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In practice, there are delays in the production of UTI, EFAMA warns. Some counterparties fail to provide identifiers on time. The organization believes that ESMA should determine which party is responsible by default for providing an UTI, although this should be amendable if both parties agree.
EFAMA is asking ESMA to clarify in these RTS the level of application of EMIR to collective investment undertaking. Otherwise, EFAMA fears that, the absence of a definition in a level 1 or level 2 text on reporting levels for collective investment undertaking, some market participants (especially non‐EU regulated counterparties) might challenge the legal opposability of ESMA’s Q&As.
To avoid this situation and to improve legal certainty, EFAMA urges ESMA to consider the insertion of the following text in every proposed Technical Advices to the Commissions or draft Regulatory, Technical Standards, starting with the draft RTS subject to this consultation: “For exposure and threshold calculation as well as for reporting purpose, transactions made with collective investment schemes (i.e. subject to UCITS, AIFMD or unincorporated funds) are made at the level of the fund (or at the level of the sub‐fund in case of umbrella collective investment scheme. In that case, the sub‐fund needs to have an LEI for reporting purposes and the sub ‐fund is identified as the counterparty.)”.
Regarding the timeframe for implementation, EFAMA the notes that the IT systems of all the impacted market participants need to be adapted (including fund accounting, transfer agents, etc.). Furthermore, the IT service providers supporting the asset management companies, for example provides the IT fund accounting systems, can only implement the new reporting fields on the basis of the final technical standards based on the final specifications made by the trade repositories Consequently, the implementation of the proposed new data fields and reporting duty by market participants (and especially by the asset management companies) needs more time.