MiFID II / MiFIR Update – May 2017

by White & Case LLP

White & Case LLP

Reporting Obligation (Article 26 of MiFIR / RTS 22)

  • 28 July 2016 – European Commission adopted Delegated Regulation supplementing Regulation (EU) No 600/2014 of the European Parliament and of the Council with regard to regulatory technical standards for the reporting of transactions to competent authorities ("RTS 22").
  • 15 September 2016 - European Parliament extended the objection period to 22 November 2016 (rather than 22 October 2016 as proposed by Commission) prior to publication in the Official Journal as it was of the view that the European Commission has made more than typographical changes to the ESMA draft RTS.
  • 10 October 2016 - ESMA Guidelines on Transaction reporting, order record-keeping and clock synchronisation under MiFID II published.
  • 26 October 2016 – ESMA Technical Reporting Instructions, MiFIR Transaction Reporting published.
  • 30 November 2016 - European Parliament announced its non-objection to final draft.
  • RTS 22 to be published in the Official Journal.

"Ancillary Activity" Exemption for Commodity Firms (RTS 20)

  • 30 March – Commission Delegated Regulation supplementing Directive 2014/65/EU of the European European Parliament and of the Council with regard to regulatory technical standards for the criteria to establish when an activity is considered to be ancillary to the main business ("RTS 20") published in the Official Journal.
  • RTS 20 will take effect on 3 January 2018.

Commodity Position Limits (Article 57 of MiFID II / RTS 21)

  • 28 September 2015 - ESMA submitted draft RTS on the methodology for the calculation and the application of position limits for commodity derivatives traded on trading venues and economically equivalent OTC contracts ("RTS 21") to the European Commission pursuant to Article 10(1) of Regulation No (EU) 1095/2010 and Articles 57(3) and (12) MiFID II.
  • 17 March 2016 - Markus Ferber MEP (Parliament's Rapporteur for MiFID II), stated the European Commission has sent back draft RTS to ESMA to revise them. Concern that the RTS need to take into account Parliament's position more thoroughly:

"Especially the position limits regime urgently needs a comprehensive redrafting in order to effectively curb food speculation."

  • 20 April 2016 - European Commission notified ESMA of its intention to endorse draft RTS 21 subject to a number of changes.
  • 2 May 2016 - ESMA published Opinion (ESMA/2016/668) proposing amendments to its draft RTS 21.
  • 1 December 2016 – European Commission published RTS 21 which is subject to a scrutiny period of three months by the European Parliament and the Council of the European Union.
  • 19 December 2016 – ESMA Q&A re. MiFID II and MiFIR commodity derivatives topics published.
  • 30 March – RTS 21 published in the Official Journal.
  • RTS 21 will take effect on 3 January 2018.

Trading Obligation (Articles 28 & 32 of MiFIR / RTS 5)

  • 20 September 2016 - ESMA published a discussion paper seeking stakeholder's feedback on the options put forward by ESMA on how to calibrate the trading obligation.
  • MiFIR foresees two tests to determine the trading obligation:

The venue test: a class of derivatives must be admitted to trading or traded on at least one admissible trading venue; and

The liquidity test: whether a derivative is 'sufficiently liquid' and there is sufficient third-party buying and selling interest.

  • The discussion paper includes options on how to determine the trading obligation by applying both tests, including an initial liquidity assessment on the basis of trading data for the six month to the end of 2015.
  • The consultation closed on 21 November 2016.
  • 13 June 2016 - European Commission adopted further Delegated Regulations under MiFID II/MiFIR on direct, substantial and foreseeable effects of derivative contracts within the EU and the prevention of the evasion of rules and obligations ("RTS 5").
  • 19 November 2016 - RTS 5 was published in the Official Journal.
  • 9 December 2016 – RTS 5 entered into force.

UK Implementation

  • 29 July 2016 - FCA published a second set of implementation proposals for MiFID II (CP16/19). This CP followed on from CP15/43, published in December 2015.
  • In particular, the FCA proposed a new section of the Market Conduct Sourcebook to set out guidance and directions on the MiFID II regime for position limits, position management and position reporting for commodity derivatives contracts.
  • The consultation closed on 28 October 2016. A policy statement is expected to follow in Spring 2017.
  • 29 September 2016 - The FCA has published its third consultation paper (CP16/29) on the implementation of MiFID II.
  • In particular, MiFID II rules relating to structured deposits will be put into COBS (relating to e.g. inducement rules and independence standard for personal recommendations to retail clients in the UK).
  • The consultation closed on 31 October 2016 for chapter 16 and 4 January 2017 for all other chapters.
  • 27 October 2016 – The PRA published policy statement PS29/16 which provides feedback to responses to the FCA's Consultation Paper CP9/16 "Implementation of MiFID II: Part 1".
  • 16 December 2016 - The FCA has published its fourth consultation paper (CP16/43) on the implementation of MiFID II.
  • The consultation closed on 16 January 2017 for chapter 7 and 17 February 2017 for all other chapters.
  • 31 March 2017 - FCA published its first policy statement implementing MIFID II/MIFIR. The policy statement sets out our near final rules in the areas consulted on in CP15/43 CP16/19 and covers some issues consulted on in CP16/29 and CP16/43.
  • 28 April 2017 - The PRA published policy statement PS9/17 which provides final policy following the FCA's Consultation Paper CP16/43 "Implementation of MiFID II: Part 2".


  • 5 April 2017 - ESMA published Q&As on MiFID II and MiFIR commodity derivatives topics.
  • 5 April 2017 - ESMA published Q&As on MiFID II and MiFIR transparency topics.
  • 5 April 2017 - ESMA published Q&As on MiFID II and MiFIR market structures topics.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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