UK: EMIR countdown: Notification forms for 15 March and new Regulations for 1 April 2013

The FSA has published final versions of notification forms for the purposes of the European Market Infrastructure Regulation (EMIR) for use by from 15 March 2013.  The Government has also published the Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013 in preparation for legal cutover to the UK's new regulatory architecture on 1 April 2013.      

FSA notification forms for EMIR

From 15 March 2013, non-financial counterparties that enter into positions in over-the-counter derivatives contracts that exceed the clearing thresholds specified by ESMA under article 11 of the OTC derivative technical standards must notify the competent authority (until legal cutover on 1 April, the FSA).  Notifications are also required when non-financial counterparties no longer exceed the clearing threshold.  The clearing thresholds are:

(a) EUR 1 billion in gross notional value for OTC credit derivative contracts;
(b) EUR 1 billion in gross notional value for OTC equity derivative contracts;
(c) EUR 3 billion in gross notional value for OTC interest rate derivative contracts;
(d) EUR 3 billion in gross notional value for OTC foreign exchange derivative contracts;
(e) EUR 3 billion in gross notional value for OTC commodity derivative contracts and other OTC derivative contracts not otherwise provided for.

The FSA has published the forms to be used for making those notifications:

• Non-Financial Counterparty exceeding the clearing threshold
• Non-Financial Counterparty no longer exceeding the clearing threshold

Non-financial counterparties are expected:

• to use the exact Microsoft Excel forms provided in the links;
• to ensure that names of counterparties, email addresses and submission IDs are accurate and consistent in across all of the forms submitted over time, and;
• to have the forms submitted by a person with appropriate seniority (e.g. an executive director, company secretary, or head of compliance).

The FSA has also published a webpage on notifications and exemptions under EMIR.

The Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013

On 7 March, The Financial Services and Markets Act 2000 (Over the Counter Derivatives, Central Counterparties and Trade Repositories) Regulations 2013 were laid before Parliament.  The Regulations come into force on 1st April 2013 , immediately after section 6 of the Financial Services Act 2012 comes fully into force.  The Regulations implement certain Articles Regulation (EU) 648/2012 on OTC derivatives, central counterparties and trade repositories (EMIR) by:

• amending Part 18 of FSMA to make the provisions concerning clearing houses compatible with EMIR
  • creating a new category of clearing house (“recognised central counterparty”) being those central counterparties subject to, and recognised under, EMIR
  • disapplying some provisions of Part 18 of FSMA for these bodies
• amending the Companies Act 1989 to implement and facilitate the EMIR requirements on segregation and portability of accounts
• disapplying the Regulations on Recognition Requirements for Investment Exchanges and Clearing Houses for recognised central counterparties and providing that EMIR requirements must be met for recognition as a recognised central counterparty
• designating the Bank of England as the competent authority under EMIR for central counterparties
• designating the FCA as competent authority under EMIR for financial and non-financial counterparties, trading venues, trade repositories and clearing members of central counterparties for most cases, but
  • giving the PRA certain EMIR competent authority functions in relation to PRA-authorised persons
• empowering the FCA to obtain information and to impose penalties for contraventions of EMIR
• making provision with regard to applications and notifications to FCA under EMIR
• giving the Bank of England enforcement powers in relation to EMIR requirements regarding acquisition of control over central counterparties
• making provision for ESMA to gain access to telephone and data traffic records and make on-site inspections with the authorisation of the High Court, or in Scotland the Court of Session
• making various consequential amendments, transitional and saving provisions; and
• requiring review of the regulations before 1st April 2018, and subsequently at intervals of not more than five years.

ESMA has also updated its EMIR webpage (as of 15 March 2013) and has made available templates for the notification to ESMA when a  non-financial counterparties exceeds the clearing threshold (Article 10(1) (a) of EMIR):

• Notification from non-financial counterparty to ESMA of exceeding the clearing threshold
• Notification from non-financial counterparty to ESMA of no longer exceeding the clearing threshold

and  has produced a quick guide to EMIR for non-financial companies.