On 10 July 2024, the European Securities and Markets Authority (ESMA) issued a public statement on the eligibility of uncollateralised public guarantees, public bank guarantees and commercial bank guarantees for non-financial counterparties (NFCs) acting as clearing members in light of the agreement on the proposal to amend the European Market Infrastructure Regulation (EMIR 3).

The public statement notes that the European Parliament and the Council of the EU have reached provisional agreement on EMIR 3 and it is reasonable to expect the final text to be adopted and published in the Official Journal of the EU before the end of this year. The public statement adds that the agreed text includes provisions concerning the eligibility of public guarantees, public bank guarantees or commercial bank guarantees as collateral by central counterparties (CCPs). This allows the acceptance of fully uncollateralised bank guarantees by the CCPs to cover their initial and ongoing exposures to NFCs acting as clearing members and clients, under certain conditions. Such provisions effectively make permanent the main features of the temporary amendments to Delegated Regulation (EU) No 153/20133 regarding CCP requirements adopted during the energy crisis which expanded the eligible pool of collateral to alleviate certain liquidity concerns, in particular for NFCs. These temporary measures are due to expire on 7 September 2024.

The statement notes that stakeholders have expressed concerns regarding the risks of letting the emergency measures lapse but from a legal perspective, neither ESMA nor Member State competent authorities (NCAs) possess any formal power to dis-apply a directly applicable EU legal text. Notwithstanding, ESMA states that it would expect NCAs not to prioritise their supervisory actions in relation to the eligibility of uncollateralised public guarantees, public bank guarantees and commercial bank guarantees for NFCs acting as clearing members in light of the agreement on EMIR 3 and to generally apply their risk-based supervisory powers in their day-to-day enforcement of applicable legislation in this area in a proportionate manner.