Intra-group Transactions under EMIR 3: New Regulatory Requirements at a Glance

EMIR 3 introduces significant adjustments for intragroup transactions – ranging from clearing exemptions and reporting obligations to capital requirements.

The regulation of intra-group derivative transactions was already subject to certain privileges prior to the entry into force of Reg. (EU) 2024/2987 (EMIR 3.0), for instance with respect to clearing obligations and risk-mitigation techniques. With effect since 24 December 2024, the European legislator has reviewed and tightened these privileges in several respects. The objective is to recalibrate the balance between regulatory relief for intra-group transactions and the safeguarding of financial stability. This article provides an overview of the amendments.

• Negative lists instead of equivalence decisions for counterparties from third countries. Previously, for a derivative transaction with a group company established in a third country to qualify as an intra-group transaction, the European Commission had to adopt an equivalence decision in respect of that third country. This requirement has been removed under EMIR 3.0. It is now sufficient that the third country is not included on one of the following negative lists: the list of high-risk third countries with strategic AML/CTF deficiencies (Delegated Reg. (EU) 2016/1675), the EU blacklist of non-cooperative jurisdictions for tax purposes (most recently: Ref. 6322/25, 18 February 2025), or, where applicable, an additional blacklist adopted by the European Commission pursuant to Article 3(5) EMIR. For countries appearing on such negative lists, the European legislator assumes an increased counterparty default risk and higher legal risk, which are considered to pose a greater threat to the financial stability of the EU.

• No consideration in the calculation of the active account requirement. EMIR 3.0 introduced Article 7a into EMIR, thereby establishing the active account requirement. Under this provision, counterparties are obliged to clear a representative proportion of transactions through an EU/EEA CCP if the clearing thresholds are exceeded in respect of certain interest rate derivatives or other derivatives designated by ESMA as being of substantial systemic relevance. Where a counterparty belongs to a group subject to consolidated supervision (under CRD/CRR, IFD/IFR, Solvency II, FICOD), all transactions of the group – including those of entities established in third countries – are taken into account when assessing whether the clearing threshold has been exceeded, with the exception of intra-group transactions.

• Reporting by the Union parent undertaking. As a general rule, counterparties are required to report their concluded derivative contracts to a trade repository. However, under certain conditions, reporting may be waived for intra-group derivative contracts where at least one counterparty is a non-financial counterparty. Since the entry into force of EMIR 3.0, where a non-financial counterparty exceeding the clearing threshold makes use of this exemption, its Union parent undertaking is obliged to report the aggregated net positions to the competent authority on a weekly basis.

• Additional requirements for the exclusion from the CRR total risk exposure amount. For the purpose of capital requirements under the CRR, the total risk exposure amount also reflects the quantified risk of a credit valuation adjustment (CVA risk). Until now, it was sufficient for the exemption of intra-group transactions that national law did not provide for a separation banking system and that the national supervisory authority had not required the inclusion of the relevant intra-group transactions. EMIR 3.0 has introduced additional requirements. In particular, for transactions with group entities established outside the EU or the EEA, an equivalence decision by the European Commission is required.

The amendments introduced by EMIR 3 do not only affect external market participants but also have a significant impact on the structuring and execution of intra-group derivative transactions. For corporate groups, it is essential to integrate these requirements into their processes in order to avoid compliance risks. The German law firm KRONSTEYN provides comprehensive advice on German and European derivatives law – from legal analysis to practical implementation. Your contact: Hendrik Müller-Lankow.

Related topic:

• Post-Trade Risk Reduction Services (PTRR) under EMIR 3.0 and the MiFIR Review – Overview & New Obligations