17.V.4.1 ESMA proposals

ESMA also provides (more) detailed observations. The detailed observations are accompanied by seven ESMA proposals. First, ESMA makes the observation that the MiFID II provision of making MiFID II free of charge 15 minutes after publication1 does not distinguish between different types of users. For this reason, ESMA notes that ‘the obligations cover both retail and also professional investors and any user should be able to access and use delayed data free of charge’.2

Second, ESMA says that many data users expressed concerns about the unwillingness of some RMs and MTFs to provide the data in a machine-readable format. ESMA notes it is indispensable that RMs, MTFs, and APAs comply with the requirement as set out in ESMA’s guidance3 (e.g. the free of charge data being a replicate of the non-free MiFID II equity data/in a machine-readable format to support automated processes).4

Third, ESMA observes that there is currently no explicit MiFID II provision requiring RMs and MTFs to provide market data ‘in a way that ensures fast access to the information (…) and in formats that are easily accessible and usable for market participants’5 (as is the case for APAs and CTPs).6 ESMA considers that RMs and MTFs currently providing real-time market data meeting those conditions (e.g. ‘easily accessible’). In view of ESMA there is no reason why delayed data could not also comply with the same standards. With the aim of reducing any doubt, ESMA recommends to include such requirements for RMs and MTFs (similar to APAs and CTPs) in MiFID II.7

Fourth, ESMA agrees with the feedback received from many stakeholders that ensuring compliance with the provision of delayed data appears to be mainly an enforcement issue. ESMA therefore recommends the matter of enforcement to be looked into by NCAs and ESMA.8

Fifth, ESMA wants to clarify certain aspects of the ESMA guidance, in particular with respect to the terms ‘data distribution’ and ‘value-added services’ (both permitting RMs, MTFs, APAs, and CTPs to add redistribution fees to redistributors/third parties).9 The reason is that the terms have been interpreted in such a way that de facto disable the MiFID II provision providing delayed market data free of charge (i.e. flexible interpretations of RMs, MTFs, APAs, and CTPs to ask redistribution fees).10

Six, ESMA does not recommend to change the ESMA guidance in such a way that users cannot be asked to register to access delayed data. ESMA notes that registration does not appear disproportionate, as long as the requirements are the same for all users.11

Seven, and finally, ESMA does not want to shorten the ESMA guidance to keep delayed data available for free for the period of at least 24-hours (the ESMA guidance was a reaction to the practice of some RMs/MTFs immediately deleting free data).12 ESMA is concerned that a shorter period would prevent sufficient time to access the data. However, ESMA states that some RMs and MTFs now have complex systems to ensure exactly a display of 24 hours (i.e. delayed data is amended constantly to cover precisely 24 hours). For this reason, ESMA proposes that the data should be provided in a pragmatic manner, namely on a so-called T+1 basis (Trading day+1 one day).13