The financial and non-financial counterparties concerned can claim a general exemption from the clearing obligation in the case of intra-group transactions within the meaning of Article 3 and Article 2(16) of EMIR.

Pursuant to Article 4(2) of EMIR, counterparties are obliged to notify BaFin if they intend to claim the exemptions from the clearing obligation for intra-group transactions. This obligation applies to both the financial and the non-financial counterparties. Following its examination regarding the fulfilment of requirements, BaFin can raise objections.

If the counterparty is not established in the EU, the counterparty which is established in Germany must submit the application.

It is necessary to differentiate between three types of cases here:

• the exemption of intra-group transactions with counterparties from Germany,
• the exemption of intra-group transactions with a counterparty from another EU Member State and
• the exemption of intra-group transactions with a counterparty from a third country.

In Article 3(2) of Delegated Regulation (EU) 2205/2015, it is provided for that certain intra-group transactions with the participation of counterparties from third countries are exempted from the clearing obligation temporarily for three years or up to 60 days after the coming into force of a relevant equivalence decision by the EU Commission pursuant to Article 13(2) of EMIR, provided that BaFin has issued an appropriate confirmation that the relevant requirements, which are the same as those for an intra-group exemption pursuant to Article 4(2)(a) and (b) of EMIR, have been met.

For the fulfilment of the notification requirement, BaFin has provided forms which can be submitted via the MVP Portal.

Additional information can be found in our Guidance Notice about intra-group exemptions (currently only available in German).

It is already possible to register for the relevant specialised procedure via the MVP Portal. In order to be able to submit notifications or file documentation for a specialised procedure, you must first register on the MVP Portal and then electronically submit an application for a notification authorisation. Both of these steps can be completed using the MVP Portal user interface. For further information on this please refer to the information sheet (only available in German).

Counterparties can provide such a notification for all intra-group activities regardless of whether or not the OTC derivatives for which they are providing the notification are included in the RTS for the clearing obligation.

Enquiries can be sent by e-mail to: Artikel4EMIR@bafin.de.

Data protection

Please refer to our data protection declarations.