4.II.3.2 Background

The main safety of MiFID I to ensure equal granting of waivers across the EEA was by harmonising the rules for providing waivers.1 Despite the harmonized MiFID I waiver provisions there was still too limited clarity on several aspects of the waivers. For example, terms such as ‘widely published’ (reference price waiver) or the type of orders eligible for order management facility systems was unclear.2 To support supervisory convergence and to exchange views on the practical application of the waiver provisions, the NCAs entered into the voluntary waiver process at the EU-level, that is – through the non-binding waiver process facilitated by CESR/ESMA.3 CESR and ESMA published their position/opinion on the compliance of a waiver with MiFID I. The publication of these positions and opinions was also to help firms by providing legal clarity and to assist them when they intended to develop new trading functionalities. As noted, the legal responsibility for the final waiver decision retained with the NCAs.4