MiFID II Roundtable – 22 February 2016

The MiFID II Implementation Trade Association Roundtable took place on 22 February 2016.   The minutes from that meeting have recently been published and they discuss: (1) implementing measures and proposals to delay the date of application of MiFID II; (2) Consultation Paper 15/43; and (3) a report on the recent MiFID II transposition workshop. Below we have provided summaries of the key take away points:

Implementing measures and commission proposal to delay the date of application of MiFID II

  • The Commission published its proposal for delay on 10 February. Debate about using the delay legislation to make substantive amendments seemed to be focused on two main topics: the application of pre-trade transparency to package transactions, and a change to Article 2.1.d to allow commercial firms to be members or participants in FX venues without being required to be authorised.
  • It was mentioned that a leaked version of the delegated acts showed the Commission possibly narrowing the scope of instruments judged to be complex for the purposes of the appropriateness test. The FCA said that if the Commission did depart from ESMA’s advice it would be necessary for it to explain the changes it had made.
  • The FCA noted that numerous issues related to MiFID were raised in response to the Commission’s consultation on cumulative burden of regulation. The Commission will need to consider how these responses play into its decisions on the delegated acts and technical standards.
  • Attendees pointed out that it would be helpful, in light of the overlap between MARS and MiFID II with regard to reference data, that Art 4 of MAR was also delayed.

CP 15/43

  • Data Reporting Service Providers (DRSPs) – the FCA noted that no grandfathering will take place for existing Trade Data Monitors and Approved Reporting Mechanisms.
  • PERG guidance on a multilateral system – the FCA could add nothing further to this without more feedback from attendees on their CP on the topic.
  • Transparency – the attendees asked if it was possible that different Member states would make different choices around this topic. The FCA responded that it was already possible for different national choices under MiFID currently.
  • Algorithmic and high-frequency trading requirements – Attendees noted that the new MAR chapter largely copies out requirements in MiFID II and it is still unclear how much further information will emerge in the ESMA level 3 work on this topic.
  • Principles for business – the FCA noted that PRIN will apply to eligible counterparties and urged attendees to provide relevant responses to the CP.

MiFID II transposition workshop on 19 February 2016

  • The FCA mentioned that the European Commission had held a MiFID II transposition workshop with Member States on 19 February, however, the Commission made clear that the discussion was informal and that it would not be publishing written responses to the questions raised.

To view the full MiFID II Roundtable minutes published on 15 March 2016, please follow this link.

Should you require any further advice or information on MiFID II, Cleveland & Co, your external in-house counsel, are here to help.

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