Directive on EMIR

Congress Street 12-14 1000 Brussels / www.fsma.be FSMA_2026_01 of 16-01-26 (updated 30-06-26) Directive on EMIR Scope:
The EMIR Regulation (European Market Infrastructure Regulation) Summary/Objectives:
The EMIR Regulation aims to strengthen the European Union's regulatory framework for derivatives transactions by bringing greater stability, transparency, and efficiency to derivatives markets.
Structure:
The EMIR Regulation, its delegated regulations, and its implementing regulations first govern the mandatory use of central counterparties (CCPs) for standardized over-the-counter (OTC) derivative contracts and establish risk management requirements, including the exchange of collateral, for non-standardized OTC derivative contracts. Furthermore, the EMIR Regulation introduces an obligation to report derivative contracts to trade repositories, in order to provide a general overview of the functioning of derivatives markets and to communicate to competent authorities data relating to derivative contracts of the institutions they supervise.

1. What does the EMIR Regulation consist of?
   On August 16, 2012, Regulation (EU) No 648/2012 of the European Parliament and of the Council of July 4, 2012, on OTC derivatives, central counterparties, and trade repositories (European Market Infrastructure Regulation, EMIR) entered into force.
   The regulation imposes three main obligations on market counterparties holding any form of derivatives:

• obligation to report all derivative contracts to a trade repository recognized by ESMA (Article 9 EMIR);
• obligation of central clearing for OTC derivative contracts that ESMA has declared subject to this obligation (Article 4 EMIR);
  Communication
  2/7 / of 30/06/2026 / FSMA
• obligation to apply risk mitigation techniques (Article 11 EMIR) for OTC derivative contracts not cleared by a central counterparty, such as confirmation, daily valuation, reconciliation, and collateral exchanges [1].
  In addition, EMIR provides a framework for the authorization and supervision of central counterparties (CCPs) as well as for the registration and supervision of trade repositories by the European Securities and Markets Authority (ESMA).
  [1] EMIR RTS relating to risk mitigation techniques for OTC derivatives not subject to central clearing: Commission Delegated Regulation (EU) No 149/2013 of December 19, 2012, and Commission Delegated Regulation (EU) 2016/2251 of October 4, 2016.

2. Scope: which products and which entities?
   EMIR applies to any financial counterparty (FC) as well as any non-financial counterparty (NFC) that has entered into derivatives transactions. These products are listed in Section C (points 4 to 11) of Annex I of MiFID II Directive (2014/65/EU).
   In Belgium, the BNB and the FSMA ensure compliance with EMIR requirements by counterparties falling under their respective competence.
   The BNB is the competent authority for ensuring compliance with the EMIR Regulation by financial counterparties such as credit institutions, investment firms, insurance and reinsurance undertakings, winding-up bodies, as well as payment and electronic money institutions subject to prudential supervision. The FSMA is the competent authority for non-financial counterparties (including undertakings) and certain financial counterparties not falling under the supervision of the BNB, such as UCITS, AIFs, their management companies, and occupational retirement institutions.
3. EMIR Obligations
   3.1 Clearing Obligation
   Which derivative contracts are subject to the clearing obligation?
   The European Commission determines, on the basis of regulatory technical standards developed by ESMA, which categories of OTC derivative contracts are subject to a clearing obligation and from when this obligation takes effect.
   In determining whether a category of OTC derivative contracts should be subject to clearing obligations, ESMA aims to reduce systemic risk. In its decision, ESMA takes into account assessment factors such as the standardization of derivative contracts, the 3/7 / of 30/06/2026 / FSMA volume and liquidity of the different categories of OTC derivative contracts, the possible existence of a central counterparty (CCP) authorized to clear these derivative contracts, as well as the existence of reliable and harmonized quotation for the category of OTC derivative contracts in question. A list of derivative contracts subject to the clearing obligation is available here. From when does a clearing obligation apply? When developing the regulatory technical standards that determine from when the central clearing obligation applies, ESMA adopted a phased-in approach. Under this approach, not all categories of derivative contracts are subject to the clearing obligation from the same date. The central clearing obligation depends on:

