Stand:updated on 08.01.2020 | Topic OTC derivatives EMIR – Notifications to BaFin
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Pursuant to EMIR and the relevant technical standards as well as the German Securities Trading Act (Wertpapierhandelsgesetz – WpHG), various notifications to BaFin and, in some cases, to ESMA are required. These notification obligations can apply to both financial and non-financial counterparties.
As part of the EMIR Regulatory Fitness and Performance programme (EMIR Refit), new reporting obligations for financial counterparties have been introduced and the reporting obligations for non-financial counterparties have been revised.
Since 17 June 2019, financial counterparties, under Article 4a(1) of EMIR, and non-financial counterparties, under Article 10(1) of EMIR, have been required to notify ESMA and BaFin if they exceed their respective derivative volume threshold as specified in Article 4a or Article 10 of EMIR in conjunction with Article 11 of Regulation (EU) No 149/2013. This is determined by the aggregate month-end average position for the previous 12 months in the respective derivative classes in accordance with Article 4a(3) and Article 10(3) of EMIR for financial counterparties and non-financial counterparties respectively. The calculation is to be aggregated at group level. ESMA and BaFin are also to be notified if the counterparty does not carry out such a calculation, for example because the thresholds are clearly exceeded.
The relevant forms for the notifications addressed to BaFin and notifications to ESMA are provided by BaFin (see forms on the right of this page) and by ESMA respectively. The forms for the notifications to BaFin and ESMA differ slightly as regards form and content. Please send your notification to BaFin to Division WA 12.
Pursuant to Article 12(4) of Regulation (EU) No 149/2013, financial counterparties must have the necessary procedures in place to report to the competent authority on a monthly basis the number of unconfirmed OTC derivative transactions that have been outstanding for more than five business days.
This means that the counterparty subject to the obligation is, until further notice, merely required to have the appropriate processes in place so as to be able to report the number of such transactions upon BaFin's request.
Until further notice, notifications pursuant to Article (15)2 of Regulation (EU) No 149/2013 must be submitted within 14 calendar days of the end of the preceding calendar month.
Further information can be found under "Requirements for financial counterparties".
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