The Delegated Regulation amending the clearing thresholds pursuant to EMIR 3 was published in the Official Journal of the European Union on 21 October 2026*. The revised clearing thresholds, together with the EMIR 3 provisions amending the methodology for both financial counterparties (FCs) and non-financial counterparties (NFCs) to determine whether they exceed clearing thresholds, will apply from 10 November 2026.
In its final report on the clearing thresholds regime, ESMA confirmed that counterparties are not expected to recalculate their positions on entry into force of the amendments to the clearing thresholds. Instead, counterparties will be required to apply the new calculation methodology and clearing thresholds no later than their first annual calculation date following entry into force of the amended clearing thresholds (for most counterparties, this is expected to be June 2027). Counterparties may, however, choose to recalculate their positions earlier, following entry into force of the amended clearing thresholds, to benefit from the changes sooner.**
This note outlines the changes to the clearing threshold calculation methodology and revised clearing thresholds, as well as the practical implications for counterparties.
* Commission Delegated Regulation (EU) 2026/2343 published on 21 October 2026 and entering into force twenty days later.
** Commission support for ESMA's approach to implementation in light of burden reduction and simplification initiatives was reflected in the explanatory memorandum to the adopted delegated regulation.
Changes to the position calculation methodology
NFCs
Under the pre-EMIR 3 clearing thresholds regime, the positions for determining whether an NFC is above the thresholds (NFC+) or below the thresholds (NFC-) were calculated annually, taking into account the annual average month-end value over the preceding 12 months of all OTC derivatives, whether cleared or uncleared, of non-financial entities in the group (but excluding derivatives for hedging purposes).
Consequently, exchange-traded derivatives (ETDs) that are traded on venues not determined as "equivalent" to EU venues (which includes UK venues) were categorised as OTC derivatives. Therefore, they needed to be included in the calculation (unless for hedging purposes), a requirement which has proved problematic. Another challenge has been identifying which entities globally form part of the "group" so that their derivative positions are included in the calculation. Following EMIR REFIT, an NFC+ is only required to clear derivatives that are in-scope of the clearing obligation if it exceeds the threshold for that particular class of derivatives (for example, interest rate derivatives).
The following helpful changes to the calculation methodology for NFCs, introduced by EMIR 3, will take effect for position calculations from 10 November 2026:
- only uncleared OTC derivatives need to be included, thus excluding all ETDs, as well as OTC derivatives that have been voluntarily cleared, as long as they are cleared on a CCP authorised or recognised by ESMA; and
- only transactions entered into by the NFC itself, and not those of all NFCs in the group, are to be included (although it remains possible to exclude a transaction as "hedging" if it hedges risks relating to activities of the NFC as well as the NFC's group).
FCs
EMIR REFIT introduced an exemption from the clearing obligation for "small FCs", whose OTC derivative positions (calculated annually at group level and with no exclusion for hedging contracts) did not exceed any of the clearing thresholds. If any clearing threshold is exceeded, the FC must clear all derivatives that are in-scope of the clearing obligation.
Under the revised clearing thresholds regime, the calculation of positions for FCs will remain at group level (with no exclusion for hedging contracts), and the methodology will be amended to introduce a two-limb test:
- firstly, the FC will calculate, at group level, its positions in uncleared OTC derivatives to determine whether they exceed any of the clearing thresholds that apply to NFCs; and
- secondly, the FC must also calculate, at group level, its aggregate positions in OTC derivatives (including cleared as well as uncleared OTC derivatives) against clearing thresholds set for this purpose by ESMA where necessary.
The introduction of an aggregate threshold for OTC derivatives (whether cleared or uncleared) is considered necessary to address the risk that FCs, which have large cleared portfolios but remain under the uncleared threshold, would fall outside the scope of the clearing obligation. These thresholds will, however, only apply for those asset classes which are in scope of the clearing obligation, i.e. interest rate and credit derivatives. As the aggregate calculation includes both cleared and uncleared positions, at group level, the existing clearing thresholds for those asset classes have been retained for this purpose.
The exemption from clearing for small FCs will only apply where positions are below the relevant thresholds for both limbs of the new test.