• the date from which a category of OTC derivative contracts is subject to the clearing obligation, and
• the categories of counterparties to a derivatives transaction.
  A list of the regulatory technical standards determining from when a clearing obligation for a category of OTC derivative contracts applies is available here.
  EMIR Refit and clearing thresholds
  EMIR was amended on June 17, 2019, by Regulation (EU) No 2019/834 of the European Parliament and of the Council of May 20, 2019 ("EMIR Refit") with a view to further applying a principle of proportionality with the introduction of the concept of small financial counterparties (FC-). In accordance with Articles 4a and 10 of the EMIR Regulation as amended by EMIR Refit, a financial counterparty (FC) falling under the competence of the BNB must immediately notify the BNB and ESMA as soon as it exceeds the clearing thresholds. The same obligation applies to NFCs and FCs falling under the competence of the FSMA that exceed the clearing thresholds, which must contact the FSMA and ESMA. They must also make this notification if they decide not to perform this calculation. In this case, they are immediately subject to the central clearing obligation.
• ESMA describes here the clearing thresholds and the verification procedures to be carried out by counterparties.
• The notification procedures to the BNB for exceeding central clearing thresholds are described here.
  EMIR 3 and the active account requirement
  The EMIR Regulation was amended once again on December 24, 2024, by Regulation (EU) 2024/2987 of the European Parliament and of the Council of November 27, 2024 ("EMIR 3"), in order to limit 4/7 / of 30/06/2026 / FSMA excessive exposures to third-country central counterparties and to improve the efficiency of clearing markets within the Union. EMIR 3 requires financial counterparties (FCs) and non-financial counterparties (NFCs) subject to the clearing obligation, which exceed the clearing thresholds in the (aggregated) categories of derivative contracts referred to in Article 7a, paragraph 6, to maintain an active account with a central counterparty established and authorized in the European Union. In accordance with Article 7a, paragraph 1, counterparties must notify ESMA and the competent national authority that they are subject to the active account requirement ("Active Account Requirement" – AAR). This notification had to be made no later than June 24, 2025, using the ESMA form (AAR_notification_template.xlsx), to be sent to ESMA as well as to the competent supervisory authority. Notifications relating to FCs falling under the competence of the NBB (see list in section 2) must be addressed to the BNB. Notifications relating to the active account requirement concerning FCs and NFCs falling under the competence of the FSMA (see also section 2) must be addressed to the FSMA. Declaration relating to the active account requirement (EMIR 3 – Articles 7a and 7b) On February 6, 2026, the regulatory technical standards (RTS) relating to reporting obligations under the active account requirement were published. They entered into force on February 26, 2026, and specify the operational, representativeness, and reporting obligations arising from Articles 7a and 7b of EMIR 3. Specifically, institutions subject to the clearing obligation and meeting the conditions set out in Article 7a, paragraph 1, of EMIR 3 are required to submit a declaration to the competent authority on a semi-annual basis. The first AAR declaration must be submitted no later than July 31, 2026, and covers the period from June 25, 2025, the date of entry into force of the active account requirement, until June 30, 2026, inclusive. Thereafter, declarations will be submitted every six months, with deadlines set for January 31 and July 31 of each year, each declaration covering a twelve-month reference period. To facilitate harmonized reporting at the European level, ESMA has published templates designed to meet reporting obligations. These are available on the 'EMIR reporting' page of the ESMA website, under the heading "Reporting > Article 7b reporting". They include a set of CSV templates as well as instructions to facilitate the reporting process. ESMA has also published additional guidance concerning the representativeness requirement. These specify in particular:
  5/7 / of 30/06/2026 / FSMA
• how institutions must determine the "most relevant derivative sub-categories";
• how they must verify that they meet the representativeness requirement;
• how to correctly complete the corresponding reporting templates.
  AAR declarations relating to FCs falling under the competence of the BNB (see section 2) must be submitted via OneGate. AAR declarations relating to FCs and NFCs falling under the competence of the FSMA (see section 2) must be submitted to the FSMA (emirreporting@fsma.be).
  3.2 Reporting Obligation
  Reporting of transactions to trade repositories
  Article 9 of EMIR provides that all derivative contract transactions must be reported to trade repositories (TRs). TRs are governed by EMIR and are authorized and empowered by ESMA to collect and maintain information on all derivative contracts. The reporting obligation applies to both financial (FC) and non-financial (NFC) counterparties and covers both OTC and exchange-traded derivative contracts.
  The reporting obligation aims to improve the transparency of the OTC derivatives market. Counterparties must report each new transaction, as well as modifications and other events, such as novation, compression, early termination, etc., throughout the life of a contract. For each derivative contract transaction, counterparties must provide information on the counterparties to the contract, as well as general contract information (execution date, closing date, notional amount, currencies, etc.). In addition, FCs and NFC+ (non-financial counterparties exceeding the clearing threshold) must report the daily market valuation of their outstanding derivative contracts. Specific rules relating to the reporting of valuation updates are available here. Market participants established outside the EEA are not subject to the reporting obligation. Counterparties established in the EEA, being required to comply with the reporting obligation, are obliged to report information on counterparties established outside the EEA when they enter into derivative transactions with them. Under EMIR Refit, the financial counterparty is responsible, including legally, for transactions between an FC and an NFC- (NFC not exceeding the clearing threshold), for reporting on behalf of both counterparties. This requirement entered into force on June 17, 2020. In parallel, the NFC is responsible for providing the FC with the relevant information (further information is available in question 54 of ESMA's Q&A on EMIR). The list of reporting standards is available on the ESMA website. 6/7 / of 30/06/2026 / FSMA Reporting of clearing activities to competent authorities EMIR 3 (Article 7d) also introduces an annual reporting obligation relating to clearing activities with recognized central counterparties established in third countries. This obligation applies to clearing members in the European Union as well as to clients of clearing services who have their transactions cleared through CCPs established in third countries. The content and format of this declaration to the competent authorities will be specified in technical standards yet to be published. Pending the adoption of these standards, the first declaration covering the 2025 reference period is postponed to the 2026 reporting cycle, to avoid inconsistencies and unnecessary compliance burdens for supervised institutions.
  3.3 Risk mitigation techniques
  Article 11 EMIR requires counterparties holding derivative contracts not cleared by a central counterparty to implement specific risk management processes such as daily valuation of these contracts, timely confirmation of transactions, regular portfolio reconciliation, portfolio compression, dispute management, and collateral exchanges.

