KEY POINTS AND DATES RELATING TO EMIR AS APPLICABLE TO FINANCIAL COUNTERPARTIES
The EU Regulation on OTC Derivatives, Central Counterparties and Trade Repositories ("EMIR")1 which was adopted on 4 July 2012 and entered into force on 16 August 2012 introduced the following:-
reporting to trade repositories; clearing obligations; risk mitigation requirements for non-centrally cleared trades; requirements for central clearing counterparties (CCPs) and trade repositories (TRs). Technical Standards
EMIR also required the European Securities and Markets Association ("ESMA") to deliver to the European Commission its final report on a number of draft technical standards, some of which ESMA produced on 27 September 2012. Technical standards that are yet to be finalised include
Risk mitigation techniques for OTC derivatives that are not centrally cleared relating to (i) the level and type of collateral to be exchanged and (ii) the level of capital required to manage the risk not covered by the exchange of collateral; OTC derivative contracts that are considered to have a direct substantial and foreseeable effect in the European Union or to prevent the evasion of EMIR. On 19 December 2012, the European Commission endorsed the following draft regulatory and implementing technical standards:-
Regulatory Technical Standards
Regulatory technical standards on capital requirements for central counterparties; Regulatory technical standards on requirements for central counterparties; Regulatory technical standards on indirect clearing arrangements, the clearing obligation, the public register, access to a trading venue, non-financial counterparties, risk mitigation techniques for OTC derivatives contracts not cleared by a CCP; Regulatory technical standards on the minimum details of the data to be reported to trade repositories; Regulatory technical standards specifying the details of the application for registration as a trade repository; Regulatory technical standards specifying the data to be published and made available by trade repositories and operational standards for aggregating, comparing and accessing the data. Implementing Technical Standards
Implementing technical standards on requirements for central counterparties; Implementing technical standards on the minimum details of the data to be reported to trade repositories; Implementing technical standards specifying the details of the application for registration as a trade repository. The European Council and European Parliament were given until 19 February 2013 to raise any objections to the draft regulatory technical standards. The implementing technical standards were not subject to the right of scrutiny of the European Parliament and European Council.
Given the European Council and European Parliament raised no objections to the draft regulatory technical standards, all of the above referenced draft technical standards (both regulatory and implementing) entered into force on 15 March 2013 (which was the twentieth day following their publication in the EU's Official Journal which occurred on 23 February 2013). As with any other EU Regulation, their provisions are directly applicable (i.e. legally binding in all Member States without implementation into national law) from 15 March 2013.
Key Provisions and Dates
The following is a summary of the key provisions of the EMIR Regulation and Technical Standards as applicable to financial counterparties (e.g. investment funds, investment managers, etc) including key dates when those provisions will or are likely to become effective:-