Clearing arrangements as an indicator of whether a contract qualifies as a financial instrument? Manifest error in assumptions...
MiFID (Sections C 7 as implemented by Article 38 (1) Letter b of Regulation (EC) No 1287/2006) defines commodity derivatives as instruments which are cleared.
EMIR, in turn, mandates OTC derivative contracts, if certain conditions are fulfilled, to be cleared by authorised European CCPs or recognised third-country CCPs.
Do you see logical madness in such a construction? Never mind, it is binding EU financial law. It shows that the complexity of the EU financial regulation, unfortunately, overwhelmed legislators.
But there is lucium intervallum and now ESMA recommends that the existence of clearing arrangements should not be taken as an indicator of whether an instrument is a financial instrument anymore.