On 21 October 2026, the EMIR Delegated Regulation dealing with clearing thresholds (CTs) under EMIR 3 was published in the Official Journal of the EU (click here). The RTS enters into force (and applies) on 10 November 2026.
For context, in February 2026 ESMA, the pan-EU financial market regulator, published its Final Report on draft Regulatory Technical Standards (RTS) amending Commission Delegated Regulation (EU) No 149/2013 to implement the new CTs regime introduced under EMIR 3 (click here). For a deep-dive on the Final Report, click here to review our RegTrail Insights publication.
As a brief refresher, EMIR 3 moves the CT methodology towards focusing on uncleared over-the-counter (OTC) positions (and away from the exchange-traded versus OTC distinction), and requires non-financial counterparties (NFCs) to calculate their CT position at entity level rather than at group level. While less relevant to energy and commodity trading firms, financial counterparties (FCs) are also subject to an aggregate (i.e. cleared plus uncleared) backstop for interest rate and credit derivatives to help prevent significant financial institutions from slipping outside the clearing obligation. Following consultation feedback, ESMA raised several of its proposed thresholds, including raising the uncleared commodity CT from EUR 3 billion to EUR 4 billion.
ESMA’s draft RTS have now completed their passage into law, with only minimal changes. The EU Commission adopted the Delegated Regulation on 14 July 2026, and it was published in the Official Journal on 21 October 2026 as Commission Delegated Regulation (EU) 2026/2343. With neither the EU Parliament nor the Council objecting during their scrutiny period, the substance of the rules is unchanged from what ESMA originally proposed in February. The three-page RTS is relatively narrow in scope and amends only Chapter VII of Delegated Regulation 149/2013.
For energy and commodity trading firms, the key change is in the new Article 11a which sets out the uncleared CTs that apply to NFCs. The most relevant is the EUR 4 billion threshold for commodity derivatives. Notably, this bucket has been redefined from “commodity and other derivatives” to “commodity and emission allowance derivatives”, in line with EMIR Refit reporting. This means the “other derivatives” catch-all falls away, with EU ETS and other emission allowance derivatives now expressly named alongside commodity derivatives in a single combined threshold. The remaining uncleared CTs are EUR 0.8 billion for credit, EUR 0.7 billion for equity, EUR 2.2 billion for interest rate and EUR 3 billion for FX derivatives. A revised Article 11 retains separate aggregate CTs for FCs only, covering cleared and uncleared interest rate and credit derivatives, so these will likely not apply to the majority of energy firms.
The new Article 11b requires ESMA to assess, at least annually, seven indicators including underlying prices, volatility, the proportion of OTC derivative transactions cleared per asset class, the proportion of entities clearing, inflation, global financial conditions and geopolitical uncertainty, and to initiate a review of the CTs where it identifies significant changes. Notably, the Regulation does not amend the hedging exemption (see the RegTrail Insights article referenced above for further detail), meaning that virtual power purchase agreements (vPPAs) that do not qualify as hedging remain within the CT calculation.
As the RTS enters into force after the June 2026 CT calculation cycle, firms may choose to recalculate under the new methodology immediately from 10 November or wait until their next annual calculation, which for most is expected to be June 2027. ESMA has also confirmed (see paragraph 123 on page 36 of its final report) that firms whose status is unchanged need not re-notify ESMA and their national competent authority (NCA).
NFC firms that haven’t already should decide whether to recalculate their positions under the new methodology immediately from 10 November or align with their regular June 2027 calculation cycle. With the move to an uncleared-only, entity-level calculation (the commodity threshold itself remains at EUR 4 billion), NFC+ firms that are likely to fall below the new thresholds may benefit from transitioning earlier. Firms should also confirm that their EMIR Refit reporting correctly captures the cleared/uncleared distinction and the classification of emission allowance derivatives, as both feed directly into the new calculation.
With the hedging exemption rules remaining unchanged, vPPAs should be reviewed on a contract-by-contract basis against the existing criteria rather than assuming blanket exclusion. Finally, firms may wish to model headroom under stressed price scenarios and update their CT monitoring policies and governance frameworks accordingly.
