See here for a case report by Allen and Overy on the JD Supra web site (and reproduced from www.practicallaw.com) about a UK high court judgement involving ESMA vs. DTCC. As background, the case itself was non contentious and was brought by ESMA in order to be authorised to carry out an inspection of the DTCC Trade Repository (who were not suspected of wrong doing). It is necessary under UK law for an application to be made to the High Court in order for an inspection to be carried out under Article 63 of EMIR. The judgement itself can be found here.

Aside from the notable point that TRs are being inspected, the reason the case is interesting is because it was the first time such a judgement has been made. In it, the judgement emphasises (via amending the draft order) the importance of maintaining the principle of “privileged information”, and that the inspection should not require DTCC to disclose any such information. This emphasis is important due to pressures that could be applied to waive such privileges.

In the world of energy, this case also will cause us to think about how the RRM inspection regime will work under REMIT. The RRM supervision regime, and rules, do not appear to be as strict or comprehensive as for EMIR TRs. Although RRMs do not actually store the data, there are also fewer constraints on matters such as pricing. RRMs need to “self attest” compliance with financial and technical security requirements, with an “audit” regime to back it up. It will be interesting to see how such audits will work.