On 12 July 2019, the European Securities and Markets Authority (ESMA) issued a public statement addressing the misalignment between the scope of counterparties subject to the EMIR clearing obligation (CO) and those subject to the MiFIR derivatives trading obligation (DTO).

ESMA’s statement addresses two areas:

• clearing and trading obligations for small financial counterparties (FCs) and non-financial counterparties; and
• date of application of the trading obligation for financial counterparties which are in Category 3 and subject to the CO.

The statement advises Member State national competent authorities (NCAs) not to prioritise their supervisory actions in relation to the DTO towards counterparties exempted from the CO following the entry into force of the EMIR Refit Regulation.

For FCs in Category 3 which are subject to the CO, the date of application of the DTO should be the same as the new date of application of the CO as amended by the EMIR Refit Regulation. This date of application should be four months following the notification from FCs to ESMA and NCA as required under the EMIR Refit Regulation, rather than 21 June 2019.