MiFID II secondary legislation modifies the definition for "contracts having the characteristics of other derivative financial instruments and not being for commercial purposes". Physically settled OTC forwards are at stake.



"Close and factual connection", "systematic source of income" and "promotion" became tokens distinguishing the exemption stipulated in Article 2(1)(c) MiFID II.



Judgment of the Court of 28 April 2016 (C‑191/14, C‑192/14, C‑295/14, C‑389/14 and C‑391/14 to C‑393/14) made market participants anxious.


This is on account of concerns that the legal certainty of the carbon market has been undermined.


The ruling applies to the EU ETS cross-sectoral correction factor (CSCF)



ACER will provide specifications on how to embed the XML file into RSS compliant messages in Q3 2016 (Answer to the Question 6.1.2 FAQs on REMIT fundamental data and inside information reporting).



On 31 March 2016 ACER issued the interpretation of the scope of standard contracts "admitted to trading" at an organised market place for the purposes of REMIT transactions and orders reporting scheme, with particular focus on broker platform traded contracts and voice-brokered contracts.



The updated EMIR Q&As version of 4 April 2016 includes a new ESMA's clarification regarding the population of the "Clearing obligation" field in the EMIR trade reports.


The issue relates to the Field 28 Table 2 as specified in the Annex to the Commission Delegated Regulation (EU) No 148/2013 of 19 December 2012 supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council on OTC deriva­tives, central counterparties and trade repositories with regard to regulatory technical standards on the minimum details of the data to be reported to trade repositories  (OJ L 52, 23.02.2013, p. 1).


ESMA explains how the description of the field should be interpreted, how it should be populated during the frontloading period and how long the counterparties are allowed to report value "X" (standing for "not available").



In the EMIR Review Report no. 4 of 13 August 2015 - ESMA input as part of the Commission consultation on the EMIR Review (2015/1254 the European Securities and Markets Authority (ESMA) recommends substantial modification to the EMIR reporting requirement i.e. waiving the obligation to report contracts which were terminated before the reporting start date (i.e. 12 February 2014).


Proposed amendment to Article 9(1) of Regulation (EU) No 648/2012 (second paragraph) is as follows:

 The reporting obligation shall apply to derivative contracts which:

(a) were entered into before 12 February 2014 and remain outstanding on that date, or

(b) were entered into on or after 12 February 2014.


See the updated implementation outline for European Union Internal Energy Market Network Codes.



ACER has published examples of transaction reporting under the REMIT scheme - details see here.



The new EMIR II consultation brings, principally, no revelations. Among few exceptions is the fact that the European Commission's working document seeks market participants' views on the appropriateness of the hedging definition as well as on the proper calibration of the clearing thresholds.


These issues may be of major practical importance for non-financial counterparties.



On 7 May 2015 a list of the recognised, equivalent third-country CCPs has been published for the purposes of the EMIR Regulation.


Among the first third-country CCPs are also the two Australian central counterparties authorised to clear emissions derivatives: ASX Clear (Futures) Pty Ltd, ASX Clear Pty Ltd. (OTC bilateral and OTC third country exchange).


The recognition allows the abovementioned third-country CCPs to provide clearing services to clearing members or trading venues established in the EU.