July 03, 2018

ESMA issued clarifications via a statement on the clearing obligation for pension scheme arrangements (PSAs). The aim of the clarifications is to avoid, to the extent possible, disruption to certain PSAs that may face potential challenges in clearing their OTC derivative contracts on August 17, 2018, when the current, and final, exemption from the clearing obligation under EMIR.

EMIR introduced a temporary exemption for PSAs from the clearing obligation to allow time for a suitable technical solution for the transfer of non-cash collateral as variation margins to be developed by CCPs. With the two possible extensions already granted, there is no possibility to further extend this temporary exemption under EMIR. However, a further extension of the temporary exemption is part of the Refit negotiations. ESMA, in its statement, indicates it expects national competent authorities to not prioritize their supervisory actions toward entities that are expected to be exempted again in a relatively short period of time and to generally apply their risk-based supervisory powers in their day-to-day enforcement of applicable legislation in a proportionate manner.


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Keywords: Europe, EU, Securities, Pension Scheme, PSAs, OTC Derivatives, Clearing Obligation, EMIR, ESMA