ESMA confirms EU’s hardline stance to MiFIR Derivatives Trading Obligation post-Brexit

In a frustrating twist to the dangerously slow-moving narrative on cross-border financial market access post- Brexit, ESMA yesterday (25 November) issued a public statement confirming the EU’s hardline stance to the derivatives trading obligation (DTO) under MiFIR.  The DTO requires EU investment firms to trade certain classes of derivatives only on EU-authorised trading venues – or third country trading venues certified by the European Commission as equivalent. No such equivalence decision has been made or signalled by the EU for purposes of the DTO – and ESMA’s latest statement declines to offer any forbearance or similar relief to EU firms currently using UK venues for this purpose.

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ESMA consults on transaction reporting and OTFs

ESMA recently announced consultations on MiFIR transaction reporting and reference data and the functioning of organised trading facilities (OTFs). These consultations form part of ESMA’s review obligations under MiFID II and will help the European Commission understand the impact of MiFID II on the market. ESMA has stated that it intends to publish its final review reports on these issues during the first quarter of 2021. These reports are likely to inform the ongoing discussions in relation to potential further changes to MiFID II.

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MiFID II/MiFIR Review

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). Continue reading

ESMA publishes report on product intervention measures under MiFIR

The European Securities and Markets Authority (“ESMA”) has recently published final technical advice on the effects of product intervention measures under the Markets in Financial Instruments Regulation (“MiFIR”). ESMA makes recommendations in relation to the product intervention framework under MiFIR, including proposing extending the framework to alternative investment fund managers (“AIFMs“) and UCITS management companies. In addition, ESMA has said that it will be monitoring the markets in financial instruments linked to crypto assets as it is aware that some national competent authorities (“NCAs”) are consulting on potential product intervention measures concerning these products. If necessary, ESMA will consider exercising its intervention powers in this area.

When MiFIR was introduced in 2018, ESMA was given the power to temporarily prohibit or restrict the marketing, distribution or sale of certain financial instruments, financial instruments with certain specified features or a type of financial activity or practice. ESMA has since used this product intervention power in relation to binary options and contracts for difference (“CFDs“) due to detriment caused to retail investors. ESMA has been asked to report to the European Commission on, amongst other MiFID II/MiFIR topics, its experience of temporary intervention powers, including areas in which legislative changes might be appropriate in relation to the product intervention framework.

For more information on regulators’ product intervention powers across various jurisdictions, please see our global guide on Product Intervention Powers and Design and Distribution Obligations in Financial Services, available here.

ESMA’s technical advice

The main elements of ESMA’s technical advice are as follows:

  • Level playing field between MiFID firms and AIFMs/UCITS management companies: ESMA and NCAs currently cannot exercise MiFIR product intervention powers in relation to AIFMs and UCITS management companies despite these firms being able to carry out certain MiFID services/activities. ESMA recommends that the European Commission addresses the risk of arbitrage between MiFID firms and these fund management companies, and advises that NCAs and ESMA should have the powers to apply restrictions/prohibition directly to AIFMs and UCITS management companies.
  • Extending time validity of ESMA’s temporary product intervention powers: ESMA’s product intervention measures currently only last for a short-term period (3 months – although this period will be increased to 6 months from 1 January 2022) and reviews for extension is resource intensive and burdensome for both ESMA and the NCAs. Additionally, ESMA notes that there are divergences in product intervention measures taken by different NCAs, particularly where permanent national measures diverge from temporary ESMA ones. ESMA recommends consolidation of temporary measures into permanent ones by the European Commission, or alternatively extending ESMA’s powers to allow the introduction of temporary product intervention measures for 18 months.
  • Interaction of national product intervention measures: Article 42(1) MiFIR permits NCAs to take product interventions measures “in or from” their Member State, which ESMA suggests means that an NCA has the possibility to take measures that only apply in that Member State (and not from), and vice versa. Confusion also arises where Member States take overlapping product intervention measures. ESMA advises the Commission to clarify the application of product intervention measures to firms acting on a cross boarder basis and how those measures will be supervised and enforced.
  • ESMA opinion on proposed national product intervention measures: NCAs are required under Article 42(3) MiFIR to notify ESMA of proposed national product intervention measures, at least one month before the measure is intended to take effect, in order for ESMA to issue an opinion on the measure (Article 43(3) MiFIR). In ESMA’s view, this requirement is burdensome. ESMA advises the European Commission that NCAs should be exempt from seeking an opinion where their national measures are exactly the same as ESMA’s temporary measures, and that ESMA should have the option (not an obligation) to give an opinion in these circumstances.
  • Further clarification on Article 40(3) MiFIR: ESMA considers the wording in Article 40(3) MiFIR (“Where … competent authorities have taken a measure under Article 42, ESMA may take any … measures … without issuing the opinion provided for in Article 43”) to be unclear, and is of the view that the situation described is unlikely to occur in practice. ESMA asks the European Commission for further clarification of Article 40(3) MiFIR.

