18.IV.3.2.1 Main changes from ISD to MiFID I

In contrast with the ISD, the EU introduced some data access regulation under MiFID I. The MiFID I framework consisted out of: (1) a MiFID I-standard requiring equity pre- and post-trade data to be made available on a ‘reasonable commercial basis’; and (2) CESR guidance to unbundle pre- and post-trade data from other services and/or data. The pricing framework was in place to support the broader competitive MiFID I-regime, which implied fragmentation of market data across multiple venues. The fragmentation meant that more data needed to be collected to obtain a consolidated view of trading, and accordingly higher costs to obtain such an overview. The rationale behind the MiFID I framework was to ensure that the consolidated view would still be available at a ‘reasonable’ price.1 MiFID I reflected the aim to find a balance. On the one hand, MiFID I intended to ensure data suppliers could make revenues from selling/licensing data (i.e. ‘commercial basis’), thereby having sufficient incentives to produce high quality data. On the other hand, MiFID I mirrored the aim of protecting data users by requiring data prices to be ‘reasonable’ and pre- and post-trade data to be unbundled.2

Despite the new top-down elements under MiFID I, the overall MiFID I data pricing regime was light-touch. First, the MiFID I principle of a reasonable commercial basis was not specified in further detail. The EU left the interpretation of data prices, as well as the terms and conditions for the offered data, up to the data suppliers (e.g. RMs and MTFs). The EU mainly relied on competition to ensure reasonable data prices, as supported by the broad MiFID I reasonable commercial basis-principle. Second, CESR’s guidance was formally non-binding in nature (soft-law). Third, CESR’s guidance did not apply to data vendors. Fourth, and finally, MiFID I did not harmonize all elements of data access, such as whether data needed to be offered for free after a certain period (e.g. 15 minutes after publication).3