Clearing obligation

Under UK EMIR, all OTC derivative contracts within scope (that are entered into or novated on or after the relevant clearing obligation start date) will be subject to mandatory clearing and must be cleared in a UK authorised, or non-UK recognised, CCP.

This clearing obligation has been in force since 21 June 2016, subject to phase-ins that are based on firms’ categorisation and derivatives volumes. Please refer to the implementation timetables below for more detailed information on phase-ins.

Who is caught by the clearing obligation

The clearing obligation applies to contracts between any combination of financial counterparties (FCs) and non-financial counterparties who exceed the relevant clearing thresholds as prescribed in UK EMIR (for NFCs) and UK EMIR REFIT (for FCs), subject to certain exemptions.

See non-financial counterparties[1] for more information on the clearing threshold for NFCs.

Under UK EMIR REFIT, the definition of FC has been expanded to capture UK Alternative Investment Funds (AIFs) established in the UK, irrespective of the location of their manager. In addition, where relevant, the definition continues to capture those AIFs (irrespective of location) with an FCA authorised or registered AIFM.

However, there are new carve-outs for UCITS and AIFs that are set up exclusively to serve one or more employee share purchase plans.

UK EMIR REFIT – a new clearing regime

UK EMIR REFIT introduces an updated clearing regime for firms that intends to bring more proportionality to the clearing obligation.

Key changes for firms include:

• the creation of a new category of ‘small financial counterparties’ (SFCs) considered to be below the thresholds. These SFCs are exempted from the obligation to clear their derivative contracts through a central counterparty (CCP), while remaining subject to risk mitigation obligations
• non-financial counterparties (NFCs) above the thresholds and subject to the clearing obligation will be subject to reduced clearing obligations. Under UK EMIR REFIT, NFCs only have to clear OTC derivative contracts pertaining to the asset class(es) they exceed the threshold(s) in
• the temporary exemption from the clearing obligation of pension scheme arrangements has been extended by another 4 years from the date of entry into force of UK EMIR REFIT
• the ‘Frontloading’ requirement is removed and, therefore, entities that become subject to mandatory clearing for new classes of derivatives do not need to clear any pre-existing transactions

To know whether you are subject to the clearing obligation, you must determine your 12-month average aggregate group position of OTC derivatives in each asset class, and compare it to a set of clearing thresholds (EUR 1bn for credit and equity, EUR 3bn for interest rate instruments, FX and commodities).

If you exceed the threshold, you must start clearing your OTC derivatives contracts within 4 months of your notification being submitted.

To find out more about notifications, please refer to our UK EMIR exemptions and notifications page[2]. To find out more about when to notify us, please visit the EMIR news page[3].

Which derivatives are subject to the clearing obligation

The Bank of England is responsible for setting the products subject to the clearing obligation under UK EMIR. A full list of the products in scope can be found on the Bank of England website.

Currently, UK EMIR mandates clearing for the following types of derivatives:

Suspension of the clearing obligation

Under UK EMIR REFIT, the Bank of England has the power to temporarily suspend the clearing obligation (and the related trading obligation under UK MiFIR) for an initial period of up to 3 months, in certain circumstances. We may inform the Bank if, in our opinion, there is evidence that one of the conditions for suspension of the clearing obligation has been met.

This suspension can be extended for further periods of up to 3 months, for a maximum aggregate period of 12 months. If the clearing obligation is suspended, the UK MiFIR trading obligation can also be suspended.

More exemptions from the clearing obligation

Under UK EMIR there are additional exemptions from the clearing obligation for:

• intragroup transactions (provided certain conditions are met)
• certain pension scheme arrangements

See the exemptions and notifications page[2] for more information.