9.II.1.5.7 Maximum harmonised obligations

Under MiFID I the general equity post-trade transparency obligations were laid down in a directive (MiFID I Directive). The Member States needed to transpose the MiFID I Directive into national law. The equity post-trade transparency obligations laid down in the MiFID I Directive were minimum harmonized. Member States were required to oblige RMs and MTF to ‘at least’ make public the price, volume, and time in respect of shares admitted to trading on RM traded on their venue.1 In addition, a Member State option was in place. Member States were permitted to expand the MiFID I transparency to other financial instruments than shares.2

Reflecting a broader trend in European financial law after the financial crisis of 2008, the Commission proposed to introduce a framework regulation. The Commission proposed the MiFID II-regime to consist out of a framework directive (MiFID II) and framework regulation (MiFIR), as supplemented by delegated regulations (level 2 measures). The Commission argued that a regulation was required to prevent any deviation on the national level and market distortions and regulatory arbitrage, preventing the development of a level playing field.3 The Commission wanted to remove the remaining obstacles to trade and significant distortions of competition arising from divergences between national laws.4 The Commission proposed to introduce a framework regulation (MiFIR) to establish uniform and directly applicable requirements. The Commission viewed the introduction of MiFIR as necessary for the even functioning of the market in financial instruments in several fields. This included, among other things, the publication of data.5 In line with the foregoing, the Commission’s MiFIR proposal included maximum harmonized equity post-trade transparency obligations.6No Member State options for equity post-trade transparency publication were in place (albeit that reference to ‘other similar financial instruments’ as shares, depositary receipts, ETFs, and certificates was made).7

The European Parliament and Council had a similar view.8 The latter is evident in the final MiFID II framework. The equity post-trade transparency obligations for RMs and MTFs are laid down in a directly applicable regulation (MiFIR). The equity post-trade transparency obligations are maximum harmonized. No Member State options are in place (albeit that reference to ‘other similar financial instruments’ as shares, depositary receipts, ETFs, and certificates is made).9