4.II.3.1 General

Under MiFID I NCAs were subject to harmonised rules with respect to the waiver process, being the process of granting the MiFID I waivers. First of all, MiFID I required NCAs to treat all RMs and MTFs equally and non-discriminatory, so that a waiver was granted either to all RMs and MTFs or to none.1 Second, MiFID I covered a requirement to prevent regulatory arbitrage with SIs (see section III below). To do so, MiFID I did not permit an NCA to grant a waiver where this enabled an investment firm to avoid pre-trade transparency obligations in respect of transactions that, if carried out outside the rules of an RM or MTF, would be subject to the MiFID I pre-trade transparency regime for SIs.2

MiFID I made the NCAs responsible in granting the waivers.3 That being said, the waiver process was in practice operated through CESR since 2009 (and successively ESMA from 2011). A voluntary agreement was in place among the NCAs to grant pre-trade transparency waivers through a joint process in CESR/ESMA.4 The aim of the joint process was to support common supervisory approaches in respect of waivers across Member States.5 Under the joint process NCAs first notified CESR concerning a waiver application. Then CESR adopted a common position with the NCAs on the compliance of the proposed waiver with MiFID I. When ESMA was established in 2011 the process continued, albeit through ESMA’s powers to adopt opinions.6 The joint process was non-binding. NCAs retained the legal responsibility for the final waiver decision.7