On 9 October 2025, the European Securities and Markets Authority (ESMA) published a Consultation Paper on draft Regulatory Technical Standards (RTS) on the elements to be considered when central counterparties (CCPs) define participation requirements.

Regulation (EU) No 2024/2987 amending Regulations (EU) No 648/2012, (EU) No 575/2013 and (EU) 2017/1131 as regards measures to mitigate excessive exposures to third-country CCPs and improve the efficiency of Union clearing markets (EMIR 3) amended Article 37 of EMIR on ‘Participation Requirements’.

In particular:

  • Article 37(1) of EMIR provides that a CCP is required to establish, where relevant per type of product cleared, the categories of admissible clearing members and the admission criteria, upon the advice of the risk committee pursuant to Article 28(3) of EMIR. Such criteria ought to be non-discriminatory, transparent and objective so as to ensure fair and open access to the CCP and ensure that clearing members have sufficient financial resources and operational capacity to meet the obligations arising from participation in a CCP. Criteria that restrict access are permitted only to the extent that their objective is to control the risk for the CCP.
  • Article 37(1a) of EMIR now provides that a CCP can accept non-financial counterparties (NFCs) as clearing members only if those NFCs are able to demonstrate how they intend to fulfil the margin requirements and default fund contributions, including in stressed market conditions, and restricts the provision of client clearing services by a NFC only to NFCs belonging to the same group as that NFC.
  • Article 37(7) of EMIR requires ESMA to develop draft RTS to further specify the elements to be considered when a CCP: (i) Establishes its admission criteria referred to in Article 37(1) of EMIR; and (ii) Assesses the ability of NFCs acting as clearing members to meet margin requirements and default fund contributions referred to in Article 37(1a) of EMIR. When developing the draft RTS, ESMA is required to take into account the: (i) Modalities and specificities through which non-financial counterparties (NFCs) might, or already do, access clearing services, including as direct clearing members in sponsored models; (ii) Need to facilitate prudentially sound direct access of NFCs to CCP clearing services and activities; (iii) Need to ensure proportionality; and (iv) Need to ensure an effective management of risks.

The Consultation Paper sets out ESMA’s proposals for draft RTS under Article 37(7) of EMIR.

Next steps

The deadline for comments on the Consultation Paper is 5 January 2026.

Based on the responses received, ESMA will prepare the Final Report and submit the final draft RTS to the European Commission by the end of Q1 2026.