8.III.1.6.4 Difference 2: responsibility in making equity post-trade reports public

MiFID I permitted investment firms trading outside an RM or MTF to enter into an agreement as to whom would be required to publish the post-trade report. Where an agreement was absent, MiFID I defined who was responsible for publication.1 The provision stemmed from the drafting process of the MiFID I implementing measures. CESR advised the Commission in this context. CESR proposed that in case of concluded transactions outside an RM or MTF, the selling investment firm would be responsible for post-trade transparency publication. The rationale of CESR’s proposal was to ensure that every trade was published only once (i.e. prevent duplication of post-trade reports). CESR did not deem such a requirement necessary for RMs and MTFs, since here trades would be automatically published by the venue (it was clear that the RM or MTF was responsible for publication, instead of the parties to the trade).2

The Commission only partially accepted CESR’s advice. This was evident in the final MiFID I text. On the one hand, MiFID I did not require the selling investment firm to publish the post-trade report. MiFID I was more liberal, in the sense that it was permitted to enter into an agreement on who would need to publish the trade. On the other hand, MiFID I described which party needed to publish the post-trade report where an agreement was absent (the first option prescribed by MiFID I in this situation was the selling investment firm).3