12.II.3 Timing

MiFID I obliged RMs, MTFs, and investment firms outside such venues to publish the MiFID I pre- and post-trade data as close to real-time as possible.1 The term ‘real-time’ referred to as close to instantaneously as technically possible, and in the case of post-trade information, in any case within three minutes of the relevant transaction.2 MiFID I noted that the authorized limit of three minutes could only be used in exceptional cases.3 MiFID I did not define what ‘exceptional cases’ were. Neither did MiFID I give a maximum time-limit with respect to ‘real-time’ for pre-trade dissemination.4

CESR complemented the MiFID I-rules through formally non-binding guidance. CESR stated that the use of three minutes for post-trade data publication needed to remain exceptional. Where post-trade publication took up to three minutes on a frequent basis, CESR believed that the RM, MTF or investment firm operating outside such a venue needed to be able to explain the reason why it took up to three minutes to publish their post-trade information (e.g. lack of technology or time to allocate a price to a portfolio trade).5 CESR considered that an RM, MTF, or investment firm operating outside such a venue failed to meet its requirements under MiFID I if it chose a publication arrangement that did not allow for real-time publication of completed trades. CESR added that it did not consider the use of inadequate technology as an acceptable reason for publication close to three minutes on a frequent basis where (a) the available technology can provide for publication in a shorter period of time and (b) such technology was available at reasonable costs.6