On 27 September 2018, the European Securities and Markets Authority (ESMA) published its final report (the Report) on the clearing obligation under EMIR (no. 6). The Report presents draft regulatory technical standards (the Draft RTS) in Annex III, which relates to the treatment of certain intragroup transactions concluded with a third country group entity.

There are three European Commission delegated regulations (the Delegated Regulations) on the clearing obligation, which mandate a range of interest rate and credit derivative classes for clearing. The Delegated Regulations contain a deferred date of application of the clearing obligation for intragroup transactions that satisfy certain conditions and where one of the counterparties is in a third country, in the absence of the relevant equivalence decision.

To date, no implementing act on equivalence on legal, supervisory and enforcement framework of a third-country under Article 13(2) of EMIR in respect of the clearing obligation has been adopted. Because of this, coupled with the fact that the deferred dates for the clearing obligations within the Delegated Regulations are within the next year, the Report proposes to amend the deferred date of the three Delegated Regulations to 21 December 2020 (in the instance that no equivalence decision has been adopted).

ESMA has sent the Report to the European Commission in order to submit the draft RTS presented in the Annex of the Report for endorsement.