Regulation (EU) 2019/834 of the European Parliament and of the Council of 20 May 2019 (also know as EMIR Refit) – amending Regulation (EU) No 648/2012 (also known as EMIR) – as regards the clearing obligation, the suspension of the clearing obligation, the reporting requirements, the risk-mitigation techniques for OTC derivative contracts not cleared by a central counterparty, the registration and supervision of trade repositories and the requirements for trade repositories, came into force on 17 June, 2019. EMIR Refit introduced a non-exhaustive list of changes to inter alia the reporting requirements, the clearing obligation and risk mitigation techniques for OTC derivative contracts not cleared by a central counterparty. Notably, EMIR Refit amends the definition of Financial Counterparties under EMIR, with the intention to include all entities having systemic importance to the financial system. The Malta Financial Services Authority has today issued a circular to provide further clarification on the definition of ‘Financial Counterparties’. EMIR Refit expanded the definition of ‘Financial Counterparty’ to capture inter alia all EU Alternative Investment Schemes and, where relevant, their EU Alternative Investment Fund Managers. In this respect, Article 4 of Directive 2011/61/EU (Alternative Investment Fund Managers Directive or ‘AIFMD’) defines an AIF as a collective investment undertaking, including investment compartments thereof, which: (i) raises capital from a number of investors, with a view to investing it in accordance with a defined investment policy for the benefit of those investors; and (ii) does not require authorisation pursuant to Article 5 of Directive 2009/65/EC (Undertakings for Collective Investments in Transferable Securities or ‘UCITS’). The Malta Financial Services Authority has clarified that all licensed collective investment undertakings, not falling under the definition of the UCITS directive, will fall under the definition of ‘Financial Counterparties’ for the purposes of EMIR. Accordingly, AIFs falling within scope of the AIFMD and Professional Investor Funds (PIFs) licensed by the MFSA will be considered as ‘Financial Counterparties’ for EMIR purposes.
MFSA Clarifies the Classification of Collective Investment Schemes as Financial Counterparties
