On 28 March 2019, the European Securities and Markets Authority (ESMA) published a statement providing guidance on the new EMIR Refit regime for the clearing obligation for financial and non-financial counterparties.

The statement provides guidance for financial and non-financial counterparties subject to EMIR on when they need to determine whether they are subject to the clearing obligation under the new regime introduced by Refit, and equally when they need to notify ESMA and their relevant competent authority that they are indeed subject to the clearing obligation, i.e. on the day the Refit text enters into force.

The European Commission published the Refit proposal on 4 May 2017. Following a series of negotiations on the Refit text proposal, the Romanian presidency of the Council and the European Parliament reached a preliminary agreement on 5 February 2019, and the Refit text as confirmed then by the Committee of Permanent Representatives in the European Union was published on 6 March 2019.

Following these agreements and publication, and taking into account the standard process that legislative proposals follow until adoption, the ESMA statement provides that it is “thus reasonable to expect that the final Refit text could be adopted and published in the Official Journal as early as May 2019 and thus could enter into force (depending on which date the final Refit text is published in the Official Journal) as early as end of May 2019, i.e. 20 days after its publication.”