On 25 February 2026, ESMA published its final report and final draft regulatory technical standards (the “Draft Clearing Threshold RTS”) containing further details of the proposed new clearing threshold regime to apply to parties entering into OTC derivative transactions.
For Financial Counterparties (“FCs”) and Non-Financial Counterparties (“NFCs”) exceeding the clearing thresholds means becoming subject to the clearing obligations under EMIR, while for NFCs it also means becoming subject to other EMIR obligations (including the obligation to exchange variation margin). Derivatives users should therefore now be reassessing their current categorisation and reviewing their existing arrangements with a view to ensuring compliance with the proposed new regime.
EMIR 3.0
Amendments to EMIR (contained in Regulation (EU) 2024/2987, “EMIR 3.0”) were published in the Official Journal of the European Union on 4 December 2024 and these amendments have applied since 24 December 2024. You can read more about EMIR 3.0 here.
Key Points for NFCs
EMIR 3.0 made notable amendments to how the clearing thresholds are measured for NFCs. These amendments will apply following the likely entry into force of the Draft Clearing Threshold RTS in due course and are as follows:
- NFCs will be allowed to exclude derivatives that are cleared through an EU authorised CCP or EU recognised CCP from the threshold calculation.
- While EMIR currently requires NFCs to count all OTC derivatives entered into by any NFC entity within the group, EMIR 3.0 will restrict the count to uncleared OTC derivatives entered into by the NFC itself.
NFCs will continue to be able to exclude derivatives used for hedging of risk, rather than speculation, from the threshold calculation.
Key Points for FCs
EMIR 3.0 also made a notable amendment to how the clearing thresholds are measured for FCs. FCs will be required to make two calculations with regards to the clearing threshold relating to: (1) the aggregate uncleared OTC derivative positions of the FC and its group; and (2) the aggregate of the cleared and uncleared OTC interest rate and credit derivative trades of the FC and its group. Exceeding either of these thresholds will trigger the clearing obligation. This amendment will apply following the likely entry into force of the Draft Clearing Threshold RTS in due course.
Proposed Updated Clearing Thresholds
The draft Clearing Threshold RTS proposes the following new clearing thresholds (as compared below to the clearing thresholds currently in force for ease of reference):
| Asset Class | Current Threshold for Aggregate Positions
(FCs and NFCs) | Proposed New Threshold for Uncleared Positions
(FCs and NFCs) | Proposed New Threshold for Aggregate Positions (FCs Only) |
| Interest rate derivatives | 3 billion EUR | 2.2 billion EUR | 3 billion EUR |
| Credit derivatives | 1 billion EUR | 0.8 billion EUR | 1 billion EUR |
| Equity derivatives | 1 billion EUR | 0.7 billion EUR | N/A |
| FX derivatives | 3 billion EUR | 3 billion EUR | N/A |
| Commodity derivatives and emission allowance derivatives | 4 billion EUR | 4 billion EUR | N/A |
Next Steps
The Draft Clearing Threshold RTS have been submitted to the European Commission for adoption within 3 months. If adopted, the Draft Clearing Threshold RTS will then be subject to a non-objection period by the European Parliament and the Council of the EU. Until the Draft Clearing Threshold RTS fully complete their path through the EU legislative process and become applicable, EMIR as currently in force remains the law.
We are continuing to keep a close eye on developments in this area and will publish further updates as matters progress. For further information on EMIR 3.0, on the clearing thresholds, on putting in place formal EMIR compliance policies or on EMIR compliance more generally, please contact Alan Bunbury, Graham Bloomfield or your usual Matheson contact.
This article is provided for general information purposes only and does not purport to cover every aspect of the themes and subject matter discussed, nor is it intended to provide, and does not constitute or comprise, legal or any other advice on any particular matter.