Einde inhoudsopgave
EU Equity pre- and post-trade transparency regulation (LBF vol. 21) 2021/12.II.1.1
12.II.1.1 MiFID I provisions
mr. J.E.C. Gulyás, datum 01-02-2021
- Datum
01-02-2021
- Auteur
mr. J.E.C. Gulyás
- JCDI
JCDI:ADS266942:1
- Vakgebied(en)
Financieel recht / Bank- en effectenrecht
Financieel recht / Europees financieel recht
Financiële dienstverlening / Financieel toezicht
Voetnoten
Voetnoten
See, for example, article 30(1) MiFID I noting that MTFs could make the MiFID I post-trade information ‘public under the systems of an RM’. Where an MTF choose to do so, MiFID I made explicit that MTFs were not subject to the MiFID I post-trade transparency rules (art. 30(1) MiFID I).
CESR indicated that the term ‘data distributor’ referred to the same concept as a ‘data supplier’ (CESR, Public Consultation: Publication and Consolidation of MiFID Market Transparency Data, October 2006 (CESR/06-551), p. 5).
Similar K. Lannoo, Financial Market Data and MiFID, ECMI Policy Brief, March 2007, p. 2.
CESR, Public Consultation: Publication and Consolidation of MiFID Market Transparency Data, October 2006 (CESR/06-551), p. 7.
The terms ‘made public’ and ‘made available to the public’ are a difference in whether or not the published information can be acted upon. This was (and still is) of particular relevance for pre-trade data. SI quotes can be ‘made public’, but this does not mean that the SI quotes can be acted upon (i.e. ‘are made available to the public’). Only clients determined as per SI’s commercial policy and in an objective and non-discriminatory way can act upon the SI quotes made available to the public. This distinction can be read in the MiFID I provisions (art. 27-30 and art. 44-45 MiFID). ESMA makes the distinction explicit under MiFID II (in the context of non-equity) (ESMA, Q&A on MiFID II and MiFIR transparency topics, 8 July 2020 (ESMA70-872942901-35), question 8). For an examination of the SI commercial policy provisions under MiFID I and MiFID II, reference is made to chapters 4-5.
The term ‘arrangement’ in the context of equity pre- and post-trade data publication refers to the person that publishes the data. Whilst under the ISD RMs had a strong position in terms of equity pre- and post-trade data publication (ISD concentration-rule), MiFID I introduced more competition among publication arrangements. MiFID I permitted RMs, MTFs, and investment firms outside such venues (including SIs) to make the MiFID I equity pre- and post-trade information public through several publication arrangements. MiFID I permitted equity pre- and post-trade data publication through:
the facilities of an RM or an MTF;
the facilities of a third party; and
proprietary arrangements.1
MiFID I did not define the terms under (a-c). It seems reasonable to assume that the facilities of an RM or MTF referred to the facilities (publication infrastructure) of an RM or MTF to publish pre- and post-trade data.2 Likewise, the term ‘third party’ referred without a doubt to parties, such as data vendors (also: data distributors),3 for example Bloomberg.4 ‘Proprietary arrangements’ were the publication facilities of an investment firm operating outside an RM or MTF that wanted to publish the MiFID I equity pre- and post-trade data themselves, that is – without the facilities of an RM, MTF or third party. Proprietary arrangements included the website of the investment firm.5
MiFID I equity pre- and post-trade data was only considered to be made public or available to the public6 where it was published through one of the publication arrangements referred to above (point (a-c)).7 MiFID I required the publication arrangements to satisfy three conditions. The three conditions concerned (1) data accuracy, (2) facilitation of consolidation, and (3) availability of the MiFID I pre- and post-trade data.8