Meldingsprocedure EMIR clearingverplichting

The DNB published on 14 June 2023 this news article informing about the upcoming change and the notification procedure when a fund falls under the EMIR clearing obligation.
Pursuant to the exemption provision in Article 89 of the European Market Infrastructure Regulation (EMIR), pension funds have been exempted from the requirement to centrally clear derivatives as specified in Article 4. This exemption expired on 18 June 2023. Consequently, starting from 19 June 2023, pension funds will be subject to the clearing obligation and will also need to comply with the requirements of Article 4 and 4a.
All parties involved in a derivative contract are required to centrally clear their OTC derivatives if both conditions described in Article 4 subsections (a) and (b) EMIR are met:
– The transaction is conducted with a counterparty that falls under the clearing obligation according to EMIR
– The derivative contract was initiated after the commencement date of the clearing obligation
Under Article 4a, counterparties have the option to calculate their aggregated average derivative position at the end of each month over the last 12 months. If a counterparty fails to perform this calculation or if their derivative position exceeds one of the threshold values set by ESMA, the counterparty becomes subject to the central clearing obligation for all derivatives falling under the clearing obligation.
A counterparty with an aggregated average derivative position lower than the threshold values for each derivative category will need to perform this calculation every 12 months.
If a pension fund doesn’t calculate its position or if the result of that calculation exceeds ESMA’s threshold values, the pension fund becomes subject to the clearing obligation.
A pension fund based in the Netherlands is obligated to immediately notify ESMA and DNB starting from 19 June 2023, if it falls under or is no longer subject to the EMIR clearing obligation.
This notification can be submitted to DNB by filling out the declaration and notification tables in the clearing threshold notification form and submitting it via „Mijn DNB,“ specifically under “Overige aanvragen en meldingen“. It is crucial to ensure complete and accurate filling of both the declaration and notification tables while adhering to the form’s structure and format. Incomplete or improperly formatted forms will not be processed. DNB will assess completeness upon receipt of the notification.
After making this notification, a fund has up to 4 months to centrally clear all OTC derivatives falling under the obligation.
A counterparty that is already subject to the clearing obligation can notify DNB that they are no longer subject to the EMIR clearing obligation if they can demonstrate that they no longer meet any of the clearing thresholds. This notification is done through the same process and form as explained above.