Future use of product intervention measures

ESMA is aware that some NCAs are consulting on potential product intervention measures concerning certain financial instruments linked to crypto assets. ESMA will continue to monitor markets and will exercise its coordination role in relation to measures proposed by NCAs. ESMA will consider taking product intervention measures if issues become apparent which cause significant concerns around investor protection or a threat to the orderly functioning and integrity of markets.

Next steps and Brexit

The European Commission will now present a report to the European Parliament and the Council on product intervention, and a decision will be taken on whether to adopt any of the measures set out by ESMA in this final report. If so, we may see an expansion of the scope of product intervention powers in the future.

Now that the UK has formally left the EU, the UK’s FCA is no longer a member of ESMA’s Board of Supervisors nor can it participate in any of ESMA’s other governance bodies. However, until the end of the transitional period on 31 December 2020, EU law (including MIFIR) will continue to apply to the UK as if it were a Member State, which means that ESMA will have product intervention powers over financial instruments and firms in the UK. Therefore any extension of these powers prior to the end of 2020 could have an effect in the UK. From 2020 onwards, it remains to be seen whether the UK will follow the EU’s approach in relation to product intervention.

 

Clive Cunningham

Clive Cunningham
Partner
+44 20 7466 2278

Patricia Horton

Patricia Horton
Professional Support Lawyer
+44 20 7466 2789

Katie McGrory

Katie McGrory
Associate
+44 20 7466 2669

Product Intervention Powers and Design and Distribution Obligations in Financial Services: A Cross-Border Perspective

Authors: Hannah Cassidy, Clive Cunningham, Natalie Curtis, Javier de Carlos, Katherine Dillon, Matthias Gippert, Leopoldo Gonzalez Echenique, Vincent Hatton, Patricia Horton, Pierre Le Ninivin, Kai Liebrich, Natasha Mir, Stuart Paterson, Fiona Smedley, Jenny Stainsby, Jennifer Xue

Many regulators view their ability to intervene as one of their key supervisory tools to reduce harm in cases where there is a risk of significant consumer detriment or threat to financial markets.

At the same time, many jurisdictions have put in place product governance regimes for financial services firms which aim to avoid, or at least mitigate from an early stage, any potential risks of failure to comply with investor protection rules. In particular, the design and distribution obligations under these product governance regimes aim to overcome the limitations of disclosure and ensure that firms which manufacture and distribute financial products take some responsibility and adopt a more targeted customer-centric approach.

The stages of development, level of detail, scope and coverage of regulators’ product intervention powers, and the product design and distribution obligations under product governance regimes, vary across jurisdictions.

Our guide (which can be found here) summarises the frameworks in selected jurisdictions, allowing a high-level comparison of the different regimes and offering a glimpse of the direction of travel.

KEY CONTACTS

Clive Cunningham

Clive Cunningham
Partner, London
+44 20 7466 2278

Fiona Smedley

Fiona Smedley
Partner, Sydney
+61 2 9225 5828

Hannah Cassidy

Hannah Cassidy
Partner, Hong Kong
+852 21014133

Natalie Curtis

Natalie Curtis
Partner, Singapore
+65 6868 9805

UK: FCA and HM Treasury publish approach to UK implementation of MIFID II

The FCA and HM Treasury have published the first set of papers on the UK implementation of MiFID II:

  • FCA discussion paper “Developing our approach to implementing MiFID II conduct of business and organisational requirements” (DP15/3); and
  • HM Treasury consultation paper “Transposition of the Markets in Financial Instruments Directive II” (HMT consultation paper).

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EU: MiFID Review – phase two begins

The European Securities and Markets Authority (ESMA) is consulting on the implementation of the revised Markets in Financial Instruments Directive (MiFID II) and Regulation (MiFIR).  MiFID II and MiFIR are expected to come into application by end 2016/early 2017, and will apply across the European Union, extending also to member states of the European Economic Area under the European Economic Area Agreement.    For a more detailed briefing, click here

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MiFID II: European Commission publishes legislative proposals to amend MiFID

The European Commission finally published its legislative proposals to revise the Markets in Financial Instruments Directive (MiFID) on 20 October, nearly 4 years after the MiFID implementation date of 1 November 2007. The proposed changes to MiFID will result in a significant overhaul of the way in which financial markets operate in Europe.

The proposed legislation is divided in two: a new Directive and a new Regulation:

  • MiFID Level 1 Directive (2004/39/EC) will be recast, with a new directive amending the following provisions:

    • Specific requirements regarding the provision of investment services
    • Scope of exemptions from the current Directive
    • Organisational and conduct of business requirements for investment firms
    • Organisational requirements for trading venues
    • Authorisation and on-going obligations applicable to providers of data services
    • Powers available to competent authorities
    • Sanctions
    • Rules applicable to third-country firms operating via a branch
  • Regulation on the Markets in Financial Instruments (MiFIR), which establishes uniform and directly applicable requirements in relation to:

    • Disclosure of trade transparency data to the public and transaction data to competent authorities
    • Removing barriers to non-discriminatory access to clearing facilities
    • Mandatory trading of derivatives on organised venues
    • Specific supervisory actions regarding financial instruments and positions in derivatives
    • Provision of services by third-country firms without a branch

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