	Date of application	FC	NFC+	NFC-
Daily mark-to-market	15/03/2013	Yes	Yes	No
Timely confirmation	15/03/2013	T+1	T+2
Portfolio reconciliation	15/09/2013	Every day, week or quarter depending on portfolio size.	Every quarter or year depending on portfolio size.
Portfolio compression	15/09/2013	When counterparties have more than 500 contracts outstanding with each other, obligation to have procedures to analyse the possibility to conduct the exercise.
Dispute resolution	15/09/2013	Procedures in place + reporting to the competent authority	Procedures in place
Exchange of collateral*	Phase in per amount of non-centrally cleared derivatives.	Yes		No

• Intragroup transactions are exempted
  These risk mitigation techniques are defined in Delegated Regulation (EU) No 149/2013 and Delegated Regulation (EU) 2016/2251. The latter specifically concerns requirements for collateral exchanges (variation margins and initial margins).
  In accordance with Article 15, paragraph 2 of Delegated Regulation (EU) No 149/2013, financial counterparties must notify the BNB of any dispute unresolved for 15 working days or more with 7/7 / of 30/06/2026 / FSMA a counterparty regarding valuation for an amount of 15 million euros or more. The notification procedures are described here. Validation of the initial margin model for FCs and NFCs EMIR 3 requires counterparties to request authorization and validation of the model used for calculating initial margin. The BNB and FSMA will follow the EBA's opinion, according to which no supervisory or enforcement measures related to the processing of initial margin (IM) model authorization requests will be prioritized until the relevant regulatory technical standards (RTS) have entered into force. Existing initial margin models may continue to be used after EMIR 3 enters into force. FCs and NFCs currently subject to the obligation to exchange initial margins in accordance with EMIR and Article 36 of the ESAs' joint RTS on non-centrally cleared OTC derivatives (Delegated Regulation - 2016/2251 - FR - EUR-Lex) must request authorization as soon as they implement any modification to their existing initial margin model (including recalibrations), regardless of the significance of this modification. Pending the establishment by the EBA of its central validation function, counterparties must submit their request to their competent supervisory authority (the BNB or the FSMA). If several legal entities within the same group submit a request, it must be joint and cover all legal entities in the group using this initial margin model. Please note that significant credit institutions must contact the ECB regarding Article 11 on risk mitigation techniques for non-cleared derivatives, particularly concerning the authorization of initial margin models.

4. Intragroup exemption arrangements
   EMIR provides for a possibility of exemption for intragroup OTC derivative contracts subject to certain conditions:

• exemption from the clearing obligation (Article 4, paragraph 2, EMIR);
• exemption from the collateral exchange obligation (Articles 11, paragraphs 6 to 10, EMIR);
• exemption from the obligation to report intragroup contracts to trade repositories (Article 9, paragraph 1, EMIR).
  Further information on exemption application procedures is available in the following circular:
  Circular NBB_2017_16 / Exemption procedure for intragroup derivative transactions from central clearing and/or collateral exchange obligations.
  For counterparties falling under the supervision of the FSMA, the following template must be completed and sent to emirreporting@fsma.be.