EMIR – Regulations for trading in derivative contracts

The European Markets Infrastructure Regulation (EMIR) is an EU-wide framework which centers around strengthening supervision of derivatives trading and increasing the market’s ability to resist risks. 

The EMIR regulations relate mainly to OTC derivatives (bilateral agreements in which Handelsbanken, for example, is a counterparty). Some parts also relate to exchange-traded derivatives (ETD). The regulations are divided into three main areas: transaction reporting, risk mitigation techniques and (for larger corporates) clearing requirements.

On 17 June 2019, a new regulation amending EMIR was implemented, known as EMIR Refit, which amended regulatory requirements for companies trading in OTC derivatives. The main change relates to the clearing obligation, and the method for determining whether or not a company is affected by the clearing obligation.

Companies that trade in derivatives must be aware of these rules.

You can read more about EMIR on ESMA’s website.Opens in a new window

Customer categories

All companies that trade in derivatives are to be categorised according to EMIR. Among other things, the categorization of companies affects the clearing and risk management requirements applying to the company. 

  • Financial counterparties (FC), for example, banks, insurance companies, fund management companies and securities companies (operations which require a license) which are
    - subject to the clearing obligation (FC+)
    - not subject to the clearing obligation (FC-)
  • Non-financial counterparties (NFC), e.g. other companies that trade in derivatives, which are
    - subject to the clearing obligation (NFC+)
    - not subject to the clearing obligation (NFC-)

When trading in OTC derivatives, you are obliged to inform the counterparty of the customer category to which you belong.

Clearing obligation

According to EMIR, OTC derivatives contracts must be cleared if the following conditions are fulfilled:

  • There is a central counterparty (CCP) that is authorised to clear the derivative instrument concerned 
  • The European Commission has made a decision that the instrument is to be cleared
  • Both parties in transaction are subject to the clearing obligation

Transaction reporting

All transactions relating to derivative contracts, both OTC and exchange traded, entered into by a company, must be reported to a specific trade repository. 

The company itself is responsible for ensuring that its transactions are reported. However, as of 18 June 2020, financial counterparties shall be responsible for reporting on behalf of counterparties classified as NFC- the details of OTC derivative contracts concluded between them. The NFC- may choose to report their OTC derivative contracts themselves. In that case, the NFC- shall inform the financial counterparty with which they have concluded OTC derivative contracts of their decision prior to reporting those transactions to a trade repository.

A company responsible for reporting its transactions may delegate the processing to another party.

Handelsbanken provides assistance

Handelsbanken offers to report the derivative transactions that your company carried out with Handelsbanken. In order to provide this assistance, Handelsbanken will require:

  • a signed agreement for this service (“Agreement on reporting derivative transactions”),
  • an LEI (Legal Entity Identifier) for which your company must apply to certain approved administrative organisations, which are also entitled to charge a fee for this international ID number.

For more information, a list of approved administrative organisations and details of how to apply for an LEI, can be found on the Global Legal Entity Identifier Foundation (GLEIF)Opens in a new window website.

Non-financial counterparties that are not subject to the clearing obligation (NFC-):

All Non-financial counterparties that are not subject to the clearing obligation (NFC-) but which use OTC derivatives must, at 12-month intervals, calculate their aggregate average nominal OTC position at the month-end for the previous 12 months. 

  • OTC transactions carried out with the purpose of hedging are to be excluded 
  • For Groups, all calculations are to be combined.

All Non-financial counterparties (NFC-) which do not make calculations, or which calculate and are above one or more clearing thresholds, will be classed as NFC+. They will then be obliged to clear, and will be subject to stricter requirements regarding risk mitigation measures.

All companies which do not make calculations, or which calculate and are above one or more clearing thresholds, must immediately notify ESMA and the Swedish Financial Supervisory Authority.

For more details, see the ESMAOpens in a new window website
For more details, see the Swedish Financial Supervisory AuthorityOpens in a new window website

The following clearing thresholds apply:

Asset Thresholds
OTC financial derivatives
1 mdkr EUR
OTC stock derivatives
1 mdkr EUR
OTC interest rates derivatives
3 mdkr EUR
OTC fX derivatives
3 mdkr EUR
OTC commodity derivatives och other OTC derivatives 3 mdkr EUR

Risk mitigation techniques

Confirmations: Every company must promptly confirm its OTC derivative transactions. For non-financial companies companies below all thresholds (NFC-), the requirement is that the company must confirm its transactions within two days of the transaction date at the latest.

Portfolio reconciliation and Dispute resolution:  Since autumn 2013, it has been mandatory to have a clearly defined and predetermined procedure for reconciliation of outstanding derivative contracts and collateral. Equally, there must be established procedures for resolving any disputes regarding such derivative contracts.