Two years after MiFID II and MiFIR started to apply, the MiFID review process has begun, with both the European Commission and the European Securities and Markets Authority (ESMA) having recently published consultations on the framework.

European Commission consultation

The European Commission has launched a public consultation on the review of the MiFID II/MIFIR regulatory framework.  This consultation uses a questionnaire format divided into two main sections.  The first section covers general questions on the overall functioning of MiFID II/MiFIR, with the second section covering specific questions on “priority” and “non-priority” topics (see below).

Priority topics Non-priority topics
  • Establishing an EU consolidated tape
  • Investor protection
  • Research unbundling and SME research coverage
  • Commodities markets

 

  • Derivatives trading obligation
  • Multilateral systems
  • Double volume cap
  • Non-discriminatory access to clearing
  • Digitisation and new technologies
  • FX markets

Given the current political landscape, it may be unsurprising that the consultation suggests strong influence from German and French regulators.

The deadline for responses is 20 April, with the Commission intending to publish legislative proposals in H2 2020.

ESMA consultations

Given the uncertainties of Brexit and the many deadlines set within MiFID II and MiFIR, ESMA wrote to the European Commission in March 2019 with a proposal to postpone the due dates for ESMA’s reports on MiFID II/MiFIR by between 6 to 24 months. ESMA finally published its first MiFID II/MiFIR review report in December 2019. The report, on the development in prices for pre- and post- trade market data and the consolidated tape for equity instruments, fed into the European Commission’s review and informed its consultation on the MiFID II/MiFIR framework (see above).

ESMA has recently published consultations on other aspects of the MiFID II/MiFIR framework as part of its work on the MiFID II/MiFIR review:

ESMA consultation paper on: Deadline for responses Expected date of final ESMA report
Impact of position limits and position management on commodity derivatives markets 8 January 2020 By 31 March 2020
Transparency regime for equity and equity-like instruments, the double volume cap mechanism and the trading obligations for shares 17 March 2020 July 2020
Systematic Internalisers in non-equity instruments 18 March 2020 July 2020
Draft technical standards on the provision of investment services and activities in the Union by third-country firms under MiFID II and MiFIR 31 March 2020 Q3 2020

ESMA will be providing advice to the European Commission on other aspects of MiFID II/MiFIR over the coming months (with the last report due in January 2022), including the transparency regime for non-equity instruments, transaction reporting, algorithmic trading, the trading obligation for derivatives, SME growth markets and the functioning of organised trading facilities.

Clive Cunningham

Clive Cunningham
Partner, London
+44 20 7466 2278

Mark Staley

Mark Staley
Senior Associate, London
+44 20 7466 7621

Patricia Horton

Patricia Horton
Professional Support Lawyer
+44 20 7466 2789