A key note speech by Verena Ross, Executive Directive of ESMA, has recently been published. In the speech, Verena notes how MiFID II/MiFIR is one of the key reform measures in response to the financial crisis, its main aim is to make financial markets more stable and more transparent for investors, therefore it is important that all the measures are carefully considered and that the proposed delay to MiFID II/MiFIR will allow the measures to be properly implemented.
However, Verena warned that although the delay to the application of MiFID II has given ESMA the time to ensure that all implementing measures are in place ahead of the start of the new regime, it is vitally important that the time left isn’t wasted.
Delays to adoption of measures
Verena noted, with some relief, that the EU Commission has now started adopting some parts of the technical measures they delivered in December 2014, but a large part of the Level 2 measures have still not been adopted. Verena understands the difficulties for firms who are concerned about making large investments in new processes and procedures without legal certainty that these measures will be adopted. She pointed out that ESMA too are keen to get certainty, as they have created a project which will allow ESMA to collect data in a more cost-efficient way across Europe, however, without the certainty of Level 2 measures, it is difficult to figure out the nuts and bolts of the requirements for the project.
There are further delays on the EU Commission’s intention to adopt the three technical standards on transparency requirements for non-equity instruments, position limits and ancillary activity, which they will only adopt once their suggested amendments have been made. In response, ESMA have produced, without delay, Opinions which she hopes will contribute to the technical standards being adopted quickly.
Current focuses for ESMA
The current work focuses for ESMA are:
- the practical implementation of MiFID II/MiFIR at ESMA – MiFID II /MiFIR significantly extends ESMA’s tasks and responsibilities in comparison to MiFID I;
- the trading obligation for derivatives; and
- work on level 3 measures.
In relation to trading obligations for derivatives, ESMA have begun working on the technical standards. The introduction of trading obligations in MiFIR implements the G20 commitment to trade standardised derivatives on trading platforms. This is new territory for ESMA so they will publish a discussion paper this summer, and will follow up with a consultation paper in 2017.
Most of the single rule book has been delivered so ESMA’s focus will now shift from rulemaking to implementation. In relation to MiFID II, ESMA will focus on delivering three mandatory sets of guidelines on trading halts, the management body of market operators and the management body of data reporting services providers. ESMA is also working on Q&As, starting with those issues that market participants have signalled to it as the most urgent ones, such as the systematic internaliser regime, and the definition of organised trading facilities.
Verena encourages firms to send their questions on MiFID/MiFIR II to ESMA.
Although there are many challenges ahead and implementation will take considerable time and resources, it is important for stakeholders to focus on the final picture, which is ultimately the improvement of the markets.
To view the full speech, please click here.
Should you require any assistance or further information in relation to MiFID II or what it means for your business, Cleveland & Co, your external in-house counsel, is here to help.