EMIR 3: New clearing threshold regime from 10 November 2026

Commission Delegated Regulation (EU) 2026/2343 (the “Amending CDR”), which amends the regulatory technical standards governing clearing thresholds under EMIR, was published in the Official Journal of the European Union on 21 October 2026¹. The Amending CDR follows the European Securities and Markets Authority’s (“ESMA”) Final Report published on 25 February 2026 (the “ESMA Final Report”)² setting out draft amendments to the clearing threshold regime under Commission Delegated Regulation (EU) No 149/2013 (the “Existing CDR”).³

The Amending CDR revises the clearing thresholds applicable to different asset classes of over-the-counter (“OTC”) derivative contracts set out in the Existing CDR and specifies mechanisms for reviewing those thresholds. These changes implement the revised framework introduced by Regulation (EU) 2024/2987 (“EMIR 3”)⁴, which amended EMIR.⁵

The amendments to the Existing CDR will enter into force on 10 November 2026. However, to limit the operational impact of the transition from the current regime to the revised one, ESMA has indicated that counterparties may perform their revised clearing threshold calculations at the same time of year as under their existing procedures, rather than necessarily recalculating immediately upon entry into force. As most counterparties currently perform these calculations in June, they may retain that timetable or calculate earlier if they wish to assess their positions under the revised regime sooner.⁶

Main Changes Set Out in the Amending CDR

The Amending CDR largely reflects the framework proposed in the ESMA Final Report.⁷

The principal changes concern:

1. the positions included in the clearing threshold calculation;
2. the recalibration of the applicable thresholds; and
3. the revised calculation methodology for non-financial counterparties.

Focus on uncleared exposures

Under the previous regime, counterparties generally calculated their positions by reference to OTC derivative contracts, irrespective of whether those contracts were subsequently centrally cleared. Under the revised regime, the primary threshold calculation focuses on uncleared OTC derivative positions.⁸

Financial counterparties (“FCs”) are also subject to aggregate, or “backstop”, thresholds. These thresholds requires FCs to calculate their aggregate positions, comprising both cleared and uncleared derivatives, in respect of the asset classes currently subject to the clearing obligation, namely interest rate and credit derivatives.

Accordingly, FCs will be required to perform two calculations:

1. an uncleared exposure calculation, based on their uncleared OTC derivative positions; and
2. an aggregate exposure calculation, taking into account cleared and uncleared positions in interest rate and credit derivatives.

Exceeding either the applicable uncleared threshold or aggregate threshold will result trigger the applicable EMIR clearing requirements. These requirements depend on the asset classes concerned. Non-financial counterparties (“NFCs”), by contrast, are subject to the uncleared threshold calculation only. Their calculation is carried out at the level of the individual NFC under the revised Article 10(3) of EMIR, as explained below.

Recalibration of the clearing thresholds

The Amending CDR retains five asset classes but recalibrates the applicable thresholds. It distinguishes between uncleared thresholds, which apply to FCs and NFCs, and aggregate thresholds, which apply only to FCs for interest rate and credit derivatives.⁹

Entity-level calculation for NFCs

The revised regime also changes the level at which NFCs carry out their clearing threshold calculation.

Under the previous framework, an NFC was generally required to take into account relevant OTC derivative positions entered into by other NFCs within its group when determining whether the clearing thresholds had been exceeded.

EMIR 3 amended Article 10(3) of EMIR to provide that an NFC must include uncleared OTC derivative contracts entered into by that NFC itself, except for contracts that are objectively measurable as reducing risks directly relating to the commercial activity or treasury financing activity of the NFC or of the group to which it belongs¹⁰ (the ‘hedging exemption’).

The reference to contracts entered into by the NFC itself moves the clearing threshold calculation for NFCs from group level to entity level. Consequently, under the revised framework, an NFC will calculate its position by reference to its own uncleared OTC derivative contracts, rather than including relevant positions entered into by other NFCs within its group. The hedging exemption remains applicable to qualifying contracts.

Although EMIR 3 generally applied from 24 December 2024, Article 5 of EMIR 3 deferred the application of amendments to Article 10 of EMIR, including Article 10(3) until the entry into force of the applicable regulatory technical standards.¹¹ The entry into force of the Amending CDR on 10 November 2026 therefore activates the revised Article 10 calculation methodology.

From that date, NFCs will calculate their positions at entity level by reference to their own uncleared OTC derivative contracts, while continuing to exclude contracts which satisfy the EMIR hedging criteria.

Practical implications

Counterparties should review their clearing threshold calculation procedures ahead of 10 November 2026, when the Amending CDR enters into force. However, as noted above, ESMA has indicated that counterparties may, to limit operational disruption, retain their existing annual calculation timetable, which for most counterparties falls in June, rather than recalculating immediately upon entry into force. Counterparties may also elect to perform their revised calculations earlier if they wish to assess the impact of the new regime sooner. In light of this flexibility, counterparties should consider the appropriate timing for their revised calculations while ensuring that their methodologies, supporting data and internal controls are ready for the application of the new regime.

¹ Commission Delegated Regulation (EU) 2026/2343 of 14 July 2026 amending the regulatory technical standards laid down in Delegated Regulation (EU) No 149/2013 as regards the clearing thresholds and the mechanisms triggering their review, available here: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:L_202602343

² ESMA, Final Report on the draft technical standards amending Regulation (EU) 149/2013 to further detail the new EMIR clearing thresholds regime, ESMA74-1049116226-944, 25 February 2026ESMA74-1049116226-944, published 25 February 2026, available here: https://www.esma.europa.eu/sites/default/files/2026-02/ESMA74-1049116226-944

³ Commission Delegated Regulation (EU) No 149/2013 of 19 December 2012 supplementing Regulation (EU) No 648/2012 of the European Parliament and of the Council with regard to regulatory technical standards on indirect clearing arrangements, the clearing obligation, the public register, access to a trading venue, non-financial counterparties, and risk mitigation techniques for OTC derivatives contracts not cleared by a CCP, available here: https://eur-lex.europa.eu/eli/reg_del/2013/149/oj/eng.

⁴ Regulation (EU) 2024/2987 of the European Parliament and of the Council of 27 November 2024 amending Regulations (EU) No 648/2012, (EU) No 575/2013 and (EU) 2017/1131 as regards measures to mitigate excessive exposures to third-country central counterparties and improve the efficiency of Union clearing markets

⁵ Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories, available here: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02012R0648-20250117.

⁶ See ESMA Final Report n.2., paras. 117-121. In particular, ESMA notes that following EMIR Refit, most counterparties currently calculate their positions based on the EMIR Refit schedule i.e. every year in June with month-end positions from June from the previous year until May of that year and this timeframe has been in some cases hardcoded in IT procedures and systems.

⁷ An analysis of the proposed amendments to the clearing threshold regime set out in the final Report can be found in this article: https://ganado.com/emir-3-revised-clearing-threshold-regime/

⁸ See ESMA Final Report, n.2 paras 10-15

⁹ Amending CDR, n.1, Article 1 and Article 2.

¹⁰ EMIR 3, n.4, Article 1 (9) (b).

¹¹ Ibid. Article 5.