While previously noted as a concern, the practical implications of this lack of consistency in interpretation across EU Members States has become pertinent following the implementation of the European Markets Infrastructure Regulation (EMIR) which refers to the definitions of derivative and derivative contract contained in MiFID when considering whether and how the reporting, clearing and margin requirements in addition to other relevant obligations contained in EMIR are applied.  

ESMA considers it essential that EMIR is applied consistently across EU Member States and the purpose of the Consultation Paper is to produce guidelines that ensure a consistent approach concerning Commodity Forwards is universally included in its application in all EU Members States. This will allow a common approach across the European Union from the date these guidelines are effective until MIFID is superseded by the Markets in Financial Instruments Directive II (2014/65/EU) in 2017. 

Responses to the Consultation Paper must reach ESMA by January 5, 2015. All responses should be submitted online here.