5.II.1.5 May RMs and MTFs publish pre-trade data beyond MiFID II?

Similar to the situation under MiFID I, a question is whether RMs and MTFs are permitted to publish more and/or faster equity pre-trade data than MiFID II prescribed, that is – be stricter than MiFID II? The same reasoning applies as in the case of MiFID I. CESR advised ‘a minimum level of pre-trade information’ to be made available under MiFID I.1 The CESR advice suggests that also under MiFID II RMs and MTFs can publish equity pre-trade data beyond the MiFID II standards.

As a counterargument, one could argue that MiFID II also wants to ensure a level playing field. A level playing field could in theory be jeopardized where RMs or MTFs in a particular Member State voluntarily publish more and/or faster equity pre-trade data compared to others. However, this is not the common view. In practice, RMs and MTFs publish equity pre-trade data beyond the MiFID II standards.2 This is in my view also correct. It is aligned with the MiFID II aim of enhancing transparency.3 Another argument is free enterprise. The decision for an RM or MTF to publish equity pre-trade data beyond the MiFID II standards should be for the RM/MTF to decide (i.e. free enterprise).4 The decision for an RM or MTF to publish equity pre-trade data beyond the MiFID II standards goes back to the root of free enterprise.5 If an RM or MTF wants to publish equity pre-trade data beyond the MiFID II standard this should be – and in fact is – possible. ESMA indicated that the sale of more detailed, or of data-based value-added products, falls outside the scope of MiFID II.6