Entities subject to the reporting obligation

The reporting obligation under Article 9 (1) of EMIR applies to entities covered by the term "financial counterparty" as defined under Article 2 (8) of EMIR. Financial counterparties include, for example, investment services enterprises, insurance undertakings, etc.

However, the reporting obligation applies not only to financial counterparties, but also to non-financial counterparties within the meaning of Article 2 (9) of EMIR. These include all entities established in the EU that are not classified as financial counterparties. Such entities are subject to the reporting obligation regardless of whether they have fallen below or exceeded the clearing threshold referred to in Article 10 of EMIR.

Transactions subject to the reporting obligation

Pursuant to Article 9 (1) of EMIR all derivative contracts that have been concluded, modified or terminated are subject to the reporting obligation. Article 9 (1) of EMIR does not specifically restrict this reporting obligation to OTC derivatives; therefore, exchange-traded derivatives are also covered by this reporting obligation.

Pursuant to Article 2 (5) of EMIR, a "derivative" is subject to the reporting obligation if it is included under Annex I, Section C, points (4) to (10) of MiFID.

Reporting of collateral

The level of collateral posted for the derivative transaction by the counterparty subject to the reporting obligation must also be reported. In addition, it is required to report to the trade repository on a daily basis the value of the contract determined on the basis of the daily mark-to-market evaluations. This means that, if applicable, a daily update is required for each derivative contract concluded in order to identify any fluctuations in the contract value thus determined.

However, this obligation applies only to those enterprises which are either financial counterparties or which, as non-financial counterparties, have exceeded the clearing threshold referred to in Article 10 of EMIR. For non-financial counterparties who have not reached this threshold, the reporting obligation with respect to collateral and the contract value pursuant to Article 3 (4) of the RTS regarding Article 9 of EMIR do not apply.

Reporting channels

Pursuant to Article 9 (1) of EMIR, the conclusion, modification or termination of derivative contracts must be reported to a trade repository no later than on the following working day. The party subject to the reporting obligation may deliver the report itself or delegate reporting to its counterparty or any suitable third party. Please be advised that the obligation of delivering a correct report will not pass to the third party in such case. The party subject to the reporting obligation will not be released from this obligation until the trade repository has received a correct and full report.

As regards the specifics of the reporting obligation, the reporting fields to be used for reporting are defined in the RTS and ITS regarding Article 9 of EMIR. While the RTS contain an abstract description of the relevant fields, the ITS set out the specific field entries with ISO codes, field lengths, etc.

Identification

The technical standards of the European Commission require that the Legal Entity Identifier (LEI) system be used for identifying the parties subject to the reporting obligation as well as any other entities participating in the transaction, e.g. as a counterparty, customer or CCP. Legal Entity Identifiers can be applied for at local operating units (LOUs). A full list of LOUs can be found on the website of the Regulatory Oversight Committee.

Additional information

Further information about the reporting obligation under Article 9 of EMIR and answers to frequently asked questions about EMIR can be found on the ESMA website. A list of FAQs about this topic can also be found on the European Commission's website.