Sources of regulation

Primary Legislation in Force

Text of the EMIR Regulation – published in the Official Journal of the European Union (the Official Journal) on 27 July 2012 and entered into force on 16 August 2012

Text of the Refit Regulation – published in the Official Journal on 28 May 2019 and entered into force on 17 June 2019

Article 85 EMIR Review – Commission Report to Parliament and Council

Report from the Commission to the European Parliament and Council under Article 85(1) of EMIR – published 23 November 2016

Legislative Proposals to Amend EMIR

Commission legislative proposal for a Regulation of the European Parliament and of the Council amending EMIR as regards the clearing obligation, the suspension of the clearing obligation, the reporting requirements, the risk-mitigation techniques for OTC derivatives contracts not cleared by a central counterparty, the registration and supervision of trade repositories and the requirements for trade repositories and related annex – published 4 May 2017

• Council of EU Presidency compromise proposal on proposed Regulation amending EMIR – 28 September 2017
• European Parliament Committee on Economic and Monetary Affairs (ECON), Draft Report on proposed Regulation amending EMIR – 26 January 2018

Commission legislative proposal for a Regulation of the European Parliament and Council amending Regulation (EU) 1095/2010 establishing ESMA and amending EMIR as regards the procedures and authorities involved for the authorisation of CCPs and requirements for the recognition of third-country CCPs – published 13 June 2017

• Opinion of the European Central Bank on a proposal for a Regulation amending Regulation (EU) 1095/2010 and EMIR with regard to the procedures and authorities involved for the authorisation of CCPs and requirements for the recognition of third-country CCPs – published 4 October 2017

Delegated Regulations and Implementing Regulations in Force

Initial implementation

Delegated Regulation (EU) 149/2013 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 – published in the Official Journal on 23 February 2013 and entered into force on 15 March 2013

Clearing

Delegated Regulation (EU) 285/2014 with regard to regulatory technical standards on direct, substantial and foreseeable effect of contracts within the Union and to prevent the evasion of rules and obligations – published in the Official Journal on 21 March 2014 and entered into force on 10 April 2014

Delegated Regulation (EU) 2015/1515 as regards the extension of the transitional periods related to pension schemes – published in the Official Journal on 15 September 2015 and entered into force on 16 September 2015

Delegated Regulation (EU) 2015/2205 "RTS No. 1" on clearing of OTC Interest Rate Swaps in G4 currencies – published in the Official Journal on 1 December 2015 and entered into force on 21 December 2015

Delegated Regulation (EU) 2016/592 "RTS No. 2" on clearing of OTC Credit Default Swaps based on an index – published in the Official Journal on 19 April 2016 and entered into force on 9 May 2016

Delegated Regulation (EU) 2016/1178 "RTS No. 4" on clearing of additional classes of OTC IR derivatives not included in RTS No. 1 – published in the Official Journal on 20 July 2016 and entered into force on 9 August 2016

Commission delegated regulation (EU) 2017/610 of 20 December 2016 amending Regulation (EU) No 648/2012 of the European Parliament and of the Council as regards the extension of the transitional periods related to pension scheme arrangements

Delegated Regulation (EU) 2017/751 amending Delegated Regulations (EU) 2015/2205, (EU) 2016/592 and (EU) 2016/1178 as regards the deadline for compliance with clearing obligations for certain counterparties dealing with OTC derivatives – published in the Official Journal on 29 April 2017 and entered into force on 19 May 2017

Amendments to clearing obligation

Delegated Regulation (EU) 2019/396 amending Delegated Regulations (EU) 2015/2205, 2016/592 and 2016/1178 as regards the date at which the clearing obligation takes effect for certain types of contracts – published in the Official Journal on 13 March 2019 and entered into force on 14 March 2019. This Delegated Regulation exempts from the clearing obligation:

• legacy OTC uncleared contracts; and
• contracts in respect of which the clearing obligation has not yet taken effect,

that are novated out of the UK into the EU following the UK's withdrawal.

The exemption creates a 12 month window for contracts between UK and EU counterparties to be relocated to the EU without triggering the clearing obligation. The amendments will only apply if (i) the UK leaves the EU without the conclusion of a withdrawal agreement and (ii) there is no extension of the Article 50 two-year negotiation period.

