Consequence of the trading obligation required by MIFIR on the cessation of the clearing of Credit Default Swaps by ICE Clear Europe - ESMA position
The decision by the CCP* ICE Clear Europe (ICEU) to stop clearing Credit Default Swaps (CDS) at the end of October 2023 will result in the transfer of positions held by clients to another CCP. In concrete terms, these will be closed in ICEU and reopened in the new environment.
While the movement should not be too difficult for most CDSs subject to the clearing obligation established by EMIR1, the same is not true for those2 which are also subject to the trading obligation under MIFIR3.
ESMA4, at the request of the industry, has just published a letter (March 30, 2023) in which it recalls that it does not have the power to waive an obligation arising from a legal text. However, it recognises the need for an exemption specifically for the transfer of positions. It is therefore through a letter (already used in the past) addressed to local regulators that the European regulator proposes to solve the problem: supervisory authorities are invited not to prioritise their supervisory actions over compliance with the trading obligation concerning positions to be migrated.
* CCP: Central Counterparty Clearing House
1 EMIR: Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositoriesText with EEA relevance (europa.eu)
2 COMMISSION DELEGATED REGULATION (EU) 2017/ 2417 - of 17 November 2017 - supplementing Regulation (EU) No 600 / 2014 of the European Parliament and of the Council on markets in financial instruments with regard to regulatory technical standards on the trading obligation for certain derivatives (europa.eu)
3 Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012Text with EEA relevance (europa.eu)
4 ESMA: European Securities and Market Authority