37. Since 18 June 2020, as a rule FC are legally responsible and legally liable for the reporting of OTC derivative contracts concluded with NFC-. However, NFC- may decide to report the details of their OTC derivative contracts. The following proposals apply when NFC- choose to perform the reporting of the OTC derivative contracts by themselves as foreseen under third subparagraph of Article 9(1)(a) of EMIR REFIT and are made to ensure that reporting in such case is performed without duplication and in a timely manner. The information to be provided to FC when NFC- do not perform the reporting by themselves is specified under section 4.1.1

38. ESMA proposes that in this situation NFC- should inform FC, in writing or other equivalent electronic means, of their decision to perform the reporting of the data of the OTC derivative contracts concluded with FC. NFC- should inform FC of their intention to perform the reporting as soon as possible. While initially in the Consultation Paper, 5 working days were considered as the latest moment where the NFC- should inform the FC of its intention to perform the reporting by itself in order to avoid duplicated reporting, the respondents to the Consultation Paper considered that this timeframe is too short in order to (i) set-up IT systems and (ii) initiate a potential porting with TRs.

39. One respondent suggested that 10 days might be enough, while another one suggested 30 days. Other respondents suggested to include a variable timeline depending on several factors, such as TR onboarding and technical readiness.