EMIR 3.0 : Overcoming the challenges of derivatives clearing with baby steps. Still beating around the bush?

Abstract

The European Union’s (EU) ambition is to encourage clearing at EU Central Counterparties (CCPs) and with EU clearing members (CMs). This is to reduce reliance on systemic non-EU CCPs, and to build a more attractive and robust EU clearing market. To achieve this, the European Market Infrastructure Regulation (EMIR) 3.0 requires EU CMs and clients subject to the clearing obligation to hold active accounts at EU CCPs. Although it is very unlikely that the watered-down compromise will fulfil the EU’s ambition, more importantly it still risks diminishing the competitive position of EU companies, leading to EU clients who do not fall under the clearing obligation to use non-EU CMs, and directing non-EU clients’ euro-denominated interest rate swaps trading activity towards non-EU dealers. This seems contradictory to the policy objective of building a strong EU Capital Markets Union (CMU). With regard to supervision, EMIR 3.0 is a missed opportunity for a centralised supervisory framework. Just enhancing the current decentralised supervision mechanism, which is based on cooperation and information sharing between National Competent Authorities (NCAs), is not enough. A European centralised supervisor will not only strengthen risk monitoring and (eventually) minimise systemic risks but will also reduce supervision costs, the number of procedures, divergent interpretations of EMIR rules and the exchange of data. Whereas the main focus with regard to EMIR 3.0 was geared towards the active account requirement and whether or not to centralise supervision of EU CCPs, regulators and market participants would be ill advised to let discussions over third-country CCP equivalence issues distract them from other important and persistent challenges in the derivatives clearing markets. There are currently three pressing issues that require attention: clearing access and capital rules, portability and clearing models, as well as liquidity and collateral optimisation. A failure to address them risks undermining the key driver for derivatives clearing, which is increasing financial stability.