9.III.1.8.6 Difference 4: explicit guidance for third country transactions

As noted, MiFID II covers no explicit guidance whether or not the MiFID II equity post-trade transparency obligations apply in relation to third country transactions and investment firms operating outside RMs and MTFs. The issue of third countries is of particular relevance for investment firms operating outside RMs and MTFs. This is because a strict reading of the MiFID II text would already lead to the conclusion that the MiFID II equity post-trade transparency rules apply to RMs and MTFs for all transactions concluded in their systems, including where the transacting parties and/or the investment firm has a third country aspect (e.g. a U.S. investment firm).1 In light of the unclear status of the MiFID II equity post-trade transparency regime for third country transactions for investment firms operating outside RMs and MTFs, ESMA considered it important to clarify how the MiFID II requirements apply to transactions with a third country transaction. Particular emphasis of the ESMA Q&A was on third country transactions in relation to investment firms operating outside RMs and MTFs (see paragraph 1.7 above). The lack of explicit MiFID II guidance and the ESMA Q&A are part of the MiFID II Review (section V below).