On 8 April 2025, the European Securities and Markets Authority (ESMA) issued a consultation paper setting out draft regulatory technical standards (RTS) amending the RTS on the clearing thresholds under the European Markets Infrastructure Regulation (EMIR).

Background

Regulation (EU) 2024/2987 amended EMIR and in particular modified the clearing thresholds regime. The Regulation created a different calculation methodology for financial counterparties and non-financial counterparties with the former being required to calculate their uncleared positions and, separately, their aggregate over-the-counter (OTC) exposure (cleared and uncleared) while non-financial counterparties should only count their uncleared positions towards the clearing thresholds. ESMA was also given a mandate to specify the values of the clearing thresholds for aggregate positions and uncleared positions, respectively. Additionally, ESMA is to specify the criteria for establishing which OTC derivative contracts are objectively measurable as reducing risks as well as the mechanisms triggering a review of the values of the clearing thresholds.

Consultation

In the consultation paper ESMA highlights the main changes that Regulation (EU) 2024/2987 makes to EMIR’s clearing thresholds framework, notably on the calculation methodology which moves away from the exchange traded derivatives versus OTC distinction (where only OTC derivatives count towards the threshold) to a framework based on the level of OTC uncleared transactions. More precisely, financial counterparties are required to calculate their uncleared positions and, separately, their aggregate OTC exposure (cleared and uncleared) to assess whether they exceed the clearing thresholds, while non-financial counterparties should only count their uncleared positions towards the clearing thresholds.

Next steps

The deadline for comments on the consultation paper is 16 June 2025.