The interpretation of EMIR and whether FX forwards done for commercial purposes are subject to the regulation varies between Member States. The European Securities and Markets Authority (ESMA) has asked the European Commission for clarification.
This prompted some initial views from the Commission and subsequently a specific Consultation on FX financial instruments http://ec.europa.eu/internal_market/consultations/2014/foreign-exchange/....
A response from the ACT has been submitted pointing out that exclusion of commercial FX forwards would vastly simplify the EMIR compliance for non-financial companies, including SMEs with minimal risk to systemic financial stability. The varying treatment of FX forwards arises from the differences in implementing MiFID, a Directive, where the Commission’s own guidance makes clear that commercial FX forwards are not financial instruments, and that as an exception Member States may opt to include FX forwards. The ACT and indeed the EACT response argue for removal of that exception.
