Potential Regulatory Twists for Non-Financial Counterparties

by Erwin Bastianen, Manager, Corporate Treasury Solutions, and Michiel Wijn, Senior Manager, Corporate Treasury Solutions, PwC (The Netherlands)

After having worked hard to achieve compliance with the European Market Infrastructure Regulation (EMIR), companies started to focus on the next milestone on the regulatory agenda. Corporate treasurers shifted their attention to IFRS 9 and the tax regulations around BEPS (Base Erosion and Profit Shifting), whereas commodity traders and wholesalers are focusing on MiFID II/ MiFIR. However, non-financial counterparties (NFCs) should put EMIR back on their agenda as ESMA’s recently issued reports on EMIR included some unpleasant surprises for them.

In line with Article 85 of EMIR, the European Commission had to perform a review of EMIR by 17 August 2015, three years after the regulation entered into force. In the light of this, ESMA issued four reports to provide input for the Commission’s review. Where the first report is completely focused on non-financial counterparties, the other reports cover requirements for financial counterparties, Central Counterparties (CCPs) and Trade Repositories (TRs). The fourth report also has some NFC (non-financial counterparties) relevance in the area of trade reporting. These reports are not final and adoption of ESMA’s recommended changes is therefore still pending.

Conclusions and impact

Should the ESMA recommendation be adopted by the Commission, then companies that currently classify as NFC+ might be classified as NFC-. More importantly, companies with large trading volumes in commodities and/or foreign exchange derivatives currently classified as NFC- might be classified as NFC+ in the future. The significance of the later relabelling is that it triggers mandatory clearing of derivatives.