Indirect clearing arrangements

Delegated Regulation (EU) 2017/2155 amending Delegated Regulation (EU) 149/2013 with regard to regulatory technical standards on indirect clearing arrangements - published in the Official Journal on 21 November 2017 and entered into force on 11 December 2017

Delegated Regulation (EU) 2017/2154 supplementing Regulation (EU) No 600/2014 ("MiFIR") with regard to regulatory technical standards on indirect clearing arrangements - published in the Official Journal on 21 November 2017 and entered into force on 11 December 2017

Trade reporting

Implementing Regulation (EU) 1247/2012 laying down implementing technical standards with regard to the format and frequency of trade reports to trade repositories – published in the Official Journal on 21 December 2012 and entered into force on 10 January 2013

• Implementing Regulation (EU) 2017/105 amending Implementing Regulation (EU) 1247/2012 laying down implementing technical standards with regard to the format and frequency of trade reports to trade repositories – published in the Official Journal on 21 January 2017 and entered into force on 10 February 2017

Delegated Regulation (EU) 148/2013 with regard to regulatory technical standards on the minimum details of the data to be reported to trade repositories – published in the Official Journal on 23 February 2013 and entered into force on 15 March 2013

• Delegated Regulation (EU) 2017/104 amending Delegated Regulation (EU) 148/2013 with regard to regulatory technical standards on the minimum details of the data to be reported to trade repositories – published in the Official Journal on 21 January 2017 and entered into force on 10 February 2017

Commission Decision rejecting the draft implementing technical standards to amend Implementing Regulation (EU) 1247/2012 (this Decision effectively confirms a reporting effective date of 12 February 2014 for all derivative classes, whether exchange traded or OTC) – dated 28 January 2014

Margin requirements

Delegated Regulation (EU) 2016/2251 with regard to regulatory technical standards for risk-mitigation techniques for OTC derivative contracts not cleared by a central counterparty – published in the Official Journal on 15 December 2016 and entered into force on 4 January 2017

• Delegated Regulation (EU) 2017/323 correcting Delegated Regulation (EU) 2016/2251 with regard to regulatory technical standards for risk-mitigation techniques for OTC derivative contracts not cleared by a central counterparty – published in the Official Journal and entered into force on 25 February 2017.
• Delegated Regulation (EU) 2019/397 amending Delegated Regulation (EU) 2016/2251 as regards the date until which counterparties may continue to apply their risk-management procedures for certain OTC derivative contracts not cleared by a CCP – published in the Official Journal on 13 March 2019 and entered into force on 14 March 2019. The amendments create a 12 month window for contracts between UK and EU counterparties to be relocated to the EU without triggering the margining obligation. The amendments will only apply if (i) the UK leaves the EU without the conclusion of a withdrawal agreement and (ii) there is no extension of the Article 50 two-year negotiation period.

Draft Delegated Regulations and Regulatory Technical Standards

Clearing

Draft RTS No. 3 on clearing of Non-Deliverable FX Forwards – published 10 October 2014 (note that this has since been superseded by ESMA feedback statement on NDFs (published 4 February 2015), under which FX NDFs are not subject to clearing for the time being)

Indirect clearing arrangements

Commission Delegated Regulation amending Commission Delegated Regulation (EU) 149/2013 with regard to regulatory technical standards on indirect clearing arrangements – adopted by the Commission on 22 September 2017

Commission Delegated Regulation supplementing MiFIR with regard to regulatory technical standards on indirect clearing arrangements – adopted by the Commission on 22 September 2017

ESMA Q&A

The most recent version of the ESMA Q&A on EMIR is available via this link. The Q&A provides guidance on interpretation of the clearing, trade reporting and risk-mitigation requirements and is updated periodically.

International Standards

BCBS and IOSCO Margin Requirements for non-centrally cleared derivatives – published March 2015

Additional legislation

The European Union (Withdrawal) Act 2018 repeals the European Communities Act 1972 on the day the UK leaves the EU. It also converts into UK domestic law the existing body of directly applicable EU law (a process referred to as 'onshoring'). Its purpose is to provide a functioning statute book on the day the UK leaves the EU, and it also gives Ministers powers to make Statutory Instruments to prevent, remedy or mitigate any failure of EU law to operate effectively, or any other deficiency in retained EU law.

Certain Statutory Instruments relating to EMIR are set out below 

Central Counterparties (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2018 – published in November 2018

The Over the Counter Derivatives, Central Counterparties and Trade Repositories (Amendment, etc., and Transitional Provision) (EU Exit) Regulations 2019 – published in February 2019

The Trade Repositories (Amendment and Transitional Provision) (EU Exit) Regulations 2018 – published in December 2018

The information provided is not intended to be a comprehensive review of all developments in the law and practice, or to cover all aspects of those referred to.
Readers should take legal advice before applying it to specific issues or transactions.