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

The European Commission has provided a further response 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 (EMIR).

The response stresses the need for a consistent interpretation, to ensure the effective application of the reporting regime under EMIR. The European Commission also confirms that it is not now possible to address the issue by way of a MiFID implementing measure, as the European Commission’s powers in this regard ceased on 1 December 2012. It will therefore only be possible through an implementing measure under MiFID II, which will not take effect until January 2017…

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