Funds and pension schemes are not normally part of a "group", so will run the calculations based on their individual positions (and the specific provisions in EMIR allowing for EU UCITS and AIFs to calculate on a solo basis are retained).
The revised clearing threshold regime— asset classes and clearing thresholds for uncleared positions (FCs and NFCs) and aggregate positions (FCs only)
Asset classes
Under the revised clearing thresholds regime, the existing asset classes have been retained, except that the existing class of commodity and other derivatives is amended to cover only commodity and emission allowance derivatives.
ESMA decided neither to introduce more granular categories for commodity derivatives at this time, nor to introduce any further asset classes for derivatives (such as crypto-asset derivatives) that may not fall within any of the existing asset classes. Further changes may follow in future as ESMA is required to review the clearing thresholds every two years, or earlier where ESMA identifies significant change in the price evolution of an underlying class of OTC derivatives, or financial stability risks.
New and revised clearing thresholds
The revised thresholds are set on the basis of simulations run by ESMA to determine the appropriate level at which to set the uncleared thresholds, with a view to ensuring that the coverage of the clearing obligation is not substantially changed following the change in calculation methodology.*
As noted above, the position calculations for FCs will remain at group level and will involve a two stage test, the first limb applying the same thresholds applicable to NFCs to uncleared positions, and the second limb aggregating both cleared and uncleared OTC derivatives. The second limb will apply only to those asset classes which are in scope of the clearing obligation, i.e. interest rate and credit derivatives, and the pre-EMIR 3 thresholds have been retained for this purpose.
Asset class Pre-EMIR 3 clearing thresholds for OTC derivatives** New clearing thresholds for uncleared OTC derivatives (NFCs*** and FCs****) New aggregate thresholds for cleared and uncleared OTC derivatives (FCs only****) Interest rate derivatives €3bn €2.2bn €3bn Credit derivatives €1bn €0.8bn €1bn Equity derivatives €1bn €0.7bn FX derivatives €3bn €3bn Commodity and other derivatives (existing clearing thresholds regime) €4bn Commodity and emission allowance derivatives (new clearing thresholds regime) €4bn** Commission Delegated Regulation (EU) No 149/2013 prior to amendment by Commission Delegated Regulation (EU) 2026/2343. *** Determined at entity level. **** Determined at group level.
Implementation timeline and next steps
Following publication of the Delegated Regulation in the Official Journal, the revised clearing thresholds regime will apply from 10 November 2026.
As noted above, ESMA does not expect counterparties to recalculate immediately. Instead, counterparties will need to apply the revised calculation methodology and clearing thresholds for the purposes of their first annual calculation following 10 November 2026, i.e. the June 2027 calculation followed by many counterparties. Counterparties may, however, choose to recalculate their positions using the revised clearing thresholds regime from 10 November 2026, if they wish to benefit from the revised methodology and clearing thresholds sooner.
Counterparties that have benefitted from NFC- or "small FC" classifications, or that may be able to do so following the entry into force of the revised clearing thresholds regime, should consider these changes to understand whether their EMIR classification may be affected. Similarly, these changes will be of relevance to third-country entities where EMIR may apply indirectly when transacting with in-scope EU counterparties.
Authors:
- Doug Shaw, Capital Markets Partner, London at Linklaters
- Deepak Sitlani, Capital Markets Partner, London at Linklaters
- Madeleine Wanner, Counsel (Knowledge), London at Linklaters
- Sarah Willis, Capital Markets Counsel, London at Linklaters
- Eliane Dejardin Botelho, Capital Markets and Banking Partner, Luxembourg at Linklaters
- Paloma Fierro, Financial Regulation Partner, Madrid at Linklaters
- Jörg Fried, Capital Markets Partner, Berlin at Linklaters
- Marc Perrone, Financial Regulation and Investment Funds Partner, Paris at Linklaters
- Dr. Christian Storck, Global Head of Capital Markets, Head of Finance Germany, Frankfurt at Linklaters
- Marc Voelcker, Counsel, Berlin at Linklaters
- Delphine Horn, Consultant, Luxembourg at Linklaters
- Dr. Florian Baetke, Senior Associate (Knowledge), Berlin at Linklaters
