EMIR 2.2 Secondary Legislation Published

Three Commission Delegated Regulations have been published in the Official Journal of the European Union, supplementing the revised European Market Infrastructure Regulation. The Delegated Regulations contain provisions related to the changes introduced by EMIR 2.2, the amending EU Regulation that came into force on January 1, 2020 and introduced changes to the procedures and authorities involved in the authorization of central counterparties and the requirements for the recognition of third-country CCPs. EMIR 2.2 also introduced a new tiering system for third-country CCPs, making non-systemically important (or "Tier 1") third-country CCPs subject to less stringent requirements than systemically important (or "Tier 2") third-country CCPs. The Commission Delegated Regulations all relate to third-country CCP provisions of EMIR 2.2 and will enter into force on September 22, 2020. They have been published in the form adopted by the European Commission in July 2020.

The first Commission Delegated Regulation supplements the EMIR 2.2 provisions on the fees the European Securities and Markets Authority charges to third-country CCPs for recognition and for its supervisory activities on an ongoing basis. Its provisions include: (i) introduction of a basic "recognition fee" of €50,000, or €360,000 for Tier 2 CCPs; (ii) the means by which ESMA will determine annual fees for Tier 1 and Tier 2 CCPs, respectively; and (iii) the conditions for payment of annual fees.

The second Commission Delegated Regulation sets out further details of the criteria that ESMA will take into account when determining whether a third-country CCP is systemically important or likely to become systemically important (i.e. a Tier 2 CCP). Factors to be taken into account include: (i) the nature, size and complexity of the CCP's business; (ii) the effect of failure of, or a disruption to, a CCP; (iii) the CCP's clearing membership structure; (iv) alternative clearing services provided by other CPPs; and (v) the CCP's relationship, interdependencies, or other interactions.

The third Commission Delegated Regulation sets out the process by which Tier 2 CCPs should submit a request for "comparable compliance" and the elements to be assessed by ESMA when making a comparable compliance determination. Comparable compliance is essentially a more stringent version of the equivalence test applicable to Tier 1 CCPs. A determination of comparable compliance by ESMA means that a third-country Tier 2 CCP's compliance with the regulations of its own jurisdiction satisfies the requirements of EMIR. 

View the Commission Delegated Regulation on ESMA's fees for third-country CCPs.

View the Commission Delegated Regulation on the criteria for determining systemically important third-country CCPs.

View the Commission Delegated Regulation on third-country CCPs' requests for comparable compliance.

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