EMIR Q & A
1. Is EMIR applicable to HUDEX products?
Yes, all HUDEX Products have to be reported according to EMIR.
According to Art. 9 (1) of EMIR regulation (Regulation (EU) No 648/2012) “counterparties and CCPs shall ensure that the details of any derivative contract they have concluded and of any modification or termination of the contract are reported to a trade repository”.
According to definitions of EMIR “derivatives or derivative contract means a financial instrument as set out in points (4) to (10) of Section C of Annex I to Directive 2004/39/EC as implemented by Article 38 and 39 of Regulation (EC) No 1287/2006”.
Considering that all HUDEX products are classified as financial instruments according to MiFID II, the details of the transactions have to be reported under EMIR.
2. Who is obliged to do the EMIR reporting?
Unlike REMIT the EMIR regulation puts the obligation of the reporting on the contracting parties (counterparties and CCPs – see the above reference). The trading venues do not have any obligation in this respect and HUDEX does not offer any EMIR reporting services relating to the transactions.
Our clearing houses as central counter parties (ECC and KELER KSZF) are offering to HUDEX Members reporting services under the EMIR regulation.
3. Is REMIT applicable to HUDEX products as financial instruments?
REMIT applies to all wholesale energy products and according to Art. 2 (4) b) this encompasses also the derivatives relating to electricity or natural gas produced, traded or delivered in the Union.
4. Why HUDEX will do REMIT reporting? Is this obligatory considering that HUDEX products will be financial instruments under financial regulation?
According to Art. 1. (2) of REMIT “This Regulation applies to trading in wholesale energy products. Articles 3 and 5 of this Regulation (prohibition of insider trading and prohibition of market manipulation) shall not apply to wholesale energy products which are financial instruments and to which Article 9 of Directive 2003/6/EC applies”.
This means that except Art. 3 and 5 all other rules of REMIT including the data reporting prescriptions shall apply also wholesale energy products, which are financial instruments.
5. If HUDEX members do the EMIR reporting and HUDEX is doing MiFIR reporting why is necessary to report under REMIT? EMIR and MiFIR reports do not replace REMIT reports?
EMIR and MiFIR reports only partially replace REMIT reports.
“According to REMIT recital (19) “Where a market participant or a third party acting on its behalf, a trade reporting system, an organised market, a trade-matching system, or other person professionally arranging transactions has fulfilled its reporting obligations to a competent authority in accordance with Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments or applicable Union legislation on derivative transactions, central counterparties and trade repositories, its reporting obligation should be considered fulfilled also under this Regulation, but only to the extent that all the information required under this Regulation has been reported”.
6. Why HUDEX does not report only the data, which are not reported under EMIR and MiFIR?
EMIR reporting obligation lies on market participants and central counter parties and not on trading venues. In order to find out which data was not reported by market participants under EMIR we would need collect such data from market participants, math with existing reports and adapt the existing reporting system.
Due to the time constraint, uncertainty and costs inherent in such a procedure HUDEX will chose the possibility in Article 8 (3) of REMIT and in the related implementing acts and will provide ACER with records of wholesale energy transactions.
7. Does the REMIT reporting method chosen by HUDEX causes extra costs for market participants?
The REMIT reporting was free of charge on HUPX PhF markets and it will be free of charge also on HUDEX, as well. Market participants only need to sign a REMIT data report agreement with HUDEX.