This includes, for example, the deadlines for the transaction confirmation pursuant to Article 12 of Regulation (EU) No 149/2013 and the frequency of the portfolio reconciliation pursuant to Article 13 of Regulation (EU) No 149/2013.

In addition, financial counterparties must note that pursuant to Article 4(1)(a)(v) of EMIR, an OTC contract between two persons situated in a third country may be subject to the clearing obligation in the EU if at least one of the persons benefits from a guarantee provided by a counterparty which is established in the Union and which fully or partially covers the liability resulting from the OTC derivative contract provided that the guarantee covers an aggregate nominal value of at least €8 billion resulting from one or more OTC derivative contracts and the guarantee corresponds to at least 5% of the total current exposure within the meaning of Article 272(17) of Regulation (EU) 575/2013 of the financial counterparty established in the Union providing the guarantee. Further details on this can be found in Delegated Regulation (EU) 285/2014.

Information specific to the clearing obligation

As part of EMIR Refit, the provisions regarding the clearing obligations for financial and non-financial counterparties have been amended.

For financial counterparties in particular it is important to note that if a clearing obligation exists then this clearing obligation applies to all OTC derivative contracts in all asset classes.

More information on this can be found in the article EMIR – Notifications to BaFin.

Furthermore, pursuant to Article(15)(2) of Regulation (EU) No 149/2013, financial counterparties must also notify BaFin of disputes relating to an OTC derivative contract, its valuation or the exchange of collateral if an amount or a value is higher than €15 million and the dispute is outstanding for at least 15 business days.

For reasons of simplicity, reporting should not be carried out for each individual case, but instead on a monthly basis using a form (see also EMIR Q&A from ESMA OTC Question 15 (d)). This means that every month BaFin must be informed of the disputes which were outstanding in the previous calendar month (reporting period). Notifications about each preceding reporting period must be submitted within 14 days of the end of the reporting period

• by post to:
  Bundesanstalt für Finanzdienstleistungsaufsicht
  WA 14 – Meldung nach Artikel 15 Absatz 2 Verordnung (EU) Nr. 149/2013
  Marie-Curie-Str. 24 – 28
  60439 Frankfurt

  or

• by e-mail to: Artikel15@bafin.de

• via the MVP Portal

and must always be submitted using the form provided. If you are using e-mail, please bear in mind that the information is not protected. In order to submit notifications or other materials for a specialised procedure via the MVP Portal, you must first register for the MVP Portal and then submit an electronic application for notification authorisation. Both of these steps can be completed using the MVP Portal user interface. Introductory instructions can be found here (only available in German). Negative (“nil”) reporting is not necessary.

All disputes concerning an OTC derivative contract, its valuation or the exchange of collateral which have a value of more than €15 million and are outstanding for at least 15 business days must be reported. Disputes which have been resolved at the time of reporting must also be reported, but not disputes from months prior to the month stated in the report provided that these disputes were already reported in the preceding reporting period.

The amount or value of the outstanding disputes should, to the greatest extent possible, be calculated and reported on the basis of individual transactions. The value or amount can be reported on a portfolio basis if the disputed valuation or the collateral, for example the initial margin, is calculated on a portfolio level.

If the reporting party is or would be the creditor of the contested claim, the amount or value is to be indicated with a positive sign; if the reporting party is or would be the debtor, this amount or value is to be indicated with a negative sign. In the case of collective notifications, this applies accordingly to the party whose transactions are being reported.

The reporting form can be used for collective notifications of multiple financial counterparties established in the Federal Republic of Germany within one group provided that these have outstanding disputes pursuant to Article 15(2) of Delegated Regulation 149/2013 to report to BaFin.

In this case, all outstanding disputes relating to the financial counterparties within the group which are reporting as part of the collective notification are to be stated individually in the corresponding fields.