On 23 February 2026, the European Securities and Markets Authority (ESMA) issued a consultation paper on draft regulatory technical standards (RTS) amending Commission Delegated Regulation 153/2013 in relation to public guarantees, public bank guarantees and commercial bank guarantees as collateral and in relation to certain aspects of investment policy and highly secure arrangements for the deposit of financial instruments.
Background
Regulation (EU) No 2024/2987 (EMIR 3) amended Article 46 of Regulation (EU) No 648/2012 (EMIR) to permanently broaden both the type of eligible guarantees and the scope of who may use them. The text now explicitly recognises public bank guarantees alongside public guarantees and commercial bank guarantees as eligible collateral, provided they meet strict conditions on enforceability and liquidity. Also, the reform removes the limitation that only clearing members which are non-financial counterparties (NFCs) could benefit from this flexibility. After EMIR 3, all NFCs, whether they are clearing members or clients of clearing members, can use uncollateralised public and commercial bank guarantees as collateral.
Changes
The mandate given to ESMA in Article 46 of EMIR has been renewed and requires ESMA to develop draft RTS to specify the relevant conditions under which public guarantees, public bank guarantees and commercial bank guarantees may be accepted as collateral under paragraph 1, including appropriate concentration limits, credit quality requirements and stringent wrong-way risk requirements for public bank guarantees and commercial bank guarantees. ESMA is planning to fulfil this mandate through an amendment to Commission Delegated Regulation 153/2013.
ESMA is also proposing to make certain targeted changes to the provisions set out in Commission Delegated Regulation 153/2013 that have been adopted under the mandate under Article 47(8) of EMIR. These targeted changes concern (i) the conditions under which debt instruments can be considered highly liquid, bearing minimal credit and market risk and hence can be considered as eligible financial instruments for the purpose of CCP investment policy; and (ii) the highly secured arrangements in which financial instruments posted as margins or as default fund contributions can be deposited.
Next steps
The deadline for comments on the consultation paper is 30 April 2026.
ESMA will consider the feedback to the consultation paper in Q2 2026 and expects to publish a final report and submit the final draft RTS to the European Commission for endorsement in Q4 2026, potentially together with other measures.