EMIR — European Commission responds to ESMA’s request to clarify the definition of derivative

The European Commission has responded to a request from the European Securities and Markets Authority (ESMA) to clarify the definition of ‘financial instruments’ under Directive 2004/39/EC on markets in financial instruments (MiFID), which is used in defining ‘derivative’ or ‘derivative contract’ under Regulation (EU) No 648/2012 on over-the-counter (OTC) derivatives, central counterparties and trade repositories (European Market Infrastructure Regulation, or EMIR). The lack of clarity in whether certain types of derivatives fall within the definition of ‘financial instruments’ is preventing EMIR being applied consistently throughout the European Union.

The European Commission has indicated that it agrees with ESMA that it is essential that EMIR is applied consistently throughout the European Union. In order to achieve this, the Internal Market and Services Directorate General (DG MARKT) will urgently assess the options for ensuring consistent application of EMIR…

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