Communication with regards to the new EMIR Refit regime

On 28 March 2019, ESMA published a public statement1 regarding the Implementation of the new EMIR Refit regime for the clearing obligation for financial and non-financial counterparties.

It is reasonable to expect that the final Refit text could be adopted and published in the Official Journal as early as May 2019 and thus could enter into force (depending on which date the final Refit text is published in the Official Journal) as early as end of May 2019, i.e. 20 days after its publication.

The published Refit text includes a new regime to determine when financial and non-financial counterparties are subject to the clearing obligation. The published Refit text does not include a delayed implementation of this new regime, i.e. this new regime applies as soon as the Refit text enters into force. As a result, financial and non-financial counterparties taking positions in OTC derivative contracts and choosing to calculate their aggregate month-end average position for the previous 12 months would need to determine the results of that calculation on the day the Refit text enters into force.