non-financial entities within the group to which the non-financial counterparty belongs, which are not objectively measurable as reducing risks directly relating to the commercial activity or treasury financing activity of the non-financial counterparty or of that group.