ESMA issues statement on supervision of the clearing and derivative trading obligations following the benchmark transition

The European Securities and Markets Authority (ESMA), the EU’s securities markets regulator, has released a public statement on the implementation of the changes to the clearing obligation (CO) and derivative trading obligation (DTO) in light of the benchmark transition.

The Statement clarifies the situation in which ESMA’s proposed draft regulatory technical standards (RTSs) on the CO and DTO will not enter into force in time for the transition to alternative benchmarks of EONIA or LIBOR- based OTC derivative contracts by the end of 2021.

ESMA encourages national competent authorities to take a risk-based approach to their supervisory tasks and not to prioritise their supervisory actions in relation to the CO and DTO for certain interest rate derivative classes from 3 January 2022. ESMA recommends voluntary clearing of derivative classes that will be included in the scope of the CO ahead of its start date.

On 18 November 2021, ESMA published the RTSs on the scope of the CO and DTO to accompany the benchmark transition. These have yet to be adopted by the European Commission.